Dual Officeholding

TABLE OF CONTENTS

Introduction: What is dual officeholding?

1. What is an "office" for purposes of the dual officeholding prohibition?
2. Are law enforcement officers "officers" for purposes of the dual officeholding prohibition?
3. Are officers of special districts included within the dual officeholding prohibition?
4. May an officer perform ex officio the duties of another officer without violating Article II, s. 5(a), Florida Constitution?
5. What are the exceptions to the constitutional prohibition against dual officeholding?
6. Is there a constitutional prohibition against dual officeholding when one of the offices is a federal office or an office in another state or under a foreign government?
7. What are the consequences of a public officer accepting a second office in violation of the constitutional dual officeholding prohibition?
8. Do common law principles prohibit a public agency from appointing one of its members to a position over which it has appointment power?
9. Footnotes

DUAL OFFICEHOLDING

What is dual officeholding? Article II, section 5(a), of the Florida Constitution, provides in part:

No person shall hold at the same time more than one office under the government of the state and the counties and municipalities therein, except that a notary public or military officer may hold another office, and any officer may be a member of a constitution revision commission, constitutional convention, or statutory body having only advisory powers.

This constitutional provision prohibits a person from simultaneously holding more than one "office" under the government of the state, counties and municipalities.[1] The prohibition applies to both elected and appointed offices.[2] It is not necessary that the two offices be within the same governmental unit. Thus, for example, a municipal officer is precluded from holding not only another municipal office but also a state or county office.

I. What is an "office" for purposes of the dual officeholding prohibition?

The Constitution does not define the terms "office" or "officer" for purposes of the dual officeholding prohibition. The Supreme Court of Florida, however, has stated:

The term "office" implies a delegation of a portion of the sovereign power to, and the possession of it by, the person filling the office, while an "employment" does not comprehend a delegation of any part of the sovereign authority. The term "office" embraces the idea of tenure, duration, and duties in exercising some portion of the sovereign power, conferred or defined by law and not by contract. An employment does not authorize the exercise in one's own right of any sovereign power or any prescribed independent authority of a governmental nature; and this constitutes, perhaps, the most decisive difference between an employment and an office . . . .[3]

It is, therefore, the nature of the powers and duties of a particular position which determines whether it is an "office" or an "employment."

Membership on the governing body of a governmental entity, such as a county or municipality, clearly constitutes an office.[4] For examples of positions this office has considered to be "offices" for purposes of Article II, section 5(a), Florida Constitution, see, Attorney General Opinions 69-2 (chief of police), 70-13 (city attorney), 72-101 (member of the Florida Barbers' Sanitary Commission), 80-97 (city manager, chief of a municipal fire department, member of an architectural review board and city inspection superintendent), 81-61 (code enforcement board member), 84-25 and 85-21 (board of adjustment board member), 86-11 (city administrator), 86-105 (member of a municipal building board of appeals), 93-28 (commissioner of the Southeast Interstate Compact).

However, the constitutional prohibition against dual officeholding does not generally apply to those persons who are not vested with official powers in their own right but rather merely exercise certain powers as agents of governmental officers. Thus, this office, in determining whether a deputy clerk was an officer or employee, considered the nature of the duties performed by that position. Finding that the deputy clerk performed largely the ministerial duties of an assistant to the clerk rather than the substitute duties of a true deputy, this office concluded in Attorney General Opinion 88-56 that the position of deputy clerk under those circumstances constituted an employment rather than an office.

For examples where this office has stated that the position constituted an employment and thus was not subject to the dual officeholding prohibition, see, Attorney General Opinions 69-5 (assistant public defender), 71-263 and 71-296 (assistant state attorney), 73-332 (county commission attorney), 74-73 (deputy tax assessor), 77-31 (community college district comptroller), 80-97 and 86-105 (city engineer),84-93 and 91-13 (code enforcement board attorney), 91-80 (insurance fraud investigators of the Department of Insurance), 93-39 (firefighters), 94-40 (code enforcement officer under Chapter 162, Florida Statutes), 94-88 (Charter Review Commission attorney).

