Orlando Martinez de Castro Resolution To Void Employment Contract

RESOLUTION NO.
__________ 1
2
A Resolution of the City of South Miami confirming the City 3
Commissions prior interpretation of the City Charter, the 4
City Commissions prior approval of all appointments of 5
Orlando Martinez de Castro to the office of Acting City 6
Manager and approving the termination of his 5-year 7
employment agreement with the City under the terms of 8
Florida Constitution Article II, Section 5(a). 9
10
WHEREAS, on October 8, 2010, the Mayor and City Commission voted to 11
authorize execution of a 5-year employment agreement (hereafter the employment 12
agreement) with Orlando Martinez de Castro to serve as Chief of Police [backup pp. 1- 13
15]; and 14
15
WHEREAS, Article III, Section 4A of the City charter provides that [t]he 16
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 acting 19
City Manager shall not serve for a period longer than 90 days. During such absence or 20
disability, the Commission may decline such recommendation at any time and appoint 21
another officer of the City to serve until the Manager shall return or his disability shall 22
cease. 23
24
WHEREAS, the South Miami City Manager notified the Mayor and City 25
Commission, as per City Charter Article III, Section 4A [backup p. 16], that Police Chief 26
Martinez de Castro was appointed to serve as Acting City Manager on twelve (12) 27
occasions for a total of forty-five (45) days. 28
29
WHEREAS, the City Manager, Dr. Mirabile, on one occasion defined the Acting 30
City Managers authority thus: He will have the authority to administrate the city and 31
signature authority in all administrative requirements but will not have signature authority 32
for contracts. On another occasion Dr. Mirabile designated Orlando Martinez De Castro 33
as acting City Manager and designate him with limited signature authority, he will not 34
have signature authority to bind the City in the area of contracts or agreements. He does 35
have signature authority in the areas of routine City business and expenditures such as any 36
and all personnel actions, agenda items, purchases, etc. On another occasion the City 37
Manager designated Mr. Martinez de Castro as acting City Manager without any 38
restriction on his authority to act for and bind the City [backup pp. 17-25]; and 39
40
WHEREAS, when a City Manager names an acting City Manager to cover the 41
City Managers duties during his absence, the Citys practice, under multiple city 42
attorneys and differing city commissions, is for the City Commission to do nothing to 43
formally approve the appointment/designation other than to accept the action of the City 44
Manager and the designated acting City Manager without the need for a resolution by the 45
Commission since a disapproval would necessarily require a resolution declining the 46
recommendation and naming another individual to the office of City Manager as required 47
under Charter Article III, Section 4A; and 48
Page 2 of 5
1
2
WHEREAS, in numerous decisions, Floridas courts have ruled that concerning 3
questions of policy and procedure, the local agencys views and administrative 4
interpretations 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. 7
Goldring, 477 So.2d 532, 10 Fla. L. Weekly 429 (Fla. 1985); State of Fla. Dept. of 8
Environmental Regulation v. C.P. Developers, Inc., 512 So.2d 258, 12 Fla. L. Weekly 9
2052 (Fla. App. Dist.1 08/24/1987); and 10
11
WHEREAS, Police Chief Martinez de Castro accepted such assignments to the 12
position of Acting City Manager [backup p. 26]; and 13
14
WHEREAS, during his assignments as Acting City Manager Mr. Martinez de 15
Castro 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 about 17
matters of City business outside the areas of Police, Code Enforcement, and Parking 18
[backup pp. 27-31]; and 19
20
WHEREAS, during his assignments as Acting City Manager Mr. Martinez de 21
Castro issued three city managers reports (11-J un-2012, 19-J ul-2012, 26-J ul-2012), 22
listing himself on each as the Acting City Manager [backup pp. 32-34]; and 23
24
WHEREAS, during his assignments as Acting City Manager, Mr. Martinez de 25
Castro attended four city commission meetings (6-Mar-2012, 12-J un-2012, 24-J ul-2012, 26
31-J ul-2012) in the capacity and chair of the city manager [backup pp. 42-45]; and 27
28
WHEREAS, during his assignments as Acting City Manager, Mr. Martinez de 29
Castro signed official city documents in the space designated for the city managers 30
signature [backup pp. 35-36]; and 31
32
WHEREAS, 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 the 34
recommendation by accepting the City Managers appointments of Chief Martinez de 35
Castro and treating him as the City Manager [backup pp. 37-40]; and 36
37
WHEREAS, the Mayor and City Commission addressed Mr. Martinez de Castro 38
as Mr. Acting City Manager at city commission meetings in which he served in the role 39
