Orlando Martinez de Castro Resolution to void employment contract

7/27/2019 Orlando Martinez de Castro Resolution to void employment contract

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RESOLUTION NO. __________12

A Resolution of the City of South Miami confirming the City3Commission’s prior interpretation of the City Charter, the4City Commission’s prior approval of all appointments of 5

Orlando Martinez de Castro to the office of Acting City6 Manager and approving the termination of his 5-year7employment agreement with the City under the terms of 8Florida Constitution Article II, Section 5(a).9

10WHEREAS, on October 8, 2010, the Mayor and City Commission voted to11

authorize execution of a 5-year employment agreement (hereafter the “employment12agreement”) with Orlando Martinez de Castro to serve as Chief of Police [backup pp. 1-1315]; and 14

15WHEREAS, Article III, Section 4A of the City charter provides that “[t]he16

Manager may recommend, by letter filed with the City Clerk, subject to the approval of 17 the Commission, a qualified City administrative officer to exercise the powers and 18 perform the duties of the Manager during any temporary absence or disability. Such acting19City Manager shall not serve for a period longer than 90 days. During such absence or 20disability, the Commission may decline such recommendation at any time and appoint21another officer of the City to serve until the Manager shall return or his disability shall22cease.”23

24WHEREAS, the South Miami City Manager notified the Mayor and City25

Commission, as per City Charter Article III, Section 4A [backup p. 16], that Police Chief 26Martinez de Castro was appointed to serve as Acting City Manager on twelve (12)27occasions for a total of forty-five (45) days.28

29WHEREAS, the City Manager, Dr. Mirabile, on one occasion defined the Acting30

City Manager’s authority thus: “He will have the authority to administrate the city and 31signature authority in all administrative requirements but will not have signature authority32for contracts.” On another occasion Dr. Mirabile designated Orlando Martinez De Castro33“…as acting City Manager and designate him with limited signature authority, he will not34have signature authority to bind the City in the area of contracts or agreements. He does35have signature authority in the areas of routine City business and expenditures such as any36and all personnel actions, agenda items, purchases, etc.” On another occasion the City37Manager designated Mr. Martinez de Castro as acting City Manager without any38restriction on his authority to act for and bind the City [backup pp. 17-25]; and 39

40WHEREAS, when a City Manager names an acting City Manager to cover the41

City Manager’s duties during his absence, the City’s practice, under multiple city42attorneys and differing city commissions, is for the City Commission to do nothing to43formally approve the appointment/designation other than to accept the action of the City44Manager and the designated acting City Manager without the need for a resolution by the45Commission since a disapproval would necessarily require a resolution declining the46recommendation and naming another individual to the office of City Manager as required 47under Charter Article III, Section 4A; and 48



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12

WHEREAS, in numerous decisions, Florida’s courts have ruled that concerning3questions of policy and procedure, the local agency’s views and administrative4interpretations are entitled to great deference; e.g., Rice v. Dept. of Health and Rehab.5

Services, 386 So.2d 844, 850 (Fla. 1st DCA 1980); School Bd. of Leon County v. Hargis,6 400 So.2d 103 (Fla. App. Dist. 1, 06/16/1981); Dept. of Environmental Regulation v.7Goldring, 477 So.2d 532, 10 Fla. L. Weekly 429 (Fla. 1985); State of Fla. Dept. of 8Environmental Regulation v. C.P. Developers, Inc., 512 So.2d 258, 12 Fla. L. Weekly92052 (Fla. App. Dist.1 08/24/1987); and 10

11WHEREAS, Police Chief Martinez de Castro accepted such assignments to the12

position of Acting City Manager [backup p. 26]; and 1314

WHEREAS, during his assignments as Acting City Manager Mr. Martinez de15Castro sent email he signed as “Acting City Manager” or in which he referred to himself 16

as the “Acting City Manager” or “Acting CM”, and/or in which he communicated about17 matters of City business outside the areas of Police, Code Enforcement, and Parking18[backup pp. 27-31]; and 19

20WHEREAS, during his assignments as Acting City Manager Mr. Martinez de21

Castro issued three city manager’s reports (11-Jun-2012, 19-Jul-2012, 26-Jul-2012),22listing himself on each as the “Acting City Manager” [backup pp. 32-34]; and 23

24WHEREAS, during his assignments as Acting City Manager, Mr. Martinez de25

Castro attended four city commission meetings (6-Mar-2012, 12-Jun-2012, 24-Jul-2012,2631-Jul-2012) in the capacity and chair of the city manager [backup pp. 42-45]; and 27

28WHEREAS, during his assignments as Acting City Manager, Mr. Martinez de29

Castro signed official city documents in the space designated for the city manager’s30signature [backup pp. 35-36]; and 31

32WHEREAS, in every instance in which Mr. Martinez de Castro was appointed or 33

designated as the Acting City Manager the Mayor and City Commission approved of the34recommendation by accepting the City Manager’s appointments of Chief Martinez de35Castro and treating him as the City Manager [backup pp. 37-40]; and 36

37WHEREAS, the Mayor and City Commission addressed Mr. Martinez de Castro38

as “Mr. Acting City Manager” at city commission meetings in which he served in the role39of city manager, and directed him to carry out actions such as obtaining bids on behalf of 40the City [backup p. 41]; and 41

42WHEREAS, the Mayor and City Commission voted unanimously to approve the43

official minutes of four city commission meetings (6-Mar-2012, 12-Jun-2012, 24-July-442012, 31-Jul-2012) in which Mr. Martinez de Castro was listed as “Acting City Manager”45[backup pp. 42-45]; and 46

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WHEREAS, City Manager Hector Mirabile sent email directing staff that Orlando1Martinez de Castro was to be the “Acting City Manager”, defining the Acting City2Manager’s authority thus: “He does have signature authority in the areas of routine City3 business and expenditures such as any and all personnel actions, agenda items, purchases,4etc.” which included the right to hire, fire and discipline City employees [backup pp. 46-5

50]; and 67WHEREAS, City staff treated Mr. Martinez de Castro as the Acting City Manager 8

during these appointments, referring to him as the “Acting City Manager” in email9[backup pp. 51-56]; and 10

11WHEREAS, The Florida Constitution Article II, Section 5(a) states: “No person12

shall hold at the same time more than one office under the government of the state and the13counties and municipalities therein” [backup p. 57]; and 14

15WHEREAS, Florida’s courts and Attorneys General have determined that police16

chiefs and city managers specifically (but not directors of other city departments) are17 vested with and exercise a portion of the governmental or sovereign power of the City and 18are “municipal officers”, and thus both positions are deemed as incompatible under the19constitutional ban on dual office-holding, e.g., AGOs 80-97, 84-25, 86-11, 2006-27, 2013-2008, Butterworth & Wilson (1999) [backup pp. 58-99] (also AGOs 57-165, 69-2, 76-92,2177-89); and 22

23WHEREAS, Florida’s Attorney General stated in AGO 2013-08 that appointment24

of a police chief to the office of Acting City Manager for any duration, even temporary,25violates the dual office-holding prohibition in Section 5(a), Article II of the Florida26Constitution [backup pp. 77-80]; and 27

28WHEREAS, the Supreme Court of Florida set forth the general rule: “The29

acceptance of an incompatible office by one already holding office operates as a30resignation of the first”, Holley v. Adams, 238 So. 2d 401, 407 (Fla. 1970) [backup pp.3199-111]; and 32

33WHEREAS, Florida’s Attorney General stated in AGO 2006-27 that because34

Florida Constitution Article II, Section 5(a) prohibits a police chief from simultaneously35serving as the city manager, when a police chief is appointed acting city manager he36resigns as police chief [backup pp. 73-76]; and 37

38WHEREAS, Florida’s Attorney General further stated in AGO 2006-27:39

“Generally, the acceptance of a second office has been considered to be a vacancy in the40first office. Thus, the acceptance of the position as acting city manager created a vacancy41in the office of police chief, not a leave of absence” [backup pp. 73-76]; and 42

43WHEREAS, by accepting the position of Acting City Manager and functioning in44

that capacity, Mr. Martinez de Castro resigned from his position as Chief of Police,45leaving the chief position vacant, as per Florida Constitution Article II, Section 5(a) as46interpreted in AGO 2006-27; and 47

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WHEREAS, the employment agreement includes “resignation” as a basis for 1termination of the agreement [backup p. 10]; and 2

3WHEREAS, the City Commission never authorized a new multi-year employment4

agreement with Mr. Martinez de Castro when he ceased to serve as Acting City Manager;5

and 67WHEREAS, Mr. Martinez de Castro has been the de facto police chief and an at8

will employee of the City since his first appointment to the office of Acting City Manager 9and his resulting resignation as police chief for the City at that time.10

1112

NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND CITY13COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA, THAT:14

15Section 1. The above recitals are statements of fact held to be true and are16

incorporated into the body of this resolution.1718Section 2. The City Commission hereby ratifies and approves of the19

interpretation given to the City Charter by the current City Commission and the20interpretation given by all prior City Commissions concerning the procedure for the21appointments of Acting City Managers in the past, as explained in the recitals to this22resolution, and acknowledges the current City Commission’s past approval and acceptance23of the prior City Manager’s recommendation and appointment/designation of Mr.24Martinez de Castro as the Acting City Manager for the City of South Miami in all of those25instances referred to in the recitals to this resolution.26

27Section 3. The Commission affirms that, under the terms of Florida28

Constitution Article II, Section 5(a), Orlando Martinez de Castro terminated his 5-year 29employment agreement with the City by resigning, by operation of law, from his position30as Chief of Police to serve as Acting City Manager. Mr. Martinez de Castro is hereby31declared to be an at will employee of the City of South Miami.32

33Section 4. If any section clause, sentence, or phrase of this resolution is for 34

any reason held invalid or unconstitutional by a court of competent jurisdiction, the35holding shall not affect the validity of the remaining portions of this resolution.36

37Section 5. Effective Date. This resolution shall become effective immediately38

upon adoption by vote of the City Commission. 3940

PASSED AND ADOPTED this ____ day of _____________, 2013.414243

ATTEST: APPROVED:444546

_____________________ ______________________ 47CITY CLERK MAYOR 48



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1READ AND APPROVED AS TO FORM, COMMISSION VOTE:2LANGUAGE, LEGALITY AND Mayor Stoddard:3EXECUTION THEREOF Vice Mayor Liebman:4

Commissioner Newman:5

_____________________________ Commissioner Harris:6 CITY ATTORNEY Commissioner Welsh:7



RESOLUTION NO._____

A Resolution of the Mayor and City Commission of the City of South Miami,Florida, relating to the position of Chief of Police; and relating to Contracts;

authorizing the execution of a contract between the City of South Miami and

Orlando Martinez de Castro; providingan

effective date.

WHEREAS, pursuant to Article III, Section 5 of the City of South Miami Charter the

City Manager is vested with the power to appoint a Chiefof Police; and,

WHEREAS, the City Manager has exercised that power and appointed Orlando Martinez

de Castro as Chief of Police subject to the entering into a contract of employment: and

WHEREAS, the Mayor and City Commission authorized the City Attorney to enter into

negotiations with Orlando Martinez de Castro, as the proposed Chief of Police to prepare a draft

employment agreement; and,

WHEREAS, the City of South Miami wish to employ the services of Orlando Martinez

de Castro as Chief of Police of the City of South Miami by executing the attached contract.

NOW THEREFORE BE IT RESOLVED BY THE MAYOR AND CITY

COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA: THAT

Section 1.

this resolution.

The above whereas clauses are incorporated by reference into the body of

Section 2. The terms of the contract between the City of South Miami and Orlando

Martinez de Castro shall be as provided for in the attached exhibit A and incorporated into this

resolution as fully set forth herein, and which agreement shall be executed by the City Manager

on behalf of the City.

Section 3. The Chief of Police will meet individually with the City Manager on an

annual basis to discuss his performance.

Section 4. This resolution shall take effect immediately upon approval.

PASSED AND ADOPTED this__ day of.___ 2010.

ATTEST: APPROVED:

CITY CLERK MAYOR

Page 1 of2

backup p. 1

RESOLUTION NO._____

A Resolution of the Mayor and City Commission of the City of South Miami,Florida, relating to the position of Chief of Police; and relating to Contracts;

authorizing the execution of a contract between the City of South Miami and

Orlando Martinez de Castro; providingan

effective date.

WHEREAS, pursuant to Article III, Section 5 of the City of South Miami Charter the

City Manager is vested with the power to appoint a Chiefof Police; and,

WHEREAS, the City Manager has exercised that power and appointed Orlando Martinez

de Castro as Chief of Police subject to the entering into a contract of employment: and

WHEREAS, the Mayor and City Commission authorized the City Attorney to enter into

negotiations with Orlando Martinez de Castro, as the proposed Chief of Police to prepare a draft

employment agreement; and,

WHEREAS, the City of South Miami wish to employ the services of Orlando Martinez

de Castro as Chief of Police of the City of South Miami by executing the attached contract.

NOW THEREFORE BE IT RESOLVED BY THE MAYOR AND CITY

COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA: THAT

Section 1.

this resolution.

The above whereas clauses are incorporated by reference into the body of

Section 2. The terms of the contract between the City of South Miami and Orlando

Martinez de Castro shall be as provided for in the attached exhibit A and incorporated into this

resolution as fully set forth herein, and which agreement shall be executed by the City Manager

on behalf of the City.

Section 3. The Chief of Police will meet individually with the City Manager on an

annual basis to discuss his performance.

Section 4. This resolution shall take effect immediately upon approval.

PASSED AND ADOPTED this__ day o f ~ __ 2010.

ATTEST: APPROVED:

CITY CLERK MAYOR

Page 1 of2



READ AND APPROVED AS TO FORM

AND SUFICIENCY:

CITY ATTORNEY

Page 2 of2

COMMISSION VOTE:

Mayor Stoddard:

Vice Mayor Newman:

Commissioner Beasley

Commissioner Palmer:

Commissioner Harris:

backup p. 2

READ AND APPROVED AS TO FORM

AND SUFICIENCY:

CITY ATTORNEY

Page 2 of2

COMMISSION VOTE:

Mayor Stoddard:

Vice Mayor Newman:

Commissioner Beasley

Commissioner Palmer:

Commissioner Harris:



009931.0001/M1889250_7

EMPLOYMENT AGREEMENT

Employment Agreement (“Agreement”) dated as of the 8th day of October, 2010,

between the City of South Miami, a municipal corporation (“City”) and Orlando G. Martinez de

Castro (“Employee”), collectively referred to as the Parties (“Parties”).

BACKGROUND

WHEREAS, the City is desirous of hiring a Chief of Police; and

WHEREAS, the Employee is experienced and qualified to assume the duties of the police

chief for the City; and

WHEREAS, the City wishes to retain the services of the Employee as the Chief of Police,

subject to terms and conditions of this Agreement.

AGREEMENT

NOW, THEREFORE, FOR Ten Dollars, the mutual covenants and conditions of this

Agreement, and other good and valuable consideration, the receipt and sufficiency of which is

hereby acknowledged, the parties agree as follows:

1. Employment.1.1 City agrees to employ Employee as Police Chief to perform the duties and

exercise powers as provided by State law, the City Charter and to perform such other legally

permissible and proper duties and functions consistent with the Employee’s position as Chief of

Police as may be assigned by the City Manager from time to time.

1.2 Employee shall report to the City Manager. Employee hereby accepts

such employment. During the Term of Employee’s employment by City, Employee shall

(a) devote substantially all of his full business time, abilities and attention exclusively to the

diligent performance of his duties with City in a professional manner and in accordance with

applicable law and (b) not engage in any other business activity, whether or not such activity is

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009931.0001/M1889250_7 2

pursued for profit or advantage; provided, however, that Employee may engage in personal

and/or passive investment and charitable activities and continue to operate Employee’s security

consulting business (OMC Consultants, Inc., a Florida corporation), so long as such activities do

not materially interfere with the performance of his duties under this Agreement and do not

result in a conflict of interest in regards to Employee’s duties and obligations to the City. All

non City related work will be done under the Employee’s personal time and will not use any City

asset during that time. The City shall not be held responsible or liable for any and all action

taken by Employee during his activities for OMC Consultants, Inc. or other personal

engagements out of the scope of his employment.

1.3 Additional Duties. Employee may assume the duties of Code

Enforcement at the discretion of the City Manager, but shall not assume other duties and

obligations as to other City functions and departments (including, but not limited to managing

the general parking enforcement or information technology operations of the City), except to the

extent the parties mutually agree in writing to make such additional duties part of Employee’s

obligations and further agree on additional compensation to be paid to Employee for performing

those additional duties.

2. Term. Except as otherwise provided in this Agreement, the Term of this

Agreement shall be for five (5) years commencing on the 20th day of October, 2010 and shall

terminate at the close of business on the 19th day of October, 2015 (the “Term”); provided that

any extension beyond the 19th day of October, 2015, shall require the approval of both City and

Employee.

3. Compensation. During the course of Employee’s employment by City, pursuant

to this Agreement:

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009931.0001/M1889250_7 3

3.1 Annual Salary. Employee shall be paid an annual salary of $100,000.00,

which shall be payable in equal installments in accordance with the City’s compensation

practices and thereafter be subject to a performance based increase, calculated from the base

salary, of up to a maximum of 5% in earnings based on an annual performance evaluation as

described in the City’s Personnel Manual. The City shall annually contribute $20,000.00, in

equal payroll period installments, to a City approved ICMA 401a or 457b plan. If the City

requires Employee to enter the City’s Pension Plan the Employee shall be paid an annual salary

of $107,000.00 and thereafter may be subject to a performance based increase, calculated from

the base salary, of up to a maximum of 5% in earnings based on an annual performance

evaluation as described in the City’s Personnel Manual. If City establishes another pay period

for its employees, which is no less frequent than semi-monthly, Employee shall be paid in

accordance with that schedule.

3.2 Fringe Benefits. During the Term, City, at its cost, shall make available to

Employee:

3.2.1 Insurance. The City shall provide Employee and his dependents, if

applicable, with insurance benefits including disability, medical, dental, and life insurance of the

same type and coverage as provided to senior managers of the City. Employee’s dependents

shall be covered only if the City insurance plan covers dependents for senior managers with the

City. If dependents are covered at Employee’s cost, the Employee shall determine if he needs

such coverage.

3.2.2 Automobile. In lieu of a vehicle allowance or a mileage

reimbursement for use of Employee’s personal vehicle for City business, the City shall assign to

Employee and for his use the newest unmarked motor vehicle of the same make as the City

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009931.0001/M1889250_7 4

purchases for the police fleet maintained at the City’s expense, and which is owned or leased by

the City, so as to assist the Employee in performing services for the City as Police Chief. The

vehicle shall be replaced, if the City purchases a new police vehicle, by a like kind new vehicle

every 24 months during the Term. The make of the vehicle shall be the standard police vehicle

of the City. Employee may utilize the vehicle at any time (24 hours per day 7 days per week) in

connection with providing services to the City, including official travel for the City and any

personal use that occurs during Employee’s portal to portal travel from home to the City, or any

work related assignment, and back to his home.

City shall include the vehicle on the schedule of vehicles for which the City maintains

automobile casualty and liability insurance coverage and pay for such coverage. City shall

provide maintenance and fuel for the vehicle upon the same basis that it provides maintenance

and fuel for other vehicles within the municipal fleet. The City will provide a Sunpass with the

vehicle and the Sunpass account will be maintained at the City’s expense. Employee shall be

responsible for any employee payroll taxes upon this vehicle allowance benefit in accordance

with applicable law.

3.2.3 Vacation, Sick Leave, Holidays, Clothing Allowance, etc.

(a) Commencing with the execution of this Agreement,

Employee shall immediately receive vacation benefits equivalent to that received by senior

management with the City based on the years of service by Employee to the City, which shall

include all prior employment by Employee with the City. The Employee shall regain the sick

time accumulated but unused when the Employee’s prior employment with the City was

terminated in 2006 which the Parties hereto agree is 380.00 hours.

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009931.0001/M1889250_7 5

(b) Employee shall receive one (1) day per month of sick time

or such additional sick time, if greater, as is provided to City’s senior management. The sick

time may be accrued and rolled over to a later date and shall otherwise be consistent with City

policies for senior management.

(c) Employee shall be entitled to holidays in the same manner

as senior management employees of the City.

(d) Employee shall receive a clothing allowance equivalent to

that provided to a police investigator under the police union contract with City and shall be

payable as required by the police union contract with the City. This allowance shall be provided

only for actual clothing expenses incurred in the course and scope of Employee’s work and

payments shall be made to Employee by City only upon presentation of receipts for payments for

clothing expenses incurred in connection with Employee’s work. All such payments to be made

within thirty (30) days upon presentation of such receipts.

(e) The Employee understands that current City Ordinance

governing Pension requires him to become part of the City’s Pension plan; Should the City

modify its Pension ordinance to allow Employee to opt out and join an ICMA 401a or 457b

defined contribution plan, then the City shall contribute Twenty Thousand and No/100 Dollars

($20,000.00) per year or such higher amount, if any, as it contributes to the pension of senior

management at the City, whichever is greater, in addition to Employee’s salary, as a contribution

to Employee’s City-sponsored retirement plan or any other retirement plan (IRA, 401k, etc.)

selected by Employee for his benefit.

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009931.0001/M1889250_7 6

3.2.4 The City shall Provide Employee, at City’s cost, with equipment

necessary to fulfill Employee’s duties, including but not limited to uniforms, cell phone

allowance of $90.00, a computer, and other necessary communication equipment. .

3.3 Expenses. City shall pay for or reimburse Employee for all City approved

ordinary, necessary, and reasonable business expenses incurred or paid by the Employee in

furtherance of City’s objectives, all of which shall be reimbursed and paid in accordance with

City’s policies and procedures of general application.

3.4 Professional Development. Subject to City policy and State law, the City

agrees to pay the reasonable professional dues and subscriptions of Employee necessary for his

continuation and participation as a member in national, regional, state and local professional law

enforcement associations and organizations necessary and desirable for his continued

professional participation, growth and advancement, and for the good of the City, subject to

budgetary approval. City shall pay for all City approved continuing education for Employee.

The City shall further provide Employee all eligible State of Florida educational incentives.

4. Termination.4.1 Termination for Cause. For purposes of this Agreement, a termination by

Employer for “Cause” shall mean termination by action of Employer pursuant to this Section 4.1.

Employer shall have the right to terminate Employee for Cause upon the occurrence of one or

more of the following events:

4.1.1 A determination by Employer made reasonably and in good faith

that Employee has breached this Agreement in any material respect, confirmed by an arbitrator

in accordance with process set forth in this Section 4.1.

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009931.0001/M1889250_7 7

4.1.2 Employee’s conviction by a court of competent jurisdiction of

fraud with respect to the business or affairs of Employer or any affiliated person or entity of

Employer.

4.1.3 Excessive alcohol or drug usage by Employee to an extent that it

interferes with the performance of Employee’s duties under this Agreement.

4.1.4 The conviction by a court of competent jurisdiction of, or pleading

nolo contendre by, Employee of (a) a misdemeanor involving dishonesty, fraud, theft,

misappropriation, embezzlement or the like or (b) a felony.

4.1.5

The death of Employee. Upon his death the Employee shall be

entitled to all severance payment allowance under the City policies upon the death of an

Employee (one year salary at this time).

City shall provide written notice of a termination (“Termination Notice”) for Cause and,

with respect to termination pursuant to Sections 4.1.1 - 4.1.4, shall give Employee an opportunity

to cure or disprove the grounds for termination by submitting the issue to non-binding mediation

(“Mediation”) which unless the parties agree otherwise, shall be administered by the American

Arbitration Association in accordance with their Mediation Procedures in effect at time of the

dispute. The Termination Notice shall include a request for mediation to be filed with the person

or entity administering the mediation and the cost of mediation shall be equally split by the

parties. The parties shall cooperate so as to complete the Mediation in not more than forty-five

(45) days from the time the mediation is filed with the selected mediator. In the event that the

parties cannot resolve their differences during the Mediation they agree to submit the dispute to

binding arbitration (“Arbitration”) before the American Arbitration Association and in

accordance with said Association’s rules then in effect. The arbitrator to be chosen shall be

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009931.0001/M1889250_7 8

someone with knowledge of police administration and work, if at all possible, and shall apply

national performance criteria for comparable cities including size, population and departmental

budgets, in order to evaluate Employee’s performance of its obligations under this Agreement.

The Parties agree that Opa Locka, North Miami, North Miami Beach and Homestead are

comparable cities for the purpose of evaluating changes in crime statistics over time. The

decision and/or award rendered by the arbitrator shall be final, and judgment may be entered

upon it in accordance with applicable law in any court having jurisdiction. Initially, in order to

commence the arbitration, the cost of the arbitrator and arbitration shall be split equally between

the parties, however, the prevailing party in the arbitration proceeding shall be entitled to

reimbursement for all costs and expenses, including attorneys’ fees and the cost of the

Arbitration. Employee shall receive all compensation and benefits as set forth in Section 3 of

this Agreement until final termination after conclusion of the Mediation and Arbitration process

set forth herein. In the event Employee is terminated pursuant to this Section 4.1 and after the

mediation and arbitration process set forth above, confirms the City’s right to terminate this

Agreement, Employee shall be entitled to receive only such compensation and benefits thereafter

(including, without limitation, annual salary and other benefits which Employee has earned

through the effective date of such termination, and Employee shall not receive any compensation

or benefits in respect of any periods after the effective date of such termination. If the arbitration

process confirms that Employee did not breach the Agreement, the Agreement shall remain

binding on the Parties hereto.

4.2 Termination Upon Voluntary Resignation. In the event Employee

voluntarily resigns his employment with City, Employee shall be entitled to receive the annual

salary and other benefits, which Employee earned through the effective date of such resignation;

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009931.0001/M1889250_7 9

provided, however, following receipt of Employee’s resignation, City shall have the right to

accelerate the effective date of Employee’s resignation, provided it agrees to pay to Employee

the amounts Employee would otherwise be paid hereunder through the intended resignation date.

4.3 Termination Other Than by Voluntary Resignation or For Cause.

Employee shall have the right to terminate the Agreement upon a breach of the Agreement by the

City and shall further be entitled to all rights and remedies under Florida law, in the event of a

breach of the Agreement by City. The Employee shall provide City with written notice of any

breach of the Agreement by City. Upon issuance of said notice, the issue shall be submitted for

Mediation and, if necessary, Arbitration in accordance with the process outlined in section 4.1

for a termination by the City. All costs, expenses and attorneys’ fees shall be assessed or paid as

stated in Section 4.1.

Upon a final determination by the arbitrator that the City has breached the Agreement or

if City terminates Employee for any reason other than for Cause, Employee shall be entitled to

receive the following: (i) the annual salary due and payable to Employee through the balance of

the Term of this Agreement paid in Employee’s sole discretion either in a lump-sum or on a bi-

weekly basis; and (ii) continued benefits as set forth in Section 3 of this Agreement (or City can

make payments therefor e, as applicable) through the balance of the Term of this Agreement.

5. Withholding. Anything to the contrary notwithstanding, the annual salary and

other payments required to be made by City under this Agreement to Employee or Employee’s

estate or beneficiaries shall be subject to the withholding of such amounts, if any, relating to tax

and other payroll deductions as Employer may reasonably determine it should withhold pursuant

to applicable law or regulation.

6. Miscellaneous.

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009931.0001/M1889250_7 10

6.1 Notices. All notices, demands or requests provided for or permitted to be

given pursuant to this Agreement must be in writing and shall be delivered or sent, with the

copies indicated, by personal delivery, telecopy (with confirmation and additional copy sent by

overnight delivery service) or overnight delivery service (by a reputable international carrier) to

the parties as follows (or at such other address as a party may specify by notice given pursuant to

this Section):

To City: Hector Mirabile, Ph. D.City Manager 6130 Sunset DriveSouth Miami, Florida 33143-5093

With a copy to: Laurence Feingold, Esq.6130 Sunset DriveSouth Miami, FL 33143-5093

Maria Menendez6130 Sunset DriveSouth Miami, FL 33143-5093

To Employee: Orlando G. Martinez de Castro3636 NW 36 StreetMiami, Florida 33142

With a copy to: Adorno & Yoss LLP2525 Ponce de Leon BoulevardSuite 400Coral Gables, Florida 33134Attention: Alfredo L. Gonzalez, Esq.Fax: (305) 460-1422

All notices shall be deemed given and received one business day after their delivery to

the addresses for the respective party, with the copies indicated, as provided in this Section.

6.2 Entire Agreement. This Agreement and any other contemporaneous

written agreements entered into by the parties contain the sole and entire binding agreement

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009931.0001/M1889250_7 11

between and representations made by the parties to each other and supersede any and all other

prior written or oral agreements and representations between them.

6.3 Amendment. No amendment or modification of this Agreement shall be

valid unless in writing and duly executed by the parties affected by the amendment or

modification.

6.4 Binding Effect. This Agreement shall be binding upon and inure to the

benefit of the parties and their respective representatives, heirs, successors and permitted assigns.

6.5 Waiver. Waiver by either party of any breach of any provision of this

Agreement shall not be considered as or constitute a continuing waiver or a waiver of any other

breach of the same or any other provision of this Agreement.

6.6 Captions. The captions contained in this Agreement are inserted only as a

matter of convenience or reference and in no way define, limit, extend or describe the scope of

this Agreement or the intent of any of its provisions.

6.7 Construction. In the construction of this Agreement, whether or not so

expressed, words used in the singular or in the plural, respectively, include both the plural and

the singular and the masculine, feminine and neuter genders include all other genders. Since

both parties have engaged in the drafting of this Agreement, no presumption of construction

against any party shall apply.

6.8 Section References. All references contained in this Agreement to

Sections shall be deemed to be references to Sections of this Agreement, except to the extent that

any such reference specifically refers to another document. All references to Sections shall be

deemed to also refer to all subsections of such Sections, if any.

backup p. 13



009931.0001/M1889250_7 12

6.9 Severability. In the event that any portion of this Agreement is illegal or

unenforceable, it shall affect no other provisions of this Agreement, and the remainder of this

Agreement shall be valid and enforceable in accordance with its terms.

6.10 Business Day. As used in this Agreement, the term “business day” means

any day other than a Saturday, Sunday or legal or bank holiday in the City of Miami, Florida (the

“City”). If any time period set forth in this Agreement expires on other than a business day in

the City, such period shall be extended to and through the next succeeding business day in the

City.

6.11

Assignment. Neither this Agreement nor any rights under this Agreement

may be assigned by either party without the written consent of the other party.

6.12 Other Documents. The parties shall take all such actions and execute all

such documents which may be necessary to carry out the purposes of this Agreement, whether or

not specifically provided for in this Agreement.

6.13 Governing Law. This Agreement and the interpretation of its terms shall

be governed by the laws of the State of Florida, without application of conflicts of law principles.

6.14 Counterparts. This Agreement may be executed and delivered in two

counterparts, each of which shall be deemed to be an original and both of which, taken together,

shall be deemed to be one agreement.