In determining whether a particular position is an employment or office, careful consideration must be given to the powers and responsibilities imposed upon such a position. The above opinions were based upon a consideration of the particular language used in the statute, charter, or ordinance creating the position and establishing its powers.

II. Are law enforcement officers "officers" for purposes of the dual officeholding prohibition?

Based upon existing case law, this office has stated that a law enforcement officer is an "officer" within the scope of the constitutional dual officeholding prohibition.[5] The Supreme Court of Florida has stated:

It can hardly be questioned that a patrolman on a city police force is clothed with the sovereign power of the city while discharging his duty. . . . True, he is an employee of the city but he is also an officer. It is the character of the duty performed that must determine his status.[6]

It is the powers that a law enforcement officer may exercise, particularly the authority to arrest without a warrant and to carry firearms in carrying out his duties, not the salary or certification requirements, that characterize the law enforcement officer as an "officer."[7] This office has, therefore, stated that a part-time auxiliary or certified reserve police officer is an "officer" for purposes of Article II, section 5(a), Florida Constitution.[8]

In Vinales v. State,[9] the Supreme Court of Florida held that the constitutional dual officeholding prohibition did not apply to the appointment pursuant to statute of municipal police officers as state attorney investigators since the appointment was temporary and no additional remuneration was paid to the police officers for performing the additional criminal investigative duties. The following year, the Second District Court of Appeal in Rampil v. State,[10] followed the Vinales exception and concluded that it was not a violation of Article II, section 5(a) of the Florida Constitution for a city police officer to act in the capacity of deputy sheriff since that officer received no remuneration for such duties.

The Vinales case dealt with the performance of additional law enforcement functions and duties in a police capacity and not the exercise of governmental power or performance of official duties on a disparate municipal board exercising and performing quasi- judicial powers and duties. Similarly, Rampil concerned the performance of additional law enforcement functions. In considering the Vinales and Rampil exception, therefore, this office has stated that the exception is limited and does not apply, for example, to a member of a municipal board of adjustment serving as a part-time law enforcement officer or to a police officer who serves as a law enforcement officer, receiving remuneration for both positions.[11]

III. Are officers of special districts included within the dual officeholding prohibition?

The constitutional prohibition applies only to state, county, and municipal officers. It is not applicable to special district officers. A special district is a governmental entity created by law to perform a special and limited governmental function.

For examples where the Attorney General's Office has stated that there was no violation of the dual officeholding prohibition when the state, county or municipal officer also served as an officer of a special district, see, Attorney General Opinions 71-324 (member of hospital district's governing body not an officer within constitutional dual officeholding prohibition), 73-47 (member of junior college district may serve as member of parks, planning and zoning commission), 75-153 and 80-16 (legislator may serve as member of community college district board of trustees), 78-74 (municipal parking board member may serve as member of community college district board of trustees); 85-24 (mayor may serve on community redevelopment district established by general law); 86-55 (member of Big Cypress Basin's governing board may serve as city mayor); 94-83 (person may serve on airport authority and on school board).

In a 1994 advisory opinion, the Supreme Court of Florida reiterated that special district officers are not included within the dual officeholding prohibition. In In re Advisory Opinion to the Governor,[12] the Court concluded that a member of a community college district board of trustees

is an officer of a special district created to perform the special governmental function of operating a community college and is not a state, municipal, or county officer within the meaning of article II, section 5(a). Thus, the dual officeholding prohibition does not keep a state, county, or municipal officer from serving on a community college board of trustees.

While the Court considered membership on the board of trustees of a community college district to constitute a special district office and thus to be outside of the parameters of Article II, section 5(a), Florida Constitution, the Supreme Court in In re Advisory Opinion to the Governor--School Board Member--Suspension Authority,[13] rejected the designation of school board members as district officers. The Governor had asked the Court whether school board members could be suspended under the constitutional provisions governing county officers or whether a suspension should be accomplished under the statutory provisions governing district officers. The Court concluded that school board members are county officers who have equivalent powers and authority to that of the county commission although their power is exercised in different local governmental spheres. As county officers, however, school board members are precluded from simultaneously holding another state, county or municipal office.[14]

Care must, therefore, be taken in determining the nature and character of a district or authority to determine whether the governmental entity is an agency of the state, county or municipality such that its officers may be considered state, county or municipal officers for purposes of dual officeholding.