of city manager, and directed him to carry out actions such as obtaining bids on behalf of 40
the City [backup p. 41]; and 41
42
WHEREAS, the Mayor and City Commission voted unanimously to approve the 43
official minutes of four city commission meetings (6-Mar-2012, 12-J un-2012, 24-J uly- 44
2012, 31-J ul-2012) in which Mr. Martinez de Castro was listed as Acting City Manager 45
47
Page 3 of 5
WHEREAS, City Manager Hector Mirabile sent email directing staff that Orlando 1
Martinez de Castro was to be the Acting City Manager, defining the Acting City 2
Managers authority thus: He does have signature authority in the areas of routine City 3
business and expenditures such as any and all personnel actions, agenda items, purchases, 4
etc. which included the right to hire, fire and discipline City employees [backup pp. 46- 5
50]; and 6
7
WHEREAS, 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 email 9
11
WHEREAS, The Florida Constitution Article II, Section 5(a) states: No person 12
shall hold at the same time more than one office under the government of the state and the 13
counties and municipalities therein [backup p. 57]; and 14
15
WHEREAS, Floridas courts and Attorneys General have determined that police 16
chiefs and city managers specifically (but not directors of other city departments) are 17
vested with and exercise a portion of the governmental or sovereign power of the City and 18
are municipal officers, and thus both positions are deemed as incompatible under the 19
constitutional ban on dual office-holding, e.g., AGOs 80-97, 84-25, 86-11, 2006-27, 2013- 20
08, Butterworth & Wilson (1999) [backup pp. 58-99] (also AGOs 57-165, 69-2, 76-92, 21
77-89); and 22
23
WHEREAS, Floridas Attorney General stated in AGO 2013-08 that appointment 24
of a police chief to the office of Acting City Manager for any duration, even temporary, 25
violates the dual office-holding prohibition in Section 5(a), Article II of the Florida 26
Constitution [backup pp. 77-80]; and 27
28
WHEREAS, the Supreme Court of Florida set forth the general rule: The 29
acceptance of an incompatible office by one already holding office operates as a 30
resignation of the first, Holley v. Adams, 238 So. 2d 401, 407 (Fla. 1970) [backup pp. 31
99-111]; and 32
33
WHEREAS, Floridas Attorney General stated in AGO 2006-27 that because 34
Florida Constitution Article II, Section 5(a) prohibits a police chief from simultaneously 35
serving as the city manager, when a police chief is appointed acting city manager he 36
resigns as police chief [backup pp. 73-76]; and 37
38
WHEREAS, Floridas Attorney General further stated in AGO 2006-27: 39
Generally, the acceptance of a second office has been considered to be a vacancy in the 40
first office. Thus, the acceptance of the position as acting city manager created a vacancy 41
in the office of police chief, not a leave of absence [backup pp. 73-76]; and 42
43
WHEREAS, by accepting the position of Acting City Manager and functioning in 44
that capacity, Mr. Martinez de Castro resigned from his position as Chief of Police, 45
leaving the chief position vacant, as per Florida Constitution Article II, Section 5(a) as 46
interpreted in AGO 2006-27; and 47
48
Page 4 of 5
WHEREAS, the employment agreement includes resignation as a basis for 1
termination of the agreement [backup p. 10]; and 2
3
WHEREAS, the City Commission never authorized a new multi-year employment 4
agreement with Mr. Martinez de Castro when he ceased to serve as Acting City Manager; 5
and 6
7
WHEREAS, Mr. Martinez de Castro has been the de facto police chief and an at 8
will employee of the City since his first appointment to the office of Acting City Manager 9
and his resulting resignation as police chief for the City at that time. 10
11
12
NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND CITY 13
COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA, THAT: 14
15
Section 1. The above recitals are statements of fact held to be true and are 16
incorporated into the body of this resolution. 17
18
Section 2. The City Commission hereby ratifies and approves of the 19
interpretation given to the City Charter by the current City Commission and the 20
interpretation given by all prior City Commissions concerning the procedure for the 21
appointments of Acting City Managers in the past, as explained in the recitals to this 22
resolution, and acknowledges the current City Commissions past approval and acceptance 23
of the prior City Managers recommendation and appointment/designation of Mr. 24
Martinez de Castro as the Acting City Manager for the City of South Miami in all of those 25
instances referred to in the recitals to this resolution. 26
27
Section 3. The Commission affirms that, under the terms of Florida 28
Constitution Article II, Section 5(a), Orlando Martinez de Castro terminated his 5-year 29
employment agreement with the City by resigning, by operation of law, from his position 30