6.15 Litigation/Arbitration. The parties have selected arbitration for binding

dispute resolution under this Agreement. Any claims subject to, but not resolved by, mediation

shall be subject to arbitration, unless mutually agreed in writing by the parties and shall be

administered by the American Arbitration Association by an arbitrator, if at all possible, with

experience in police work and administration. Initially and in order to commence the process,

backup p. 14



009931.0001/M1889250_7 13

the parties shall split the cost of the arbitration proceedings. However, the prevailing party in

regards to the dispute, shall be entitled to all costs and expenses including attorneys’ fees and

cost of arbitration proceedings initially shared by the parties.

6.16 Chapter 112. Nothing in this Agreement shall diminish Employee’s rights

under Florida Statute, Chapter 112, as it relates to law enforcement officers.

6.17 Indemnification. The City agrees to defend, hold harmless and indemnify

Employee from any and all liability, fines, damages, attorneys fees, costs, expenses and all

claims, suits, causes of action, or proceedings of any kind including payments in settlement

brought against the Employee for actions taken by the Employee in the course and scope of his

employment with the City. Should the City determine that it is disadvantageous or a conflict of

interest to provide counsel to Employee, Employee will obtain separate counsel of his choice at

the City’s expense. In the event that any separate counsel is hired by the Employee under this

provision, the choice of counsel and rates to be charged must be approved by the City

Commission before the City is required to pay for expenses of same, which approval shall not be

unreasonably withheld.

The parties have executed this Agreement as of the date set forth above.

THE CITY OF SOUTH MIAMI

By:Title:

EMPLOYEE:

By:Orlando G. Martinez de Castro

backup p. 15



City of South Miami Charter

Article III, SECTION 4. Acting City Manager

A. Recommendation The Manager may recommend, by letter filed

with the City Clerk, subject to the approval of the

Commission, a qualified City administrative officer to

exercise the powers and perform the duties of the Manager

during any temporary absence or disability. Such acting City

Manager shall not serve for a period longer than 90 days.

During such absence or disability, the Commission may decline

such recommendation at any time and appoint another officer of

the City to serve until the Manager shall return or his

disability shall cease.

B. Failure to Recommend During such absence or disability as

set forth in (A), if the City Manager fails to recommend an

Acting City Manager, the Commission shall name an Acting

Manager to serve at the pleasure of the Commission.

backup p. 16



From: Mirabile, Hector <[email protected]>

Sent time: Sunday, February 27, 2011 12:05:54 PM

To: Mayor & Comm <Mayor&[email protected]>

Cc: Feingold, Laurence <[email protected]>; Palmer1, Velma <[email protected]>

Subject: Vacation

Honorable Mayor, Vice Mayor, and Commissioners,

I will be taking vacation on Friday, March 4, 2011. I will be out of town attending my daughters ballet competition recital in two diffe

locations in Florida. You may still reach me via cellular telephone.

In this and future absences due to vacation I am designating Chief of Police, Orlando Martinez De Castro, as acting City Manager and

designate him with limited signature authority, he will not have signature authority to bind the City in the area of contracts or

agreements. He does have signature authority in the areas of routine City business and expenditures.

Sincerely,

Hector Mirabile, PhD

City Manager

backup p. 17



From: Hector Mirabile <[email protected]>Subject: Vacation

Date: February 27, 2011 12:05:54 PM ESTTo: Mayor & Comm <Mayor&[email protected]>Cc: "Feingold, Laurence" <[email protected]>, "Palmer1, Velma"

<[email protected]>


I will be taking vacation on Friday, March 4, 2011. I will be out of town attending my daughters

ballet competition recital in two different locations in Florida. You may still reach me via cellular

telephone.

In this and future absences due to vacation I am designating Chief of Police, Orlando Martinez DeCastro, as acting City Manager and designate him with limited signature authority, he will not

have signature authority to bind the City in the area of contracts or agreements. He does havesignature authority in the areas of routine City business and expenditures.

Sincerely,

Hector Mirabile, PhD City Manager

backup p. 18



From: Hector Mirabile <[email protected]>Subject: City Manager Vacation

Date: July 1, 2011 2:14:19 PM EDTTo: Mayor & Comm <Mayor&[email protected]>Cc: "Pepe, Thomas F." <[email protected]>, "Menendez, Maria M."

<[email protected]>, "Garcia, Maria"<[email protected]>, "MartinezdeCastro, Orlando"<[email protected]>

HonorableMayor,ViceMayor,andCommissioners,

IwillbetakingvacationonJuly5,2011andwillreturnJuly6,2011.

DuringmyabsenceChiefOrlandoMartinezDeCastrowillbethe

actingCityManager.Hewillhavetheauthoritytoadministratethe

cityandsignatureauthorityinalladministrativerequirementsbutwillnothavesignatureauthorityforcontracts.

Sincerely,

Hector Mirabile, Ph. D.City Manager

backup p. 19



From: Hector Mirabile <[email protected]>Subject: Acting City Manager-Chief of Police

Date: April 5, 2011 4:29:18 PM EDTTo: Everyone1 <[email protected]>

All,

Iwillbeoncitybusinessoutsideofthecounty.InmyabsenceChiefof

PoliceOrlandoMartinezdeCastroisleftinchargeasactingcity

managerwithlimitedrightsandprivilege.Theexplicitlimitationisthe

signingofanycontractbindingthecity.Hedoeshaveauthorityto

approveanyandallpersonnel,financial,and/orotheradministrative

functionsfortheefficientoperationofthecity.Iwillbereturningon

Thursday,April7,2011,atorabout7:00pm.IwillreturntotheofficeonFriday,April8,2011.

Sincerely,


backup p. 20



DearCommission,

IwillbegoingthroughamedicalproceduretomorrowandconsequentlyIwillbe

outusingillnesstime.InmyabsenceIamleavingChiefOrlandoMartinezDe

Castroincharge.YoumayreachmeviaemailandIwillrespondassoonasIam

outofthehospital.Therefore,anyimmediateactionitemsneedtobesubmittedoraddressedthroughtheChief.

Sincerely,


Hector Mirabile <[email protected]>

Mayor & Comm <Mayor&[email protected]>

"MartinezdeCastro, Orlando" <[email protected]>, "Pepe, Thomas

F." <[email protected]>

Medical proceedure

backup p. 21



From: Hector Mirabile <[email protected]>Subject: Acting Manager while Manager is on jury duty

Date: January 4, 2012 3:51:38 PM ESTTo: Mayor & Comm <Mayor&[email protected]>, "Pepe, Thomas F."<[email protected]>, "Menendez, Maria M."

<[email protected]>Cc: Dept Heads <[email protected]>

DearCommission,

IwillbeattendingjurydutyatBrowardCountyCourtHousetomorrow

alldayuntilreleased.InmyabsenceChiefOrlandoMartinezDe

CastrowillbeactingCityManager.Imaynotbeavailableonthe

cellulartelephoneduetorestrictionsinthecourtsbutpleasefeelfree

tocontacttheChief.

Sincerely,

HectorMirabile,PhD

CityManager

backup p. 22



From: Hector Mirabile <[email protected]>Subject: Manager taking vacation

Date: January 12, 2012 3:05:49 PM ESTTo: Mayor & Comm <Mayor&[email protected]>Cc: "MartinezdeCastro, Orlando" <[email protected]>,

"Menendez, Maria M." <[email protected]>, "Pepe, Thomas F."<[email protected]>

DearCommission,

Iwillbetakingavacationdaytomorrow,January13,2012.Inmy

absenceChiefOrlandoMartinezDeCastrowillbetheactingCity

Manager.

Sincerely,


City Manager

backup p. 23



From: Hector Mirabile <[email protected]>Subject: City Manager vacationing

Date: February 29, 2012 6:18:57 PM ESTTo: Mayor & Comm <Mayor&[email protected]>Cc: "Menendez, Maria M." <[email protected]>, "Garcia, Maria"

<[email protected]>, "Pepe, Thomas F." <[email protected]>,"MartinezdeCastro, Orlando" <[email protected]>

DearCommission,

IwillbeonvacationfromSunday,4MarchthruThursday,8March

2012.InmyabsenceIwillbeleavingChiefOrlandoMartinezDe

CastroastheactingCityManager.SincewehaveaCommission

meetingonTuesday,7March2012,pleasefeelfreetocontactthe

respectivedepartmentdirectorsofthevariousagendaitemsforanappointmenttomeetwiththemanddiscusstheitems.

Sincerely,

HectorMirabile,PhD

CityManager

backup p. 24



From: Hector Mirabile <[email protected]>Subject: Manager's Vacation Schedule for FY 2012

Date: May 30, 2012 10:46:07 AM EDTTo: Mayor & Comm <Mayor&[email protected]>Cc: "MartinezdeCastro, Orlando" <[email protected]>,

"Riverol, Alfredo" <[email protected]>

OrlandoandAlfredo,seeifthisvacationofmineimpactanytimeyou

aregoingtobeoutasdescribedbelow.

DearmembersoftheCommission,

Iwillbeonvacationthefollowingdatesforthisyear:

June11thru14,2012(32hours);


July23thruAugust17,2012(160hours).

Atotalof224vacationhourswillbeused.AsoftheMay18,2012

payrollIhaveabalanceof263.44hoursofvacationavailable.

InmyabsenceChiefOrlandoMartinezDeCastrowillbetheactingCity

ManagerforJune11thru14;June25thru28;andJuly23thruAugust10,2012.Mr.AlfredoRiverolwillthenbetheactingCityManager

fromAugust11through17,2012.

Sincerely,

HectorMirabile,Ph.D.

CityManager

CityofSouthMiami

6130SunsetDrive,FL33143-5093

305-668-2510

[email protected]

backup p. 25



From: MartinezDeCastro, Orlando <[email protected]>

Sent time: Thursday, August 11, 2011 5:40:47 PM

To: Mirabile, Hector <[email protected]>

Subject: Re: City Manager Vacation

Perfect

Right on

Orlando Marnez de Castro

Chief of Police

South Miami Police Department

305.663.6336 Of.

Sent from my Blackberry device

(Please excuse brevity, punctuaon and spelling).

From: Mirabile, Hector

Sent: Thursday, August 11, 2011 05:17 PM

To: Dept Heads

Cc: Garcia, Maria; Dennis Deblois

Subject: City Manager Vacation

Dear Team,

I will be on vacaon from August 14 through the 30 th (12 working days). In my absence I will be leaving the following perso

as acng city manager with the authority of the City Manager except signing contracts:

August 14‐21, 2011: Alfredo Riverol, CPA

August 22‐30, 2011: Chief Orlando Marnez De Castro

All HR maers should be referred to Latasha Nickles who will serve as my authorized representave in disciplinary maer

including dispute resoluon and pre‐terminaon hearings.

Sincerely,

Hector Mirabile, Ph. D.

City Manager

backup p. 26



MayorandCommissioners,attachedaretheaccomplishmentsofthecity

departmentsfortheperiodJune5-11,2012,foryourreviewfor

tomorrow’scommissionmeeting.

Regards,Orlando Martinez de Castro, Acting City Manager

Chief of Police

South Miami Police Department6130 SW 72nd StreetSouth Miami, Florida 33143 Office: 305.663.6336Fax: 305.663.2045Main: 305.663.6301Email: [email protected]: The State of Florida has a very broad public records law. Written communications, includingemails, are therefore subject to disclosure to the public and media upon request based on Florida

Statue #119. This email may contain confidential and/or privileged information. If you are not theintended recipient (or have received this email in error) please notify the sender immediately anddestroy this email. Any unauthorized copy, disclosure or distribution of the material in this email isstrictly forbidden.

CM Brief to…ocx (109 KB)

"MartinezdeCastro, Orlando"

<[email protected]>

Mayor & Comm <Mayor&[email protected]>

Dept Heads <[email protected]>, Hector Mirabile

<[email protected]>, "Payne, Nkenga" <[email protected]>, "Menendez,

Maria M." <[email protected]>

FW: CM Brief to Comm June 12 2012

4 Attachments, 244 KB

backup p. 27

mailto:[email protected]




To:

Cc:

Attachments:

Mayor & Comm; Dept Heads

Menendez, Maria M.; Garcia, Maria; Payne, Nkenga; Hector Mirabile

image001.jpg (128 KB)

Reply Reply All Forward

Absence from the City

MartinezdeCastro, Orlando

Friday, August 03, 2012 11:53

Dear%All,

As%you%are%aware,%the%City%Manager%has%designated%me%to%be%the%Acting%CM%until%08/10/12.%%I%will%be%out%of%town

from%this%afternoon,%08/03/12%until%%08/05/12,%Sunday%afternoon.%%Therefore,%I%have%assigned%Mr.%Riverol%as%the

Acting%CM%unit%I%return,%in%case%there%is%an%emergency.%%I%am%available%by%cell%phone%should%you%need%to%contact%m

%

I%also%wanted%to%make%you%aware%that%the%City%Manager%has%assigned%Ms.%Carmen%Baker%to%run%the%next

Commission%meeting,%August%7th.

Regards,%

Orlando Martinez de Castro

Chief of Police

%%%%%%%%%%%%%%%%South Miami Police Department

6130 SW 72nd StreetSouth Miami, Florida 33143 Office: 305.663.6336Fax: 305.663.2045Main: 305.663.6301Email: [email protected]: The State of Florida has a very broad public records law. Written communications, including emails, are therefore subject to disclosurthe public and media upon request based on Florida Statue #119. This email may contain confidential and/or privileged information. If younot the intended recipient (or have received this email in error) please notify the sender immediately and destroy this email. Any unauthoricopy, disclosure or distribution of the material in this email is strictly forbidden.

%

backup p. 28

https://mail.southmiamifl.gov/owa/?ae=Item&a=Open&t=IPM.Note&id=RgAAAAD40dvrcyR3TITzShqOqAhtBwDxnrfcAL9AQpTBCZZgkTg3AAAA3CzNAABSu7TZIF9FQrsr00VllpLlAAAAC%2bWcAAAJ&pspid=_1374590941962_702031172#




https://mail.southmiamifl.gov/owa/redir.aspx?C=CzrhqHe6VE2agitAKwOs_3w9Ww5LW9AIUnQ8Eu9bihBk8cIdtOpAPKs1tjXj38LxvwaBx99O4qQ.&URL=mailto%3aRRodriguez%40cityofsouthmiami.net

https://mail.southmiamifl.gov/owa/redir.aspx?C=CzrhqHe6VE2agitAKwOs_3w9Ww5LW9AIUnQ8Eu9bihBk8cIdtOpAPKs1tjXj38LxvwaBx99O4qQ.&URL=mailto%3aRRodriguez%40cityofsouthmiami.net











http://help.outlook.com/en-US/140/ms.exch.owap.MailPremium.aspx?v=14.2.318.0&l=0&cl=op






From: MartinezdeCastro, Orlando <[email protected]>

Sent time: Wednesday, June 13, 2012 12:35:55 PM

To: Woodley, Lorenzo <[email protected]>

Cc: Garcia, Maria <[email protected]>

Subject: Re: CM Brief to Comm June 12 2012

Attachments: image001.jpg image002.jpg image003.jpg

No problem.

From: Woodley, LorenzoSent: Wednesday, June 13, 2012 12:32 PM

To: MartinezdeCastro, Orlando

Subject: Re: CM Brief to Comm June 12 2012

This is taken much longer than I expected I will. Use a vacaon day today if you need me call

From: MartinezdeCastro, Orlando

Sent: Monday, June 11, 2012 05:04 PM

To: Mayor & Comm

Cc: Dept Heads; Hector Mirabile; Payne, Nkenga; Menendez, Maria M.

Subject: FW: CM Brief to Comm June 12 2012

Mayor and Commissioners, aached are the accomplishments of the city departments for the period June 5‐112012, for your review for tomorrow’s commission meeting.

Regards,

Orlando Martinez de Castro, Acting City Manager Chief of Police

image002


6130 SW 72nd StreetSouth Miami, Florida 33143

Office: 305.663.6336

Fax: 305.663.2045

Main: 305.663.6301

Email: [email protected]: The State of Florida has a very broad public records law. Written communications, including emails, are therefore subject to disclosure to the p

and media upon request based on Florida Statue #119. This email may contain confidential and/or privileged information. If you are not the inte

recipient (or have received this email in error) please notify the sender immediately and destroy this email. Any unauthorized copy, disclosure or distrib

of the material in this email is strictly forbidden.

PATCH1

backup p. 29




RE: Restrepo Property AbandonmentMartinezdeCastro, Orlando

Great, rock and roll,

thanks

Sent: hursday, August 02, 2012 11:05 AMTo: epe, Thomas F.; Brimo, ChristopherCc: aker, Carmen V.

Orlando Martinez de Castro

Chief of Police


6130 SW 72nd StreetSouth Miami, Florida 33143

Office: 305.663.6336Fax: 305.663.2045

Main: 305.663.6301Email: [email protected]: The State of Florida has a very broad public records law. Written communications, including emails, are therefore subject to disclosure

to the public and media upon request based on Florida Statue #119. This email may contain confidential and/or privileged information. Ifyou are not the intended recipient (or have received this email in error) please notify the sender immediately and destroy this email. Anyunauthorized copy, disclosure or distribution of the material in this email is strictly forbidden.

From: Pepe, Thomas F.Sent: Thursday, August 02, 2012 10:57 AMTo: Brimo, ChristopherCc: MartinezdeCastro, OrlandoSubject: RE: Restrepo Property Abandonment

Not if you sell it "as is". There would need to be a simple "as is" sales contractwaiving all warranties, etc.

Very truly yours,

Thomas F. Pepe

City Attorney City of South Miami 1450 Madruga Avenue, Ste 202,Coral Gables, Florida 33146 Tel: (305) 667-2564

Fax: ( 305) 341-0584

E-mail: [email protected]

Page 1 of 2RE: Restrepo Property Abandonment

5/23/2013https://mail.southmiamifl.gov/owa/?ae=Item&t=IPM.Note&id=RgAAAACA0ojKx2%2bR...

backup p. 30



ATTENTION: This e-mail may contains PRIVILEGED AND CONFIDENTIAL INFORMATION intended only for the use of the addressee named above. If you are not the

intended receiver, you are hereby notified that any dissemination of this communication is strictly prohibited. If you have received this e-mail in error, please

immediately notify us by telephone, call collect if outside of your area code and delete this e-mail. We will reimburse you for the cost of your long distance call.

Thank you. Please also note: All e-mails to and from this e-mail site are kept as a public record. Your e-mail communications, including your e-mail address may

be disclosed to the public and media at any time pursuant to Florida Statutes, ch. 119.

From: Brimo, ChristopherSent: Thursday, August 02, 2012 10:39 AM

To: Pepe, Thomas F.

Cc: MartinezdeCastro, OrlandoSubject: Restrepo Property Abandonment

Mr. Pepe:

Per the City Commission's request from the July 24th meeting, I did a brief analysis on the disposition of

property (abandonment vs sale). I have attached a copy of the memo that will be going with the item on August

7. However, the Chief requested that we be able to respond to the Commission regarding the issue of liability. If

the City sells the property rather than just abandoning it to the adjacent property owner, is there any liability to

the City should a problem arise after the sale? Thank you.

Chris

Christopher Brimo, AICP Planning Director City of South Miami 6310 Sunset Drive South Miami, FL 33143

Tel: (305) 663-6326/6327

The City of South Miami is a public entity, subject to Chapter 119 of the Florida Statutes concerning public records. E-mail messages and their attachments are covered under such laws and thus subject to disclosure. All e-mail sent to and received at this address, is captured by our servers and kept as a public record .

Page 2 of 2RE: Restrepo Property Abandonment

5/23/2013https://mail.southmiamifl.gov/owa/?ae=Item&t=IPM.Note&id=RgAAAACA0ojKx2%2bR...

backup p. 31



CITY OF SOUTH MIAMI

OFFICE MEMORANDUM

To: Hononible Mayor and City Commission

Date: June 11,2012

From: Chief Orlando Martinez de Castro

Acting City Manager

Re: Manager's Report.,, .'

.: I', , .. '

"

' ; . "

. ' . :, ."

The following 'll"e the accomplishments of the entire City for.,the·,period ending June lO;2()l2 whichare being 'stibmlUed fo r your review pdor to the June 12th Commission ,Meeting. · C o ' n ~ i d e r i n g the

current agenda, I wanted to inform you that as the Acting City Manager, I will not be reading this

report in the interest dfmoving,the m e ~ t i n g along ifYQlI:have;a,ny.questiops pleAS,e;;feel free to

contact me.·

i. Accomplishments.• I

,a. New IT IDe successes:

I'

1. RebUilt and configured ~ d ihstalled 3 desktops due v l r U S b s ~ .. . : ' , : ' " , . .. ' ,' !; . _ " , 'J" ' (:.:

ii. Rebuilt,.configured and installed 4 laptops due to yiruses.• _ . . t · '. ;-

. ' . • • t,'

111. IT deployed antivirus to 12 additional machines.

IV. Organized and setup OSSI training for two locations.

v. IT setup 4 laptops for QSSI trai,ning.

' .,

j ,) iJI.'

/ ' "

VI. IT assisted in the recovery and reconfiguration of corruption on ·the OSSI

database.

Vll. IT is currently working on completing inventory for SMPD.

Vlll. IT reset 34 system passwords.

June 1 t through June t h

Total Hours: 52

backup p. 32

CITY OF SOUTH MIAMI

OFFICE MEMORANDUM

To: Honorable Mayor and City Commission

Date: June 11,2012

From: Chief Orlando Martinez de Castro

Acting City Manager

Re: Manager's Report

"

'j

"

• ..' 4 .: I' ! . . . .: . . .

The following ~ e the accomplishments of the 'entire City for. 1he',period ending June 10;2Q 12 whichare being ' ~ b m l t t e d for your review pdor to the June 12th Commission ,tyfee4ng . C o ' n ~ i d e r i n g the

current agenda, I wanted to inform you that as the Acting City Manager, I will not be reading this

report in the interest dfmoving,the m e ~ t i n g along i f y q ~ h , a v e ; a , n y q u e s t i o p s pleAS,.e;.ieel free tocontact me.,

i.

.' "j

Accomplishments.• I " .

I

a. New IT IDe successes:, .

i. Rebuilt and configured ~ d installed 3 desktops due to viruSbs .. " ,",: ' j. ' I " . ' !:. . 1 ( I . • I

ii. Rebuilt, configured and installed 4 laptops due to yiruses., _ , .. ". t : ,': ::.

Ill. IT deployed antivirus to 12 additional machines.

IV. Organized and setup OSSI training for two locations.

v. IT setup 4 laptops for QSSI traiping.

VI. IT assisted in the recovery and reconfiguration of corruption on ,the OSSI

database.

VIl. IT is currently working on completing inventory for SMPD.

Vlll. IT reset 34 system passwords.

June 1 l through June 7th

Total Hours: 52



CITY OF SOUTH MIAMI

OFFICE MEMORANDUM


Date: July 19, 2012

From: Chief Orlando Martinez de CastroActing City Manager

Re: Manager’s Report

The following are the accomplishments of the entire City for the period covering June 12 to July 16, 2012which are being submitted for your review prior to the July 24, 2012 Commission Meeting. Consideringthe current agenda, I wanted to inform you that as the Acting City Manager, I will not be reading this reportin the interest of moving the meeting along but if you have any questions please feel free to contact me.

i. Accomplishment.

a. New IT IDC successes:

i. Rebuilt and configured and installed 4 desktops for the Police Dept.

ii. Rebuilt, configured and installed 8 laptops for the Police Dept.

iii. Built, configured and installed 4 new laptops for the Police Dept.

iv. IT coordinated OSSI Training for MCT and for MFR. Total hours for this project were

82.

v. IT coordinated OSSI Webex Training. Total hours for this project were 2 hours.

vi. IT coordinated MCT and MFR go live. Total hours for this project were 40.

vii. IT has been working on issues with the GPS systems. IT has spent approximately 22

hours on this issue.

viii. IT is currently working on Mobile printing issues. IT has spent approximately 18 hours

on this issue.

ix. IT has set up new users in the system along with their profiles and has moved users.

x. There have been some AS-400 issues which have been resolved.

backup p. 33



CITY OF SOUTH MIAMI

OFFICE MEMORANDUM


Date: July 26, 2012

From: Chief Orlando Martinez de CastroActing City Manager

Re: Manager’s Report

The following are the accomplishments of the entire City for the period covering July 16 to July 25, 2012which are being submitted for your review prior to the July 31, 2012 Commission Meeting. Consideringthe current agenda, I wanted to inform you that as the Acting City Manager, I will not be reading this reportin the interest of moving the meeting along but if you have any questions please feel free to contact me.

i. Accomplishment.

New IT IDC successes: Given the duration between Tuesdays meeting and today, IT has nothing new toreport for the meeting in July 31st. IT will have an update for the August 7th meeting.

a. i. Rebuilt and configured and installed 4 desktops for the Police Dept.

ii. Rebuilt, configured and installed 8 laptops for the Police Dept.

iii. Built, configured and installed 4 new laptops for the Police Dept.

iv. IT coordinated OSSI Training for MCT and for MFR. Total hours for this project were82.

v. IT coordinated OSSI Webex Training. Total hours for this project were 2 hours.

vi. IT coordinated MCT and MFR go live. Total hours for this project were 40.

vii. IT has been working on issues with the GPS systems. IT has spent approximately 22

hours on this issue.

viii. IT is currently working on Mobile printing issues. IT has spent approximately 18 hours

on this issue.

backup p. 34



CITY OF SOUTH MlMll

Dep.!'meot of Planniog & Zocing6130 Sunset Drive, South Miami, F!orida 33143

Phone: (305) 663-6326 Fax: (305) 668-73 56

APPLICATION FOR OUTDOOR SEATING / DINING

R_ tName : ' 10 (, 0 1\1 (tW <-,_--- Phone 305 H6 o!, 88

Adthu: 2 ... I., . , ~ .. . I ' \ " - ' - " v " ' 6 - - _ : _ - s o u t h Mimn, Florid. ... ;1 L

Applicant: Cc£,:1CS £..: i a . 1 - " - - , , , ~

Phone: . ." . .S 1'0

0 4 tlRAda"es.s: " - C ~ ~ ~ . . . . . , ) ; - t - 1 i - - ' - c . ( ) J o ILLLt "'-''''s--<!1U.!l<...c.. vlO<L1'o.u.' _ #= ' . l l . 1 " , " ~ ' - " ( L ~ j j ~ : I;t_--h ; 1-4 :L

App/lcClll/ i signatun Dol,

p,cl/J3. J 1. oi LDo"

NOTICEThlJ permit l.J not r m n s f e r a b J ~ In any manner, and lJ strictly II conditional 113& permit l.wu:d /0(' n period of one year, rrncwablt!

(lutomflrically at time 0/ annual occupaJlunnl IIceftsL unt!WaL Al l of the $/ondOff/S ond rtglliations sd jort" in the LandDevtlopmellf Code Sedion 2D-J.J(E), shall be applicable to an oUldoor Jcatinfl dlnlng areD.

Any violation u/ thfl n!t:Il/IIlions and standardsd

forth In Sect/an 10-J.J (E) o/ I h . LonJD I ! V ~ J a p m ~ " 1 C a / ~

sJtallc a " s t l t l l l ~ If

~ n r n U I " d d ~ n ' a/vlalntlon n"rI shrrll rOil/lin a SSOO.OO II dUJ I n ~ f a r encll day alcont fnlled vlalntlan.

FEESTht CIJy ojSou I11 Miomi wlY cllarre I ll! fJJtlluol/u/o r thl/o(Jowlnt: CDndIJlons:

A fee ofns shall be charged for esc.h seo.llhnt is located on the public righ l3-o(·way. The ~ n n u i l l fee for each outdoor sen! shall beIluromarically increASed by $10 each year until the fcc for each outdoor seal is S65.

A fee ofS520 $hall be charged for eny stand alone table top with no sea ting which is used for consumption ofbever3ges or foodwhich is located on public ri gh U- O ·WilY. .

A fee of$250 shall be charg=d for all outdoo r dininglseatins use pennhs u.!IfnS private pro perty.

L ~ a r t o l ' / of rhe Outdoor SeQ1Irw'Dfnfng: a Prl\J(:ie Propeny

Required Materials 10 be rubmfned and attached htrdo:

a Public Proputy

o P r o ~ I 1 ) I B o u n d a r y SU r'Vq o IndemnilyAgreemenl

Ii ( Outdo« Sea /frog Plan/Dining Area Pf(Jll a Proofof 'IIIlJrtmce

o r S ~ a u : ~ . ___o Num btr ofProposed 01lldoo r Secrs within Public Rig,t.oj-Wuy:_-'6 '. . __

o Number ofProposed crJtdocr Sears within Pr/vot, Proputy: _ ____ _

a Number of o p o s ~ Table TOJM: -'4'1--,- - - -

o Both

[] Hom oIOp"a.o" ·· : 1()Ar \ - 11. \u(>M

o Dot.&: 17meo/Cleanll[¥MalnJeflQflce''' ; ( ! " ( ~ MqLk (C ....J rll\oIOO"r'--____Addltlonnl1f1otuials 10 be $lIbmined 4nd artnched hereto (I/appllcoble):

o Adjacent property uudior seatlflgld!11lng area:(Adjacent Property Owner Const!nt Form)

rI AmpJfjll!dSowldAgr-eemtnt"

Addre.u:

f a j t I 0[1

a DISAPPROYED

o DISAPPROVED

backup p. 35

CITY OF SOUTH MWI1

Dcp'!1mcot ofPllUUliDg & Zoning

6130 Sunsct Drivc , South Miami, F!orida 33143

Phone: (305) 663-6326 Fax: (305) 668-7356

Soulh i\'li;uni~imp

APPLICATION FOR OUTDOOR SEATING / DINING

R " " " " " ' t N a m ~ 'io ~ & ! \ I EtW .<.,_ - _ _ Phone: 305 t 46 <:>t, 8S

Adthu: 1 Z D"I <;. I., S - ~ ~ i i \ " " - " v " ' 6 _ __ :_ - SOuth Mimn, Florid. .. . :I L

Ap;>Iic.lnt: c.c&.:J r:.S E- i0

Io.

""JL- Phone: -y , S" l ' 0 I.r S 8Address: ( . > . . C ~ ~ ~ , . , . . . ) - ? 1 i ' - - " c - c o w I l ... - " t ! U L v ~ < . v 1 t " " t ' - - " # = = c : J . , ' " " ~ ~ Q ( L t ( t i ~ : I ; ~ " - - - h 1-4:L

AppllcOIlI'l ligrla/ur i 00"

p,

NQTICET1rb pamit u not r r ( / n s f a a In any mannu, (md Is strktly II condltJonaJ '1St: permit ~ c d /0( ' n period of one y ~ n r . rrncwnblc

autDmflflcally al lime 0/ annual occupaJionn/ /lett /.u unl!WoL An of 'h e rt antfortls IJlld rttll/al/ons Jet fort" in the LandDwt/6pmclll Code S«I;on lD-J.3(E), shalt bCllppllcablc to 111'1 aUldoor scat/nr/dlnlng t lm l .

