First Amendment Foundation leader has never seen something 'as twisted' as JEA sale process

COMMENTARY | Barbara Petersen, one of Florida's leading open-government experts and long-time president of the First Amendment Foundation, said Thursday she has never seen something as "twisted" as the closed-door process JEA executives are using that could ultimately lead to the privatization of Jacksonville's century-old public electric, water and sewer utility.

"It just doesn't smell right," Petersen said.

JEA opened bids from possible buyers Monday, but utility leaders hadn't originally planned on releasing the identities of those bidders or any information contained within their offers for as long as six months — a time during which utility officials will negotiate in secret with the anonymous companies. Only after those negotiations are complete did JEA executives plan on releasing basic information about the bidders and the negotiations.

JEA CEO Aaron Zahn recently called this a "cloaked process" and argued it was necessary to ensure bidders don't gain competitive advantages over one another — even though it differs significantly from the way the utility and the city have handled past procurements.

On Thursday, however, utility officials began backing away from that cloaked process some, telling the Times-Union they would ask bidders for permission to release their identities during a public meeting Monday afternoon. During that meeting, an evaluation committee will announce which bids qualify to move onto the negotiation phase. This change comes amid increasing scrutiny of the secretive sale process from the media and from members of the Jacksonville City Council.

JEA had previously told the bidders they would remain anonymous throughout the process — even though several willingly identified themselves to the media (like Florida Power & Light, Duke Energy, Emera). 

Still, this leaves significant information confidential long after it would normally be available for public knowledge, and JEA maintains it would have been within its legal right to withhold the bidders' identities.

"This is a good example of what happens when government officials decide they're going to do something and rush through and try to keep everything secret. Secret even from the (city) council members," Petersen said.

Petersen, an attorney, filed a large public records request of her own this week after researching the recent news surrounding JEA — an effort prompted by several complaints her organization received about the JEA sale process. Asked if she had seen anything like this in the 25 years she's spent leading the First Amendment Foundation, she said, "not quite this twisted."

State law generally requires public agencies to turn over information contained within bids 30 days after unsealing them or when it announces plans to pick a winner — whichever comes earliest. Petersen said there aren't many ways JEA could justify withholding all the bid information for six months. JEA has said it will comply with the law but hasn't specified what specific exemption it is relying on to keep bid information secret for so long.

Petersen also criticized a legal memo the city's Office of General Counsel provided Jacksonville City Council members that said they are "strictly prohibited" from discussing the merits of the JEA bid process — like the minimum required net profit to the city — with the media or constituents. Lawyers with the city and private attorneys hired by JEA have said this is part of the legally required "cone of silence" during competitive solicitations that is necessary to protect the integrity of the bid process. Again, this differs significantly from past procurement processes, and Petersen strongly disagreed with the legal memo.

"How does a city attorney tell elected city officials they are prohibited from talking to their constituents about this deal?" she said. "There was no legal authority for the attorney to clamp that cone on the city commissioners. I hope they're not complying with it."

Petersen's concerns echo recent comments from the city's ethics director, who said she is worried the legal memo has unnecessarily made council members afraid of sharing their thoughts about the potential privatization of JEA.

Petersen filed a wide-ranging request with JEA, City Council and City Hall that includes any communications that might have taken place between officials in Mayor Lenny Curry's office, other city officials and utility executives — an effort to understand how the privatization process got started in the first place. That has never been made clear: The JEA board of directors hadn't directly discussed privatization for more than a year before abruptly voting unanimously during a July board meeting to allow the CEO to put the utility on the auction block.

"None of it makes any sense to me, other than somebody wants to get rid of JEA," she said.

Nate Monroe’s City column appears every Thursday and Sunday.

nmonroe@jacksonville.com, (904) 359-4289