as Chief of Police to serve as Acting City Manager. Mr. Martinez de Castro is hereby 31
declared to be an at will employee of the City of South Miami. 32
33
Section 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, the 35
holding shall not affect the validity of the remaining portions of this resolution. 36
37
Section 5. Effective Date. This resolution shall become effective immediately 38
upon adoption by vote of the City Commission. 39
40
PASSED AND ADOPTED this ____ day of _____________, 2013. 41
42
43
ATTEST: APPROVED: 44
45
46
_____________________ ______________________ 47
CITY CLERK MAYOR 48
Page 5 of 5
1
READ AND APPROVED AS TO FORM, COMMISSION VOTE: 2
LANGUAGE, LEGALITY AND Mayor Stoddard: 3
EXECUTION 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; providing an 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 Chief of 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; providing an 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 Chief of 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 Employees 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 Employees 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
backup p. 3
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pursued for profit or advantage; provided, however, that Employee may engage in personal
and/or passive investment and charitable activities and continue to operate Employees 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 Employees duties and obligations to the City. All
non City related work will be done under the Employees 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 Employees
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 19
th
day of October, 2015, shall require the approval of both City and
Employee.
3. Compensation. During the course of Employees employment by City, pursuant
to this Agreement:
backup p. 4
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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 Citys 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 Citys 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 Citys 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 Citys 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. Employees dependents
shall be covered only if the City insurance plan covers dependents for senior managers with the
City. If dependents are covered at Employees 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 Employees 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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purchases for the police fleet maintained at the Citys 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 Employees 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 Citys 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 Employees prior employment with the City was
terminated in 2006 which the Parties hereto agree is 380.00 hours.
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(b) Employee shall receive one (1) day per month of sick time
or such additional sick time, if greater, as is provided to Citys 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 Employees work and
payments shall be made to Employee by City only upon presentation of receipts for payments for
clothing expenses incurred in connection with Employees 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 Citys 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 Employees salary, as a contribution
to Employees City-sponsored retirement plan or any other retirement plan (IRA, 401k, etc.)
selected by Employee for his benefit.
backup p. 7
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3.2.4 The City shall Provide Employee, at Citys cost, with equipment
necessary to fulfill Employees 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 Citys objectives, all of which shall be reimbursed and paid in accordance with
Citys 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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4.1.2 Employees 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 Employees 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 Associations rules then in effect. The arbitrator to be chosen shall be
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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 Employees 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 Citys 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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provided, however, following receipt of Employees resignation, City shall have the right to
accelerate the effective date of Employees 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 Employees 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 therefore, 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 Employees
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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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 Drive
South Miami, Florida 33143-5093