Any vltI/allon ti l th . rt!gu/lllions and standard Sd forth In Sed/an 10-1.J(E) 01 th . Land Drvdopml!nl s"olln s t l t l l l ~

aSqlnrnU r : l d ~ n ol v/olntlon ond s""" rOlillin a fSOO.OO II dtrJ I n ~ / o r ench day o l c o n l l ~ d violation.

FEESell] of SouIII Miami w/U cllarre Il l! tln lJunlfu fo r thlfolloN'lnf condiJlonf:

A fee ofru shall be chnrgcd for e&.h seLlt thllt is located on the public righ l3-of-way. The :lnnuel fee for each outdoor senl shall be

Gutomarically increased by SID C3ch year until the foe for ellch outdoor seat is S6S.

A fee of SS20 shal l be charged fo r My stand alo ne table top with no sea ting which is used for consum ption of bevtr3ges or foodwhlch is iDC:ltod on pub lic righU-O(-WllY. .

A fee ofS2S0 shD II be charged for all outdoor di ningfsCl ting use permils using private property .

L ~ a r t o n of he Outdoor SeD1fngIDlnfng: a PrltJcJe Propury

R e ' l u / ~ dMaterials (0 be submtrred an d nnached htrc1o:

a Public Propury

o P r o ~ I 1 ) ' I B o u n d o r y Survey o indemnityAzreetntJ1t

Ii ( Outdoor Sea /frog Plan/Dlnmg Area Pian a Proofof rulJrance

o Nu mbt!r o/ lnaoorSeau' . ___o Numb" ofProposed Olltdoor Sccts within Publ,c Right-of-Way ~ _ _ _

o Number ofProposed ()oJtdoor Seol s within Private Proputy: _ _ _ __a Numbtr ofProposed Tab le Tops: -'4'1--,- - - -

o Both

n Homo/Op"a"o' · · : 1 ~ A r \ -11 . \urM

a D Q " & : T i m ~ f N ' M O i n t t ! 1 l a n c : ~ ' < ! ' ' ( ~ ~ t b= !CJ M..c l / . t \ ..rtr'-_____AddUlannl materials /0 ~ s u b " , i n ~ r f ond adachtd t e r ~ / o (l lapp l1coble):

o Adjacent r o p ~ r r y used/oruarlngldlning area:

(Adjacent Property Owner Consent Form)

V Amplfj1edSoundAgr'eement"

Addra.s;

fagt I of1

a DISAPPROVED

o DISA PPRO VED



On ibis Ibe \ ~ day of it \0 ' ; 20jL before me, the undersigned Notary Public of the State of florida, Ibe

foregoing instrument was acknowledge es c ,-(cJQ.Att.Je of

(print name and title of corporate officer)

(print name of corporation and state or place of ncorporation)

on behalf ofthe corporation. Witness my hand and official seal. /l ~ ~ ~ ~ ~ ~Please check ODe oCthe following:

o Personally known to me~ r o d u c c d identification

Please check one of the following:a DID take an oatho DID NOT take an oath.

CITY OF SOUTH MIAMI

Olary Public. Sta lorida

Print Name: Maria M Menendez

~ . , . y ~ ..;Ii ••••••• fMRIA I t MEHaa:z

....W * UY COWJsstoH, EE J71G79, ~ EXPIRES: March 16,2016' " t " n . ~ ~ fIInIa.,.",

(Type of identification produced)

---

backup p. 36

On ibis Ibe \ ~ day of it \0 ' ; 20jL before me, the undersigned Notary Public of the State of florida, Ibe

foregoing instrument was acknowledge es c ,-(cJQ.Att.Je of

(print name and title of corporate officer)

(print name of corporation and state or place of ncorporation)

on behalf ofthe corporation. Witness my hand and official seal. /l ~ ~ ~ ~ ~ ~Please check ODe oCthe following:

o Personally known to me~ r o d u c c d identification

Please check one of the following:a DID take an oatho DID NOT take an oath.

CITY OF SOUTH MIAMI

Olary Public. Sta lorida

Print Name: Maria M Menendez

~ . , . y ~ ..;Ii ••••••• fMRIA I t MEHaa:z

....W * UY COWJsstoH, EE J71G79, ~ EXPIRES: March 16,2016' " t " n . ~ ~ fIInIa.,.",

(Type of identification produced)

---



From: Palmer1, Velma <[email protected]>

Sent time: Wednesday, April 06, 2011 2:25:51 PM


Subject: Re: Acting City Manager-Chief of Police

OK.

Sent from my Samsung Intercept™

"Mirabile, Hector" wrote:

>All,

>

>I will be on city business outside of the county. In my absence Chief of Police Orlando Marti

de Castro is left in charge as acting city manager with limited rights and privilege. The exp

it limitation is the signing of any contract binding the city. He does have authority to appro

any and all personnel, financial, and/or other administrative functions for the efficient opera

n of the city. I will be returning on Thursday, April 7, 2011, at or about 7:00 pm. I will r

rn to the office on Friday, April 8, 2011.

>

>Sincerely,

>

>Hector Mirabile, Ph. D.

>City Manager

backup p. 37



From: Newman, Valerie <[email protected]>

Sent time: Monday, July 04, 2011 11:30:56 AM


Subject: Re: City Manager Vacation

well deserved...have fun

On Fri, Jul 1, 2011 at 2:14 PM, Mirabile, Hector <[email protected]> wrote:


I will be taking vacation on July 5, 2011 and will return July 6, 2011. During my absence Chief Orlando Martine

De Castro will be the acting City Manager. He will have the authority to administrate the city and signature

authority in all administrative requirements but will not have signature authority for contracts.

Sincerely,


City Manager

--

Valerie Newman

(786) 351-1648

backup p. 38




Hector,

Going somewhere fun?

-Phil

On Feb 29, 2012, at 6:18 PM, Hector Mirabile wrote:

DearCommission,

IwillbeonvacationfromSunday,4MarchthruThursday,8March2012.In

myabsenceIwillbeleavingChiefOrlandoMartinezDeCastroastheacting

CityManager.SincewehaveaCommissionmeetingonTuesday,7March

2012,pleasefeelfreetocontacttherespectivedepartmentdirectorsofthe

variousagendaitemsforanappointmenttomeetwiththemanddiscussthe

items.

Sincerely,

HectorMirabile,PhD

CityManager

------------------------------------------------------------Dr. Philip K. StoddardMayor of South Miami305-342-0161 mobilewww.southmiamifl.gov------------------------------------------------------------

Mayor Philip Stoddard <[email protected]>

Re: City Manager vacationing

backup p. 39

http://www.southmiamifl.gov/




Re: Green Corridor Property Assessment Clean Energy (PACE) DistrictStoddard, Philip K.Sent:Thursday, July 26, 2012 3:53 PMTo: Payne, Nkenga

Yes

Philip Stoddard

Mayor of South Miami305-342-0161 [email protected]@[email protected](from iPhone, thus brief)

On Jul 25, 2012, at 3:08 PM, "Payne, Nkenga" <[email protected]> wrote:

Good$Afternoon$Mayor,

$Regarding$the$PACE$agreement$the$City$Manger$needs$to$sign$but$as$you$know$he$is$not$here.$$Should

I$have$the$acting$city$manager$Chief$Martinez$sign?$$Please$let$me$know$because$Steven$Alexander

called$and$stated$that$the$agreement$needs$to$be$recorded$tomorrow.

$

Please$advise.

$

Thanks,

$

Nkenga “Nikki” Payne, CMC $

Deputy City Clerk $

City of South Miami $

6130 Sunset Drive$

South Miami, FL 33143$

(305)663-6340 office$

(305)663-6348 fax $

[email protected] $

www.southmiamifl.gov $

Please note: $The state of Florida has a very broad public records law. Written

communications, including emails, are therefore subject to disclosure to the$

public and media upon request.

$

backup p. 40

https://mail.southmiamifl.gov/owa/redir.aspx?C=X95YbbMavEmD3R_tbFQ3GVjDsyOxW9AId1qP-Y-7EzV-4x9r7BpYqXhbJZornW62CvFDsJptO3s.&URL=mailto%3aPStoddard%40SouthMiamiFL.gov

https://mail.southmiamifl.gov/owa/redir.aspx?C=X95YbbMavEmD3R_tbFQ3GVjDsyOxW9AId1qP-Y-7EzV-4x9r7BpYqXhbJZornW62CvFDsJptO3s.&URL=mailto%3aMayorStoddard%40gmail.com

https://mail.southmiamifl.gov/owa/redir.aspx?C=X95YbbMavEmD3R_tbFQ3GVjDsyOxW9AId1qP-Y-7EzV-4x9r7BpYqXhbJZornW62CvFDsJptO3s.&URL=mailto%3aPKStoddard%40gmail.com

https://mail.southmiamifl.gov/owa/redir.aspx?C=X95YbbMavEmD3R_tbFQ3GVjDsyOxW9AId1qP-Y-7EzV-4x9r7BpYqXhbJZornW62CvFDsJptO3s.&URL=mailto%3aNPayne%40southmiamifl.gov

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https://mail.southmiamifl.gov/owa/redir.aspx?C=X95YbbMavEmD3R_tbFQ3GVjDsyOxW9AId1qP-Y-7EzV-4x9r7BpYqXhbJZornW62CvFDsJptO3s.&URL=http%3a%2f%2fwww.southmiamifl.gov

https://mail.southmiamifl.gov/owa/redir.aspx?C=X95YbbMavEmD3R_tbFQ3GVjDsyOxW9AId1qP-Y-7EzV-4x9r7BpYqXhbJZornW62CvFDsJptO3s.&URL=http%3a%2f%2fwww.southmiamifl.gov

https://mail.southmiamifl.gov/owa/redir.aspx?C=X95YbbMavEmD3R_tbFQ3GVjDsyOxW9AId1qP-Y-7EzV-4x9r7BpYqXhbJZornW62CvFDsJptO3s.&URL=mailto%3anpayne%40southmiamifl.gov

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https://mail.southmiamifl.gov/owa/redir.aspx?C=X95YbbMavEmD3R_tbFQ3GVjDsyOxW9AId1qP-Y-7EzV-4x9r7BpYqXhbJZornW62CvFDsJptO3s.&URL=mailto%3aPKStoddard%40gmail.com

https://mail.southmiamifl.gov/owa/redir.aspx?C=X95YbbMavEmD3R_tbFQ3GVjDsyOxW9AId1qP-Y-7EzV-4x9r7BpYqXhbJZornW62CvFDsJptO3s.&URL=mailto%3aMayorStoddard%40gmail.com

https://mail.southmiamifl.gov/owa/redir.aspx?C=X95YbbMavEmD3R_tbFQ3GVjDsyOxW9AId1qP-Y-7EzV-4x9r7BpYqXhbJZornW62CvFDsJptO3s.&URL=mailto%3aPStoddard%40SouthMiamiFL.gov




Sent time: Thursday, June 14, 2012 2:44:45 PM

To: Riverol, Alfredo <[email protected]>

Subject: Fw: BID PROTEST submitted by South Miami Grey Ghosts Soccer Club

Fyi

From: Pepe, Thomas F.

Sent: Thursday, June 14, 2012 02:43 PM

To: kulick, Steven P; Hector Mirabile; MartinezdeCastro, Orlando

Subject: RE: BID PROTEST submitted by South Miami Grey Ghosts Soccer Club

I would suggest the following response to the Grey Ghost bid protest:

The City Commission, at the publicly noticed commission meeting, gave directions to the acting City

Manager to obtain three quotes for the current soccer season ending on May 29, 2013. The only implicat

possible is that the commission was authorizing the administration to reject all bids as to the up coming

soccer season. In any event, it is our City Attorney's opinion that the decision to put an item out for bid a

the authority to reject all bids is an executive decision which is granted to the City Manager by Charter.

Very truly yours,

Thomas F. Pepe

City Attorney

City of South Miami

1450 Madruga Avenue, Ste 202,

Coral Gables, Florida 33146 Tel: (305) 667-2564

Fax: (305) 341-0584

E-mail: [email protected]

ATTENTION: This e-mail contains PRIVILEGED AND CONFIDENTIAL INFORMATION intended only for the use of the addressee named above. If you are not the intend

receiver, you are hereby notified that any dissemination of this communication is strictly prohibited. If you have received this e-mail in error, please immediately notify us by

telephone, call collect if outside of your area code and delete this e-mail. We will reimburse you for the cost of your long distance call. Thank you.

From: Javier Rodriguez [[email protected]]

Sent: Thursday, June 14, 2012 2:23 PM

To: kulick, Steven P; Hector Mirabile; Stoddard, Philip K.; Josh Liebman; Bob Welsh, Jr.; Harris, Walter; Newman, Valerie

Cc: Pepe, Thomas F.; Riverol, Alfredo; Menendez, Maria M.

Subject: RE: BID PROTEST submitted by South Miami Grey Ghosts Soccer Club

Mr. Kulick,

We believe there are sufficient legal grounds for our bid protest which stops the bidding process and does not allow the City to

proceed further, namely with this new solicited bid for the “Best and Final Offer”.

Yesterday, you sent an email titled “Best and Final Offers: Soccer Program at South Miami Park”. In the email it was stated in

bold that “the City hereby rejects all bids submitted in response to the Management of Soccer Programs at South

Miami Park RFP”. This was the first time that the City has indicated that all of the bids were being rejected. This was never

communicated at the Commission Hearing that took place on Tuesday, June 12, 2012. As such, it is a clear violation of the

Sunshine Act.

Pursuant to Florida’s “sunshine law”, all meetings of any state agency at which official acts may be taken must be conducted as

open, public meetings. Absent that, any action taken during such meetings is improper The result is that the agency’s action is

void and can be given no effect. (See Florida Statute Section 286.011).

Based on the foregoing, since the decision to reject all bids was never made at the Commission Meeting, it is our position that t

City cannot proceed further at this juncture.

backup p. 41




City of South Miami

Regular City Commission Minutes

March 6, 2012

A. SILENCE OR TURN OFF ALL CELL PHONES

The City Commission of the City of South Miami, Florida met in regular session on

Tuesday, March 6, 2012, beginning at 7:43 p.m., in the City Commission Chambers, 6130

Sunset Drive.

B. ADD-ON ITEM(S)NONE

C. ROLL CALL

The following members of the City Commission were present: Mayor Philip K.

Stoddard, Vice Mayor Josh Liebman, and, Commissioners Valerie Newman, Walter A. Harris

and Bob Welsh.

Also in attendance were: City Attorney Thomas F. Pepe, City Clerk Maria M. Menendez

and Acting City Manager Police Chief Orlando Martinez de Castro. City Manager Hector

Mirabile was absent.

D. MOMENT OF SILENCE

By Mayor Stoddard

E. PLEDGE OF ALLEGIANCEThe Pledge of Allegiance was recited in unison.

F. LOBBYIST(S) ADDRESSING THE CITY COMMISSION TONIGHT MUST HAVE

BEEN REGISTERED WITH THE CITY CLERK

G. PRESENTATIONS

NONE

H. APPROVAL OF MINUTES

Minutes of February 21, 2012

backup p. 42



CITY COMMISSION MINUTES

June 12, 2012

1

City of South Miami


June 12, 2012


B. ADD-ON ITEM(S)

C. ROLL CALL

The following members of the City Commission were present: Commissioner Harris,

Commissioner Welsh, Commissioner Newman, Vice Mayor Liebman.

The following members of the City Commission were absent: Mayor Stoddard

Also in attendance were: City Attorney Thomas F. Pepe, Esq., Acting City Manager

and Police Chief, Orlando Martinez de Castro, and City Clerk Maria M. Menendez, CMC.


E. PLEDGE OF ALLEGIANCE

F. LOBBYIST(S) ADDRESSING THE CITY COMMISSION TONIGHT MUST HAVE BEEN

REGISTERED WITH THE CITY CLERK

G. PRESENTATIONS

Detective Jose Lopez was presented the Officer of the Month award.


a) Minutes of May 21, 2012

Moved by Vice Mayor Liebman, seconded by Commissioner Harris, the motion to

approve Minutes of May 21, 2012, passed by a 4 - 0 vote:

Yea: Commissioner Harris

Commissioner Welsh

backup p. 43

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July 24, 2012

1

City of South Miami


July 24, 2012

G. PRESENTATIONS

a) Officer (s) of the Month

Off. Leo Hernandez was presented with the award of Officer of the Month.

b) Certificates of Appreciation to 4th of July event sponsors

c) The Van Smith family

Mr. Van Smith addressed the Commission about the recent passing of his brotherGarry.


B. ADD-ON ITEM(S)

C. ROLL CALL


Commissioner Welsh, Commissioner Newman, Vice Mayor Liebman, Mayor Stoddard

The following members of the City Commission were absent: None

Also in attendance were: City Attorney Thomas F. Pepe, Esq., Acting City Manager,

Police Chief Orlando Martinez de Castro and City Clerk Maria M. Menendez, CMC.



F. LOBBYIST(S) ADDRESSING THE CITY COMMISSION TONIGHT MUST HAVE BEENREGISTERED WITH THE CITY CLERK

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July 31, 2012

1

City of South Miami


July 31, 2012


B. ADD-ON ITEM(S)

C. ROLL CALL


Commissioner Welsh, Commissioner Newman, Vice Mayor Liebman, Mayor Stoddard

The following members of the City Commission were absent: None

Also in attendance were: City Attorney Thomas F. Pepe, Esq., Acting City Manager

Police Chief Orlando Martinez de Castro, and City Clerk Maria M. Menendez, CMC.



F. LOBBYIST(S) ADDRESSING THE CITY COMMISSION TONIGHT MUST HAVE BEEN

REGISTERED WITH THE CITY CLERK

G. PRESENTATIONS


I. CITY MANAGER'S REPORT

http://www.southmiamifl.gov/clientuploads/Archive/CSM_CityManagerBriefings2012/CM%20

Brief%20to%20Comm%20July%2031%202012.pdf

J. CITY ATTORNEY’S REPORT

There were no City Attorney reports at this meeting.

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Sent time: Sunday, February 27, 2011 12:09:00 PM

To: Dept Heads <[email protected]>

Subject: Vacation-Acting City Manager

I will be taking vacation on Friday, March 4, 2011. I will be out of town attending my daughters ballet competition recital in two diffe

locations in Florida. You may still reach me via cellular telephone.

In this and future absences due to vacation I am designating Chief of Police, Orlando Martinez De Castro, as acting City Manager and

designate him with limited signature authority, he will not have signature authority to bind the City in the area of contracts or

agreements. He does have signature authority in the areas of routine City business and expenditures such as any and all personnelactions, agenda items, purchases, etc.

Sincerely,


City Manager

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Sent time: Friday, July 01, 2011 2:11:50 PM

To: Pepe, Thomas F. <[email protected]>

Cc: MartinezDeCastro, Orlando <[email protected]>

Subject: RE: SMH Legal Meeting

I am off that day. Will be back on Wednesday. Try scheduling if you want the manager present. The Chief or his designee can be present a

represent the posion of management. Chief Marnez de Castro will be acng City Manager for that day.

-----Original Appointment-----

From: Pepe, Thomas F.Sent: Friday, July 01, 2011 12:55 PM

To: Mirabile, Hector

Subject: SMH Legal Meeting

When: Tuesday, July 05, 2011 4:00 PM-5:00 PM (GMT-05:00) Eastern Time (US & Canada).

Where: City Hall

BTR meeting with SMH legal team

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Sent time: Monday, August 15, 2011 2:36:24 PM

To: Stout-Tate, Maria <[email protected]>; MartinezDeCastro, Orlando <[email protected]>

Cc: Riverol, Alfredo <[email protected]>

Subject: RE: Hurricane Preparations

Maria, the acng City Manager is Alfredo for this week and the Chief for next week. Please ensure that your emails going o

to others is more accurate since I only have limited me to read these emails from work. Alfredo and Orlando, please send

your representaves to conduct a meeng and negoate appropriate results.

From: Stout-Tate, Maria

Sent: Monday, August 15, 2011 10:35 AM

To: Mirabile, Hector; MartinezDeCastro, Orlando

Cc: Riverol, Alfredo

Subject: FW: Hurricane Preparations

Importance: High Good morning gentlemen. Please see below in reference to assistance from Larkin Hospital in case of a strong Tropical Storm or

Hurricane. Thank you. Maria Elena

From: Stout-Tate, Maria


To: 'Daisy Baez'Subject: RE: Hurricane Preparations Yes. I shall forward this to the City Manager and the Chief and a protocol will be developed. Thank you again for your support. Mar

Elena

From: Daisy Baez [mailto:[email protected]]


To: Stout-Tate, Maria

Subject: RE: Hurricane Preparations Maria:

This has been approved in general.There is no queson that Larkin will do all possible to support the needs of the police department during such catastrophic

circumstance.

However, what we need to do is come up with some delineaons as I cannot guarantee that I can support this operaon in

enrety for an indefinite period of me.

Perhaps you can address when you develop your protocol.

From: Stout-Tate, Maria [mailto:[email protected]]

Sent: Friday, August 12, 2011 5:08 PM

To: Daisy Baez

Subject: RE: Hurricane Preparations Thank you. Maria Elena

From: Daisy Baez [mailto:[email protected]]


To: Stout-Tate, Maria

Subject: RE: Hurricane Preparations I’m submitting to our emergency preparedness team for consideration.

I’ll have an answer back to you next week.

From: Stout-Tate, Maria [mailto:[email protected]]


To: Daisy Baez backup p. 48



From: Hector Mirabile <[email protected]>Subject: Manager's Vacation Schedule for FY 2012

Date: May 30, 2012 10:46:07 AM EDTTo: Mayor & Comm <Mayor&[email protected]>Cc: "MartinezdeCastro, Orlando" <[email protected]>,

"Riverol, Alfredo" <[email protected]>

OrlandoandAlfredo,seeifthisvacationofmineimpactanytimeyou

aregoingtobeoutasdescribedbelow.

DearmembersoftheCommission,

Iwillbeonvacationthefollowingdatesforthisyear:



July23thruAugust17,2012(160hours).

Atotalof224vacationhourswillbeused.AsoftheMay18,2012

payrollIhaveabalanceof263.44hoursofvacationavailable.

InmyabsenceChiefOrlandoMartinezDeCastrowillbetheactingCity

ManagerforJune11thru14;June25thru28;andJuly23thruAugust10,2012.Mr.AlfredoRiverolwillthenbetheactingCityManager

fromAugust11through17,2012.

Sincerely,

HectorMirabile,Ph.D.

CityManager

CityofSouthMiami

6130SunsetDrive,FL33143-5093

305-668-2510

[email protected]

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From: Hector Mirabile <[email protected]>

Sent time: Thursday, August 09, 2012 8:50:32 AM

To: Payne, Nkenga <[email protected]>

Subject: RE: 119 Request reference Camilo Padreda by Attorney Michael Band

Attachments: image001.png

Niki, while I am on vacaon the Chief is the acng City Manager. Please ensure that you also copy him so that he can acon

Thank you.

From: Payne, Nkenga

Sent: Thursday, August 09, 2012 8:48 AM

To: Hector Mirabile; idc

Cc: Menendez, Maria M.

Subject: FW: 119 Request reference Camilo Padreda by Attorney Michael Band

Good Morning,

The attached public records request has been paid for. Please forward to the Clerk’s office when ready.

Thanks,

Nkenga “Nikki” Payne, CMC

Deputy City Clerk

City of South Miami

6130 Sunset Drive

South Miami, FL 33143

(305)663-6340 office

(305)663-6348 fax

[email protected]

www.southmiamifl.gov

Please note: The state of Florida has a very broad public records law. Written

communications, including emails, are therefore subject to disclosure to the

public and media upon request.

From: Menendez, Maria M.

Sent: Wednesday, July 18, 2012 2:36 PMTo: [email protected]

Cc: Hector Mirabile

Subject: FW: 119 Request reference Camilo Padreda by Attorney Michael Band

Dear Mr. Band,

Below please find the informaon you requested regarding the cost of providing the public records you requested.

Let me take this opportunity to assure you that yesterday was the first me that my office heard of your request as per the

advice of our City Manager, Dr. Mirabile. Neither did we receive anything from you by US Mail, nor by email. I take pride of

fact that I have the habit of acknowledging all public records requests as soon as I receive them; not later, not the next day,

immediately. Then I forward them to the pernent department(s) for acon and connue to follow up on their status unl

they are done.

If the quoted figure below is ok with you, you may proceed to pay by check or credit card. You may either mail the check to

aenon, or if you prefer to pay by phone and credit card you may do so by calling the Finance Department at: 305‐663‐6343

As soon as we receive payment your request will be processed.

Sincerely,

M ari a M . M enend ez , CM C, FCR M

Ci ty C l e rk

6130 Sunset Drive

South Miam i . F l 33143 backup p. 50






From: Brimo, Christopher <[email protected]>

Sent time: Monday, August 22, 2011 8:18:33 AM

To:Cabrera, Lourdes <[email protected]>; Lightfoot, Marcus <[email protected]>; Fernandez, Lidia

<[email protected]>

Subject: FW: City Manager Vacation

Just a reminder that Chief Orlando Marnez De Castro is the acng City Manager unl the 30 th.

Chris

Christopher Brimo, AICP Planning Director

City of South Miami

305-663-6327

[email protected]


Sent: Thursday, August 11, 2011 5:17 PM

To: Dept Heads



Dear Team,





All HR maers should be referred to Latasha Nickles who will serve as my authorized representave in disciplinary maer

including dispute resoluon and pre‐terminaon hearings.

Sincerely,


City Manager

No virus found in this message.

Checked by AVG - www.avg.com

Version: 10.0.1392 / Virus Database: 1520/3826 - Release Date: 08/10/11

backup p. 51


http://www.avg.com/





From: Korth, Jennifer <[email protected]>

Sent time: Tuesday, August 23, 2011 2:56:21 PM

To: Goodson, Letitia S. (HCD) (786) 469-2220 <[email protected]>

Subject: FW: City Manager Vacation

As per our conversation, here is the email where the City Manager authorizes the Chief to perform City Manager duties during the w

of August 22 – 30, 2011.


Sent: Thursday, August 11, 2011 5:17 PMTo: Dept Heads



Dear Team,





All HR maers should be referred to Latasha Nickles who will serve as my authorized representave in disciplinary maerincluding dispute resoluon and pre‐terminaon hearings.

Sincerely,


City Manager

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From: David, Stephen <[email protected]>

Sent time: Tuesday, August 23, 2011 4:01:42 PM

To: [email protected]

Subject: FW: No staff meeting tomorrow

From: Garcia, Maria

Sent: Tuesday, August 23, 2011 3:14 PM

To: Baixauli, Ana; Baker, Carmen V.; Brimo, Christopher; Citarella, Victor; Korth, Jennifer; Landa, Rene; Menendez, Maria M.; Ng, KNickle, Latasha; Pepe, Thomas F.; Riverol, Alfredo; Stout-Tate, Maria; David, Stephen

Cc: MartinezDeCastro, Orlando

Subject: No staff meeting tomorrow Good afternoon to all,

As per Chief Orlando Martinez de Castro (Acting City Manager) this week – there is NO staff meeting tomorrow. Should any chang

occur with “Hurricane Irene”, the Chief and his staff will call a meeting, if that occurs, a notification will be sent out.

Thank you,

Maria

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Sent time: Tuesday, June 05, 2012 11:12:12 AM

To: Motta, Cathy <[email protected]>

Subject: Fw: payroll due Monday, June 11, 2012

Fyi

From: Garcia, Maria

Sent: Tuesday, June 05, 2012 11:11 AM

To: Baker, Carmen V.; Brimo, Christopher; Ng, Keith; Kelly Barket; Riverol, Alfredo; MartinezdeCastro, Orlando; Woodley, Lorenzo;

Citarella, Victor; Nickle, LatashaSubject: payroll due Monday, June 11, 2012

Good morning to all,

I will be out of the office starting Thrusday, June 7, 2012 returning on Tuesday, June 12, 2012. If you could submit your respective

payroll hours by tomorrow, it would help; I will prepare and leave payroll spreadsheet ready for signature for Acting Manager, Chief

Orlando Martinez de Castro. If you are unable to do so, please make sure you submit your respective spreadsheet to Jackie Dye (f

desk) on Monday, June 11, 2012. Thank you in advance for your cooperation.

Maria

backup p. 54



From: Garcia, Maria <[email protected]>

Sent time: Friday, June 15, 2012 11:09:21 AM

To: Dept Heads <[email protected]>; Dennis Deblois <[email protected]>

Cc:

Hector Mirabile <[email protected]>; MartinezdeCastro, Orlando <[email protected]>; Baixauli

Ana <[email protected]>; Menendez, Maria M. <[email protected]>; Payne, Nkenga

<[email protected]>

Subject: Commission Meeting Agenda Items due dates for July 24, 2012 meeting

Good morning,

This is a friendly reminder - next Commission Meeting is scheduled for July 24, 2012 – as you are all aware, the Chief will be th Acting Manager and will conduct the meeting. In order to prepare the CM’s Briefing on a timely manner, your cooperation is

appreciated. Your respective reports will be due on July 19, 2012 (no later than NOON); therefore, please submit your

respective accomplishments (encompassing June 12 till July 18, 2012). Please e-mail your report to me, copy the Chief and Ma

Baixauli ( I will assist the Chief in preparing the CM Briefing). The report will be included in the agenda packet which is

delivered to the Commission.

Additionally, the city clerk is also asking for your cooperation, if you have agenda item titles please submit to Maria

Menendez ASAP ( the city clerk already has two agenda item titles for the July 24, 2012 ) this will ensure that she will have the titl

the DRAFT Agenda. If you have any items that will require a public hearing, please remember that the titles need to be advertising

days prior (JULY 9, 2012) to commission meeting date (JULY 24, 2012). Be mindful that we have a holiday in July ( 4th of July )

having said that, by Monday, July 2, 2012 all agenda items should be sent to the city attorney for his review and approval; once yo

have the attorney’s approval, they must go to the CFO for his approval; and finally they come to the managers office for the CM’s

approval.

Note: It is imperative that you commence the process ASAP, as agenda items may require corrections, along the circulatio

route. If you have any questions, you can call the city clerk’s office or the CM’s office.

Thanking you in advance for your cooperation.

Maria

backup p. 55



From: Baixauli, Ana <[email protected]>

Sent time: Tuesday, July 10, 2012 4:14:06 PM

To:Police Admin Staff <[email protected]>; Baker, Carmen V. <[email protected]>; Carlos Marenco

<[email protected]>; Stout-Tate, Maria <[email protected]>; Alvarez, Al <[email protected]

Cc: Garcia, Maria <[email protected]>

Subject: CM's Commission Briefing report due on July 19th

Attachments: image001.jpg

The next Commission meeting is scheduled for the 24th of July and the Chief will be the Acting CityManager. In order to prepare the CM’s briefing to the Commission we need to get our Departments

reports to Maria Garcia by July 19th, no later than noon; that means you need to get it to me by July

18th no later than noon, so that I can compile it and format it. Start working on your reports now s

that you only have to update it next week. The time period should be from June 11th to July 18th.

