Outside attorneys for the City Council reached a deal April 20 with JEA Interim Managing Director and CEO Melissa Dykes to provide a sworn deposition in the investigation into the attempted sale of the city-owned utility.
Rory Diamond, chair of the Council Special Investigatory Committee into JEA, announced the agreement April 21 at a virtual meeting of the panel, which includes Brenda Priestly Jackson and Randy DeFoor.
Diamond said the deal was reached after 1½ months of negotiations with Dykes’s attorney. Hank Coxe of Bedell, Dittmar, Devault, Pillans & Coxe confirmed March 30 that Dykes had retained his legal services.
Attorney Stephen Busey of Smith Hulsey & Busey, the Council's firm, will interview Dykes.
The JEA board named Dykes interim CEO on Dec. 17 after voting 5-1 to fire former Managing Director and CEO Aaron Zahn without cause. Zahn was fired with cause Jan. 28.
Dykes served as chief operating officer under Zahn and was present in November and December in Atlanta when JEA and city officials negotiated with nine private companies seeking to buy the utility.
The JEA board voted Dec. 24 to end the invitation to negotiate, or potential sale process.
The committee also voted April 21 to request Mayor Lenny Curry’s administration make city Deputy Chief Administrative Officer Stephanie Burch, Treasurer Randall Barnes and Chief of Engineering and Construction Management Robin Smith available for sworn testimony with Busey’s team.
The senior administration members replaced Dykes, JEA Chief Administrative Officer Herschel Vinyard, Economic Development and Real Estate Director Jordan Pope and former board Secretary Camille Lee-Johnson in November as negotiators and were in Atlanta for the sessions.
Diamond voted in favor of the request April 21, but during discussion he suggested that the committee set members of the administration aside because “it has more complications to it.”
But Priestly Jackson and DeFoor said the City Hall officials have information integral to the committee’s investigation.
“I think it’s most appropriate to move forward with those interviews for those individuals,” Priestly Jackson said, “in particular, those individuals who may be a part of another branch of government, i.e. part of the executive branch.
“That does not preclude them from being questioned by special counsel or City Council on this matter. They served an integral function in the process of determining the favorable respondent for the ITN in negotiations.”
DeFoor added that she doesn’t think the committee could do its job without speaking with the three Curry administration officials. Council President Scott Wilson, who also was on the call, deferred to the committee’s decision.
The committee also requested sworn testimony from JEA Interim CFO Joe Orfano and former JEA Vice President and Legal Officer Lynne Rhode.
Rhode resigned Dec. 19 from the city Office of General Counsel, where she served as an assistant general counsel embedded at JEA.
She faced criticism for her role in providing the board with the legal opinion to approve JEA’s now-failed Long-Term Performance Unit Plan. The incentive plan was designed similar to a private sector stock-option program as a way for JEA employees to invest in the utility.
The committee will request that the six witnesses schedule depositions with Busey instead of issuing subpoenas for their testimony.
Diamond said the committee will reconsider if the witnesses do not comply.
“I think we should try this way first and if it doesn’t work, we’ll go the subpoena route,” Diamond said.
The Council Rules Committee approved 22 subpoenas issued April 8 by the investigative committee requesting documents from the nine bidders and financial firms J.P. Morgan Securities LLC and Morgan Stanley & Co. LLC for all documents related to the failed privatization effort.
JEA documents
JEA will provide the Council investigators nearly 3 million documents by May 1 from the investigative committee’s 84-point document request made Feb. 10.
An April 14 memo from Smith Hulsey & Busey to city General Counsel Jason Gabriel says the documents would be analyzed by city attorneys, JEA outside lawyers with Hill Ward Henderson and contractor KLDiscovery.
Smith Hulsey & Busey will review the documents and provide them to the committee.
“What we’re looking for now to complete the picture, that we haven’t had access to, is the communications within the senior leadership team and among the senior leadership team and its outside consultants and lawyers as to how this thing evolved in terms of communication between JEA, the consultants and the bidders,” Busey said. “Those communications ought to be very telling.”