For example, in Attorney General Opinion 84-90, this office considered whether a member of the Volusia County Health Facilities Authority was an officer of the county. While the authority was created and organized under Part III, Chapter 154, Florida Statutes, as a public body corporate and politic, it was created by the county by ordinance or resolution. The governing body of the county appointed the authority members, was empowered to remove the members, and was authorized to abolish the authority at any time. This office, therefore, concluded that the authority was an instrumentality of the county and its officers were county officers. Thus, the constitutional prohibition against dual officeholding prohibited the mayor from also serving on the governing body of the county health facilities authority.

More recently, in Attorney General Opinion 94-42, this office concluded that membership on the Monroe County Career Service Council was in the nature of a district office and thus not sub- ject to the constitutional prohibition. The council was created by law to perform a limited function, its members were appointed by a diverse group of governmental agencies that had no oversight or control over the functions or actions of the council.

IV. May an officer perform ex officio the duties of another office without violating Article II, section 5(a), Florida Constitution?

It has long been settled in this state that the legislative designation of an officer to perform ex officio the functions of another or additional office does not violate the dual officeholding prohibition, provided that the duties imposed are consistent with those already being exercised.[15]

The purpose of the constitutional prohibition against dual officeholding is "to ensure that multiple state, county, and municipal offices will not be held by the same person. Underlying this objective is the concern that a conflict of interest will arise by dual officeholding whenever the respective duties of office are inconsistent."16 Where, however, additional or ex officio duties are assigned to a particular office by the legislative body and there is no inconsistency between the new and the preexisting duties, the dual officeholding prohibition does not preclude such an assignment. The newly assigned duties are viewed as an addition to the existing duties of the officer.

Thus, this office has stated that the city council, as the legislative body for the municipality, may by ordinance impose the additional or ex officio duties of the office of city manager on the city clerk.[17] In Attorney General Opinion 93-42, this office concluded that a municipality could legislatively merge the offices of fire chief and community redevelopment director into one office and have the one officer perform ex officio the duties of the other office. Similarly, in Attorney General Opinion 94-66, this office concluded that the designation by ordinance of the Board of County Commissioners to perform the functions of the Board of Adjustment appeared to be an ex officio designation and, therefore, would not violate the dual officeholding prohibition contained in Article II, section 5(a), Florida Constitution.

The courts have stated that a special act authorizing county commissioners to sit as members of the county solid waste authority did not violate Article II, section 5(a), Florida Constitution, but merely imposed additional duties upon an existing office.[18] In addition, a district court concluded that where the statutes had been amended to authorize municipal officials to serve on the board of trustees of municipal police and firefighters' pensions trust funds, such provision did not violate the constitutional dual officeholding prohibition.[19]

Thus, this office in Attorney General Opinion 94-98 concluded that the imposition of additional or ex officio duties on the mayor or other city council members under the city code to serve on the board of trustees of the police officers' and firefighters' pension trust fund would not violate Article II, section 5(a), Florida Constitution.[20]

There is, however, a distinction between a statute imposing an ex officio position on the holder of another office and one authorizing the appointment of one officeholder to another distinct office. For example, the Supreme Court of Florida has pointed out that while additional duties may be validly imposed by the Legislature on a state office ex officio, a legislative attempt to authorize the Governor to appoint a state official to another separate and distinct office would be ineffectual under the constitutional dual officeholding prohibition.[21] Similarly, in Attorney General Opinion 91-48 this office concluded that while the city commission could not appoint the city manager to simultaneously serve as the city clerk, the charter could impose the duties of the clerk as additional ex officio duties on the office of the city manager.