Good Luck and Thank you for your cooperation.

Major Ana Baixauli Administrative Major, SMPD

6130 Sunset DriveSouth Miami, Florida [email protected] "Great vision without great people is irrelevant - JimCollins/Good to Great Office: 305-668-2498 (Direct)

Fax: 305-663-2045 Please note: Florida has a very broad public records law. Most written communications are public records and available to the public and media upon

request. Your e‐mail communications may therefore be subject to public disclosure. If you feel that you are not the intended recipient, then please delete

message.

backup p. 56




Article II, section 5(a) of the Florida Constitution:

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.

No person shall hold at the same time more than one office under thegovernment 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, taxation andbudget reform commission, constitutional convention, or statutory body

having only advisory powers.

backup p. 57



Florida Attorney General Advisory Legal Opinion

Number: AGO 80-97Date: December 5, 1980Subject: Dual officeholding; semiautonomous board

DUAL OFFICEHOLDING--APPLICABILITY TO APPOINTED MUNICIPALOFFICIALS SERVING ON PROPOSED SEMIAUTONOMOUS PERMITTINGBOARD

To: Don J. Caton, City Attorney, Pensacola

Prepared by: Bill Hall, Assistant Attorney General

QUESTION:

Does s. 5(a), Art. II, State Const., prohibit certain members of the appointed staff of a municipality from serving on a semiautonomous board created by city ordinanceto grant building permits and issue necessary variancesfrom local architectural and building codes?

SUMMARY:

Based on the provision of Ch. 15425, 1931, Laws of Florida,as amended, the City Manager and the Chief of the FireDepartment of the City of Pensacola are municipal officers;and, as such, the dual-officeholding provisions of s. 5(a),

Art. II, State Const., operate to prohibit theirappointment to or holding office as members of asemiautonomous board vested with the exercising a portionof the governmental or sovereign power of the city. The

legislative body of the city may, however, by appropriatelegislative action, designate such officers to perform exofficio the duties of the office of a member of such board,provided the additional or ex officio duties imposed onsuch officers are in no way inconsistent with the dutiesalready being performed by such officers.

Based on the provisions of s. 266.107, F. S., the CityPlanner of the City of Pensacola, in his capacity as a

member of the Architectural Review Board, the compositionand powers of which are prescribed by s. 266.107, is a

municipal officer and as such may not lawfully be appointedto or hold office as a member of a semiautonomous boardvested with and exercising a portion of the governmental orsovereign power of the city. However, the legislative body

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of the city may by appropriate legislative action designatesuch officer to perform ex officio the duties of the officeof a member of such semiautonomous board, provided theadditional duties imposed on such officer are in no wayinconsistent with the duties already being performed bysuch officer.

Inasmuch as the composition of the Architectural ReviewBoard is established by paragraph (2)(a) of s. 266.107, F.S., the terms of office of its members are fixed byparagraph (2)(b), and its powers are prescribed byparagraphs (2)(c) and (d), the governing body of the Cityof Pensacola possesses no authority to abolish the board orto divert any of its powers to another body or alter ordivest it of any of its statutorily prescribed functions orpowers.

Based upon excerpts from the city's code of ordinances andsupplemental information supplied to this office, theInspection Superintendent (denominated in the code as"building official") of the City of Pensacola is a

municipal officer and as such may not lawfully be appointedto or hold office as a member of a semiautonomous boardvested with and exercising a portion of the governmental orsovereign power of the city. As with the several officersof the city above named and subject to the same conditions,the city inspection superintendent may be designated toperform ex officio the duties of such semiautonomous board.

Based upon the supplemental information and materialssupplied to this office, the City Engineer of the City ofPensacola is an employee of the city and as such may belawfully appointed for a fixed term to membership on a

semiautonomous board which is vested with and exercises aportion of the governmental or sovereign power of the city.The dual-officeholding provisions of s. 5(a), Art. II,State Const., do not apply to or operate on employments.

You state in your letter that the City of Pensacola hascreated a Palafox Place Redevelopment Area. I assume that

this area is a historical district created and establishedpursuant to ss. 266.106(9) and 266.107(1), F. S. You statethat presently there exist three separate boards whichreview private redevelopment plans for construction withinthe Palafox Place Redevelopment Area (or historicaldistrict) to ensure that local building or architecturalcode requirements are met and to grant or deny variances

when requested by local developers. Among these three

backup p. 59



boards is the Architectural Review Board, which isestablished under, and has its composition and powersprescribed by, Ch. 67-303, Laws of Florida, as amended, andcodified as s. 266.107, F. S. You state that it is thecity's desire to create by ordinance a "super permittingboard" which would fulfill the responsibilities of thethree existing boards. For the purposes of this opinion, Iassume that the proposed permitting board will be vested

with and exercise a portion of the governmental orsovereign power of the city in relation to a historicaldistrict duly established pursuant to part II of Ch. 266,F. S. The proposed board would be composed of the city

manager, city engineer, city planner, city inspectionsuperintendent, and city fire marshal. Against the factualbackground, you inquire whether the membership of theaforementioned city staff people on the proposed board

would violate the dual-officeholding prohibition of s.

5(a), Art. II, State Const.

It must be noted at the outset that the provisions of anysubsistent special law or municipal charter enacted oradopted prior to July 1, 1973, pertaining to mattersprescribed by the charter relating to appointive boards maynot be changed except upon approval by referendum of theelectors, as provided in s. 166.031, F. S. Furthermore, theprovisions of Ch. 67-303, Laws of Florida, as amended,codified as part II of Ch. 266, F. S., pertaining to theHistoric Pensacola Preservation Board of Trustees of theDepartment of State and the aforementioned ArchitecturalReview Board established pursuant to s. 266.107, are notsubject to s. 166.021(4) and (5), F. S., and the latter donot apply to or operate on the general law or either ofsuch boards. While s. 266.107 authorizes the governing body

of the city to "name an architectural review board"; toprescribe the procedure for review of building plans of anybuilding which is to be erected, renovated, or razed and islocated or to be located within historical districtsestablished by the governing body of the city, includingrules and governing decisions of the Architectural ReviewBoard, and the procedure for appeal from decisions of the

board; and to adopt other regulations necessary to effectthe purposes of s. 266.106(9), the composition of the

Architectural Review Board is established by paragraph(2)(a) of s. 266.107, the terms of office of its membersare fixed by paragraph (2)(b), and the board's powers areprescribed by paragraphs (2)(c) and (d). Thus, thegoverning body of the city possesses no authority toabolish the Architectural Review Board or to divert any of

backup p. 60



its powers to another body or alter or divest it of any ofits statutorily prescribed functions or powers. Thisadvisory opinion and all conclusions and views hereinafterexpressed, and any future action taken by the city basedupon anything said in the following opinion, are subject toand circumscribed or limited by the foregoingconsiderations and factual statements and assumptions.

Section 166.021(4), F. S., contains no limitations (exceptas may be inherent in "matters prescribed by the [ante1973] charter relating to appointive boards"), inconnection with appointive municipal officers or the dutiesand powers of such officers. C f. s. 166.031(5), F. S.,

which empowers municipalities to abolish municipaldepartments provided for in the municipal charter.Therefore, the governing or legislative body of the City ofPensacola, pursuant to s. 166.021(1) and (4) and s. 2(b),

Art. VIII, State Const., has the power to create andabolish municipal offices and to prescribe the duties,powers, and responsibilities of such offices. For thepurposes of s. 5(a), Art. II, State Const., such appointive

municipal officers are forbidden to hold at the same time more than one office under the government of the municipality. Such appointive officers derive their municipal governmental or sovereign powers from andexercise such powers pursuant to the duly enactedordinances of the city (unless otherwise expressly providedor prohibited by law). C f. s. 166.041(1)(a), F. S.,referring to an ordinance as "an official legislativeaction . . . enforceable as a local law." Section 5(a),

Art. II, does not require that municipal offices beestablished or the governmental duties, powers, andresponsibilities of the same be conferred, defined, or

prescribed by statute; and the limitations prescribed by s.5(c) of Art. II do not apply to municipal officers.

Section 5(a), Art. II, sup ra, prohibits a person from simultaneously holding "more than one office under thegovernment of the state and the counties and municipalitiestherein . . .." Although the term "office" has not been

constitutionally defined, the Florida Supreme Court hasstated:

"The term 'office' implies a delegation of a portion of thesovereign power to, and the possession of it by, the personfilling the office . . .. The term 'office' embraces theidea of tenure, duration, and duties in exercising someportion of the sovereign power, conferred or defined by law

backup p. 61



and not by contract." [State ex re l. Holloway v. Sheats, 83So. 508 (Fla. 1919).]

The threshold question is whether the city staff members inquestion are "officers" of the city for the purposes of s.5(a), Art. II. Employments are not within the purview of s.5(a), Art. II. S ee AGO's 069-2 and 069-3; cf. In re

Advisory Opinion to the Governor, 132 So.2d 1 (Fla. 1961).

The city manager is clearly an officer. He is the chiefadministrative officer of the city, and his powers andduties are as provided in ss. 14-19 of Ch. 15425, 1931,Laws of Florida, as amended. Insofar as these provisions,powers, and duties may affect the form of government of thecity or the distribution of powers among the electedofficers, they may not be changed by ordinance withoutapproval by referendum of the electors. Section 166.021(4),

F. S. Section 18 of Ch. 15425, among other things, requiresthe city manager to "perform such other duties as may be .. . required of him by ordinance or resolution of thecouncil." If the enabling legislation for the "superpermitting board," assuming its validity, by appropriatelanguage places an additional or ex officio duty andresponsibility on the city manager to serve as a member ofthe new board, then the city manager may be a member of andperform ex officio the duties of the office of a member ofthe new "super permitting board," provided such additionalduties are in no way inconsistent with his duties as city

manager. Such legislative designation of local officers bythe legislative body of the city to perform ex officio thefunctions of another or second municipal office does notviolate the dual-officeholding prohibition of s. 5(a), Art.II, State Const. S ee AGO 80-12, citing State v. Florida

State Turnpike Authority, 80 So.2d 337 (Fla. 1955); Statev. Gordon, 189 So. 437 (Fla. 1939); and Amos v. Mathews,126 So. 308 (Fla. 1930); c f. AGO 074-50. If no such exofficio designation is properly made, the city manager's

membership on the "super permitting board" would probablyviolate s. 5(a), Art. II.

The city fire marshal is not, as you have suggested, astate employee or officer. Prior to the effective date ofch. 80-215, October 1, 1980, his duties under Ch. 633, F.S., were given to him as an ex officio agent of the StateFire Marshal, see s. 633.121. Chapter 80-215 deleted theprovisions for ex officio agents of the State Fire Marshaland authorized the chiefs of municipal fire departments,and other fire department personnel designated by the

backup p. 62



chief, to enforce the fire prevention and control law andall rules prescribed by the State Fire Marshal within theirrespective jurisdictions. However, such personnel, actingunder the authority of s. 633.121, are deemed to be agentsof their respective jurisdictions and not agents of theState Fire Marshal. Section 26(B) of Ch. 15425, 1931, Lawsof Florida, establishes the department of public safety andthe division of fire of the city, provides that the fireforce shall be composed of a chief and other designatedpersonnel, and vests the immediate direction and control ofthe fire department and other governmental or sovereignpower in the chief of the city fire department. Section 22of Ch. 15425 provides for the distribution of the work ofeach department of the city among divisions and specifiesthat "there shall be a single offic er in charge of eachdivision." (Emphasis supplied.) The city fire chief wouldappear to be an officer of the city. Therefore, the city

fire chief may not be appointed to or hold another officeunder the government of the city. However, the impositionof additional or ex officio duties and responsibilitiesupon the fire chief by the legislative body of the city orthe legislative designation of such officer to perform exofficio the duties of the office of a member of such "superpermitting board" would not be violative of s. 5(a), Art.II, State Const., provided that the additional dutiesimposed are in no way inconsistent with the municipalduties already being performed by such officer. S ee AGO's080-12 and 074-50 and authorities cited therein.

The city planner, in his capacity as a member of the Architectural Review Board, appears to be an officer of the municipality and could not hold another office under thegovernment of the city. Under s. 266.107, F. S., the city

planner is appointed to the Architectural Review Board fora fixed term of office, and there is no apt languagedesignating such appointment as ex officio. As a member ofsuch board, the city planner exercises the governmental orsovereign powers delineated in s. 266.107(2)(c) and (d).Therefore, the city planner, as a member of the

Architectural Review Board, may not be appointed to or hold

another office under the government of the city. The city'slegislative body may, however, by appropriate legislativeaction designate such officer to perform ex officio theduties of a member of the "super permitting board,"provided that the additional duties and responsibilitiesimposed do not conflict with the municipal duties alreadybeing performed by such officer. S ee AGO's 074-50 and 080-12. No other law or ordinance relating to the position of

backup p. 63



city planner having been drawn to my attention, I am unableto reach any conclusion otherwise as to the status of suchposition as an office or an employment. I do note that thejob description material supplementing your inquiry refersto the planner as an employee and, generally, describes

ministerial and advisory functions and duties for thisposition. As hereinabove noted, employments are not withinthe purview of s. 5(a), Art. II, State Const.

There does not appear to be any statutory investment ofgovernmental or sovereign power in or on the city engineer;in the absence of any ordinance granting such power orimposing duties of a sovereign nature on the city engineer,he is probably an employee, not an officer, and, as anemployee, could be directly appointed (unless otherwiseprohibited by charter or statute) to the proposed board fora fixed term without violating s. 5(a), Art. II, State

Const., which does not apply to or operate on employments.I note that the job description for the city engineer,

which supplements your letter of inquiry, refers to theengineer as an employee and states, among other things,that the engineer acts as chief engineer for the planningboard. Such job description or classification does notoperate to effectively and legally vest in, grant to, orimpose on the city engineer any powers or duties of asovereign nature or operate to constitute such position asan office. If the city engineer is in fact and law anofficer by virtue of the provisions of some subsistentstatute or ordinance which has not been drawn to myattention, then, by appropriate legislative action, suchofficer may be designated to perform ex officio the dutiesof the office of a member of the "super permitting board,"as hereinabove discussed in relation to the city planner

and subject to the same limitations. While s. 61 of ch.15425, sup ra, provides that "[t]he city engineer shallserve as chief engineer of the city planning board and [hasthe] duty to make recommendations," it does not prescribeany governmental powers or duties, and I am unable todetermine therefrom the status of this position as anoffice or employment. Such language could be construed to

provide for the placing of an additional or ex officio dutyon the city engineer, if such position is in fact anoffice. S ee AGO 080-12.

From the supplemental information and excerpts from thecity's code of ordinances you have furnished me, it appearsthat the city inspection superintendent described in yoursupplemental letter and the building official denominated

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in the extracts from the code of ordinances are one and thesame position in the government of the city. The code notonly refers to this position or official as an "office" butthe excerpts therefrom, as well as your supplementalletter, also describe, prescribe, and vest in this officialgovernmental or sovereign powers and duties. The cityinspection superintendent/building official therefore,

would appear to be an officer of the city. Such being thecase, such officer could not hold another office under thegovernment of the city. However, as hereinbefore discussed

with respect to the other affected officials, the city'slegislative body may, by appropriate legislative action,designate the city inspection superintendent/buildingofficial to perform ex officio the duties of the office ofa member of the "super permitting board," provided that theadditional duties and responsibilities imposed are in no

way inconsistent with the duties already being performed by

such official. S ee AGO 080-12.

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Florida Attorney General

Advisory Legal Opinion

Number: AGO 84-25Date: March 22, 1984Subject: Police officer/ dual officeholding

Mr. Albert R. CookCity AttorneyCity of Longwood394 South U.S. Highway 17-92Post Office Box 895Casselberry, Florida 32707

RE: DUAL OFFICEHOLDING--Office of part-time municipal

police officer constitutes an office for purposes ofconstitutional dual officeholding

Dear Mr. Cook:

This is in response to your request for an opinion onsubstantially the following question:

Does a sworn municipal police officer who serves part-timehold an "office," and is he an "officer," as those termsare used in s. 5, Art. II, State Const., which prohibitsdual officeholding?

Your letter of inquiry states that a member of your city'sboard of adjustment also serves the city as a part-time

municipal police officer. You also state that this

individual is a sworn police officer who, when on duty, isauthorized to carry a weapon and to make arrests. Youadditionally note that the extent of his duties is limitedand that he performs such duties only a few hours per

month. Your letter also notes your concern that thisindividual's appointment to and service in these twopositions simultaneously might involve the constitutional

prohibition against dual officeholding.

For the following reasons, your question is answered in theaffirmative.

Section 5(a), Art. II of the State Const., provides inpertinent part:

backup p. 66



"No person shall hold at the same time more than one officeunder 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 onlyadvisory powers." (e.s.)

Thus, s. 5(a) of Art. II prohibits a person from simultaneously holding more than one "office" under thegovernment of the state and the counties and municipalitiestherein. This constitutional provision does not define theterms "office" or "officer" for its purposes, or draw anydistinction between part-time or full-time police officersor make any exceptions therefor, such as the exception madefor service by any officer on a statutory body having onlyadvisory powers. The rule expressio unius est exclusio

alterius therefore applies and no other exceptions from theoperation of s. 5 of Art. II may be implied. See, e.g.,Interlachen Lakes Estates, Inc. v. Snyder, 304 So.2d 433(Fla. 1974); Dobbs v. Sea Isle Hotel, Inc., 56 So.2d 341(Fla. 1952). As indicated in your inquiry, a position onthe board of adjustment is an office and such board is not

within the exception made for an officer's services onstatutory bodies having only advisory powers. Therefore,the remaining consideration is whether a sworn, part-timepolice officer is an officer within the purview of s. 5,

Art. II, State Const.

The Florida Supreme Court has stated, in construing theterm "office," that the term "implies a delegation of aportion of the sovereign power to, and the possession of itby, the person filling the office, while an 'employment'

does not comprehend a delegation of any part of thesovereign authority." State ex rel. Holloway v. Sheats, 83So. 508, 509 (Fla. 1919); see also AGO 69-2 and authoritiescited therein.

Numerous opinions of the Attorney General have indicatedthat a law enforcement officer, such as a municipal police

officer, is an "officer" within the scope of the dualofficeholding provision. Cf. AGO's 57-165, 58-26, 69-2, 71-167, 72-348, 76-92; see also Curry v. Hammond, 16 So.2d 523(Fla. 1944) (noting that a patrolman on a city police forceis clothed with the sovereign power of the city); AGO 77-89and authorities cited therein. Cf. Blackburn v. Brorein, 70So.2d 293 (Fla. 1954).

backup p. 67



Additionally, AGO 77-63 concluded that a part-timeauxiliary or certified reserve police officer is an"officer" within the purview of the constitutionalprohibition against dual officeholding. Compare Vinales v.State, 394 So.2d 993 (Fla. 1981) (holding that s. 5[a],

Art. II, did not apply to the appointment of two municipalpolice officers as state attorney investigators, since theappointment was temporary and no additional remuneration

was paid to such municipal police officers for performingsuch additional criminal investigative duties), and CaseNos. 81-365, 81-366, 81-408 to 81-414, 81-418, 81-606, 81-879, 81-1015 to 81-1022, 81-1229 and 81-1230, 422 So.2d 868(2 D.C.A. Fla., 1982) (following the Vinales exception andconcluding that it did not violate the dual officeholdingprovision for a city police officer, in conducting a

wiretap, to act in the capacity of a deputy sheriff, sincethat officer received no remuneration for such duties).

From the description of the part-time police officer'sduties contained in your letter, it appears that thoseduties are performed on a periodic and regular basis, andnot on a temporary one, and thus would probably not fall

within the Vinales exception. Additionally, the Vinalesexception deals with the performance of additional lawenforcement functions and duties in a police capacity andnot the exercise of governmental power or performance ofofficial duties on a disparate municipal board exercisingand performing quasi-judicial power and duties.

In summary, it is my opinion, until judicially determinedotherwise, that a sworn municipal police officer who servespart-time holds an "office" and is an "officer" forpurposes of s. 5, Art. II, State Const.

Sincerely,

Jim Smith Attorney General

Prepared by:

Anne Curtis Terry Assistant Attorney General

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Florida Attorney General Advisory Legal OpinionNumber: AGO 86-11

Date: February 4, 1986

Subject: Dual officeholding, police chief

Mr. Gerald Korman

City Attorney

City of Longwood

175 West Warren Avenue

Longwood, Florida 32750

RE: DUAL OFFICEHOLDING--Chief of police simultaneously

serving as city administrator prohibited

Dear Mr. Korman:

This is in response to your request for an opinion on

substantially the following question:

May the Police Chief of the City of Longwood be appointed

as city administrator and act in both capacities

simultaneously?

The constitutional prohibition against dual officeholding

is contained in s. 5(a), Art. II, State Const., which

provides in pertinent part that: "No person shall hold at

the same time more than one office under the government ofthe state and the counties and municipalities therein . . .

." The foregoing constitutional provision does not define

the terms "office" or "officer" for its purposes. However,

this office has previously stated that a chief of police is

a municipal officer when such officer is vested with

official powers and duties for and in behalf of the

municipality in question. See AGO's 72-348, 69-2. See also

State ex rel. Holloway v. Sheats, 83 So. 508, 509 (Fla.

1919) (term "office" implies delegation of portion of

sovereign power to, and possession of it by person filling

the office, while "employment" does not comprehend

delegation of any part of sovereign authority). And see Inre Advisory Opinion to the Governor, 132 So.2d 1 (Fla.

1961). Cf. AGO's 77-89, 77-63 and 76-92 concluding that a

deputy sheriff, town marshal and a part-time auxiliary or

reserve police officer, certified by the Police Standards

and Training Commission are all "officers" within the

purview of s. 5(a), Art. II, State Const. Thus, for

purposes of s. 5(a), Art. II, State Const., the police

backup p. 69



chief is a municipal officer.

The question remains as to whether the city administrator

is an "officer" for purposes of the dual officeholding

prohibition. According to s. 4.07, City Charter of

Longwood, the city administrator is the chief

administrative officer of the city and is granted extensive

powers and duties including, inter alia, the power to

appoint, suspend or remove all city employees and

department heads; direct and supervise the administration

of city departments, officers and agencies; prepare and

submit the annual budget and capital program; prepare and

submit reports concerning the finances, administrative

activities and operations of city departments, offices and

agencies; advise the city commission as to the financial

condition and future needs of the city; and make

recommendations concerning affairs of the city. Pursuant to

s. 5.01(b) of said charter, the city administrator isauthorized to appoint a department head to administer all

departments under his direction and supervision. Moreover,

the administrator may serve as the head of one or more of

such departments or may appoint one person as the head of

one or more of them with the consent of the city

commission. Thus it appears clear under the city charter

that the City Administrator of the City of Longwood is a

municipal officer. His powers and duties contemplate "a

delegation of a portion of the sovereign power . . . ."

Additionally, his office "embraces the idea of tenure,

duration, and duties in exercising some portion of the

sovereign power . . . ." State ex rel. Holloway v. Sheats,

supra, at 509. See State v. Glidewell, 311 So.2d 126 (2

D.C.A. Fla., 1975), wherein the court held that a city

manager, who was the chief administrative officer of a

municipality and had extensive powers and responsibilities

to perform his duties was a "municipal official." See also

AGO 80-97. Therefore, it is my opinion that the City

Administrator and Chief of Police of the City of Longwood

are both municipal officers; as such, the dual

officeholding provisions of s. 5(a), Art. II, State Const.,

operate to prohibit an individual from holding both such

offices simultaneously.

In reaching this conclusion, I am not unaware of those

cases or opinions which hold that the mere imposition on an

officeholder of additional or ex officio duties compatible

with the duties the officeholder is already required to

perform is not a violation of the constitutional dual

officeholding prohibition. See Whitaker v. Parsons, 86 So.

backup p. 70



247 (Fla. 1920); State ex rel. Landis v. Reardon, 154 So.

868 (Fla. 1934); State v. Florida State Turnpike Authority,

80 So.2d 337 (Fla. 1955); AGO's 81-72, 81-61 and 80-97.

However, in the instant inquiry it does not appear that the

office of city administrator or that of police chief is

being abolished; but rather that the police chief is being

appointed to exercise the powers and perform the functions

of another office which is still in existence. Moreover,

the duties of the two offices appear to be incompatible.

You have referred to, as authority for such appointment, s.

5.01(b) of the city charter which provides in pertinent

part that with the consent of the city commission, the city

administrator may serve as the head of one or more

departments under the direction and supervision of the city

administrator or may appoint one person as the head of one

or more of them. I have been informed that the chief of

police is under the supervision and direction of the cityadministrator. Thus, performance of both offices

simultaneously would appear to be in violation of the

public policy rule prohibiting the holding of two

incompatible public offices. See AGO 76-92 wherein this

office concluded that the city council could not authorize

the mayor to assume and perform the duties of town marshall

since such appointment would violate the dual officeholding

prohibition of s. 5(a), Art. II, State Const., as well as

the public policy rule against holding two incompatible

public offices because the mayor was empowered by charter

to appoint and supervise the town marshall. In Gryzik v.

State, 380 So.2d 1102, 1104 (1 D.C.A. Fla., 1980), petition

for review denied, 388 So.2d 1113 (Fla. 1980), the court,

in setting forth the doctrine of incompatibility, stated:

"Incompatibility exists 'where in the established

governmental scheme one office is subordinate to another,

or subject to its supervision or control, or the duties

clash, inviting the incumbent to prefer one obligation to

another.' . . . If the duties of the two offices are such

that when 'placed in one person they might disserve the

public interests, or if the respective offices might or

will conflict even on rare occasions, it is sufficient todeclare them legally incompatible.'"

In addition, a conflict of interest exists where the holder

of one office has the power of appointment as to the other

office, or is empowered to remove, punish, regulate the

compensation of the other or to audit his accounts. The

applicability of the doctrine does not, however, turn upon

backup p. 71



the integrity of the officeholder or his ability to achieve

impartiality. 67 C.J.S. Officers and Public Employees s.

27. See AGO's 70-46, 76-92, 80-17, 85-24. Cf. Lovejoy v.

Grubbs, 432 So.2d 678 (5 D.C.A. Fla., 1983). Thus, it seems

clear that an individual, acting as both chief of police

and city administrator, would fall squarely within the

foregoing prohibition. See s. 4.07, City Charter of

Longwood, discussed supra.

In sum, it is my opinion that the constitutional

prohibition against dual officeholding, s. 5(a), Art. II,

State Const., as well as the public policy rule prohibiting

the holding of two incompatible public offices by the same

individual preclude the Police Chief of the City of

Longwood from being appointed as city administrator and

serving in both offices simultaneously.

Sincerely,

Jim Smith

Attorney General

Prepared by:

John Rosner

Assistant Attorney General

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Florida Attorney GeneralAdvisory Legal Opinion

Number: AGO 2006-27Date: June 29, 2006Subject: Dual Office Holding, police chief as city manager

Ms. Catherine D. ReischmannCasselberry City Attorney1001 Heathrow Park Lane, Suite 4001Lake Mary, Florida 32746

RE: MUNICIPALITIES–DUAL OFFICE HOLDING–police chief serving as temporarycity manager. Art. II, s. 5(a), Fla. Const.

Dear Ms. Reischmann:

On behalf of the Casselberry City Commission, you ask substantially thefollowing questions:

1) Does Article II, section 5(a), Florida Constitution, preclude the citand the former police chief, who resigned in order to temporarily serveas acting city manager, from entering into an agreement that the formerchief will again serve as police chief once he no longer serves as actincity manager?

2) Does the exception to dual officeholding recognized by the courts inVinales v. State[1] and Rampil v. State[2] permit the police chief toserve as acting city manager without resigning his or her office whensuch appointment is temporary and without additional remuneration?

Question One

Article II, section 5(a), Florida Constitution, provides in part:

"No person shall hold at the same time more than one office under thegovernment of the state and the counties and municipalities therein,except . . . any officer may be a member of a . . . statutory body havinonly advisory powers."

This constitutional provision prohibits a person from simultaneouslyserving in more than one state, county, or municipal office, regardlessof whether elected or appointed.

Recognizing that this office has stated that the constitutional provisio

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prohibits a police chief from simultaneously serving as the cityadministrator,[3] the police chief resigned as police chief when he wasnamed by the city commission as acting city manager. You ask, however,whether the city is precluded from entering into an agreement providingthat the acting city manager may return to his position as police chiefonce the position of city manager has permanently been filled by anotherindividual.

Generally, the acceptance of a second office has been considered to be a

vacancy in the first office.[4] Thus, the acceptance of the position asacting city manager created a vacancy in the office of police chief, nota leave of absence. I am not aware of any prohibition in Article II,section 5(a), Florida Constitution, that would preclude the city from reappointing the current acting city manager as police chief when he nolonger is serving as city manager.

Question Two

The Supreme Court of Florida recognized a limited exception to theconstitutional dual officeholding prohibition in Vinales v. State,[5]which concerned the appointment of municipal police officers as stateattorney investigators pursuant to statute. Since the police officers'appointment was temporary and no additional remuneration was paid forperforming the additional criminal investigative duties, the Court held that the officers were not simultaneously holding two offices and thusthe constitutional dual office holding prohibition did not apply. TheSecond District Court of Appeal in Rampil v. State,[6] following theVinales exception, concluded that it was not a violation of Article II,section 5(a), Florida Constitution, for a city police officer to act inthe capacity of deputy sheriff since that officer received no

remuneration for such duties.

The above exception, however, has been applied only when both officeshave related to criminal investigation or prosecution and not to theexercise of governmental power or performance of official duties on adisparate board or position. Thus, this office, in considering theVinales and Rampil exception, has stated that the exception is limited and does not apply to a member of a municipal board of adjustment servinas a part-time law enforcement officer or to a police officer who servesas a law enforcement officer.[7]

Accordingly, I am of the opinion that the exception to dual officeholdinrecognized by the courts in Vinales v. State, supra, and Rampil v. Statesupra, does not permit the police chief to serve as acting city managerwithout resigning his or her office.[8]

Sincerely,

Charlie CristAttorney General

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office. See, e.g., Advisory Opinion to the Governor , 1 So. 2d 636 (Fla.

1941) (provision making chairman of the state road department a member o

the state planning board merely placed additional duties on the chairman

and was constitutional; however, provision which permitted Governor to

appoint state officials or employees to the board did "not impose

additional duties on any particular State officer," but rather created a

separate position, and thus violated the dual office holding prohibition

Id. at 638. As in the above case, the charter provision does not

designate a particular municipal office to temporarily perform the dutie

of the city manager.

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Florida Attorney GeneralAdvisory Legal Opinion

Number: AGO 2013-08Date: April 18, 2013Subject: Dual Office-holding, temporary office

Ms. Julie O. BruCity AttorneyCity of Miami444 Southwest 2nd AvenueMiami, Florida 33130-1910

RE: PUBLIC OFFICERS – DUAL OFFICE-HOLDING – MUNICIPALITIES – LAW

ENFORCEMENT – temporary appointment of law enforcement officer as citymanager violates dual office-holding prohibition when city manager is anofficer. s. 5(a), Art. II, Fla. Const.