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

Maria Menendez
6130 Sunset Drive
South Miami, FL 33143-5093

To Employee: Orlando G. Martinez de Castro
3636 NW 36 Street
Miami, Florida 33142

With a copy to: Adorno & Yoss LLP
2525 Ponce de Leon Boulevard
Suite 400
Coral Gables, Florida 33134
Attention: 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
backup p. 12
{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 Employees 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 Citys 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<HMirabile@southmiamifl.gov>
Senttime: Sunday,February27,201112:05:54PM
To: Mayor&Comm<Mayor&Comm@southmiamifl.gov>
Cc: Feingold,Laurence<aslanf@aol.com>Palmer1,Velma<palmer2007@gmail.com>
Subject: Vacation
HonorableMayor,ViceMayor,andCommissioners,
IwillbetakingvacationonFriday,March4,2011.Iwillbeoutoftownattendingmydaughtersballetcompetitionrecitalintwodifferent
locationsinFlorida.Youmaystillreachmeviacellulartelephone.
InthisandfutureabsencesduetovacationIamdesignatingChiefofPolice,OrlandoMartinezDeCastro,asactingCityManagerand
designatehimwithlimitedsignatureauthority,hewillnothavesignatureauthoritytobindtheCityintheareaofcontractsor
agreements.HedoeshavesignatureauthorityintheareasofroutineCitybusinessandexpenditures.
Sincerely,
HectorMirabile,PhD
CityManager
backup p. 17
From: Hector Mirabile <HMirabile@southmiamifl.gov>
Subject: Vacation
Date: February 27, 2011 12:05:54 PM EST
To: Mayor & Comm <Mayor&Comm@southmiamifl.gov>
Cc: "Feingold, Laurence" <aslanf@aol.com>, "Palmer1, Velma"
<palmer2007@gmail.com>

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 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 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. 18
Subject: City Manager Vacation
Date: July 1, 2011 2:14:19 PM EDT
Cc: "Pepe, Thomas F." <TPepe@southmiamifl.gov>, "Menendez, Maria M."
<MMenendez@southmiamifl.gov>, "Garcia, Maria"
<MGarcia@southmiamifl.gov>, "MartinezdeCastro, Orlando"
<OMartinezDeCastro@southmiamifl.gov>

IwillbetakingvacationonJuly5,2011andwillreturnJuly6,2011.
DuringmyabsenceChiefOrlandoMartinezDeCastrowillbethe
actingCityManager.Hewillhavetheauthoritytoadministratethe
cityandsignatureauthorityinalladministrativerequirementsbutwill
nothavesignatureauthorityforcontracts.
Sincerely,
Hector Mirabile, Ph. D.

City Manager

backup p. 19
Subject: Acting City Manager-Chief of Police
Date: April 5, 2011 4:29:18 PM EDT
To: Everyone1 <Everyone1@southmiamifl.gov>

All,
Iwillbeoncitybusinessoutsideofthecounty.InmyabsenceChiefof
PoliceOrlandoMartinezdeCastroisleftinchargeasactingcity
managerwithlimitedrightsandprivilege.Theexplicitlimitationisthe
signingofanycontractbindingthecity.Hedoeshaveauthorityto
approveanyandallpersonnel,financial,and/orotheradministrative
functionsfortheefficientoperationofthecity.Iwillbereturningon
Thursday,April7,2011,atorabout7:00pm.Iwillreturntotheoffice
onFriday,April8,2011.
Sincerely,

City Manager

backup p. 20
DearCommission,
IwillbegoingthroughamedicalproceduretomorrowandconsequentlyIwillbe
outusingillnesstime.InmyabsenceIamleavingChiefOrlandoMartinezDe
Castroincharge.YoumayreachmeviaemailandIwillrespondassoonasIam
outofthehospital.Therefore,anyimmediateactionitemsneedtobe
submittedoraddressedthroughtheChief.
Sincerely,

City Manager
Hector Mirabile <HMirabile@southmiami.gov>
To: Mayor & Comm <Mayor&Comm@southmiami.gov>
Cc: "MartinezdeCastro, Orlando" <OMartinezDeCastro@southmiami.gov>, "Pepe, Thomas
F." <TPepe@southmiami.gov>
Medical proceedure