V. What are the exceptions to the constitutional prohibition against dual officeholding?

Article II, section 5(a), Florida Constitution, contains several exceptions to its prohibition against dual officeholding. The constitutional provision expressly states that a notary public or military officer may hold another office. In addition, any officer may be a member of a constitutional revision commission or constitutional convention.[22]

Statutory bodies having only advisory powers are also exempted from the constitutional dual officeholding prohibition. It is this exception that has been the subject of interpretation both by the courts and by the Attorney General's Office.

The Supreme Court of Florida has held that a member of the State Planning Board is a state "officer" within the dual officeholding prohibition even though the members of the board were authorized to act only in an advisory capacity.[23] The Court noted that the members of the board were appointed by the Governor, served a fixed term of office, performed duties imposed upon them by statute and were authorized to "expend public funds appropriated for that purpose in the discharge of [their] duties, exercising [their] own discretion in that regard."[24] Thus, the Court concluded that powers and attributes of sovereignty had been "delegated to or reposed in the State Planning Board."

Similarly, the Attorney General's Office in Attorney General Opinion 76-241 concluded that membership on the Florida Human Relations Commission was an office and not a statutory body possessing only advisory powers. The opinion was based upon an examination of the powers of the commission which included, among other things, the right to accept money, both public and private, to help finance its activities; to recommend measures to eliminate discrimination; to receive, initiate, investigate, hold hearings on, and pass upon complaints alleging discrimination; to render, at least annually, a comprehensive written report to the Governor and Legislature; and to adopt, amend and rescind rules to effectuate the purposes of the act. Since the commission was authorized to exercise powers associated with those of an office, it could not be characterized as purely an advisory body.

In Attorney General Opinion 91-79 this office concluded that the State Board of Community Colleges of the Department of Education did not constitute an advisory board since the state board was responsible for establishing rules and policies for the operation and maintenance of the state community college system and for adopting guidelines relating to salary and fringe benefits for community college administrators. In addition the board was responsible for reviewing and administering the state program of support for the community college system and in this capacity, reviewed and approved all budgets and recommended budget amendments in the system.

In contrast, however, this office concluded that members of a state park advisory council, who served without compensation at the pleasure of the Division of Recreation and Parks in purely an advisory capacity and who had no authority to expend public funds or to exercise in any manner the "sovereign power" of the state, fell within the exception for advisory bodies contained in Article II, section 5(a), Florida Constitution.[25]

For other examples where this exception has been applied, see, Attorney General Opinions 72-179 (legislator may serve as member of ad hoc charter revision commission appointed by municipal governing body to serve in a purely advisory capacity to study and recommend changes in municipal charter); 73-288 (municipal zoning board having only advisory powers may serve as county tax collector); 74-232 (town council member may serve on advisory county planning commission); 77-74 (powers exercised by Florida Advisory Council member are advisory and as such are excluded from constitutional dual office holding prohibition); 78-36 (member of board of trustees of county public health trust may serve on board of business regulation); 86-105 (local planning agency whose function is information gathering and advising local government entity falls within exception to dual officeholding prohibition).

In contrast, see, Attorney General Opinions 89-25 and 90-33 stating that local planning and zoning commissions that possessed the power to grant variances without review or which are final unless appealed to the county commission did not fall within the exception for advisory bodies. As noted in those opinions, only those statutory bodies possessing advisory powers are excepted; Article II, section 5(a), Florida Constitution, does not provide for or recognize an exception for statutory bodies whose powers are substantially or predominately advisory.

There is an additional constitutional exception to Article II, section 5(a), Florida Constitution, that has been recognized by this office. Under Article IV, section 6, Florida Constitution, certain designated state officials are specifically authorized to serve as the heads of state departments.[26] In Attorney General Opinion 75-115 this office concluded that this express constitutional mandate constituted an exception to Article II, section 5(a), Florida Constitution. Thus, the opinion states that the Lieutenant Governor may also serve as the Secretary of the Department of Administration.

VI. Is there a constitutional prohibition against dual officeholding when one of the offices is a federal office or an office in another state or under a foreign government?