Dear Ms. Bru:

On behalf of the City of Miami, you ask the following question:

May a law enforcement officer serve as acting city manager when suchappointment is of a limited and finite duration, without tenure oradditional remuneration?

In sum:

A law enforcement officer may not serve as acting city manager when thecity manager’s position constitutes an office, regardless of the limitedduration or benefits attendant to the office, without violating the dualoffice-holding prohibition in section 5(a), Article II, FloridaConstitution.

You acknowledge that a law enforcement officer is an officer for purposeof the constitutional prohibition against dual office-holding in section5(a), Article II, Florida Constitution, and state that the city managerfor the City of Miami is also such an office. While you cite to AttorneyGeneral Opinion 2006-27, in which this office concluded that a citypolice chief could not serve as city manager until a successor wasappointed without violating the dual office-holding prohibition, youquestion whether the fact that the appointment is temporary due to thecity manager’s being away from his or her office due to vacation or amedical procedure would affect the application of the dual office-holdinprohibition.

backup p. 77



Your letter indicates that the city manager is the appointed head of theadministrative branch of city government and is empowered to exercisecontrol over all departments and divisions of the city, executecontracts, and carry out policies adopted by the city commission. Duringtemporary absences, the mayor, subject to the city commission’s approvalmay designate a qualified administrative officer to carry out the dutiesof the city manager.

Section 5(a), Article II of the Florida Constitution, provides inpertinent part:

"No person shall hold at the same time more than one office under thegovernment 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,taxation and budget reform commission, constitutional convention, orstatutory body having only advisory powers."

This provision prohibits a person from simultaneously serving in morethan one "office" under the governments of the state, counties, ormunicipalities. This office has concluded that the constitutionalprohibition applies to both elected and appointed offices.[1] While theConstitution does not define the term "office," the courts have stated that the term "implies a delegation of a portion of the sovereign power . . [and] embraces the idea of tenure, duration, and duties in exercisinsome portion of the sovereign power, conferred or defined by law and notby contract."[2]

A long recognized rule in this state, however, is that a legislative

designation of an officer to perform ex officio the function of anotheroffice does not constitute holding two offices at the same time, providethe duties imposed are consistent with those being exercised.[3] Rather,the legislatively assigned duties are considered an addition to theexisting duties of the officer.[4] It does not appear, nor have youproposed, that the law enforcement officer would be appointed totemporarily serve as city manager in an ex officio capacity.

The Florida Supreme Court in Vinales v. State,[5] held that theconstitutional dual office-holding prohibition did not apply to theappointment of municipal police officers as state attorney investigatorssince the appointment was temporary and no additional remuneration waspaid to such municipal police officers for performing such additionalcriminal investigative duties. In Vinales, however, there was a statutewhich specifically authorized the appointment of municipal policeofficers for some purposes as investigators for the state attorney.[6]The district court's opinion, adopted by the Supreme Court, concluded that "the legislature has thus construed the applicable section of ourstate constitution as one which does not prohibit dual office holding ona temporary basis without remuneration for the purpose of criminal

backup p. 78



investigation."[7] In Attorney General Opinion 84-25, this officeconsidered whether a member of a municipal board of adjustment could alsserve as a part-time municipal police officer. Concluding that theVinales exception would not apply to such a situation because the lawenforcement duties were performed on a periodic and regular basis, not atemporary one, the opinion also observed that the Vinales case dealt"with the performance of additional law enforcement functions and dutiesin a police capacity and not the exercise of governmental power orperformance of official duties on a disparate municipal board exercising

and performing quasi-judicial power[s] and duties."

While the courts have enumerated "tenure, duration and duties inexercising some portion of the sovereign power, conferred or defined bylaw and not by contract" as noted above, I have found no discussion whicimposes a minimum or maximum time on the duration of serving in an officwhich would otherwise affect the position’s characterization as such.While in the instance you have proposed, the law enforcement officerwould be serving only for a limited time, he would be holding the officefor a specified time and exercising the powers attendant thereto.[8] Had

the constitution considered temporary appointments to be an exception tothe dual office-holding prohibition, the provisions in section 5(a),Article II, Florida Constitution, could have easily addressed such asituation as an exemption.[9]

Accordingly, it is my opinion that a law enforcement officer may not beappointed to act as the city manager for the City of Miami, where thecity manager’s position is an office, without violating the dual office-holding prohibition in section 5(a), Article II of the FloridaConstitution.

Sincerely,

Pam BondiAttorney General

PB/tals______________________________________________________________________

[1] See, e.g., Op. Att'y Gen. Fla. 80-97 (1980).

[2] 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).

[3] See State v. Florida State Turnpike Authority , 80 So. 2d 337, 338(Fla. 1955); State ex rel. Gibbs v. Gordon, 189 So. 437 (Fla. 1939); Cit

of Riviera Beach v. Palm Beach County Solid Waste Authority , 502 So. 2d 1335 (Fla. 4th DCA 1987) (special act authorizing county commissioners tsit as members of county solid waste authority does not violate Art. II,s. 5(a), Fla. Const.); City of Orlando v. State Department of Insurance,528 So. 2d 468 (Fla. 1st DCA 1988) (where the statutes had been amended

backup p. 79



to authorize municipal officials to serve on the board of trustees ofmunicipal police and firefighters' pensions trust funds, such provisiondid not violate the constitutional dual office-holding prohibition).

[4] See Webster's Third New International Dictionary Ex officio , p. 797(unabridged ed. 1981) ("ex officio" means "by virtue or because of anoffice").

[5] 394 So. 2d 993 (Fla. 1981).

[6] See s. 27.251, Fla. Stat. (1978 Supp.).

[7] 394 So. 2d at 994. And see Rampil v. State, 422 So. 2d 867 (Fla. 2d DCA 1982), following the Vinales exception and concluding that it did noviolate the dual office-holding provision for a city police officer, inconducting a wiretap, to act in the capacity of a deputy sheriff, sincethat officer received no remuneration for such duties.

[8] See Webster’s Third New International Dictionary Tenure, p. 2357

(unabridged ed. 1981) ("tenure" means "the act, action, or a means ofholding something").

[9] Cf. s. 5(a), Art. II, Fla. Const., providing in pertinent part,"except that a notary public or military officer may hold another officeand any officer may be a member of a constitution revision commission,taxation and budget reform commission, constitutional convention, orstatutory body having only advisory powers."

backup p. 80



ONE IS ENOUGH - FLORIDA'SCONSTITUTIONAL DUAL OFFICE HOLDING

PROHIBITION*

Robert A. Butterworth**

Joslyn Wilson***

Since its adoption over thirty years ago, and despite review by

two constitutional revision commissions, the provisions of article II,

section 5(a) of the Florida Constitution, have remained unchanged.

The constitutional provision concerns the accumulation of offices by

a single individual and was fashioned to ensure that the same per-

son would not simultaneously hold multiple state, county, or munic-

ipal offices. Underlying this objective was the concern that a con-flict of interest will arise if one person simultaneously serves in two

offices.' While its purpose is laudable, application of this constitu-

tional provision continues to be problematic fo r public office holders

and public office seekers.

Article II, section 5(a) of the Florida Constitution states:

No person holding any office of emolument under any foreign gov-

ernment, 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. No person shall hold at thesame 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, taxation

and budget reform commission, constitutional convention, or

* @ Robert A. Butterworth and Joslyn Wilson, 1999. All rights reserved.

** Robert A. "Bob" Butterworth was admitted to The Florida Bar in 1969. He

earned a B.S.BA degree in 1965 at the University of Florida, and in 1969 received ajuris doctorate from the University of Miami Law School, followed by advanced studies

in international law. He holds an honorary doctor of laws degree from Stetson Universi-

ty.

After nearly two decades of service as a prosecutor, judge, sheriff, executive

director of the Florida Department of Highway Safety and Motor Vehicles, and mayor,Butterworth was elected as Florida's 33rd attorney general in 1986. He was re-elected in

1990, 1994, and 1998.*** Joslyn Wilson was admitted to The Florida Bar in 1977. Sh e earned a BA.

degree from the University of Colorado in 1973 and graduated with honors from the

Florida State University La w School in 1976, where she served as Law Review Editor.

Following graduation, she began work in the Opinions Division of the Attorney General's

Office where she has served as Division Director since 1984.

1. See Bath Club, Inc. v. Dade County, 394 So. 2d 110, 112 (Fla. 1981).

ONE IS ENOUGH - FLORIDA'SCONSTITUTIONAL DUAL OFFICE HOLDINGPROHIBITION*

Robert A. Butterworth**Joslyn Wilson***

Since its adoption over thirty years ago, and despite review by

two constitutional revision commissions, the provisions of article II,section 5(a) of the Florida Constitution, have remained unchanged.The constitutional provision concerns the accumulation of offices by

a single individual and was fashioned to ensure that the same person would not simultaneously hold multiple state, county, or munic

ipal offices. Underlying this objective was the concern that a conflict of interest will arise if one person simultaneously serves in twooffices. l While its purpose is laudable, application of this constitutional provision continues to be problematic for public office holdersand public office seekers.

Article II, section 5(a) of the Florida Constitution states:

No person holding any office of emolument under any foreign gov-ernment, or civil office of emolument under the United States orany other state, shall hold any office of honor or of emolument

under the government of this state. No person shall hold at thesame time more than one office under the government of the state

and the counties and municipalities therein, except that a notarypublic or military officer may hold another office, and any officermay be a member of a constitution revision commission, taxationand budget reform commission, constitutional convention, or

* © Robert A. Butterworth and Joslyn Wilson, 1999. All rights reserved.

** Robert A. "Bob" Butterworth was admitted to The Florida Bar in 1969. Heearned a B.S.B.A. degree in 1965 at the University of Florida, and in 1969 received ajuris doctorate from the University of Miami Law School, followed by advanced studiesin international law. He holds an honorary doctor of laws degree from Stetson Universi

ty.After nearly two decades of service as a prosecutor, judge, sheriff, executive

director of the Florida Department of Highway Safety and Motor Vehicles, and mayor,Butterworth was elected as Florida's 33rd attorney general in 1986. He was re-elected in1990, 1994, and 1998.*** Joslyn Wilson was admitted to The Florida Bar in 1977. She earned a B.A.degree from the University of Colorado in 1973 and graduated with honors from the

Florida State University Law School in 1976, where she served as Law Review Editor.Following graduation, she began work in the Opinions Division of the Attorney General's

Office where she has served as Division Director since 1984.1. See Bath Club, Inc. v. Dade County, 394 So. 2d 110, 112 (Fla. 1981).



Stetson Law Review

statutory body having only advisory powers.2

The prohibition applies to both elected and appointed offices.3

Moreover, nothing in article II, section 5(a) requires that the two

offices be within the same governmental unit. Thus, for example, amunicipal officer is precluded from holding not only another munic-

ipal office, but also a state or county office.

A HISTORICAL PERSPECTIVE

Earlier Florida constitutions contained limited prohibitions

against dual office holding. Article VI, section 18 of the 1838 Con-

stitution, adopted in anticipation of statehood, prohibited a member

of Congress or any person holding or exercising any office of profit

under the United States or any foreign power from serving as amember of Florida's General Assembly or from holding any office of

profit under the State.4 It further stated that "no person in this

State shall ever hold two offices of profit, at the same time, except

the office of Justice of the Peace, notary public, constable, and mili-

tia offices."5 The 1861 and 1865 constitutions both contained simi-

lar proscriptions, although the 1865 constitution added an incom-

patibility prohibition.6 The 1868 constitution, however, was silent

on the issue of dual office holding.

The 1885 constitution revived the prohibition. Article XVI,

section 15 of the 1885 constitution is similar to the provisions of the

current constitution, except that the 1885 constitution referred tooffices under the government of the state.7 While this language

2. FLA. CoNST. art. fI, § 5(a).

3. See Blackburn v. Brorein, 70 So. 2d 293, 296 (Fla. 1954) (noting that "electionby the people or the appointment by the Governor is not the true test in determining

whether . . . an office exists and the individual filling the position is an officer [rather

than] an employee"); Op. Att'y Gen. Fla. 94-66 (1994); Op. Att'y Gen. Fa. 80-97 (1980);

Op. Att'y Gen. Fla. 69-2 (1969).4. See FLA. CoNsT. art. II, § 18 (1838).

5. Id.

6. See id. art. VI, § 14 (1861); id. art. VI, § 14 (1865) ("IThe Legislature shallnever unite in the same person two offices, the duties of which are incompatible.").

While subsequent constitutions did not contain such a provision, questions of common-law incompatibility still arose until the Florida Supreme Court's decision in State ex rel.

Clayton v. Board of Regents, 635 So. 2d 937, 938 (Fla. 1994). The court concluded that

"conduct involving public officers, such as dual office-holding, financial benefit from office,and abuse of public trust, are issues directly addressed by" the state Constitution andthus are not governed by common law. Id.

7. Article XVI, section 15 of the 1885 Florida Constitution states:

308 [Vol. XXIX308 Stetson Law Review [Vol. XXIX

statutory body having only advisory powers.2

The prohibition applies to both elected and appointed offices.3

Moreover, nothing in article II, section 5(a) requires that the two

offices be within the same governmental unit. Thus, for example, amunicipal officer is precluded from holding not only another municipal office, but also a state or county office.

A HISTORICAL PERSPECTNE

Earlier Florida constitutions contained limited prohibitionsagainst dual office holding. Article VI, section 18 of the 1838 Constitution, adopted in anticipation of statehood, prohibited a memberof Congress or any person holding or exercising any office of profit

under the United States or any foreign power from serving as amember of Florida's General Assembly or from holding any office ofprofit under the State.4 I t further stated that "no person in thisState shall ever hold two offices of profit, at the same time, exceptthe office of Justice of the Peace, notary public, constable, and militia offices."5 The 1861 and 1865 constitutions both contained similar proscriptions, although the 1865 constitution added an incompatibility prohibition.6 The 1868 constitution, however, was silenton the issue of dual office holding.

The 1885 constitution revived the prohibition. Article XVI,

section 15 of the 1885 constitution is similar to the provisions of thecurrent constitution, except that the 1885 constitution referred tooffices under the government of the state.7 While this language

2. F'LA. CONST. art. il, § 5(a).3. See Blackburn v. Brorein, 70 So. 2d 293, 296 (Fla. 1954) (noting that "election

by the people or the appointment by the Governor is not the true test in determiningwhether . . . an office exists and the individual filling the position is an officer [ratherthan] an employee"); Op. Att'y Gen. Fla. 94-66 (1994); Op. Att'y Gen. Fla. 80·97 (1980);

Op. Att'y Gen. Fla. 69·2 (1969).4. See F'LA. CaNST. art. il , § 18 (1838).5. Id.

6. See id. art. VI, § 14 (1861); id. art. VI, § 14 (1865) ("[T]he Legislature shallnever unite in the same person two offices, the duties of which are incompatible.").

While subsequent constitutions did not contain such a provision, questions of common·law incompatibility still arose until the Florida Supreme Court's decision in State ex reI.

Clayton v. Board of Regents, 635 So. 2d 937, 938 (Fla. 1994). The court concluded that

"conduct involving public officers, such as dual office·holding, financial benefit from office,

and abuse of public trust, are issues directly addressed by" the state Constitution andthus are not governed by common law. [d.

7. Article XVI, section 15 of the 1885 Florida Constitution states:



1999] Dual Office Holding Prohibition 309

was held to extend to county offices,' decisions under the 1885 Con-stitution excluded municipal officers from its coverage.'

The dual office holding prohibition contained in the 1968 Con-stitution is the broadest statement of public policy on this issue todate. While the first sentence of the constitutional provision ad-dresses interstate dual office holding, s it is primarily the secondsentence relating to intrastate office holding that has been thesubject of interpretation and controversy.

AN OFFICEBY ANY OTHER NAME

Most of the questions involving article II, section 5(a) of thecurrent Florida Constitution have concerned what constitutes an"office." The constitution does not define the term, and the legis-

lature has not sought to define the term to clarify the parameters ofthe constitutional provision. In the absence of such clarification, thecourts and the Attorney General's Office have referred to several

early Florida Supreme Court decisions generally considering what

constitutes an "office" as opposed to an "employment.""

No person holding or exercising the functions of any office under any foreign

Government, under the Government of the United States, or under any other

State, shall hold any office of honor or profit under the government of this

State; and no person shall hold, or perform the functions of, more than one

office under the government of this State at the same time: Provided, Notaries

Public, militia officers, county school officers and commissioners of Deeds may

be elected or appointed to fill any Legislative, executive or judicial office.

FLA. CoNsT. art. XVI, § 15 (1885).

8. See generally State ex rel. Gibbs v. Gordon, 189 So. 437, 440 (Fla. 1939); State

ex rel. Landis v. Reardon, 154 So. 868, 871 (Fla. 1934); Op. Att'y Gen. Fla. 47-115

(1947).

9. See, e.g., Attorney Gen. ex rel. Wilkins v. Connors, 9 So. 7, 8 (Fla. 1891)

(noting that constitutional prohibition does not preclude performance by sheriff of duties

of a city marshal, as a city marshal is not a state officer); Op. Att'y Gen. Fla. 52-96

(1952).

10. See Informal Op. from AtVy Gn. Jim Smith to the Honorable Lawton M.

Chiles (Jan. 16, 1986) (stating that the first sentence of article 1I, § 5(a), Florida Consti-

tution "prohibit[ed] a county commissioner from simultaneously holding office as amember of the Board of Governors of the United States Postal Service"); see also Op.

Att'y Gen. Fla. 51-468 (1951) (finding that a justice of the peace cannot hold office of

United States Commissioner). But see Grant v. State, 474 So. 2d 259, 260 (Fla. 1st Dist.

Ct. App. 1985), in which the court rejected claims of a dual office holding 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; see also Op. Att'y Gen. Fla. 72-

244 (1972) (advising that an "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-office [holding] prohibition).

11. See generally In re Advisory Op. to the Governor, 171 So. 2d 539, 541 (Fla.

1999] Dual Office Holding Prohibition 309

was held to extend to county offices,S decisions under the 1885 Constitution excluded municipal officers from its coverage.9

The dual office holding prohibition contained in the 1968 Constitution is the broadest statement of public policy on this issue todate. While the first sentence of the constitutional provision addresses interstate dual office holding,IO it is primarily the secondsentence relating to intrastate office holding that has been the

subject of interpretation and controversy.

AN OFFICE BYANYOTHER NAME

Most of the questions involving article II, section 5(a) of the

current Florida Constitution have concerned what constitutes an

"office." The constitution does not define the term, and the legis

lature has not sought to define the term to clarify the parameters ofthe constitutional provision. In the absence of such clarification, the

courts and the Attorney General's Office have referred to severalearly Florida Supreme Court decisions generally considering what

constitutes an "office" as opposed to an "employment."ll

No person holding or exercising the functions of any office under any foreignGovernment, under the Government of the United States, or under any otherState, shall hold any office of honor or profit under the government of thisState; and no person shall hold, or perform the functions of, more than oneoffice under the government of this State at the same time: Provided, NotariesPublic, militia officers, county school officers and commissioners of Deeds maybe elected or appointed to fill any Legislative, executive or judicial office.

FLA. CONST. art. XVI, § 15 (1885).8. See generally State ex rei. Gibbs v. Gordon, 189 So. 437, 440 (Fla. 1939); State

ex rei. Landis v. Reardon, 154 So. 868, 871 (Fla. 1934); Op. Att'y Gen. Fla. 47-115(1947).

9. See, e.g., Attorney Gen. ex rei. Wilkins v. Connors, 9 So. 7, 8 (Fla. 1891)(noting that constitutional prohibition does not preclude performance by sheriff of dutiesof a city marshal, as a city marshal is not a state officer); Op. Att'y Gen. Fla. 52-96(1952).

10. See Informal Op. from Att'y Gen. Jim Smith to the Honorable Lawton M.Chiles (Jan. 16, 1986) (stating that the first sentence of article II, § 5(a), Florida Consti

tution "prohibit[ed] a county commissioner from simultaneously holding office as amember of the Board of Governors of the United States Postal Service"); see also Op.Att'y Gen. Fla. 51-468 (1951) (finding that a justice of the peace cannot hold office of

United States Commissioner). But see Grant v. State, 474 So. 2d 259, 260 (Fla. 1st Dist.Ct. App. 1985), in which the court rejected claims of a dual office holding violationwhere 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; see also Op. Att'y Gen. Fla. 72-244 (1972) (advising that an "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-office [holding] prohibition").11. See generally In re Advisory Op. to the Governor, 171 So. 2d 539, 541 (Fla.



Stetson Law Review

In State ex rel. Holloway v. Sheats,2 the Florida Supreme

Court 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 anypart of the sovereign authority. The term "office" embraces theidea of tenure, duration, and duties in exercising some portion ofthe sovereign power, conferred or defined by law and not by con-tract. An employment does not authorize the exercise in one's ownright of any sovereign power or any prescribed independent au-thority of a governmental nature; and this constitutes, perhaps,the most decisive difference between an employment and an of-fice."3

Under this "sovereign power principle," it is the nature of the pow-ers and duties of a particular position that determines whether it isan "office" or an "employment" fo r purposes of article II, section5(a).14 Thus, membership in the governing body of a governmental

entity, such as a county or municipality, clearly constitutes an of-

fice. It may not be evident, however, that other positions are "offic-

es."15

Over the years, the Attorney General's Office has issued anumber of opinions regarding when a position may be considered

1965) (holding that members of Board of Regents are officers); In re Advisory Op. to the

Governor, 63 So. 2d 321, 325 (Fla. 1953) (stating that the Hotel and Restaurant Com-missioner is an officer); State ex rel. Brown v. Dewell, 179 So. 695, 701 (Fla. 1938)(Ellis, C.J., dissenting) (determining that a prosecuting attorney is a public officer); Stateex rel. Gibbs v. Bloodworth, 184 So. 1, 16 (Fla. 1938) (holding that the Miami City Clerkis an officer, whose office is created and duties imposed by the charter act); DadeCounty v. State, 116 So. 72, 76 (Fla. 1928) (finding that persons entrusted by legalauthority "with receipt of public money, or through whose hands such money maypass, . . .are 'public officers,' whether service [is] general or special, transient or perma-

nent"); State ex rel. Clyatt v. Hocker, 22 So. 721, 722 (Fla. 1897); Demby v. English, 667So. 2d 350, 354 (Fla. 1st Dist. Ct. App. 1995) (concluding that the director of animal

control is an officer); Orange County v. Gillespie, 239 So. 2d 132, 133-34 (Fa. 4th Dist.

Ct. App. 1970) (holding that membership on regional planning council constitutes an

office).

12. 83 So. 508 (Fla. 1919).13. Id. at 509 (citations omitted).14 . See id.

15. See Palmer v. State ex rel. Axleroad, 6 So. 2d 550, 552 (Fla. 1942) (stating that

the statutory omission to fix a definite tenure for the executive secretary of the Ever-

glades National Park Commission, in itself would not "stamp the position as an employ-ment but may be considered as an element in construing its status").

[Vol. X=I310 Stetson Law Review [Vol. XXIXIn State ex rel. Holloway v. Sheats/2 the Florida Supreme

Court 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 anypart of the sovereign authority. The term. "office" embraces the

idea of tenure, duration, and duties in exercising some portion ofthe sovereign power, conferred or defined by law and not by con-tract. An employment does not authorize the exercise in one's ownright 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 of-

fice. 13

Under this "sovereign power principle," it is the nature of the powers and duties of a particular position that determines whether it isan "office" or an "employment" for purposes of article II, section5(a).14 Thus, membership in the governing body of a governmentalentity, such as a county or municipality, clearly constitutes an of-fice. I t may not be evident, however, that other positions are "offic-es."15

Over the years, the Attorney General's Office has issued anumber of opinions regarding when a position may be considered

1965) (holding that members of Board of Regents are officers); In re Advisory Op. to theGovernor, 63 So. 2d 321, 325 (Fla. 1953) (stating that the Hotel and Restaurant Com-missioner is an officer); State ex reI. Brown v. Dewell, 179 So. 695, 701 (Fla. 1938)(Ellis, C.J., dissenting) (determining that a prosecuting attorney is a public officer); Stateex reI. Gibbs v. Bloodworth, 184 So. 1, 16 (Fla. 1938) (holding that the Miami City Clerkis an officer, whose office is created and duties imposed by the charter act); DadeCounty v. State, 116 So. 72, 76 (Fla. 1928) (finding that persons entrusted by legalauthority "with receipt of public money, or through whose hands such money maypass, . . . are 'public officers,' whether service [is] general or special, transient or permo

nent"); State ex reI. Clyatt v. Hocker, 22 So. 721, 722 (Fla. 1897); Demby v. English, 667So. 2d 350, 354 (Fla. 1st Dist. Ct. App. 1995) (concluding that the director of animalcontrol is an officer); Orange County v. Gillespie, 239 So. 2d 132, 133-34 (Fla. 4th Dist.Ct. App. 1970) (holding that membership on regional planning council constitutes an

office).12. 83 So. 508 (Fla. 1919).13. Id. at 509 (citations omitted).14. See id.15. See Palmer v. State ex reI. Axleroad, 6 So. 2d 550, 552 (Fla. 1942) (stating that

the statutory omission to fix a definite tenure for the executive secretary of the Everglades National Park Commission, in itself would not "stamp the position as an employment but may be considered as an element in construing its status").



Dual Office HoldingProhibition

an office for purposes of the dual office holding prohibition. Whileearlier opinions reflect a broader view of what constitutes an office,

recent Attorney General Opinions have taken a more cautious view,keeping in mind that the right to hold office is an important right

of citizenship that should not be curtailed except by clear provisionof law.

Based upon its review of the particular powers of the positionand the language of the statute, charter, or ordinance creating theposition, the Attorney General's Office has considered the followingto be "offices" for purposes of article II, section 5(a) of the Florida

Constitution: chief of police;" city attorney; 7 member of the Flor-

ida Barbers' Sanitary Commission; 8 chief of a municipal fire de-

partment, member of an architectural review board, and city in-

spection superintendent; 9 code enforcement board member; °

board of adjustment member;2 city administrator;22 member of amunicipal building board of appeals;' commissioner of the South-

east Interstate Compact;24 city board of adjustment and appeals;'

city water resources advisory board;2" board of commissioners of acommunity redevelopment agency; 7 membership on the governing

board of the Alternative Education Institute, a nonprofit corpora-tion within the Department of Education;28 special master of a val-

ue adjustment board;29 city clerk in charge of all elections within acity;3" pension fund board member; ' and membership on the

State Board of Community Colleges.2

The constitutional prohibition against dual office holding, how-ever, does not generally apply to those persons who are not vested

with official powers in their own right but rather merely exercise

16. See Op. Att'y Gen. Fla. 69-2 (1969).


18 . See Op. Att'y Gen. Fla. 72-101 (1972).


20. See Op. Att'y Gen. Fla. 97-37 (1997); Op. Att'y Gen. Fla. 81-61 (1981).

21.See

Op. Att'y Gen. Fla. 85-21 (1985); Op. Att'y Gen. Fla. 84-25 (1984).22. See Op. Att'y Gen. Fla. 86-11 (1986).











1999] 3111999] Dual Office Holding Prohibition 311

an office for purposes of the dual office holding prohibition. Whileearlier opinions reflect a broader view of what constitutes an office,recent Attorney General Opinions have taken a more cautious view,keeping in mind that the right to hold office is an important right

of citizenship that should not be curtailed except by clear provisionof law.

Based upon its review of the particular powers of the positionand the language of the statute, charter, or ordinance creating the

position, the Attorney General's Office has considered the followingto be "offices" for purposes of article II, section 5(a) of the FloridaConstitution: chief of police;16 city attorney;17 member of the Florida Barbers' Sanitary Commission;18 chief of a municipal fire department, member of an architectural review board, and city inspection superintendent;19 code enforcement board member;20board of adjustment member;21 city administrator;22 member of amunicipal building board of appeals;23 commissioner of the Southeast Interstate Compact;24 city board of adjustment and appeals;25city water resources advisory board;26 board of commissioners of acommunity redevelopment agency;27 membership on the governingboard of the Alternative Education Institute, a nonprofit corporation within the Department of Education;28 special master of a value adjustment board;29 city clerk in charge of all elections within acity;30 pension fund board member;31 and membership on the

State Board of Community Colleges.32

The constitutional prohibition against dual office holding, however, does not generally apply to those persons who are not vestedwith official powers in their own right but rather merely exercise



18. See Op. Att'y Gen. Fla. 72-101 (1972).19. See Op. Att'y Gen. Fla. 80-97 (1980).20. See Op. Att'y Gen. Fla. 97-37 (1997); Op. Att'y Gen. Fla. 81-61 (1981).21.

See Op. Att'y Gen. Fla. 85-21 (1985); Op. Att'y Gen. Fla. 84-25 (1984).22. See Op. Att'y Gen. Fla. 86-11 (1986).23. See Op. Att'y Gen. Fla. 86-105 (1986).24. See Op. Att'y Gen. Fla. 93-27 (1993).25. See Op. Att'y Gen. Fla. 85-21 (1985); Op. Att'y Gen. Fla. 84-25 (1984).

26. See Op. Att'y Gen. Fla. 98-36 (1998).27. See Op. Att'y Gen. Fla. 98-36 (1998); Op. Att'y Gen. Fla. 97-04 (1997).28. See Op. Att'y Gen. Fla. 96-95 (1996).29. See Op. Att'y Gen. Fla. 96-91 (1996).30. See Op. Att'y Gen. Fla. 96-48 (1996).

31. See Op. Att'y Gen. Fla. 90-45 (1990).32. See Op. Att'y Gen. Fla. 91-79 (1991).



Stetson Law Review [Vol. XXIX

certain powers as agents of governmental officers. 3 The Attorney

General, 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 theministerial duties of an assistant to the clerk rather than the sub-

stitute duties of a true deputy, Attorney General Opinion 88-56concluded that the position of deputy clerk under those circum-stances constituted an employment rather than an office.35

Examples of positions found to be an "employment" rather than

an office include assistant public defender; 6 assistant state at-torney; 7 county commission attorney;8 deputy tax assessor;39 com-munity college district comptroller;" city engineer;4' code enforce-ment board attorney;42 firefighter;43 code enforcement officer un-

der Chapter 162, Florida Statutes;

44

Charter Review Commissionattorney;4 5 charter school board member; 6 assistant city attor-

ney;47 public works inspector;48 member of a board of highway

secondary funds trustees;4" official court reporter;0 and supervi-

33. See State ex rel. Dresskell v. City of Miami, 13 So. 2d 707, 708 (Fla. 1943)

(finding that unlike an "office," "[the term 'employment' does not comprehend a delega-tion of any part of the sovereign authority, or authorize the exercise in one's ow n right

of any sovereign power, or any prescribed independent authority of a governmental

nature").