October 13, 2011 4:39 PM
backup p. 21
Subject: Acting Manager while Manager is on jury duty
Date: January 4, 2012 3:51:38 PM EST
To: Mayor & Comm <Mayor&Comm@southmiamifl.gov>, "Pepe, Thomas F."
<TPepe@southmiamifl.gov>, "Menendez, Maria M."
<MMenendez@southmiamifl.gov>
Cc: Dept Heads <DeptHeads@southmiamifl.gov>

DearCommission,
IwillbeattendingjurydutyatBrowardCountyCourtHousetomorrow
alldayuntilreleased.InmyabsenceChiefOrlandoMartinezDe
CastrowillbeactingCityManager.Imaynotbeavailableonthe
cellulartelephoneduetorestrictionsinthecourtsbutpleasefeelfree
tocontacttheChief.
Sincerely,
HectorMirabile,PhD
CityManager

backup p. 22
Subject: Manager taking vacation
Date: January 12, 2012 3:05:49 PM EST
Cc: "MartinezdeCastro, Orlando" <OMartinezDeCastro@southmiamifl.gov>,
"Menendez, Maria M." <MMenendez@southmiamifl.gov>, "Pepe, Thomas F."
<TPepe@southmiamifl.gov>

DearCommission,
Iwillbetakingavacationdaytomorrow,January13,2012.Inmy
absenceChiefOrlandoMartinezDeCastrowillbetheactingCity
Manager.
Sincerely,

Hector Mirabile, PhD
City Manager

backup p. 23
Subject: City Manager vacationing
Date: February 29, 2012 6:18:57 PM EST
Cc: "Menendez, Maria M." <MMenendez@southmiamifl.gov>, "Garcia, Maria"
<MGarcia@southmiamifl.gov>, "Pepe, Thomas F." <TPepe@southmiamifl.gov>,
"MartinezdeCastro, Orlando" <OMartinezDeCastro@southmiamifl.gov>

DearCommission,
IwillbeonvacationfromSunday,4MarchthruThursday,8March
2012.InmyabsenceIwillbeleavingChiefOrlandoMartinezDe
CastroastheactingCityManager.SincewehaveaCommission
meetingonTuesday,7March2012,pleasefeelfreetocontactthe
respectivedepartmentdirectorsofthevariousagendaitemsforan
appointmenttomeetwiththemanddiscusstheitems.
Sincerely,
HectorMirabile,PhD
CityManager

backup p. 24
Subject: Manager's Vacation Schedule for FY 2012
Date: May 30, 2012 10:46:07 AM EDT
"Riverol, Alfredo" <ARiverol@southmiamifl.gov>

OrlandoandAlfredo,seeifthisvacationofmineimpactanytimeyou
aregoingtobeoutasdescribedbelow.
DearmembersoftheCommission,
Iwillbeonvacationthefollowingdatesforthisyear:
June11thru14,2012(32hours);
July23thruAugust17,2012(160hours).
Atotalof224vacationhourswillbeused.AsoftheMay18,2012
payrollIhaveabalanceof263.44hoursofvacationavailable.
InmyabsenceChiefOrlandoMartinezDeCastrowillbetheactingCity
ManagerforJune11thru14;June25thru28;andJuly23thruAugust
10,2012.Mr.AlfredoRiverolwillthenbetheactingCityManager
fromAugust11through17,2012.
Sincerely,
HectorMirabile,Ph.D.
CityManager
CityofSouthMiami
6130SunsetDrive,FL33143-5093
305-668-2510
hmirabile@southmiamifl.gov

