A series of private meetings between JEA board members and an outside attorney resulted in the board’s unanimous and publicly reticent decision last month to award the utility’s CEO a $43,169 bonus, according to Times-Union interviews and a review of the public documents available on the decision.
That process raised questions from the city’s ethics officer and a leading state open-government advocacy group, which says the JEA board’s decision-making process on CEO Paul McElroy’s job performance and the bonus he received appears to undermine Florida’s Government-in-the-Sunshine Law, one of the only tools available for citizens to have access to their local governments.
The city’s Office of General Counsel — which is responsible for JEA’s legal representation but was out of the loop on the bonus issue — says no technical violation of the law occurred. But its top attorney says he believes JEA should handle the issue differently in the future.
“In the realm of violations … we don’t believe that there is a violation,” said city General Counsel Jason Gabriel. “As to the way of doings things, we absolutely have ways of doing things that we would advise to avoid debates like this.
“I would recommend JEA use another process.”
McElroy’s contract makes him eligible for up to a 15 percent bonus based on annual board-approved benchmarks. JEA disputes the term bonus, saying the compensation is earned for good performance, and instead prefers incentive pay or related terms.
At the Dec. 16 meeting, JEA board acting Chairwoman Lisa Strange Weatherby made a motion to approve a bonus equal to 11 percent of McElroy’s $392,454 salary at the time (he now makes $404,227). The board unanimously approved the motion, though there was no substantive public discussion about how that figure was decided.
The vote was not publicly noticed in advance, and a Times-Union reporter was told a day before the meeting it didn’t appear the issue would come up.
Unlike the 2013 process — when some board members completed individual, written evaluations of McElroy — the only document available to ascertain how the 11 percent figure was arrived at was a written self-evaluation McElroy completed in November. He graded himself a 12 on a 15-point scale.
Almost one month later, the public still doesn’t know how all of the JEA board members scored McElroy.
In lieu of public talks about McElroy’s performance, interviews and records show that an outside attorney coordinated his evaluation process and held one-on-one meetings with board members in the weeks leading up to the meeting to discuss McElroy’s self-evaluation and elicit numeric scores from each member.
The attorney — Cindy Laquidara, a former Jacksonville general counsel now an attorney with the Akerman law firm — then communicated days before the Dec. 16 meeting to Weatherby the range of scores the other board members had given.
“On December 12th, we discussed that she had spoken with all of the other board members and that there was a range of evaluations between eight and 13 percent,” Weatherby wrote in an email. “Also, that the number ‘congealed around 10 percent.’ ” Weatherby said she scored McElroy at 14 percent. Board member Ron Townsend scored him a 12; Peter Bower scored him 13; Wyman Winbush said he gave a range “in the upper margins;” Helen Albee said she could not recall her score; and Husein Cumber scored him 11.
Laquidara also wrote a memo, dated Dec. 16, to board members informing them “the overall consensus appears to be consistent with Mr. McElroy’s self-evaluation.”
That process seems to be “extremely problematic,” said Barbara Petersen, president of the Florida First Amendment Foundation, a prominent open-government advocacy group. “There seem to be a number of problems,” she said. “The evaluation process is supposed to be an open process. What they did was an end run around the Sunshine Law. It’s that simple.”
The sunshine law prevents members of local government boards and commissions from discussing business that may be voted on in the future outside of publicly noticed meetings. The law also can apply to a non-board member “when that individual is being used as a liaison between, or to conduct a de facto meeting of board members,” according to the state’s Government-in-the-Sunshine manual, compiled each year by the state Attorney General’s Office and published by the First Amendment Foundation.
Petersen said Laquidara seems to have been playing the role of a liaison between the board members, and the sunshine law should have applied.
The need for more openness was shared by board member Cumber, who said in an email “a better process is definitely needed.”
In response to Times-Union questions, City Ethics Officer Carla Miller said a liaison would be problematic.
“It is clear that the law prohibits individuals from speaking to board members to develop a consensus or to serve as a liaison to arrive at decisions,” she said in an emailed statement. “The precise boundaries as to what constitutes a liaison is determined on a case by case basis by the civil or criminal courts.”
Laquidara did not respond to messages left for her Tuesday, though she previously told the Times-Union the process was legal and completed “with a public document in a public meeting.”
McElroy said he is disappointed the discussion over the process casts a cloud over the “truly outstanding” performance of JEA and its employees last year.
Weatherby maintains the law was followed, and she said she was not surprised her motion for an 11 percent bonus was met with unanimous agreement.
“Given that we have had these discussions at various noticed meetings open to the public for two years (including during the actual construction of the original contract), given that the range allowed in the contract has always been known to be 1-15% potential incentive [compensation], that Mr. McElroy’s self-evaluation was a 12 and that each board member had thoroughly discussed their responses with the former OGC, I would have been surprised if anyone had anything much more to say,” she wrote.
“The fact that there was no additional discussion when I opened the floor up for that purpose simply means that there was already agreement with the process and that the recommended number was reasonable and within expectations.”
Gabriel said a review by his office did not show that a sunshine law violation occurred. In the instance of Laquidara’s communications with Weatherby and to the board members in her memo, he said since those communications were “unilateral,” as opposed to a two-way discussion, there was no violation.
Weatherby said the board will review its process in the future. “We will be reviewing this process and the board will come to a consensus as to how we might be able to fine-tune this process, so that our customers can continue to be assured that we are following best practices,” she wrote.
Times-Union Editor Frank Denton welcomed that news. “While there obviously are differing opinions about the legality of the JEA board’s evaluation of McElroy, we’re glad the board is coming to understand that the public perception of transparency is almost as important as the rigor of the process,” he said. “In the board’s review of the evaluation process for next year, we hope they will accept the importance of developing the evaluation in public, so their customers can see what goes into it.”
JEA’s 2014 CEO evaluation process differs from the ones used by the city’s three other independent authorities — in each case, officials or records from the Jacksonville Aviation Authority, JaxPort and the Jacksonville Transportation Authority describe processes that include either holding public discussions related to CEO evaluations or producing written evaluations that show how each board member rated the top executive and why a payout amount was decided upon.
Gabriel’s office played no part in the CEO evaluation process.
JEA officials said Laquidara — whose firm has a contract with the Office of General Counsel to help JEA deal with specialized issues pertaining to employee pensions and benefits — offered to handle the evaluation process free as a “professional courtesy” since she was familiar with the agency and McElroy’s contract from her time as the city general counsel.
Miller cast a skeptical eye toward Laquidara’s decision to offer her time for free, saying it may constitute a gift that should be publicly disclosed.
“… It is important to note that donations of professional time to city employees or board members is a ‘gift’ under Florida law and must be dealt with accordingly,” she wrote.
“In my ethics trainings, I discourage receipt of any gifts from vendors who are contracting with the city.”