35 . See id.


37 . See Op. Att'y Gen. Fla. 71-296 (1971); Op . Att'y Gen. Fla. 71-263 (1971).38. See Op. Att'y Gen. Fla. 73-332 (1973).


40 . See Op. Att'y Gen. Fla. 77-31 (1977).41 . See Op. Att'y Gen. Fla. 86-105 (1986); Op . Att'y Gen. Fla. 80-97 (1980).

42 . See Op. Att'y Gen. Fla. 91-13 (1991); Op . Att'y Gen. Fla. 84-93 (1984).43 . See Op. Att'y Gen. Fla. 93-39 (1993); see also Rubin v. Shapiro, 198 So. 2d 854,

856 (Fla. 3d Dist. Ct. App. 1967) (finding that a discharged fireman was not a public

officer but was an employee).

44 . See Op. Att'y Gen. Fa. 94-40 (1994).45 . See Op. Att'y Gen. Fa. 94-88 (1994).


47 . See Op. Att'y Gen. Fa. 96-24 (1996).

48. See Lewis v. Evans, 406 So. 2d 489, 491 n.1 (Fn. 2d Dist. Ct. App. 1981).

49 . See State v. State Rd. Dep't, 173 So. 2d 693, 695 (Fa. 1965).50. See In re Opinion of the Justices, 163 So. 76 , 77-78 (Fa. 1935) (stating that

"official court reporters are not state officers, but are officially employed court functionar-

ies"); Robbin v. Brewer, 236 So. 2d 448, 451 (Fn. 4th Dist. Ct. App. 1970) (noting the

"logic of a court reporter being an employee rather than an officer is more impressive").But see In re Advisory Op. to the Governor, 154 So. 154, 156 (Fla. 1934) (finding that a

court reporter is an officer).

312312 Stetson Law Review [Vol. XXIXcertain powers as agents of governmental officers.33 The AttorneyGeneral, in determining whether a deputy clerk was an officer oremployee, considered the nature of the duties performed by that

position.34 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, Attorney General Opinion 88-56concluded that the position of deputy clerk under those circumstances constituted an employment rather than an office.3S

Examples of positions found to be an "employment" rather than

an office include assistant public defender;36 assistant state at-

torney;37 county commission attorney;38 deputy tax assessor;39 community college district comptroller;40 city engineer;41 code enforcement board attorney;42 firefighter;43 code enforcement officer un

der Chapter 162, Florida Statutes;44 Charter Review Commissionattorney;45 charter school board member;46 assistant city attorney;47 public. works inspector;48 member of a board of highwaysecondary funds trustees;49 official court reporter;60 and supervi-

33. See State ex rel. Dresskell v. City of Miami, 13 So. 2d 707, 708 (Fla. 1943)(finding that unlike an "office," "[t]he term 'employment' does not comprehend a delegation of any part of the sovereign authority, or authorize the exercise in one's own rightof any sovereign power, or any prescribed independent authority of a governmentalnature").


35. See id.

36. See Op. Att'y Gen. Fla. 69-05 (1969).37. See Op. Att'y Gen. Fla. 71-296 (1971); Op. Att'y Gen. Fla. 71-263 (1971).38. See Op. Att'y Gen. Fla. 73-332 (1973).



42. See Op. Att'y Gen. Fla. 91-13 (1991); Op. Att'y Gen. Fla. 84-93 (1984).43. See Op. Att'y Gen. Fla. 93-39 (1993); see also Rubin v. Shapiro, 198 So. 2d 854,

856 (Fla. 3d Dist. Ct. App. 1967) (finding that a discharged fireman was not a publicofficer but was an employee).

44. See Op. Att'y Gen. Fla. 94-40 (1994).45. See Op. Att'y Gen. Fla. 94-88 (1994).46. See Op. Att'y Gen. Fla. 98-48 (1998).47. See Op. Att'y Gen. Fla. 96-24 (1996).48. See Lewis v. Evans, 406 So. 2d 489, 491 n.l (Fla. 2d Dist. Ct. App. 1981).49. See State v. State Rd. Dep't, 173 So. 2d 693, 695 (Fla. 1965).50. See In re Opinion of the Justices, 163 So. 76, 77-78 (Fla. 1935) (stating that

"official court reporters are not state officers, but are officially employed court functionaries"); Robbin v. Brewer, 236 So. 2d 448, 451 (Fla. 4th Dist. Ct. App. 1970) (noting tho"logic of a court reporter being an employee rather than an officer is more impressive").But see In re Advisory Op. to the Governor, 154 So. 154, 156 (Fla. 1934) (finding that acourt reporter is an officer).



DualOffice HoldingProhibition

sor of nurses at public hospital.5

In determining whether a particular position is an employment

or office, the powers and responsibilities imposed upon such a posi-

tion must be carefully considered. 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.

CAUGHT IN THE MIDDLE - LAW ENFORCEMENTOFFICERS

Because of the powers that they exercise, law enforcement

officers have historically been considered to be officers for purposes

of article II, section 5(a).52 The Supreme Court of Florida has stat-

ed:

It can hardly be questioned that a patrolman on a city police forceis 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 duty performed that must determine

his status.'

It is the powers that a law enforcement officer may exercise,

particularly the authority to arrest without a warrant, rather than

the salary or certification requirements, that characterize the law

enforcement officer as an "officer."54 Using this analysis, the Attor-ney General's Office has stated that a part-time auxiliary officer

and a certified reserve police officer, based upon the powers exer-

cised by such individuals, are "officers" for purposes of article II,

section 5(a)."5

51. See Glendinning v. Curry, 14 So. 2d 794, 799 (Fla. 1943) (concluding that the

supervisor of nurses of the Jackson Memorial Hospital is not an officer).

52. See, e.g., Op. Att'y Gen. Fla. 89-10 (1989); Op. Att'y Gen. Fla. 86-11 (1986); Op.

Atty Gen. Fla. 77-89 (1977); Op. Att'y Gen. Fla. 76-92 (1976); Op. Att'y Gen. Fla. 72-348

(1972); Op. Att'y Gen. Fla. 71-167 (1971); Op. Att'y Gen. Fla. 69-2 (1969); Op. Att'y Gen.Fla. 58-26 (1958); Op. Atey Gen. Fla. 57-165 (1957); see also Blackburn, 70 So. 2d at

299 (noting that a deputy sheriff is an officer); State ex rel. Watson v. Hurlbert, 20 So.

2d 693 (Fla. 1945) (finding that county detectives are officers).

53. Curry v. Hammond, 16 So. 2d 523, 523-24 (Fla. 1944).54. See Mudsley v. City of N. Lauderdale, 300 So. 2d 304, 305 (Fla. 4th Dist. Ct.

App. 1974). And 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" sincehe 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 du e processof law."

55. See Op. Att'y Gen. Fla. 77-63 (1977); see also Op. Att'y Gen. Fla. 86-105 (1986)


sor of nurses at public hospital.51

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

powers.

CAUGHT IN THE MIDDLE - LAW ENFORCEMENT OFFICERS

Because of the powers that they exercise, law enforcementofficers have historically been considered to be officers for purposesof article II, section 5(a).52 The Supreme Court of Florida has stat-

ed:

It can hardly be questioned that a patrolman on a city police forceis clothed with [the] sovereign power of the city while discharginghis duty.... True, he is an employee of the city but he is also an

officer. It is the character of duty performed that must determinehis status. 3

I t is the powers that a law enforcement officer may exercise,particularly the authority to arrest without a warrant, rather than

the salary or certification requirements, that characterize the law

enforcement officer as an "officer."54 Using this analysis, the Attorney General's Office has stated that a part-time auxiliary officerand a certified reserve police officer, based upon the powers exercised by such individuals, are "officers" for purposes of article II,section 5(a).55

51. See Glendinning v. Curry, 14 So. 2d 794, 799 (Fla. 1943) (concluding that the

supervisor of nurses of the Jackson Memorial Hospital is not an officer).52. See, e.g., Op. Att'y Gen. Fla. 89-10 (1989); Op. Att'y Gen. Fla. 86-11 (1986); Op.

Att'y Gen. Fla. 77-89 (1977); Op. Att'y Gen. Fla. 76-92 (1976); Op. Att'y Gen. Fla. 72-348

(1972); Op. Att'y Gen. Fla. 71-167 (1971); Op. Att'y Gen. Fla. 69-2 (1969); Op. Att'y Gen.Fla. 58-26 (1958); Op. Att'y Gen. Fla. 57-165 (1957); see also Blackburn, 70 So. 2d at

299 (noting that a deputy sheriff is an officer); State ex reI. Watson v. Hurlbert, 20 So.2d 693 (Fla. 1945) (finding that county detectives are officers).

53. Curry v. Hammond, 16 So. 2d 523, 523-24 (Fla. 1944).54. See Mudsley v. City of N. Lauderdale, 300 So. 2d 304, 305 (Fla. 4th Dist. Ct.

App. 1974). And see State ex reI. Gibbs v. Martens, 193 So. 835, 837 (Fla. 1940), inwhich the Supreme Court of Florida held that a probation officer was an "officer" sincehe had the right to arrest without a warrant because "no right is more sacred or morejealously guarded than the one that liberty shall not be infringed except by due process

of law."55. See Op. Att'y Gen. Fla. 77-63 (1977); see also Op. Att'y Gen. Fla. 86·105 (1986)



Stetson Law Review

While the constitution generally prohibits a law enforcement

officer from simultaneously serving in another office, including

another law enforcement office, the Florida Supreme Court in

Vinales v. State" recognized a narrow exception when municipal

police officers were appointed pursuant to statute as state attorney

investigators. Since their appointment was temporary and no addi-

tional remuneration was paid to the police officers for performing

the additional criminal investigative duties they were not holding

two offices.57 The following year, the Second District Court of Ap-

peal in Rampil v. State" followed the Vinales exception and con-

cluded that it was not a violation of article II, section 5(a) for a city

police officer to act in the capacity of deputy sheriff since the officer

received no remuneration for these additional duties. 9

The Vinales case dealt with the performance of additional lawenforcement 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-judi-

cial powers and duties." Similarly, Rampil concerned the perfor-

mance of additional law enforcement functions. 1 In considering

the Vinales and Rampil exception, therefore, the Attorney General's

Office has stated that the exception is limited and does not apply,

for example, to a member of a municipal board of adjustment serv-

ing as a part-time law enforcement officer on a periodic and regular

basis.62

In contrast, the Attorney General's Office has determined that

correctional officers are not "officers" for purposes of article II, sec-

tion 5(a).' In Attorney General Opinion 98-31, it was noted that

(concluding that auxiliary police officers who did not have the authority to make arrests

but wh o were certified, carried firearms, and assisted regular police officers in carryingout their duties were "officers"). But see Op. Att'y Gen. Fla. 89-10 (1989) (concluding"that an administrative law enforcement position having no law enforcement certificationrequirements or arrest powers" and not authorized to independently exercise the sov-

ereign powers of the state, was not an office but an employment for purposes of dualoffice holding).

56. 394 So. 2d 993 (Fla. 1981).57. See id. at 994.58. 422 So. 2d 867 (Fla. 2d Dist. Ct. App. 1982).

59. See id. at 869.60. Vinales, 394 So. 2d at 994.

61. Rampil, 422 So. 2d at 868.62. See Op. Att'y Gen. Fla. 90-15 (1990); Op. Att'y Gen. Fla. 84-25 (1984); see also

Op. Att'y Gen. Fla. 86-84 (1986) (finding that a city council member may not simulta-

neously serve as a certified auxiliary law enforcement officer).

63. See Op. Att'y Gen. Fa. 98-31 (1998).

314 [Vol. XXIX314 Stetson Law Review [Vol. XXIXWhile the constitution generally prohibits a law enforcement

officer from simultaneously serving in another office, includinganother law enforcement office, the Florida Supreme Court in

Vinales v. State5S

recognized a narrow exception when municipalpolice officers were appointed pursuant to statute as state attorneyinvestigators. Since their appointment was temporary and no additional remuneration was paid to the police officers for performingthe additional criminal investigative duties they were not holdingtwo offices.57 The following year, the Second District Court of Appeal in Rampil v. State5S followed the Vinales exception and concluded that it was not a violation of article II, section 5(a) for a citypolice officer to act in the capacity of deputy sheriff since the officerreceived no remuneration for these additional duties.69

The Vinales case dealt with the performance of additional lawenforcement functions and duties in a police capacity, and not the

exercise of governmental power or performance of official duties ona disparate municipal board exercising and performing quasi-judicial powers and duties.so Similarly, Rampil concerned the performance of additional law enforcement functions. 61 In consideringthe Vinales and Rampil exception, therefore, the Attorney General'sOffice 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 on a periodic and regular

basis.62

In contrast, the Attorney General's Office has determined that

correctional officers are not "officers" for purposes of article II, section 5(a).63 In Attorney General Opinion 98-31, it was noted that

(concluding that auxiliary police officers who did not have the authority to make arrestsbu t who were certified, carried firearms, and assisted regular police officers in carryingout their duties were "officers"). But see Op. Att'y Gen. Fla. 89-10 (1989) (concluding"that an administrative law enforcement position having no law enforcement certificationrequirements or arrest powers" and not authorized to independently exercise the sov-

ereign powers of the state, was not an office but an employment for purposes of dualoffice holding).

56. 394 So. 2d 993 (Fla. 1981).

57. See id. at 994.58. 422 So. 2d 867 (Fla. 2d Dist. Ct. App. 1982).

59. See id. at 869.60. Vinales, 394 So. 2d at 994.61. Rampil, 422 So. 2d at 868.62. See Op. Att'y Gen. Fla. 90-15 (1990); Op. Att'y Gen. Fla. 84-25 (1984); see also

Op. Att'y Gen. Fla. 86-84 (1986) (finding that a city council member may not simultaneously serve as a certified auxiliary law enforcement officer).




DualOffice Holding Prohibition

"unlike law enforcement officers, correctional officers do not have

broad authority to make arrests without a warrant."'

Rather, correctional officers have only been authorized to arrestany convict who has escaped or any person who, without authori-ty , interferes with or interrupts the work of a prisoner or the disci-pline or good conduct of a prisoner, or who by illicit means at-tempts to gain admission to a state correctional institution.65

There is a difference between law enforcement officers' and correc-tional officers' responsibilities. Unlike a law enforcement officer, acorrectional officer does not have a legal duty to provide aid to ill,injured, and distressed persons who are not under his or her super-

vision.6" Moreover, although a number of statutes treat "law en-

forcement officers" and "correctional officers" similarly, the legisla-

ture has generally deemed it necessary to specifically include cor-

rectional officers within such provisions to ensure their inclusion,

where the statute is not specific. 7

THE SPECIAL DISTRICT DISTINCTION

While the 1968 Constitution broadened the language of the

dual office holding prohibition to include municipal as well as stateand county offices, it does not refer to special districts. A special

district is a governmental entity created by law to perform a specialand limited governmental function.

The courts and the Attorney General's Office, therefore, have

concluded that the dual office holding prohibition does not apply tothe officers of an independent special district."8 In a 1994 advisory

64. Id.

65. Id.66. See Op. Att'y Gen. Fla. 89-62 (1989).

67. See id.68. For examples where the Attorney General's Office has stated that there was no

violation of the dual office holding prohibition when the state, county, or municipalofficer also served as an officer of a special district, see Op. Att'y Gen. Fla. 96-84 (1996)

(answering that a person may serve as city commissioner and executive director of area

housing authority); Op. Att'y Gen. Fla. 94-83 (1994) (stating that a person may serve onairport authority and on school board); Op. Att'y Gen. Fla. 94-42 (1994) (finding that aperson may serve as city commissioner and serve on a local multi-agency career service

authority); Op . Att'y Gen. Fla. 86-55 (1986) (noting that a member of Big CypressBasin's governing board may serve as city mayor); Op . Att'y Gen. Fla. 85-24 (1985)

(finding that a mayor may serve on a community redevelopment district established by

general law); Op. Atfy Gen. Fla. 80-16 (1980) (stating that a legislator may serve as a


"unlike law enforcement officers, correctional officers do not havebroad authority to make arrests without a warrant."64

Rather, correctional officers have only been authorized to arrest

any convict who has escaped or any person who, without authority, interferes with or interrupts the work of a prisoner or the discipline or good conduct of a prisoner, or who by illicit means at-

tempts to gain admission to a state correctional institution.65

There is a difference between law enforcement officers' and correctional officers' responsibilities. Unlike a law enforcement officer, acorrectional officer does not have a legal duty to provide aid to ill,injured, and distressed persons who are not under his or her supervision.66 Moreover, although a number of statutes treat "law en

forcement officers" and "correctional officers" similarly, the legislature has generally deemed it necessary to specifically include correctional officers within such provisions to ensure their inclusion,where the statute is not specific.67

THE SPECIAL DISTRICT DISTINCTION

While the 1968 Constitution broadened the language of the

dual office holding prohibition to include municipal as well as state

and county offices, it does not refer to special districts. A special

district is a governmental entity created by law to perform a specialand limited governmental function.

The courts and the Attorney General's Office, therefore, haveconcluded that the dual office holding prohibition does not apply tothe officers of an independent special district.58 In a 1994 advisory

64. [d.

65. [d.


67. See id.68. For examples where the Attorney General's Office has stated that there was no

violation of the dual office holding prohibition when the state, county, or municipalofficer also served as an officer of a special district, see Op. Att'y Gen. Fla. 96-84 (1996)(answering that a person may serve as city commissioner and executive director of area

housing authority); Op. Att'y Gen. Fla. 94-83 (1994) (stating that a person may serve onairport authority and on school board); Op. Att'y Gen. Fla. 94-42 (1994) (finding that aperson may serve as city commissioner and serve on a local multi-agency career serviceauthority); Op. Att'y Gen. Fla. 86-55 (1986) (noting that a member of Big CypressBasin's governing board may serve as city mayor); Op. Att'y Gen. Fla. 85-24 (1985)(finding that a mayor may serve on a community redevelopment district established bygeneral law); Op. Att'y Gen. Fla. 80-16 (1980) (stating that a legislator may serve as a



Stetson Law Review

opinion, the Supreme Court of Florida reiterated that special dis-trict officers are not included within the dual office holding prohibi-tion. In Advisory Opinion to the Governor - Dual Office-Holding,9

the courtconcluded that a member of a community college districtboard of trustees

is an officer of a special district created to perform the specialgovernmental function of operating a community college and is nota state, municipal, or county officer within the meaning of articleII, section 5(a). Thus, the dual office-holding prohibition does notkeep a state, county, or municipal officer from serving on a com-munity college board of trustees.70

While the court considered membership on the board of trustees ofa community college district to constitute a special district officeand thus to be outside of the parameters of article II, section 5(a),the Supreme Court in Advisory Opinion to the Governor SchoolBoardMember - Suspension Authority,7 rejected the designationof school board members as district officers which would have re-moved them from application of the dual office holding prohibi-tion.72 The court had been asked whether school board memberscould be suspended under the constitutional provisions governingcounty officers or whether a suspension should be accomplishedunder the statutory provisions

governing district officers.

73

Thecourt concluded that school board members are county officers whohave equivalent powers and authority to that of the county commis-sion although their power is exercised in different local governmen-

tal spheres.74 As county officers, however, school board members

are precluded from simultaneously holding another state, county, or

member of a community college district board of trustees); Op. Att'y Gen. Fla. 78-74(1978) (answering question that a municipal parking board member may serve as mem-

ber of community college district board of trustees); Op. Att'y Gen. Fla. 75-153 (1975)(stating that a legislator may serve as a member of a community college district board

of trustees); Op. Att'y Gen. Fla. 73-47 (1973) (noting that a member of junior collegedistrict may serve as member of parks, planning, and zoning commission); Op. Att'yGen. Fla. 71-324 (1971) (finding that a member of hospital district's governing body isnot an officer within constitutional dual office holding prohibition).

69. 630 So. 2d 1055, 1058 (Fla. 1994).

70 . Id.71. 626 So. 2d 684 (Fla. 1993) [hereinafter Advisory Op . on Suspension Auth.].

72. See id. at 689.73. See id. at 687.74 . See id. at 689.


opinion, the Supreme Court of Florida reiterated that special district officers are not included within the dual office holding prohibition. In Advisory Opinion to the Governor - Dual Ofice-Holding,69the

court concludedthat

a memberof

a community college districtboard of trustees

is an officer of a special district created to perform the specialgovernmental function of operating a community college and is nota state, municipal, or county officer within the meaning of articleII, section 5(a). Thus, the dual office-holding prohibition does not

keep a state, county, or municipal officer from serving on a community college board oftrustees.

7o

While the court considered membership on the board of trustees ofa community college district to constitute a special district officeand thus to be outside of the parameters of article II, section 5(a),the Supreme Court in Advisory Opinion to the Governor - SchoolBoard Member - Suspension Authority 1 rejected the designationof school board members as district officers which would have removed them from application of the dual office holding prohibition.72 The court had been asked whether school board memberscould be suspended under the constitutional provisions governingcounty officers or whether a suspension should be accomplishedunder the

statutory provisions governing district officers.

73

Thecourt concluded that school board members are county officers whohave equivalent powers and authority to that of the county commission although their power is exercised in different local governmental spheres.74 As county officers, however, school board membersare precluded from simultaneously holding another state, county, or

member of a community college district board of trustees); Op. Att'y Gen. Fla. 78·74(1978) (answering question that a municipal parking board member may serve as memo

ber of community college district board of trustees); Op. Att'y Gen. Fla. 75·153 (1975)(stating that a legislator may serve as a member of a community college district boardof trustees); Op. Att'y Gen. Fla. 73·47 (1973) (noting that a member of junior collegedistrict may serve as member of parks, planning, and zoning commission); Op. Att'yGen. Fla. 71-324 (1971) (finding that a member of hospital district's governing body isnot an officer within constitutional dual office holding prohibition).

69. 630 So. 2d 1055, 1058 (Fla. 1994).70. [d.

71. 626 So. 2d 684 (Fla. 1993) [hereinafter Advisory Op. on Suspension Auth.].72. See id. at 689.73. See id. at 687.74. See id. at 689.




municipal office. 75

Care must be taken, therefore, in determining the nature and

character of a district or authority to determine whether the gov-

ernmental entity is an agency of the state, county, or municipality,such that its officers may be subject to the dual office prohibition.

For example, in Attorney General Opinion 84-90, the question

was asked whether a member of the Volusia County Health Facili-

ties 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.7' The governing body of the

county appointed the authority members, was empowered to re-

move the members, and was authorized to abolish the authority at

any time. It was concluded that the authority was an instrumental-ity of the county and its officers were county officers.7 ' Thus, the

constitutional prohibition against dual office holding precluded the

mayor from also serving on the governing body of the county health

facilities authority.79

More recently, Attorney General Opinion 94-42 stated that

membership on the Monroe County Career Service Council was in

the nature of a district office and thus not subject to the constitu-

tional prohibition." The council was created by law to perform a

limited function and its members were appointed by a diverse

group of governmental agencies that had no oversight or controlover the functions or actions of the council.8 ' Similarly, Attorney

General Opinion 94-83 concluded that the Panama City-Bay County

Airport Authority was a special district and thus membership on its

75. Th e Supreme Court was advised that the Attorney General had previouslyconsidered school board members to be special district officers and outside the scope of

article H, section 5(a). See Advisory Op. on Suspension Auth., 626 So. 2d at 690. 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 wh o may be holdingdual offices because of the attorney general's opinion 84-73, we conclude that this [i.e.,the Court's] opinion should be prospective in its application. This prospective applicationshould apply only until such time as the term of one of the dual offices expires." Id.; cf

Op. Att'y Gen. Fla. 98-48 (1998) (concluding that charter school members have not beeninvested by statute with the powers that would make them officers).

76. See Op. Atty Gen. Fla. 84-90 (1984).

77. See id.

78. See id.

79. See id.80. See Op. Att'y Gen. Fla. 94-42 (1994).

81. See id.

19991 3171999] Dual Office Holding Prohibition 317

municipal office.75

Care must be taken, therefore, in determining the nature and

character of a district or authority to determine whether the gov

ernmental entity is an agency of the state, county, or municipality,such that its officers may be subject to the dual office prohibition.For example, in Attorney General Opinion 84-90, the question

was asked whether a member of the Volusia County Health Facilities Authority was an officer of the county.76 While the authority

was created and organized under part III, chapter 154, FloridaStatutes, as a public body corporate and politic, it was created by

the county by ordinance or resolution.77 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. I t was concluded that the authority was an instrumental-ity of the county and its officers were county officers.7S Thus, the

constitutional prohibition against dual office holding precluded the

mayor from also serving on the governing body of the county health

facilities authority.79

More recently, Attorney General Opinion 94-42 stated that

membership on the Monroe County Career Service Council was inthe nature of a district office and thus not subject to the constitutional prohibition.so The council was created by law to perform alimited function and its members were appointed by a diverse

group of governmental agencies that had no oversight or controlover the functions or actions of the council.sl Similarly, AttorneyGeneral Opinion 94-83 concluded that the Panama City-Bay CountyAirport Authority was a special district and thus membership on its

75. The Supreme Court was advised that the Attorney General had previouslyconsidered school board members to be special district officers and outside the scope ofarticle II, section 5(a). See Advisory Op. on Suspension Auth., 626 So. 2d at 690. Thus,there could have been school board members who were in fact holding dual offices. Inresponse, the court held that "[w]ith regard to those individuals who may be holdingdual offices because of the attorney general's opinion 84-73, we conclude that this [i.e.,the Court's] opinion should be prospective in its application. This prospective applicationshould apply only until such time as the term of one of the dual offices expires." Id.; cf.

Op. Att:y Gen. Fla. 98-48 (1998) (concluding that charter school members have not beeninvested by statute with the powers that would make them officers).

76. See Op. Atf!y Gen. Fla. 84-90 (1984).

77. See id.

78. See id.79. See id.80. See Op. Att:y Gen. Fla. 94-42 (1994).

81. See id.



Stetson Law Review

governing board was not an office for purposes of article II, section

5(a).82

EXCEPTIONS TO THE RULE

There are several exceptions to the constitutional prohibitionagainst dual office holding. Article II, section 5(a), itself expressly

states that a notary public or military officer may hold anotheroffice." In addition, any officer may be a member of a constitution-al revision commission or constitutional convention.84 Statutorybodies having only advisory powers are also expressly exempted,

and it is this exception that has been the subject of interpretationboth by the courts and by the Attorney General's Office.

In a 1941 advisory opinion based on similar language in the1885 constitution, the Supreme Court of Florida held that a mem-

ber of the State Planning Board was a state "officer" within thedual office holding prohibition despite authorization for the board to

act in an advisory capacity.85 The court noted that the members of

the board were appointed by the Governor, served a fixed term ofoffice, performed duties imposed upon them by statute, and were

authorized to "expend public funds appropriated for that purpose inthe discharge of [their] duties, exercising [their] own discretion in

that regard."86 Thus, the court concluded that powers and at-tributes of sovereignty had been "delegated

toor

reposed in theState Planning Board."87

Similarly, the Attorney General in Opinion 76-241 concludedthat membership on the Florida Human Relations Commission was

an office rather than service on a statutory body possessing onlyadvisory powers." The opinion was based upon an examination of

the powers of the commission, which included, among other things:

the right to accept moneys, both public and private, to help financeits activities; to recommend measures to eliminate discrimination;to receive, initiate, investigate, hold hearings on, and act upon


83. See FLA. CoNsT. art. II, § 5(a).

84. See id. art. XI, § 2 (providing for the establishment of a constitutional revision

commission every 20 years); see also id. art. XI, § 4 (reserving to the people the power

to call a convention to consider a revision of the entire constitution).

85. See Advisory Op. to Governor, 1 So. 2d 636, 638 (Fla. 1941).

86. Id. at 638.

87. Id. at 637.



governing board was not an office for purposes of article II, section5(a).82

EXCEPTIONS TO THE RULE

There are several exceptions to the constitutional prohibitionagainst dual office holding. Article II, section 5(a), itself expresslystates that a notary public or military officer may hold anotheroffice.sa In addition, any officer may be a member of a constitutional revision commission or constitutional convention.84 Statutorybodies having only advisory powers are also expressly exempted,and it is this exception that has been the subject of interpretationboth by the courts and by the Attorney General's Office.

In a 1941 advisory opinion based on similar language in the

1885 constitution, the Supreme Court of Florida held that a member of the State Planning Board was a state "officer" within the

dual office holding prohibition despite authorization for the board toact in an advisory capacity.85 The court noted that the members ofthe board were appointed by the Governor, served a fixed term ofoffice, performed duties imposed upon them by statute, and wereauthorized to "expend public funds appropriated for that purpose in

the discharge of [their] duties, exercising [their] own discretion in

that regard. 86 Thus, the court concluded that powers and at

tributes of sovereignty had been "delegated to or reposed in theState Planning Board. 87

Similarly, the Attorney General in Opinion 76-241 concludedthat membership on the Florida Human Relations Commission wasan office rather than service on a statutory body possessing onlyadvisory powers.88 The opinion was based upon an examination ofthe powers of the commission, which included, among other things:the right to accept moneys, both public and private, to help financeits activities; to recommend measures to eliminate discrimination;to receive, initiate, investigate, hold hearings on, and act upon

82. See Op. Att'y Gen. Fla. 94-83 (1994).83. See FLA. CONST. art. II, § 5(a).

84. See id. art. XI, § 2 (providing for the establishment of a constitutional revisioncommission every 20 years); see also id. art. XI, § 4 (reserving to the people the powerto call a convention to consider a revision of the entire constitution).

85. See Advisory Op. to Governor, 1 So. 2d 636, 638 (Fla. 1941).86. Id. at 638.87. Id. at 637.88. See Op. Att'y Gen. Fla. 76-241 (1976).




complaints alleging discrimination; to render, at least annually, acomprehensive written report to the Governor and Legislature; and

to adopt, amend, and rescind rules and regulations to effectuate thepurposes and policies of the act.89 Since the commission was au-

thorized to exercise powers associated with those of an office, it

could not be characterized as purely an advisory body."Attorney General Opinion 91-79 concluded that the State Board

of Community Colleges of the Department of Education did no tconstitute an advisory board since the state board was responsible

for establishing rules and policies fo r the operation and mainte-

nance of the state community college system and for adopting

guidelines relating to salary and fringe benefits for communitycollege administrators." In addition, the board was responsible for

reviewing and administering the state program of support for thecommunity college system, and in this capacity, reviewed and ap-

proved all budgets and recommended budget amendments in the

system. 92

Local planning and zoning commissions possessing the powerto grant variances without review or that are final unless appealed

to the county commission, would not fall within the exception for

advisory bodies.9" Only those statutory bodies possessing advisory

powers are excepted; article II, section 5(a), "does not provide for orrecognize an exception for statutory bodies whose [powers] are

substantially or predominately advisory."94 An examination of theduties and responsibilities imposed on a board must be conducted,rather than merely relying on the name of the board or position. 95

In contrast, members of a state park advisory council, who

served without compensation at the pleasure of the Division of

Recreation and Parks in a purely advisory capacity and who hadlacked authority to expend public funds or to in any way exercisethe state's "sovereign power" were determined in Attorney General

Opinion 71-43 to constitute a "statutory advisory body."98 Other

89. See id.

90. See id.


92. See id.


94. Op. Att'y Gen. Fla. 89-25 (1989).

95. See Op. Att'y Gen. Fla. 98-36 (1998) (determining that membership on a city

water resources advisory board which, despite its name, exercised substantive powers,

constituted an "office").