backup p. 25
From: MartinezDeCastro,Orlando<OMartinezDeCastro@southmiamifl.gov>
Senttime: Thursday,August11,20115:40:47PM
To: Mirabile,Hector<HMirabile@southmiamifl.gov>
Subject: Re:CityManagerVacation
Perfect
Righton
OrlandoMarnezdeCastro
ChiefofPolice
SouthMiamiPoliceDepartment
305.663.6336Of.
SentfrommyBlackberrydevice
(Pleaseexcusebrevity,punctuaonandspelling).
From:Mirabile,Hector
Sent:Thursday,August11,201105:17PM
To:DeptHeads
Cc:Garcia,MariaDennisDeblois
Subject:CityManagerVacation
DearTeam,
IwillbeonvacaonfromAugust14throughthe30
th
(12workingdays).InmyabsenceIwillbeleavingthefollowingpersonnel
asacngcitymanagerwiththeauthorityoftheCityManagerexceptsigningcontracts:
August1421,2011:AlfredoRiverol,CPA
August2230,2011:ChiefOrlandoMarnezDeCastro
AllHRmaersshouldbereferredtoLatashaNickleswhowillserveasmyauthorizedrepresentaveindisciplinarymaer
includingdisputeresoluonandpreterminaonhearings.
Sincerely,
CityManager
backup p. 26
MayorandCommissioners,attachedaretheaccomplishmentsofthecity
departmentsfortheperiodJune5-11,2012,foryourreviewfor
tomorrowscommissionmeeting.
Regards,
Orlando Martinez de Castro, Acting City Manager

Chief of Police
South Miami Police Department

6130 SW 72
nd
Street
South Miami, Florida 33143

Office: 305.663.6336
Fax: 305.663.2045
Main: 305.663.6301
Email: omartinezdecastro@southmiamifl.gov
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 based on Florida
Statue #119. This email may contain confidential and/or privileged information. If you are not the
intended recipient (or have received this email in error) please notify the sender immediately and
destroy this email. Any unauthorized copy, disclosure or distribution of the material in this email is
strictly forbidden.
CM Brief toocx (109 KB)
"MartinezdeCastro, Orlando"
<OMartinezDeCastro@southmiami.gov>
To: Mayor & Comm <Mayor&Comm@southmiami.gov>
Cc: Dept Heads <DeptHeads@southmiami.gov>, Hector Mirabile
<hmirabile@bellsouth.net>, "Payne, Nkenga" <NPayne@southmiami.gov>, "Menendez,
Maria M." <MMenendez@southmiami.gov>
FW: CM Brief to Comm June 12 2012

June 11, 2012 5:04 PM
4 Attachments, 244 KB
backup p. 27
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 AM
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%me.
%
I%also%wanted%to%make%you%aware%that%the%City%Manager%has%assigned%Ms.%Carmen%Baker%to%run%the%next
Commission%meeting,%August%7
th
.
Regards,
%
Orlando Martinez de Castro
Chief of Police
%%%%%%%%%%%%%%%%
6130 SW 72
nd
Street

Office: 305.663.6336
Fax: 305.663.2045
Main: 305.663.6301
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 based on Florida Statue #119. This email may contain confidential and/or privileged information. If you are
not the intended recipient (or have received this email in error) please notify the sender immediately and destroy this email. Any unauthorized
copy, disclosure or distribution of the material in this email is strictly forbidden.
%
backup p. 28
From: MartinezdeCastro,Orlando<OMartinezDeCastro@southmiamifl.gov>
Senttime: Wednesday,June13,201212:35:55PM
To: Woodley,Lorenzo<LWoodley@southmiamifl.gov>
Cc: Garcia,Maria<MGarcia@southmiamifl.gov>
Subject: Re:CMBrieftoCommJune122012
Attachments: image001.jpgimage002.jpgimage003.jpg
Noproblem.
From:Woodley,Lorenzo
Sent:Wednesday,June13,201212:32PM
To:MartinezdeCastro,Orlando
Subject:Re:CMBrieftoCommJune122012
ThisistakenmuchlongerthanIexpectedIwill.Useavacaondaytodayifyouneedmecall
From:MartinezdeCastro,Orlando
Sent:Monday,June11,201205:04PM
To:Mayor&Comm
Cc:DeptHeadsHectorMirabilePayne,NkengaMenendez,MariaM.
Subject:FW:CMBrieftoCommJune122012
MayorandCommissioners,aachedaretheaccomplishmentsofthecitydepartmentsfortheperiodJune511,
2012,foryourreviewfortomorrowscommissionmeeting.
Regards,
Orlando Martinez de Castro, Acting City Manager