The first clause of Article II, section 5(a), Florida Constitution, provides:

No person holding any office of emolument under any foreign government, or civil office of emolument under the United States or any other state, shall hold any office of honor or of emolument under the government of this state. . . .

In an informal opinion to then Senator Lawton M. Chiles, dated January 16, 1986, this office stated that the bifurcation in Article II, section 5(a), Florida Constitution, of the dual officeholding prohibition into interstate and intrastate segments does not mean that the interstate segment applies only to state officers but also includes local government officers. Thus, this office concluded that the first clause of Article II, section 5(a) prohibited a county commissioner from simultaneously holding office as a member of the Board of Governors of the United States Postal Service.[27]

A position, however, that is temporary only and without remuneration would not appear to constitute an "office of emolument." For example, one court rejected claims of a dual officeholding violation where a state prosecutor had been appointed as a Special Assistant United States Attorney for one case arising out of a local criminal investigation when it appeared that he received no remuneration for serving in that position.[28] In addition, this office in Attorney General Opinion 72-244 stated that the position of executive director of a private nonprofit corporation that serves a public purpose and is financed largely from federal funds is not a "civil office of emolument under the United States" within the dual officeholding prohibition.

VII. What are the consequences of a public officer accepting a second office in violation of the constitutional dual office- holding prohibition?

The Supreme Court of Florida in a 1970 decision set forth the general rule that "[t]he acceptance of an incompatible office by one already holding office operates as a resignation of the first."[29] Under the rationale of that decision, the action of an officer accepting another office in violation of the dual officeholding prohibition may create a vacancy in the first office.

VIII. Do common law principles prohibit a public agency from appointing one of its members to a position over which it has appointment power?

The Supreme Court of Florida in State ex rel. Clayton v. Board of Regents,[30] considered whether common law principles precluded a governmental body from appointing one of its own members to a position over which it has appointment power. The Court concluded that conduct involving public officers, such as dual officeholding, financial benefit from office, and abuse of public trust, are directly addressed by the Constitution31 and thus are not governed by the common law. Thus, no common law principle precluded a member of a governmental body from appointing one of its own members to a position over which it has appointment power.

IX. FOOTNOTES

[1] Earlier State Constitutions contain similar prohibitions against dual officeholding. See, e.g., Art. VI, s. 18, Fla. Const. 1838, and Art. VI, s. 14, Fla. Const. 1861. Article II, section 5(a), of the 1968 Constitution substantially reproduces Article XVI, section 15 of the 1885 Constitution except that the current provision was expanded to include municipal officers. Court decisions under the 1885 Constitution had excluded such officers from its coverage.

[2] See, Ops. Att'y Gen. Fla. 69-2 (1969), 80-97 (1980), and 94-66 (1994).

[3] State ex rel. Holloway v. Sheats, 83 So. 508, 509 (Fla. 1919). And see, State ex rel. Clyatt v. Hocker, 22 So. 721 (Fla. 1897).

[4] See, Ops. Att'y Gen. Fla. 72-348 (1972) and 74-73 (1974), respectively.

[5] See, e.g., Ops. Att'y Gen. Fla. 57-165 (1957), 58-26 (1958), 69-2 (1969), 71-167 (1971), 72-348 (1972), 76-92 (1976), 77-89 (1977), 86-11 (1986), and 89-10 (1989).

[6] Curry v. Hammond, 16 So. 2d 523, 524 (Fla. 1944).

[7] Maudsley v. City of North Lauderdale, 300 So. 2d 304 (Fla. 4th DCA 1974). See, State ex rel. Gibbs v. Martens, 193 So. 835, 837 (Fla. 1940), in which the Supreme Court of Florida held that a probation officer was an "officer" since he had the right to arrest without a warrant because "no right is more sacred or more jealously guarded than the one that liberty shall not be infringed except by due process of law."

[8] Attorney General Opinion 77-63. And see Op. Att'y Gen. Fla. 86-105 (1986), concluding that auxiliary police officers who did not have the authority to make arrests but who were certified, carried firearms and assisted regular police officers in carrying out their duties were "officers." Compare Op. Att'y Gen. Fla. 89-10 (1989) concluding that an administrative law enforcement position, having no law enforcement certification requirements or arrest powers and not authorized to independently exercise the sovereign powers of the state, was not an office but an employment for purposes of dual officeholding.