96. Op . Att'y Gen. Fla. 71-43 (1971).


complaints alleging discrimination; to render, at least annually, acomprehensive written report to the Governor and Legislature; and

to adopt, amend, and rescind rules and regulations to effectuate the

purposes and policies of the act.59 Since the commission was authorized to exercise powers associated with those of an office, it

could not be characterized as purely an advisory body.90Attorney General Opinion 91-79 concluded that the State Board

of Community Colleges of the Department of Education did not

constitute an advisory board since the state board was responsiblefor establishing rules and policies for the operation and maintenance of the state community college system and for adoptingguidelines relating to salary and fringe benefits for communitycollege administrators.91 In addition, the board was responsible for

reviewing and administering the state program of support for thecommunity college system, and in this capacity, reviewed and approved all budgets and recommended budget amendments in the

system.92

Local planning and zoning commissions possessing the powerto grant variances without review or that are final unless appealedto the county commission, would not fall within the exception foradvisory bodies.93 Only those statutory bodies possessing advisorypowers are excepted; article II, section 5(a), "does not provide for or

recognize an exception for statutory bodies whose [powers] are

substantially or predominately advisory."94 An examination of theduties and responsibilities imposed on a board must be conducted,rather than merely relying on the name of the board or position.95

In contrast, members of a state park advisory council, whoserved without compensation at the pleasure of the Division of

Recreation and Parks in a purely advisory capacity and who had

lacked authority to expend public funds or to in any way exercisethe state's "sovereign power" were determined in Attorney GeneralOpinion 71-43 to constitute a "statutory advisory body."96 Other

89. See id.90. See id.91. See Op. Att'y Gen. Fla. 91-79 (1991).92. See id.93. See Op. Att'y Gen. Fla. 90-33 (1990); Op. Att'y Gen. Fla. 89-25 (1989).94. Op. Att 'y Gen. Fla. 89-25 (1989).95. See Op. Att'y Gen. Fla. 98-36 (1998) (determining that membership on a city

water resources advisory board which, despite it s name, exercised substantive powers,constituted an "office").

96. Op. Att'y Gen. Fla. 71-43 (1971).



Stetson Law Review

examples of positions within the scope of the exception include an

ad hoc charter revision commission appointed by a local govern-

ment to study and recommend changes in a charter;97 a municipal

zoning board having only advisory powers;" an advisory county

planning commission;99 the Florida Advisory Council on Intergov-

ernmental Relations;1 0 the board of trustees of a county public

health trust;' a local planning agency whose function is informa-

tion gathering and advising local government.0 2

An additional constitutional exception to article II, section 5(a)

has been recognized. Under article IV, section 6, certain designated

state officials are specifically authorized to serve as the heads of

state departments.' In Opinion 75-115, the Attorney General's

Office concluded that this express constitutional mandate consti-

tuted an exception to article II, section 5(a). Thus, the opinionstates that the Lieutenant Governor may also serve as the Secre-

tary of the Department of Administration.'

THE EX OFFICIO DILEMMA

While the constitution does not expressly provide an exception

for ex officio service, it has long been settled in this state that the

legislative designation of an officer to perform ex officio the func-

tions of another or additional office does not violate the dual office

holding prohibition, provided that the duties imposed are consistent

with those already being exercised.'

97. See Op. Att'y Gen. Fla. 96-59 (1996) (regarding a county charter); Op. Att'y

Gen. Fla. 72-179 (1972) (pertaining to a municipal charter).






103. See FLA. CONST. art. IV , § 6 (providing in part that the administration of each

department in the executive branch of state government, unless otherwise provided inthe 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 orboard appointed by and serving at the pleasure of the governor").


105. See id.106. See, e.g., Bath Club, 39 4 So. 2d at 112; Op. Att'y Gen. Fla. 94-66 (1994) (both

finding that designation by ordinance of the board of county commissioners to performthe functions of the board of adjustment was an ex officio designation and thus did not

violate constitutional dual office holding prohibition); Op. Att'y Gen. Fla. 93-42 (1993)(determining that the positions of fire chief and community development director, and

the positions of assistant city administrator and the finance/personnel director may be

320 [Vol. XXI320 Stetson Law Review [Vol. XXIX

examples of positions within the scope of the exception include an

ad hoc charter revision commission appointed by a local government to study and recommend changes in a charter;97 a municipalzoning board having only advisory powers;9S an advisory countyplanning commission;99 the Florida Advisory Council on Intergovernmental Relations;loo the board of trustees of a county publichealth trust;lOl a local planning agency whose function is information gathering and advising local government.102

An additional constitutional exception to article II, section 5(a)has been recognized. Under article IV, section 6, certain designatedstate officials are specifically authorized to serve as the heads ofstate departments. Oa In Opinion 75-115, the Attorney General'sOffice concluded that this express constitutional mandate consti

tuted an exception to article II, section 5(a).104 Thus, the opinionstates that the Lieutenant Governor may also serve as the Secretary of the Department of Administration. los

THE EX OFFICIO DILEMMA

While the constitution does not expressly provide an exceptionfor ex officio service, 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 consistentwith those already being exercised. OS

97. See Op. Att'y Gen. Fla. 96-59 (1996) (regarding a county charter); Op. Att'yGen. Fla. 72-179 (1972) (pertaining to a municipal charter).


100. See Op. Att'y Gen. Fla. 77-74 (1977).101. See Op. Att'y Gen. Fla. 78-36 (1978).102. See Op. Att'y Gen. Fla. 86-105 (1986).103. See FLA. CONST. art. IV, § 6 (providing in part that the administration of each

department in the executive branch of state government, unless othenvise provided inthe 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 orboard appointed by and serving at the pleasure of the governor").

104. See Op. Att'y Gen. Fla. 75-115 (1975).105. See id.106. See, e.g., Bath Club, 394 So. 2d at 112; Op. Att'y Gen. Fla. 94-66 (1994) (both

finding that designation by ordinance of the board of county commissioners to performthe functions of the board of adjustment was an ex officio designation and thus did notviolate constitutional dual office holding prohibition); Op. Att'y Gen. Fla. 93-42 (1993)(determining that the positions of fire chief and community development director, andthe positions of assistant city administrator and the finance/personnel director may be




As noted above," 7 the purpose of the constitutional prohibi-

tion against dual office holding 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 office holding whenever the respective duties of

office are inconsistent."' 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 du-

ties, the dual office holding prohibition does not preclude such an

assignment." 9 The newly assigned duties are viewed as an addi-

tion to the existing duties of the officer."0

For example, the Attorney General's Office has stated that the

city council, as the legislative body for the municipality, may by

ordinance impose additional or ex officio duties of the office of citymanager on the office of the city clerk."' In Attorney General

Opinion 93-42, the Attorney General concluded that a municipality

could legislatively merge the offices of fire chief and community

development director into one office and have that officer perform

ex officio the duties of both offices.1 2 Similarly, Attorney General

Opinion 94-66 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 office holding prohibition con-

tained in article II, section 5(a)."

3

More recently, Attorney General Opinion 98-16 concluded that

combined without violating the dual office holding prohibition).107. Se e supra text accompanying note 1.108. Bath Club, 394 So. 2d at 112.

109. Se e id.

110. Se e id.

111. Accord Op. Att'y Gen. Fla. 91-48 (1991); Op. Att'y Gen. Fla. 80-97 (1980); see

Op . Atty Gen. Fla. 81-72 (1981); see also Op. Atey Gen. Fla. 94-98 (1994) (determining

that the mayor or other member of the city council may be appointed to serve on theboard of trustees of the police officers' and firefighters' pension trust fund); Op . Att'y

Gen. Fla. 82-92 (1982) (stating that a city may, by ordinance, designate members of code

enforcement board as ex officio members of minimum housing and commercial property

appeals board); Op . Att'y Gen. Fla. 80-12 (1980) (concluding that membership of elected

municipal officer on metropolitan planning organization as prescribed by statute does not

violate dual office holding prohibition); Op. Att'y Gen. Fla. 70-46 (1970) (finding that astatute imposing ex officio post on holder of another office must be distinguished from a

statute authorizing appointment of on e office holder to another separate and distinct

office).

112. Se e Op. Att'y Gen. Fla. 93-42 (1993).113. Se e Op. Att'y Gen. Fla. 94-66 (1994).


As noted above,lo7 the purpose of the constitutional prohibition against dual office holding 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 office holding whenever the respective duties ofoffice are inconsistent."lOS Where, however, additional or ex officioduties are assigned to a particular office by the legislative body and

there is no inconsistency between the new and the preexisting duties, the dual office holding prohibition does not preclude such an

assignment. lo9 The newly assigned duties are viewed as an addition to the existing duties of the officer.no

For example, the Attorney General's Office has stated that the

city council, as the legislative body for the municipality, may by

ordinance impose additional or ex officio duties of the office of citymanager on the office of the city clerk. l11 In Attorney GeneralOpinion 93-42, the Attorney General concluded that a municipalitycould legislatively merge the offices of fire chief and communitydevelopment director into one office and have that officer performex officio the duties of both offices. 112 Similarly, Attorney GeneralOpinion 94-66 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 office holding prohibition con

tained in article II, section 5(a).113More recently, Attorney General Opinion 98-16 concluded that

combined without violating the dual office holding prohibition).

107. See supra text accompanying note 1.

108. Bath Club, 394 So. 2d at 112.

109. See id.110. See id.111. Accord Op. Att'y Gen. Fla. 91-48 (1991); Op. Att'y Gen. Fla. 80-97 (1980); see

Op. Att'y Gen. Fla. 81-72 (1981); see also Op. Att'y Gen. Fla. 94-98 (1994) (determining

that the mayor or other member of the city council may be appointed to serve on theboard of trustees of the police officers' and firefighters' pension trust fund); Op. Att'y

Gen. Fla. 82-92 (1982) (stating that a city may, by ordinance, designate members of code

enforcement board as ex officio members of minimunl housing and commercial propertyappeals board); Op. Att'y Gen. Fla. 80-12 (1980) (concluding that membership of elected

municipal officer on metropolitan planning organization as prescribed by statute does not

violate dual office holding prohibition); Op. Att'y Gen. Fla. 70-46 (1970) (finding that a

statute imposing ex officio post on holder of another office must be distinguished from a

statute authorizing appointment of one office holder to another separate and distinct

office).





Stetson Law Review

a city commission may designate itself as the governing body of acommunity redevelopment agency and that such designation consti-tuted an ex officio designation of the agency's duties."' Althoughthe community redevelopment agency is a separate entity from the

city commission, the city commission's service as the governingbody of the agency is viewed as an addition to the existing duties ofthe city commission."'

The courts have also recognized this distinction. In City ofRiviera Beach v. Palm Beach County Solid Waste Authority,"6 theFourth District Court of Appeal stated that a special act authoriz-ing county commissioners to sit as members of the county solidwaste authority did not violate article II, section 5(a), but merelyimposed additional duties upon an existing office." 7 In City of Or-lando v. State Departmentof Insurance,"' the First District Courtof Appeal concluded that where the statutes had been amended toauthorize municipal officials to serve on the board of trustees ofmunicipal police and firefighters' pension trust funds, there was noviolation of the constitutional dual office holding prohibition. "'

There is, however, a distinction between a statute imposing anex officio position on the holder of another office and a statute au-thorizing the appointment of an officeholder to a second distinctoffice. For example, the Supreme Court of Florida has pointed outthat while additional duties may be validly imposed by the legisla-

ture on a state office ex officio, a legislative attempt to authorizethe Governor to appoint a state official to another separate anddistinct office would be ineffectual under the constitutional dualoffice holding prohibition.'20 The legislation in question made the


115. See id.

116. 502 So. 2d 1335 (Fla. 4th Dist. Ct. App. 1987).

117. See id. at 1336.

118. 528 So. 2d 468 (Fla. 1st Dist. Ct. App. 1988).

119. See id. at 469; Op. Att'y Gen. Fla. 94-98 (1994) (concluding that the imposition

of additional or ex officio duties on the mayor or other city council members under thecity code to serve on the board of trustees of the police officers' and firefighters' pensiontrust fund would not violate article II, section 5(a)). But cf Op. Att'y Gen. Fla. 90-45(1990) (concluding that a member of the civil service board could not be appointed to theboard of trustees of the general pension trust board). In Attorney General Opinion 90-45,there was no ex officio designation imposing the duties of one office on the other.

120. See Advisory Op. to Governor, 1 So. 2d at 638; Op. Att'y Gen. Fla. 70-46 (1970)

(finding it doubtful that city commissioner could also be municipal judge where chartercreated 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).


a city commission may designate itself as the governing body of acommunity redevelopment agency and that such designation constituted an ex officio designation of the agency's duties. 114 Althoughthe community redevelopment agency is a separate enti ty from the

city commission, the city commission's service as the governingbody of the agency is viewed as an addition to the existing duties of

the city commission.ll5The courts have also recognized this distinction. In City of

Riviera Beach v. Palm Beach County Solid Waste Authority,116 the

Fourth District Court of Appeal stated that a special act authorizing county commissioners to sit as members of the county solidwaste authority did not violate article II, section 5(a), but merelyimposed additional duties upon an existing office.l17 In City of Or-lando v. State Department of Insurance, 118 the First District Courtof Appeal concluded that where the statutes had been amended toauthorize municipal officials to serve on the board of trustees ofmunicipal police and firefighters' pension trust funds, there was noviolation of the constitutional dual office holding prohibition.119

There is, however, a distinction between a statute imposing an

ex officio position on the holder of another office and a statute authorizing the appointment of an officeholder to a second distinctoffice. For example, the Supreme Court of Florida has pointed outthat while additional duties may be validly imposed by the legisla

ture on a state office ex officio, a legislative attempt to authorizethe Governor to appoint a state official to another separate anddistinct office would be ineffectual under the constitutional dualoffice holding prohibition.12o The legislation in question made the

114. See Op. Att'y Gen. Fla. 98-16 (1998).115. See id.116. 502 So. 2d 1335 (Fla. 4th Dist. Ct. App. 1987).117. See id. at 1336.

118. 528 So. 2d 468 (Fla. 1s t Dist. Ct. App. 1988).119. See id. at 469; Op. Att'y Gen. Fla. 94-98 (1994) (concluding that the impositionof additional or ex officio duties on the mayor or other city council members under thecity 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». But cf. Op. Att'y Gen. Fla. 90·45(1990) (concluding that a member of the civil service board could not be appointed to theboard of trustees of the general pension trust board). In Attorney General Opinion 90-45,there was no ex officio designation imposing the duties of one office on the other.

120. See Advisory Op. to Governor, 1 So. 2d at 638; Op. Att'y Gen. Fla. 70-46 (1970)(finding it doubtful that city commissioner could also be municipal judge where chartercreated office of municipal judge as a separate and distinct office and did not designatethat office as an ex officio office to be performed by the city commissioner).




chairman of the state road department a member of the state plan-ning board.12' The court found that the act simply placed specificadditional duties on the chairman, and therefore, was constitution-

al."= However, the act also permitted the Governor to appoint two

state officials or employees to the board."= The court stated that"Itihis provision [did] not impose additional duties on any particularState officer," but rather created a separate position, and thus vio-lated the dual office holding prohibition.'24

THE PENALTY FOR VIOLATIONS

In a 1970 decision, the Supreme Court of Florida set forth thegeneral rule that "[t]he acceptance of an incompatible office by onealready holding office operates as a resignation of the first."'25 Un-

der the rationale of that decision, the action of an officer acceptinganother office in violation of the dual office holding prohibition

creates a vacancy in he first office.

PROBLEMS YET TO BE SOLVED

Thirty years after its adoption, article II, section 5(a) of theFlorida Constitution, continues to generate questions requiring

resolution of what constitutes an office subject to its prohibition.

For example, in recent years several bills have been filed in the

legislature seeking to address whether law enforcement is coveredby this provision, but these bills have failed to pass.' The lack ofa constitutional definition and the inability of the legislature toprovide such a definition has resulted in continuing problems of

determining who is covered by the dual office holding prohibition.

The right to hold public office is one of the most valuable rights ofcitizenship and should not be prohibited or curtailed except by plain

provisions of law. 7

121. See Advisory Op. to Governor, 1 So. 2d at 637.

122. See id. at 638.

123. See id.

124. Id.

125. Holley v. Adams, 238 So. 2d 401, 407 (Fla. 1970).126. See for example, H.B. 545 (Fla. 1997), S.B. 996 (Fla. 1997), and H.B. 335 (Fla.

1996), which would have allowed certified law enforcement officers employed with an

employing agency to work part-time with another employing agency without beingconsidered "officers" for purposes of article I, section 5(a).

127. See Ervin v. Collins, 85 So. 2d 852, 858 (Fla. 1956) (en banc); State ex rel.West v. Gray, 70 So. 2d 471, 473 (Fla. 1954) (en banc); State ex rel. Fraser v. Gay, 28


chairman of the state road department a member of the state planning board.121 The court found that the act simply placed specificadditional duties on the chairman, and therefore, was constitutional. l22 However, the act also permitted the Governor to appoint twostate officials or employees to the board. l23 The court stated that

"[t]his provision [did] not impose additional duties on any particular

State officer," but rather created a separate position, and thus violated the dual office holding prohibition. 124

THE PENALTY FOR VIOLATIONS

In a 1970 decision, the Supreme Court of Florida set forth the

general rule that "[t]he acceptance of an incompatible office by onealready holding office operates as a resignation of the first."125 Un

der the rationale of that decision, the action of an officer acceptinganother office in violation of the dual office holding prohibitioncreates a vacancy in the first office.

PROBLEMS YET TO BE SOLVED

Thirty years after its adoption, article II, section 5(a) of the

Florida Constitution, continues to generate questions requiringresolution of what constitutes an office subject to its prohibition.For example, in recent years several bills have been filed in the

legislature seeking to address whether law enforcement is coveredby this provision, but these bills have failed to pass.126 The lack of

a constitutional definition and the inability of the legislature toprovide such a definition has resulted in continuing problems of

determining who is covered by the dual office holding prohibition.The right to hold public office is one of the most valuable rights of

citizenship and should not be prohibited or curtailed except by plainprovisions of law.127

121. See Advisory Op. to Governor, 1 So. 2d at 637.122. See id. at 638.123. See id.

124. rd.125. Holley v. Adams, 238 So. 2d 401, 407 (Fla. 1970).126. See for example, H.B. 545 (Fla. 1997), S.B. 996 (Fla. 1997), and H.B. 335 (Fla.

1996), which would have allowed certified law enforcement officers employed with an

employing agency to work part-time with another employing agency without beingconsidered "officers" for purposes of article II, section 5(a).

127. See Ervin v. Collins, 85 So. 2d 852, 858 (Fla. 1956) (en bane); State ex rel.West v. Gray, 70 So. 2d 471, 473 (Fla. 1954) (en bane); State ex rel. Fraser v. Gay, 28



Stetson Law Review

Moreover, the exclusion of district offices from the dual office

holding prohibition has lead to inequities. An auxiliary police officer

with limited jurisdiction and authority is included within the con-

stitutional provision but a member of a large multi-county special

district, exercising broad powers and controlling substantial public

fimds, is not.

Until these issues are addressed, questions regarding the inter-pretation and application of article II, section 5(a) will continue.

While some points might be addressed legislatively,12 revision

and refinement of this constitutional provision seems advisable.

So. 2d 901, 904 (Fla. 1947) (en banc).

128. See Smith v. Brantley, 400 So. 2d 443, 448 (Fla. 1981) (stating that a "statute

may adopt one of several possible meanings attributable to a constitutional provision and

that, where appropriate, such legislative constructions are to be given great weight in

interpreting provision"); Vinales, 394 So. 2d at 994 (finding that "[w]here a constitutional

provision is susceptible to more than one meaning, the meaning adopted by the legisla-

ture is conclusive"); Greater Loretta Improvement Ass'n v. State ex rel. Boone, 234 So.

2d 665, 669 (Fla. 1970) (noting that "where a constitutional provision may well have ei-

ther of several meanings, it is a fundamental rule of constitutional construction that, if

the Legislature has by statute adopted one, its action" is controlling unless it manifestly

infringes on some provision of the constitution).

[Vol. XXIXK24324 Stetson Law Review [Vol. XXIXMoreover, the exclusion of district offices from the dual office

holding prohibition has lead to inequities. An auxiliary police officerwith limited jurisdiction and authority is included within the constitutional provision but a member of a large multi-county special

district, exercising broad powers and controlling substantial publicfunds, is not.

Until these issues are addressed, questions regarding the interpretation and application of article II, section 5(a) will continue.While some points might be addressed legislatively,128 revisionand refinement of this constitutional provision seems advisable.

So. 2d 901, 904 (Fla. 1947) (en bane).

128. See Smith v. Brantley, 400 So. 2d 443, 448 (Fla. 1981) (stating that a "statutemay adopt one of several possible meanings attributable to a constitutional provision andthat, where appropriate, such legislative constructions are to be given great weight in

interpreting provision"); Vinales, 394 So. 2d at 994 (finding that "[w]here a constitutionalprovision is susceptible to more than one meaning, the meaning adopted by the legislature is conclusive"); Greater Loretta Improvement Ass'n v. State ex rel. Boone, 234 So.

2d 665, 669 (Fla. 1970) (noting that "where a constitutional provision may well have either of several meanings, it is a fundamental rule of constitutional construction that, if

the Legislature has by statute adopted one, its action" is controlling unless it manifestlyinfringes on some provision of the constitution).



9 of 14 DOCUMENTS

Charles R. HOLLEY, Appellant, v. Tom ADAMS, as Secretary of the State of

Florida, and the State of Florida, Appellees

No. 39816

Supreme Court of Florida

238 So. 2d 401; 1970 Fla. LEXIS 2597

June 26, 1970

CASE SUMMARY:

PROCEDURAL POSTURE: Appeal from the judgment of the Circuit Court of the Second Judicial Circuit in Leon

County (Florida) in favor of appellees, appellant arguing that Fla. Laws ch. 70-80 improperly imposed qualifications

upon his bid to qualify for the office of Justice of the Supreme Court of Florida.

OVERVIEW: Appellant, a circuit court judge, intended to qualify for the office of Justice of the Supreme Court of

Florida, but was faced with the provisions of Fla. Laws ch. 70-80. The supreme court held that ch. 70-80 did not relate

to the qualifications one was required to possess in order to hold office, but merely set forth the conditions under which

the individual may become eligible to be a candidate. The legislature had considered it inequitable for an elected official

or appointed official holding office to use the prestige and power of that office in seeking election to a higher or

different office. Furthermore, by providing for prospective resignations the public would not be compelled to bear the

unnecessary cost of special elections. Finally, to construe ch. 70-80 as imposing additional qualifications would have

been to legislate and not to interpret.

OUTCOME: The judgment of the trial court in favor of respondents was affirmed because the construction of Fla.

Laws ch. 70-80 as imposing additional qualifications upon the office of Justice of the Supreme Court or any other office

would have forced the court to legislate and not interpret the law.

CORE TERMS: qualification, candidate, public office, election, qualify, resignation, elected, disqualification,

eligibility, officeholder, eligible, state constitution, prescribe, governor, public officer, elective offices, vacancy, resign,

candidacy, campaign, wisdom, prescribed, declaratory, qualifying, announced, holder, vested, term of office, hold

office, state offices

LexisNexis(R) Headnotes

Civil Procedure > Declaratory Judgment Actions > State Judgments > General OverviewGovernments > Courts > Authority to Adjudicate

[HN1] Under the provisions of Fla. Stat. § 86.011(2) (formerly Fla. Stat. §87.01(2)), the court may render a declaratory

judgment of any fact upon which the existence or nonexistence of such immunity, power, privilege or right does or may

depend, whether such immunity, power, privilege or right now exists or will arise in the future. Any person seeking a

declaratory judgment may also demand additional, alternative, coercive, subsequent or supplemental relief in the same

action. The fact that a controversy has not matured is not always essential.

Governments > Legislation > Interpretation

Page 1

backup p. 99



to determine public interest and measures for its protection.

Governments > State & Territorial Governments > Elections

Governments > State & Territorial Governments > Employees & Officials

[HN13] Fla. Laws ch. 70-80 does not relate to the qualifications one must possess in order to hold office, but merely

conditions under which he may become eligible to be a candidate.

COUNSEL: [**1] James G. Mahorner, of Dickens, Graham, Miller, Mahorner & Linn, Tallahassee, for Appellant.

Earl Faircloth, Atty. Gen., T. T. Turnbull, and Ronald W. Sabo, Asst. Attys. Gen., for Appellees.

Martin D. Kahn, of Kahn & Clein, N. Miami, for Elton J. Gissendanner, Amicus Curiae.

JUDGES: Adkins, Justice. Drew, Carlton and Boyd, JJ., and Mason, Circuit Judge, concur. Thornal, J., concurs with

opinion. Ervin, C.J., dissents with opinion.

OPINION BY: ADKINS

OPINION

[*403] This is an appeal from a final judgment rendered by the Circuit Court of the Second Judicial Circuit in Leon

County, Florida, directly passing upon the validity of Ch. 70-80, Laws of Florida, amending § 99.012, Fla.Stat., F.S.A.

We have jurisdiction. Art. V, § 4(2).

The appellant, hereinafter referred to as Holley, is currently a Circuit Court Judge and the term of his office does not

expire until January of 1973. He intends to qualify for the office of Justice of the Supreme Court of Florida, but is faced

with the following provisions of Ch. 70-80, Laws of Florida:

"(2) No individual may qualify as a candidate for public office who holds another elective or appointive office, whether state,

county or municipal, [**2] the term of which or any part thereof runs concurrent to the term of office for which he seeks to qualify

without resigning from such office not less than ten (10) days prior to the first day of qualifying for the office he intends to seek.

Said resignation shall be effective not later than the date upon which he would assume office, if elected to the office to which he

seeks to qualify, or the expiration date of the term of the office which he presently holds, or the general election day at which his

successor is elected, whichever occurs earlier. With regard to elective offices said resignation shall create a vacancy in said office

thereby permitting persons to qualify as candidates for nomination and election to that office, in the same manner as if the term of

such public officer were otherwise scheduled to expire; or, in regard to elective municipal or home rule charter county offices, said

resignation shall create a vacancy which may be filled for the unexpired term of the resigned officer in such manner as provided in

the municipal or county charter. This does not apply to political party offices.

"(3) Any incumbent public officer whose term of office or any part thereof [**3] runs concurrent to the term of office for which he

seeks to qualify and who desires to resign his office pursuant to the provisions of this act shall execute an instrument in writing

directed to the governor irrevocably resigning from the office he currently occupies. The resignation shall be presented to the

governor with a copy to the department of state. The resignation shall become effective and shall have the effect of creating a

vacancy in office as provided herein, and the public officer shall continue to serve until his successor is elected or the vacancy

otherwise filled as provided above in subsection (2).

"(4) Nothing contained in this act shall relate to persons holding any federal office."

Not wishing to resign his present office unless he is successful in his quest for the office of Justice of the Supreme

Court, Holley brought a declaratory action against Tom Adams, as Secretary of the State of Florida, and the State of

Florida. In his complaint, Holley alleges that he "intends, and has publicly announced, he intends, this year to be a

Republican candidate for nomination and election to the office of Justice of the Supreme Court of Florida." He further

[**4] alleges that, although he has complied with all other requirements of law, the Secretary of State has informed

Holley that unless he submits [*404] an irrevocable resignation from his office of Circuit Judge ten (10) days before

Page 3238 So. 2d 401, *; 1970 Fla. LEXIS 2597, **

backup p. 101



the first date of qualifying (the resignation filing date being June 27, 1970) that the Secretary will reject his qualification

papers for the office of Justice of the Supreme Court. In his complaint, Holley attacked the constitutionality of Ch.

70-80. The lower court held that it had jurisdiction and then sustained the provisions of Ch. 70-80, Laws of Florida, as

not violating the provisions of the Florida Constitution or of the United States Constitution.

This appeal resulted and the cause has been accelerated so as to make possible the rendition of a decision prior to the

June 27, 1970 deadline for submission of the resignation.

The appellees maintain that Holley only seeks advice as to his future action and is not entitled to relief under the

decision in Bryant v. Gray, 70 So.2d 581 (Fla.1954). The Bryant case, a suit for declaratory decree, sought a

construction of the constitutional provision declaring the Governor ineligible for re-election [**5] for the next

succeeding term. It was alleged that plaintiff Bryant desired to be a candidate and might be a candidate for the next

succeeding term. He was not sure. The question was therefore hypothetical and too remote as to time and too uncertain

as to contingencies to warrant declaratory relief.

In the case sub judice, Holley alleges that he intends to be a candidate and has publicly announced his intention to be a

candidate. He has filed with the Secretary of State a declaration of such intention, designation of campaign treasurer and

campaign fund and depository collection, deposit and disbursement of campaign funds. These circumstances call intoplay the principle announced in James v. Golson, 92 So.2d 180 (Fla.1957), which held that [HN1] under the provisions

of § 86.011(2) (formerly § 87.01(2), Fla.Stat., F.S.A., the Court may render a declaratory judgment,

"Of any fact upon which the existence or nonexistence of such immunity, power, privilege or right does or may depend, whether

such immunity, power, privilege or right now exists or will arise in the future. Any person seeking a declaratory judgment may

also demand additional, alternative, coercive, [**6] subsequent or supplemental relief in the same action."

the fact that a controversy had not matured is not always essential.

The action for declaratory judgment was appropriate and the Circuit Court had jurisdiction.

Holley contends that Ch. 70-80, Laws of Florida, is invalid as a legislative attempt to prescribe qualifications of

eligibility to a constitutional public office, the qualifications for which are prescribed by the Florida Constitution. In

considering this contention, the distinction between eligibility for office and qualifications or conditions imposed uponan office seeker should be kept clear.

[HN2] In determining the validity of the statute certain basic principles of constitutional construction must be followed.

First, it is the function of the Court to interpret the law, not to legislate.

Second, courts are not concerned with the mere wisdom of the policy of the legislation, so long as such legislation squares with the

Constitution.

Third, the courts have no power to strike down an act of the Legislature unless the provisions of the act, or some of them, clearly

violate some express or implied inhibition of the Constitution.

Fourth, every reasonable [**7] doubt must be indulged in favor of the act. If it can be rationally interpreted to harmonize with the

Constitution, it is the duty of the Court to adopt that construction and sustain the act.