Chief of Police
image002
6130 SW 72
nd
Street

Office: 305.663.6336
Fax: 305.663.2045
Main: 305.663.6301
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 based on Florida Statue #119. This email may contain confidential and/or privileged information. If you are not the intended
recipient (or have received this email in error) please notify the sender immediately and destroy this email. Any unauthorized copy, disclosure or distribution
of the material in this email is strictly forbidden.
PATCH1
backup p. 29
RE: Restrepo Property Abandonment
MartinezdeCastro, Orlando
Great, rock and roll,
thanks
Sent: Thursday, August 02, 2012 11:05 AM
To: Pepe, Thomas F.; Brimo, Christopher
Cc: Baker, Carmen V.
Orlando Martinez de Castro
Chief of Police
6130 SW 72
nd
Street
Office: 305.663.6336
Fax: 305.663.2045
Main: 305.663.6301
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 based on Florida Statue #119. This email may contain confidential and/or privileged information. If
you are not the intended recipient (or have received this email in error) please notify the sender immediately and destroy this email. Any
unauthorized copy, disclosure or distribution of the material in this email is strictly forbidden.
From: Pepe, Thomas F.
To: Brimo, Christopher
Cc: MartinezdeCastro, Orlando
Subject: RE: Restrepo Property Abandonment
Not if you sell it "as is". There would need to be a simple "as is" sales contract
waiving 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: tpepe@southmiamifl.gov
Page 1 of 2 RE: Restrepo Property Abandonment
5/23/2013 https://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, Christopher
To: Pepe, Thomas F.
Cc: MartinezdeCastro, Orlando
Subject: 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 2 RE: Restrepo Property Abandonment
5/23/2013 https://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 which
are being ' stibmlUed for your review pdor to the June 12th Commission ,Meeting. 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 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 ihstalled 3 desktops due
. . : ' , : ' ", . ... ' ,' !;. _ ", '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 ,) i
JI.'
/ ' "
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 st 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
Acting City Manager
Re: Manager's Report
"
'j
"
..' 4 .: I' ! . .' . .: .. .
The following the accomplishments of the 'entire City for. 1the',period ending June 10; 2Q 12 which
are being ' for your review pdor to the June 12th Commission ,tyfee4ng .. 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 along pleAS,.e;.ieel free to
contact me. ,
i.
.' "
j
Accomplishments.
I " .
I
a. New IT IDe successes:
, .
i. Rebuilt and configured 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 sl through June 7th
Total Hours: 52
CITY OF SOUTH MIAMI

OFFICE MEMORANDUM


Date: July 19, 2012

Acting City Manager

Re: Managers Report

The following are the accomplishments of the entire City for the period covering June 12 to July 16, 2012
which are being submitted for your review prior to the July 24, 2012 Commission Meeting. Considering
the current agenda, I wanted to inform you that as the Acting City Manager, I will not be reading this report
in 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

Acting City Manager

Re: Managers Report

The following are the accomplishments of the entire City for the period covering July 16 to July 25, 2012
which are being submitted for your review prior to the July 31, 2012 Commission Meeting. Considering
the current agenda, I wanted to inform you that as the Acting City Manager, I will not be reading this report
in 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 to
report 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 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.