[9] 394 So. 2d 993 (Fla. 1981).

[10] 422 So. 2d 867 (Fla. 2d DCA 1982).

[11] See, Ops. Att'y Gen. Fla. 84-25 (1984) and 90-15 (1990), respectively. See also, Op. Att'y Gen. Fla. 86-84 (1986) (city council member may not simultaneously serve as a certified auxiliary law enforcement officer).

[12] 630 So. 2d 1055, 1058 (Fla. 1994).

[13] 626 So. 2d 684 (Fla. 1993).

[14] The Supreme Court was advised that the Attorney General had previously considered school board members to be special district officers and outside the scope of Article II, section 5(a), of the Florida Constitution. Thus, there could have been school board members who were in fact holding dual offices. In response, the Court held that "[w]ith regard to those individuals who may be holding dual offices because of the attorney general's opinion 84-72, we conclude that this [i.e., the Court's] opinion should be prospective in application. This prospective application should apply only until such time as the term of one of the dual offices expires." 626 So. 2d at 690.

[15] See, e.g., Bath Club, Inc. v. Dade County, 394 So. 2d 110 (Fla. 1981).

[16] Id., at 112.

[17] Attorney General Opinion 81-72. Accord, Op. Att'y Gen. Fla. 80-97 (1980). And see, Ops. Att'y Gen. Fla. 70-46 (1970) (statute imposing ex officio post on holder of another office must be distinguished from one authorizing appointment of one office holder to another separate and distinct office); 80-12 (1980) (membership of elected municipal officer on metropolitan planning organization as prescribed by statute does not violate dual officeholding prohibition); 82-92 (1982) (city may, by ordinance, designate members of code enforcement board as ex officio members of minimum housing and commercial property appeals board).

[18] City of Riveria Beach v. Palm Beach County Solid Waste Authority, 502 So. 2d 1335 (Fla. 4th DCA 1987).

[19] City of Orlando v. State Department of Insurance, 528 So.2d 468 (Fla. 1st DCA 1988).

[20] Compare, Op. Att'y Gen. Fla. 90-45 (1990), in which this office concluded that a member of the civil service board could not be appointed to the board of trustees of the general pension trust board. In that opinion, there was no ex officio designation imposing the duties of one office on the other.

[21] Advisory Opinion to the Governor, 1 So. 2d 636 (Fla. 1941). And see, Op. Att'y Gen. Fla. 70-46 (1970) (doubtful that city commissioner could also be municipal judge where charter created office of municipal judge as a separate and distinct office and did not designate that office as an ex officio office to be performed by the city commissioner).

[22] See, Art. XI, s. 2, Fla. Const., providing for the establishment of a constitutional revision commission every twenty years; and Art. XI, s. 4, Fla. Const., reserving to the people the power to call a convention to consider a revision of the entire Constitution.

[23] Advisory Opinion to Governor, 1 So. 2d 636 (Fla. 1941).

[24] Id., at 638.

[25] Attorney General Opinion 71-43.

[26] Article IV, section 6, Florida Constitution, provides in part that the administration of each department in the executive branch of state government, unless otherwise provided in the Constitution, "shall be placed by law under the direct supervision of the governor, the lieutenant governor, the governor and cabinet, a cabinet member, or an officer or board appointed by and serving at the pleasure of the governor" except as provided therein.

[27] And see, 1951-1952 Biennial Report of the Attorney General 61, Op. Att'y Gen. Fla. 51-468 (1951) (justice of the peace cannot hold office of United States Commissioner).

[28] Grant v. State, 474 So. 2d 259 (Fla. 1st DCA 1985).

[29] Holley v. Adams, 238 So. 2d 401, 407 (Fla. 1970).

[30] 635 So. 2d 937 (Fla. 1994).

[31] See, Art. II, ss. 5 and 8, Fla. Const.