[*405] Fifth, to the extent, however, that such an act violates expressly or clearly implied mandates of the Constitution, the act

must fall, not merely because the courts so decree, but because of the dominant force of the Constitution, an authority superior to

both the Legislature and the Judiciary. Amos v. Mathews, 99 Fla. 1, 126 So. 308, 99 Fla. 65 (1930).

[HN3] The judiciary will not nullify legislative acts merely on grounds of the policy and wisdom of such act, no matter

how unwise or unpolitic they might be, so long as there is no plain violation of the Constitution. Jackson Lumber

Company v. Walton Company, 95 Fla. 632, 116 So. 771 (Fla.1928). See also Williams v. City of Jacksonville, 118 Fla.

671, 160 So. 15 (1935).

Page 4238 So. 2d 401, *404; 1970 Fla. LEXIS 2597, **4

backup p. 102



Holley relies upon Burroughs v. Lyles, 142 Tex. 704, 181 S.W.2d 570 (1944), where the Court considered a statute

requiring resignation by any executive or administrative officers before running for another office. The Texas Supreme

Court held that the statute [**8] was unconstitutional as attempting to impose an additional qualification beyond that

required by the Constitution.

On the other hand, the appellees rely upon Mulholland v. Ayers, 109 Mont. 558, 99 P.2d 234 (1940), which also

involved a resignation statute substantially similar to the one at issue in the case sub judice. The Court upheld the statute

as being constitutional, saying,

"A person may possess the requisite qualifications or may be eligible to many different offices. The legal requirement, however,

that he may not hold more than one at a time does not affect his eligibility to hold them all. On the other hand, the requirement that

an office held by one who becomes a candidate for another becomes vacated goes not to his eligibility to hold either office." (p.

239)

Decisions in other jurisdictions concerning this question are in conflict, so it is necessary to determine the rule which

would be applicable in this jurisdiction in the light of our previous decisions.

In Webster's Third New International Dictionary, the word "eligible" is defined as "fitted or qualified to be chosen or

used." The word "qualified" is defined as "fitted (as by endowments [**9] or accomplishments) for a given purpose:

competent, fit."

[HN4] The word "eligible," when used in speaking of a candidate for office as being eligible, means capable of being

chosen, while qualified means the performance of the acts which the person chosen is required to perform before he can

enter into office. See Bradley v. Clark, 133 Cal. 196, 65 P. 395 (1901).

Holley relies upon Thomas v. State ex rel. Cobb, 58 So.2d 173 (Fla.1952), where a statute requiring candidates for the

office of county superintendent of public instruction to have a valid Florida Graduate Teacher's Certificate was held to

be unconstitutional in that it added qualifications to the office so as to make such qualifications different from those

prescribed in the Constitution. The requirement of the Florida Graduate Teacher's Certificate was clearly a qualification

for office and quite different from a statute pertaining to eligibility as a candidate for election. The requirement in theThomas case related to the academic, professional, or mental requirements as a qualification for holding the office. Ch.

70-80 is not a legislative determination that a person who currently holds the office of Circuit Judge [**10] is not fit to

be a Supreme Court Justice.

State ex rel. Fair v. Adams, 139 So.2d 879 (Fla.1962), involved the question of whether an office seeker could run for

two offices at the same time. This Court conceded that there was no constitutional or statutory prohibition in Florida

against running for several offices at the same time. The Court pointed out that an office [*406] holder may become a

candidate for another office if the term of that office begins before the term of the office which he holds expires. He

would have to resign his present office before entering upon the duties of the office to which he might be elected. The

Court held a candidate could not seek the nomination to several state offices at the same time, even though there was no

constitutional or statutory provision.

Jones v. Board of Control, 131 So.2d 713 (Fla.1961), was an action by a former faculty member of a state universityfor alleged breach of contract in terminating his employment on the ground that he had breached a rule in filing as a

candidate for a judgeship. The Court held that a rule prohibiting university employees from seeking election to public

office was constitutional. The Court [**11] in its opinion said:

"We think that we can dispose of our problem on a much broader plateau of reasoning with the view that any right which an

individual does have to work for the government or to continue in the public employ or to seek public office must necessarily be

subject to all reasonable rules and regulations promulgated by the government in the interest of the public and for the well-being of

the public services." (p. 717)


backup p. 103



"* * *

"We think that the decision of the trial judge and our own conclusion is clearly supported by the opinion of the Supreme Court of

the United States in United Public Workers of America v. Mitchell, 330 U.S. 75, 67 S. Ct. 556, 91 L. Ed. 754. There, the highest

Court sustained the constitutionality of the so-called Hatch Act, 18 U.S.C.A. § 594 et seq., 5 U.S.C.A. § 118i et seq. which

prohibited government employees in the Civil Service from seeking election to public office. We think it unnecessary to elaborate

upon the details of that decision. It is perfectly clear that the United States Supreme Court found adequate justification for arequirement which would preclude participation in political campaigns in the interest of saving [**12] the employees against

political retaliation and providing job security." (p. 718)

[HN5] Ch. 70-80 does not prescribe additional qualifications for the office, as the candidate may well be qualified in a

legal sense to hold either. The law is simply a limitation upon the right to retain the office already held when seeking

another. It is not a limitation upon the right to seek another office, for the incumbent of an office has the choice under

the statute to retain it unmolested or give it up and seek another. See Mulholland v. Ayers, supra.

This holding is not in conflict with Wilson v. Newell, 223 So.2d 734 (Fla.1969), where a statute, requiring a candidate

for county commissioner or county school board to have been a bona fide resident of the district from which he

qualified for a period of at least six (6) months prior to the qualifying date, was held unconstitutional. This statute

required additional "qualifications" for the office. Ch. 70-80 does not prescribe qualification but relates to the eligibilityof those who may become candidates.

Holley also says that Ch. 70-80 must be given prospective application only and should not apply to those office holders

who [**13] obtain their offices at a time when it was unburdened by the provisions.

[HN6] The right to seek public office is not a constitutional absolute, but such privilege is subject to reasonable

restraint and conditions. Jones v. Board of Control, supra. Ch. 70-80 is not a burden imposed upon the office of circuit

judge presently held by Holley. His term of office as circuit judge remains as before and this right is affected only by

the voluntary act of the incumbent in office.

[*407] [HN7] The acceptance of an incompatible office by one already holding office operates as a resignation of the

first. In the absence of Ch. 70-80, Holley would have been required to resign as circuit judge in the event he were

elected and assumed the duties of a Justice of the Supreme Court. See State ex rel. Fair v. Adams, supra. [HN8] Ch.70-80 simply extends the rule of resignation or abandonment of office to those who become candidates for another

office when they already hold one office, the term of which or any part thereof runs concurrent to the term of office for

which he seeks to qualify. Certainly, a person will be held to have abandoned his office when he leaves the state or

changes his residence [**14] from the territorial jurisdiction of the office. Similarly, there is no constitutional

provision prohibiting the Legislature from declaring that the mere filing for a second office by the holder of one office

under the circumstances covered by Ch. 70-80 operates as an abandonment of the first. Mulholland v. Ayers, supra.

Holley contends that under State ex rel. Hatton v. Joughin, 103 Fla. 877, 138 So. 392 (1931) and State ex rel. Holland v.

Ledwith, 14 Fla. 220 (1872), although the rights of the office may be restricted prior to its terms, an office holder upon

election receives a property interest in the office, which interest is protected against reduction by the Legislature. This

principle is not applicable, because the reduction of the term, if any, is caused solely by the act of the office holder in

abandoning the office which he presently holds. This is particularly true under the principle announced in Jones v.

Board of Control, supra, that [HN9] the privilege of seeking public office is subject to reasonable restraint and

conditions.

The statute [HN10] does not violate the appointive powers of the Governor. With regard to elective offices the

resignation is effective not [**15] later than the date upon which he would assume office, if elected to the office to

which he seeks to qualify, or the expiration date of the term of the office which he presently holds, or the general

election day at which his successor is elected, whichever occurs earlier. With regard to elective offices the resignation

creates a vacancy in the office thereby permitting persons to qualify as candidates for nomination and election in the


backup p. 104



same manner as if the terms of such public offices were otherwise scheduled to expire. The vacancy would occur as of

the effective date of the resignation and, in the event no one qualified for election to the office, the vacancy would then

be filled by the Governor.

Ch. 70-80 contains the following statement of legislative intent:

"WHEREAS, it is generally agreed to be considered inequitable to permit an elected official or appointive official holding office to

use the prestige and power of that office in seeking election to a higher or different office, and

"WHEREAS, it is generally agreed that by providing for prospective resignations the people of the State of Florida would not be

compelled to bear unnecessary cost of special elections [**16] occasioned by elected or appointed officials who, while holding one

office, seek and obtain another elective office."

[HN11] Police power is the sovereign right of the State to enact laws for the protection of lives, health, morals, comfort

and general welfare. State ex rel. Municipal Bond and Inv. Co., Inc. v. Knott, 114 Fla. 120, 154 So. 143 (1934).

[HN12] The State may enact laws whenever demanded by public interest, and large discretion is vested in the

Legislature to determine public interest and measures for its protection. Scarborough v. Newsome, 150 Fla. 220, 7

So.2d 321 (1942).

Ch. 70-80 was enacted for the benefit of the public welfare as stated in the abovequoted clauses. The statute fulfills its

purposes.

Holley is not in a position to assert the constitutional right of a notary public or [*408] military officer to

simultaneously hold another office, nor the right of a Legislator to hold judicial office, nor the question of whether the

statute places an undue qualification on a federal officer.

Elton J. Gissendanner, Mayor of the City of North Miami, has filed a petition to intervene or in the alternative to appear

as amicus curiae. The petition raises issues [**17] collateral to those under consideration and intervention should not

be allowed. See Dickinson v. Segal, 219 So.2d 435 (Fla.1969). However, the brief filed on behalf of Mr. Gissendanner

has been treated as that of an amicus curiae.

In summary, [HN13] Ch. 70-80 does not relate to the qualifications one must possess in order to hold office, but merelyconditions under which he may become eligible to be a candidate. The Legislature, in its wisdom, considered it

inequitable for an elected official or appointive official holding office to use the prestige and power of that office in

seeking election to a higher or different office. Furthermore, the Legislature agreed that by providing for prospective

resignations the people of the State of Florida would not be compelled to bear the unnecessary cost of special elections

occasioned by elected or appointed officials who, while holding one office, seek and obtain another elective office.

To construe the provisions of Ch. 70-80 as imposing additional qualifications upon the office of Justice of the Supreme

Court or any other office would be to legislate and not to interpret. The objections made to the law are matters of

legislative concern.

[**18] The judgment of the Circuit Court is

Affirmed.

DREW, CARLTON and BOYD, JJ., and MASON, Circuit Judge, concur.

THORNAL, J., concurs with opinion.

ERVIN, C.J., dissents with opinion.

CONCUR BY: THORNAL


backup p. 105



CONCUR

THORNAL, Justice (concurring).

I concur in the opinion and judgment prepared by Justice ADKINS. In doing so, however, I deem it appropriate to note

that we do not here deal with a legislative encroachment on a vested or contractual right of an officeholder. Gay v.Whitehurst, 44 So.2d 430 (Fla.1950); Greene v. Gray, 87 So.2d 504 (Fla.1956); 1956 Op. Atty. Gen. 056-238, August

13, 1956; City of Jacksonville v. State, 151 So.2d 430 (Fla.1963). As the opinion emphasizes, the elements of eligibility

to seek an office are not vested rights constitutionally protected. This is the aspect of the instant statute which

distinguishes it from an enactment which would impinge on contractual or vested rights.

DREW, CARLTON and ADKINS, JJ., and MASON, Circuit Judge, concur.

DISSENT BY: ERVIN

DISSENT

ERVIN, Chief Justice (dissenting).

Section 13A of Article V of the State Constitution sets forth all of the eligibility requirements or qualifications provided

by the Constitution for the office [**19] of a Justice of the Supreme Court. Section 4, Article VI of the State

Constitution sets forth all of the constitutional disqualifications to hold public office; that is, that no person convicted of

a felony or adjudicated to be mentally incompetent shall be qualified to hold office until restoration of his civil rights or

removal of his disability has occurred. Section 5 of Article II of the State Constitution provides no person shall hold at

the same time more than one office under the government of the state and the counties and the municipalities, except a

notary public or military officer. Section 1(f) of Article IV of the State Constitution provides that except as otherwise

provided in the Constitution the governor shall fill by appointment any vacancy in state or county office for the

remainder of [*409] the term of an appointive office, and for the remainder of the term of an elective office if less than

twenty-eight months; otherwise, until the first Tuesday after the first Monday in January following the next general

election. Section 14, Article V of the State Constitution provides that judicial vacancies shall be filled by appointment

or election for the unexpired [**20] term.

It appears to me Chapter 70-80, the "resign-to-run" act, imposes a disqualification in addition to those set forth in the

above related constitutional prohibitions and thus collides with the constitutional maxim that the Legislature may not

impose or prescribe qualifications or disqualifications of eligibility to a constitutional public office in addition to those

set out in the basic document itself.

There was a time when the Constitution forbade a bank officer being elected governor (Const.1838, Sec. 3, Art. VI), and

forbade a minister of the gospel serving in the Legislature or as governor (Const.1838, Sec. 10, Art. VI). These

prohibitions were clearly expressed in the Constitution. They were later removed by vote of the people, and the only

qualifications and disqualifications in the present Constitution are those I have referred to above.

But now Chapter 70-80 in effect statutorily prohibits (with certain glaring exceptions) many current public officers,

including Judge Holley, from eligibility to seek or hold the office of Justice of the Supreme Court or other public officeunless they first shed their current offices. Similarly as a person who is a convicted felon [**21] or who has been

adjudged mentally incompetent, Judge Holley must remove his disability of holding office as a Circuit Judge before he

will even be able to seek election as a Justice of the Supreme Court. In this respect, the fact that Judge Holley has the

power and ability to alter eo instante his present status by resigning his state office so as to conform to the condition

imposed by the statute cannot operate to preserve as constitutional the qualifications impact of Chapter 70-80. The

same could be said of a bank officer or minister of the gospel under the bygone provisions above cited; yet, curiously,

such provisions were not creations of legislative wisdom but were set forth in the Constitution itself.


backup p. 106



In Thomas v. State, Fla.1952, 58 So.2d 173, this Court, after first referring to constitutional qualifications and

disqualifications to hold public office similar to those referred to above, said:

"* * * This solemn declaration in our Constitution about qualifications or disqualifications to hold public office are conclusive of

the whole matter whether in the affirmative or in the negative form. * * *" ( Thomas v. State, supra, at 183.)

Chapter 70-80 [**22] is in no sense a corrupt practices act relating to the purity of the ballot or regulating campaign

practices. See Maloney v. Kirk, Fla., 212 So.2d 609, text 616. It simply sets up a status oriented disqualification to

seek election to a public office so long as one is holder of another public office. It says "no individual may qualify" for a

public office until he removes the disqualification of holding his current office. He must present his irrevocable

resignation therefrom as an item of his qualifications papers to run for another office. He is disqualified by statute to

seek another public office until he removes the disqualification. In effect, Chapter 70-80 is a legislatively imposed

requirement affecting and conditioning the status of a person seeking to qualify for election to a particular public office

and as such is contrary to the qualification and disqualification provisions spelled out with specificity in the

Constitution; burdens the potential candidate with a disqualification not prescribed in the Constitution; deprives him of

the same freedom enjoyed by other electors not otherwise prohibited by the Constitution from seeking election to a

public office; and denies [**23] the electorate of the state or county the candidacies of those who are unwilling to shedtheir current offices in order to become candidates.

[*410] A reading of the opinions in Maloney v. Kirk, supra, will further illustrate the invalidity of Chapter 70-80.

Much of the opinion of Mr. Justice Roberts quoting Circuit Judge Hugh M. Taylor's opinion below is pertinent to an

understanding of the reasons why additional qualifications or disqualifications other than those prescribed in the

Constitution are impermissible. I disagreed to Mr. Justice Roberts' views there expressed because I did not consider the

campaign spending law, which related to campaign contributions and spending and corrupt practices, as an enactment

prescribing qualifications or disqualifications for the office of Governor other than those enumerated in the

Constitution. Here, however, it is quite clear there is a statutory disqualification pertaining to the status of a seeker of

public office which must be removed by irrevocable resignation as a part of his qualifying procedural compliance as a

candidate for another public office. The instant enactment is not of the type which merely regulates the manner [**24]

and mode of conduct which an otherwise eligible and qualified candidate must observe in seeking election to aparticular office. What Justice Roberts said in Maloney v. Kirk definitely applies here.

Wilson v. Newell, Fla.1969, 223 So.2d 734, is to the same effect. There, the statute required that for one to be a

candidate for the office of county commissioner he "shall have been a bona fide resident of the district from which he

qualifies for a period of at least six months prior to the qualifying date." This statute we held to be unconstitutional

because "it prescribes qualifications for the office of County Commissioner in addition to those prescribed by the

Constitution." (At 736.)

It is sheer sophistry to say that there is a dichotomy here - that Chapter 70-80 only regulates the right to continue to hold

a current office without relation to eligibility or qualification to seek and hold another. In the first place, the

requirement of irrevocable resignation is made a condition precedent - a required item in complying with qualification

regulations - to seeking another office. Just as in the Wilson case, one cannot become a candidate unless he first renders

himself [**25] eligible by satisfying the condition precedent prescribed in Ch. 70-80.

But even if the statute only related to the right to continue to hold a current office, there are serious questions as to its

validity. One cannot be legislated out of a constitutional office, for an unconstitutional reason although certain officers

may be suspended for cause or impeached in other situations. But the right to continue to hold office under the

Constitution cannot be made subject to coercive legislative forfeit merely because one seeks another office. There are

certain quasi-property rights to hold a public office that are protected by the Constitution (see State, ex rel. Hatton v.

Joughin, 103 Fla. 877, 138 So. 392) from legislative forfeit or reduction during the elective term and particularly is this

true of the office of a circuit judge. See Sections 16 and 24, Article V, State Constitution.


backup p. 107



Jones v. Board of Control, Fla.1961, 131 So.2d 713, is altogether inapposite to the instant case. A public employee, not

a public officer was involved. Requirement of a public employer or of a general law, e.g., Hatch Act, that a public

employee refrain from becoming a political candidate in order [**26] to retain his job is quite dissimilar from a statute

requiring public officers as a condition precedent to becoming candidates to resign their offices. The former is not a

statutory requisite that must be complied with in order to qualify as a candidate. The sanction or penalty is loss of public

employment, not deprivation of the right to be a candidate by state action.

State ex rel. Fair v. Adams, Fla.1962, 139 So.2d 879, dealt with multiple candidacies of one individual for two public

offices in the same election. The preclusion announced therein did not involve the right to run for a single office, but to

run for [*411] two at the same time. The Constitution excludes additional statutory qualifications or eligibility

conditions affecting the right to seek or to hold a single office, but does not exclude statutes or rules of law prohibiting

multiple candidacies of one individual, since such multiple candidacies appear to be contrary to the further

constitutional provision against an individual occupying two public offices at the same time.

The incongruities of Chapter 70-80 are striking. It is argued the principal object of the act is to preclude a current

officeholder [**27] candidate from capitalizing on the fact that if defeated he will still retain his current office - a fact

that could influence support and campaign contributions from those who might seek favors or considerations from such

public officer. This contention blandly overlooks that all candidates for re-election, including the Governor, are notsubject to Chapter 70-80, nor are public officer candidates for other offices who hold over after the general election

until their terms expire the following January. Exclusion of so large a group of public officer candidates from the

"resign-to-run" law makes such claimed purposes quite dubious.

Time does not permit because of the urgency for disposition of this litigation prior to the period of qualification of

candidacies to fully discuss other facets that render Chapter 70-80 suspect and questionable. For example, the apparent

impinging impact of the act on the Governor's powers to fill vacancies in elective offices pursuant to Section 1(f),

Article IV, State Constitution, is a highly suspect constitutional feature. Also, the act has many glaring discriminatory

features in addition to impinging upon the public's right to have a full range [**28] of candidates, whether current

officeholders or not. It will bring in its wake a number of situations that create uncertainties and confusion. The

Florida Constitution, as the Federal Constitution has been so interpreted, should be the polestar guiding in this critical

area of the right of Florida citizens to seek and to hold office in the state. Innovative legislation of this kind is a break

from history and must be closely scrutinized in order to protect against untoward results out of harmony with inviolate

constitutional guidelines.

Although the wisdom of legislative enactments as opposed to their constitutionality is not the focal point for judicial

study, it appears to me the Legislature has fashioned this statute on a mere scintilla of evidence showing abuse in the

premises. On the other hand, the offensive features of the statute predominate against the advantages flowing from

elimination of the suspected evil. The statute unquestionably lays a burden on the officeholder who because of his

experience seeks promotion to another office, and will tend to deny the electorate the opportunity to have a full cadre of

candidates, representative of all sectors of the community [**29] and of differing philosophies. The discriminatory

nature of the statute generates cause to suspect that it is class legislation contrary to express constitutional

office-holding qualification provisions adopted by the people which as presently written do not indicate they frown on

officeholders' candidacies for other offices than those they hold.

Regardless of the wisdom of the reasons which prompted the instant statute, the test of its constitutional survival does

not lie in the wisdom of its remedial intendment but, rather, rests exclusively in the constitutional power of the

Legislature to affect the premises in the manner implemented by this statute.

Suppose the Legislature enacted a statute reading: "No individual may qualify as a candidate for public office who is

either a physician, banker, lawyer, bingo game or race track operator, or insurance agent, without first surrendering his

right and entitlement to pursue and practice said profession or means of livelihood." Of course, this is only a

hypothetical enactment and the Legislature no doubt will never find an evil, or cause or alarm sufficient to justify such a


backup p. 108



statute. However, I [*412] am judicially concerned, [**30] not with the need or wisdom of such a hypothetical

enactment, but with the constitutional power of the Legislature to enact such a statute based on the precedent rationale

of the majority in this case. In terms of legislative constitutional powers, I wonder if my majority brethren would be

receptive to the rationale that such provision escapes application of the constitutional maxim that the Legislature may

not impose or prescribe qualifications of eligibility or ineligibility to a constitutional public office in addition to those

set out in the Constitution.

When the people of this state through their Constitution have scrutinized citizens respecting their potentials to serve the

public as officeholders, and decided who of them are deemed qualified to hold a designated public office, it is beyond

the power of the Legislature to superimpose its own qualificatory scheme.

The majority in the instant case attempts to outflank a confrontation with the constitutional maxim precluding the

Legislature from imposing its own devised qualification requirements. First, the majority, disregarding the Thomas and

Wilson decisions, weaves a subtle distinction between the terms, "eligible" and [**31] "qualified," concluding that the

dictionary meaning of the latter serves as the acid test for determining a violation of the above-cited constitutional

maxim. Under the majority's announced reasoning, a public officeholder is personally qualified under the State

Constitution to be elected to any other office, but he is eligible to be elected to such other office under the terms of the

statute only if he resigns his status as a present officeholder. By the same token, under the hypothetical enactment posedhereinbefore, I assume the majority's reasoning would be: "A physician, banker, or lawyer is qualified as a person or

citizen elector to seek election to a state office, but said person is eligible to be elected only if he surrenders his status as

a physician, banker, or lawyer." I confess I am unable to understand this subtle distinction of the majority.

Secondly, the majority reasons that the present statute does not really indelibly affect the qualification status of an office

seeker since in actuality it is the voluntary choice of the would-be office-seeker which activates the statutory

prohibition. To test the soundness of this reasoning, it is imperative to explore the [**32] proverbial "other side of the

coin."

Take the banker, physician, lawyer, example set out above. Under the workings of this hypothetical enactment the

legislative edict says: "The decision to seek public office is a voluntary one, but if you do desire to seek office, you

surrender by operation of law your status to function as a banker, physician, or lawyer." The Legislature's power to

coerce a forfeiture of such a status as a condition to seeking public office is particularly obnoxious because it offendstraditional principles and notations of the limited scope of power heretofore thought to be vested in a legislative body in

adding qualifications to public office holding. However, when the Legislature says to an officeholder "Your decision to

seek another public office, the term of which coincides with your present office, is a voluntary one; but in order to be

eligible to seek such an office you must resign your present office," we may not be immediately offended by the ploy of

power evidenced in such an enactment because of the anaesthetizing effect of the public policy claimed to be

implemented (using the power and influence of incumbency in one office to promote one's candidacy [**33] for

another office); an ingredient lacking in the former example. The same abuse of power is involved nevertheless. The

Legislature has no more right to declare a contingent forfeiture of public office in the latter case than it does to declare a

contingent forfeiture of the right to pursue the livelihoods of banking, medicine, or law. Indeed, in the case of the

people's elected public servant, the means and mode of divestiture are exclusively designated in the [*413]

Constitution and beyond the power of the Legislature to alter. See discussion supra.

Beyond the issues of this case there looms as a spectre the troubling question whether state action in the form of

constitutional prohibition can deny equality respecting the right of any citizen elector, whether a public officer or not, to

seek and hold office unless there is a strong and compelling public interest to be served by such denial action.

Thus, in conclusion of the Holley matter, there is simply no route available to split the horns of the constitutional

dilemma generated by the instant statute. This is as it should be, since the illusory dictionary escape depicted by the

majority precedent can only lead to [**34] an excessive vesting of power in the Legislature to prescribe added

qualifications or disqualifications on a citizen's right to seek and hold public office, and the right of the people to


backup p. 109



exclusively prescribe in their Constitution the only limitations on eligibility to hold public office.

In addition to the above comments, I find it necessary to address the Federal question which the majority today treats in

State ex rel. Davis v. Adams. These remarks are included herein because of the interrelation of the subject matter and

controlling principles, and in the interest of expediting this matter.

In the Davis case the majority has construed Chapter 70-80, Laws of Florida 1970, to encompass the situation where a

state officeholder seeks to qualify for election to a federal office. This construction postures squarely the issue of

whether said statute is unconstitutional as a matter of Federal law because it attempts to prescribe qualificatory

requirements incident to seeking a Federal elective office in addition to those qualifications enumerated in the United

States Constitution. Particularly, relator Davis challenges the constitutionality of the instant statute so far as it

prescribes [**35] additional qualifications incident to the right to qualify for election to office as a member of the

House of Representatives of the United States.

In the context of relator Davis' situation, Chapter 70-80 required Davis to resign his state office as a condition to

becoming eligible to qualify as a candidate for the office of United States Representative. Without satisfying this

condition, there is simply no way Davis can become a candidate for the Federal office. The statute does not say, at least

under the construction adopted by the authorities, responsible for certifying Davis' candidacy, that if Mr. Davis seeksand does qualify for the Federal office, he thereby abandons and surrenders his state office. Rather, the statute as

applied operates as a condition precedent to Davis' right to qualify for election to office as a member of the United

States House of Representatives. Viewed in this light, I simply cannot visualize how the instant statute escapes a

collision with the universal and timeworn rule 1 that a state legislature, indeed the Federal Congress, may not prescribe

additions to the qualificatory requirements of election to the office of United States Representative [**36] as set forth

in the Federal Constitution. See State ex rel. Eaton v. Schmahl, 140 Minn. 219, 167 N.W. 481 (1918); State ex rel.

Chandler v. Howell, 104 Wash. 99, 175 P. 569 (1918); Stockton v. McFarland, 56 Ariz. 138, 106 P.2d 328 (1940);

Ekwall v. Stadelman, 146 Or. 439, 30 P.2d 1037 (1934); State ex rel. Pickrell v. Senner, 92 Ariz. 243, [*414] 375 P.2d

728 (1962), and cases cited therein. 2

1 James Madison explained the operation and purpose of this rule when the Federal Constitution was under consideration for adoption:

"The qualifications of electors and elected are fundamental articles in a republican government, and ought to be fixed by

the Constitution. If the legislature could regulate those of either, it can by degrees subvert the Constitution." 5 Elliot's

Debates 404.

Later, Alexander Hamilton observed:

"The qualifications of persons who may choose or be chosen, as had been remarked upon another occasion, are defined

and fixed in the Constitution and are unalterable by the legislature." The Federalist, LX.

2 In State v. Senner, the Arizona Supreme Court observed:

"[2] This court found in Whitney v. Bolin [85 Ariz. 44, 330 P.2d 1003], supra, that A.R.S. § 38-296 as applied to a

Superior Court Judge seeking the office of Supreme Court Justice, which is a state constitutionally created office,

amounted to an additional qualification to those established by the state constitution. Furthermore, subsection A of the

statute says 'No incumbent * * * shall be eligible for nomination or election * * *.' Subsection C provided that upon

resignation from the office the person shall not be prohibited 'from qualifying as a candidate for another office.' We find

this language to be a clear and unambiguous affirmation of qualification requirements for candidates to public office. To

qualify for an office other than the one held the candidate must resign from his present position. It is no less clear in

meaning then a provision which says that before a man can run for an office he must attain the age of twenty-five years.

"The Supreme Court of Delaware, faced with a statutory provision that no judicial officer, during his term nor within six

months after its termination, may be a candidate for an elective office, found it added to the elective office to which the

judicial officer had aspired a further and additional qualification to that specified in the Constitution, i.e., that such a

candidate may not be a judicial officer at the time he aspires to the constitutionally created position. Buckingham v. State,


backup p. 110



42 Del. 405, 35 A.2d 903."

[**37] In the Davis case, the statute operates as a condition precedent prohibition or qualification of the status of aperson who desires to qualify for election to a Federal office. But even if the statute were construed to operate as a

condition subsequent divestiture of Davis' present status as a state officeholder, upon the exercise of his right to qualify

for election to a Federal office the constitutionality of the present statute would not be preserved, although the Federal

question would be abated. In my foregoing discussion of the Holley situation, I attempted to point out that the

Legislature cannot add to the means or mode by which a constitutional state officeholder can be divested of the title to

that office. This subject is specifically circumscribed by our State Constitution and is simply beyond the power of the

Legislature to alter. Cf. Powell v. McCormack, 395 U.S. 486, 89 S. Ct. 1944, 23 L. Ed. 2d 491.

Thus, under the challenge of relator Davis, the present statute is unconstitutional as a matter of Federal law to the extent

it attempts to prescribe qualification status of persons seeking to qualify for election to a Federal office, the

qualifications of which are [**38] enumerated in the U.S. Constitution. However, since Chapter 70-80, Laws of

Florida 1970, has no severance provision, and since such a savings intendment cannot reasonably be implied from the

purpose sought to be effected by this enactment, the invalidity of the act as it pertains to relator Davis' Federal

challenge, should operate to invalidate the act in toto in and apart from the outcome of the State constitutional questions

examined in Holley.

I agree with Mr. Justice Thornal that the issues here are wholly unaffected by any contractual or vested rights of an

officeholder who seeks to be a candidate for another office. We are concerned solely with a citizen's right under the

Constitution to seek to hold public office pursuant to the qualification and eligibility requirements of the Constitution

without the added burden of any further limitations, conditions, or qualifications that may be prescribed by statute.


Orlando Martinez de Castro Resolution to void employment contract

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