backup p. 34
CITY OF SOUTH MlMll
Dep.!'meot of Planniog & Zocing
6130 Sunset Drive, South Miami, F!orida 33143
Phone: (305) 663-6326 Fax: (305) 668-7356
APPLICATION FOR OUTDOOR SEATING / DINING
R_tName: '10(,01\1 (tW .. <-,_--- Phone 305 H6 o!, 88
Adthu: }2 ... I., ... Mimn, Florid. ... ;1 L
Applicant: Cc,:1 CS .. Phone: .."..S 1 '0 0 4 tlR
Ada"es.s:
ILLL lt "'-'''' s'--<t!1U.!l<...c.. vlO<L1'o.u. t' _ #==- I;t_--h ; 1-4 :L
App/lcClll/ i signatun Dol,
p,
cl/J3. J 1. oi L
Do"
NOTICE
ThlJ permit l.J not 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 All of the $/ondOff/S ond rtglliations sd jort" in the Land
Devtlopmellf Code Sedion 2D-J.J(E), shall be applicable to an oUldoor Jcatinfl dlnlng areD.
Any violation u/ thfl n!t:Il/IIlions and standard sd forth In Sect/an 10-J.J (E) o/Ih. LonJ sJtall If
a/vlalntlon n"rI shrrll rOil/lin a SSOO.OO II dUJ encll day alcont fnlled vlalntlan.
FEES
Tht CIJy oj SouI11 Miomi wlY cllarre Ill! fJJtlluol/u/or thl/o(Jowlnt: CDndIJlons:
A fee ofns shall be charged for esc.h seo.llhnt is located on the public ri ghl3-o(way. The fee for each outdoor sen! shall be
Iluromarically 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 seating which is used for consumption ofbever3ges or food
which is located on public ri ghU-O(WilY. .
A fee of$250 shall be charg=d for all outdoor dininglseatins use pennhs u.!IfnS private property.
ofrhe Outdoor SeQ1Irw'Dfnfng: a Prl\J(:ie Propeny
Required Materials 10 be rubmfned and attached htrdo:
a Public Proputy
o SUr'Vq o IndemnilyAgreemenl
Ii( Outdo Sea/frog Plan/Dining Area Pf(Jll a Proof of J'IIIlJrtmce
o ___ _
o Numbtr of Proposed 01lldoor Secrs within Public Rig},t. oj-Wuy:_-'6' ... _ __ _
o Number of Proposed crJtdocr Sears within Pr/vot, Proputy: _ ____ _
a Number of Table TOJM: -'4'1--,- ---
o Both
[] Hom oIOp"a.o": 1()Ar\ - 11. \u(>M
o Dot.&: 17meo/Cleanll[Mal nJeflQflce''' ; ( 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!dSowld Agr-eemtnt"
Addre.u:
fajt 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
'io EtW.<.,_ - _ _ Phone: 305 t 4 6 <:>t, 8S
Adthu: 1 Z D"I <;. I., __ _:_- SOuth Mimn, Florid. ... :I L
Ap;>Iic.lnt: c.c&.:J r:.S E- i 0 I Co. ""JL- Phone: -y, S" l' 0 0 I.r S 8
Address:
... 1-4:L
AppllcOIlI'lli grla/uri
00"
p,
NQTICE
T1rb pamit u not In any mannu, (md Is strktly II condltJonaJ '1St: permit /0(' n period of one rrncwnblc
autDmflflcally al lime 0/ annual occupaJionn/ /lett/.u unl!WoL An of 'he rtantfortls IJlld rttll/al/ons Jet fort" in the Land
Dwt/6pmclll Code SI;on lD-J.3(E), shalt bCllppllcablc to 111'1 aUldoor scat/nr/ dlnlng tlml.
Any vltI/allon til th. rt!gu/lllions and standard Sd forth In Sed/an 10-1.J(E) 01 th. Land Drvdopml!nl s"oll a
SqlnrnU olv/olntlon ond s""" rOlillin a fSOO.OO II dtrJ ench day violation.
FEES
ell] of SouIII Miami w/U cllarre Ill! tlnlJunlfufor thlfolloN'lnf condiJlonf:
A fee ofru shall be chnrgcd for e&.h seLlt thllt is located on the public ri ghl3-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 shall be charged for My stand alone table top with no seating which is used for consumption ofbevtr3ges or food
whlch is iDC:ltod on public righU-O(-WllY. .
A fee ofS2S0 shDII be charged for all outdoor di ningfsCl ting use permils using private property.
of the Outdoor SeD1fngIDlnfng: a PrltJcJe Propury
Materials (0 be submtrred and nnached htrc1o:
a Public Propury
o Survey o indemnity AzreetntJ1t
Ii( Outdoor Sea/frog Plan/Dlnmg Area Pian a Proof of lrulJrance
o Numbt!r o/lnaoorSeau' ___ _
o Numb" of Proposed Olltdoor Sccts within Publ,c Right-of-Way _ _ _
o Number of Proposed ()oJtdoor Seols within Private Proputy: _ _ _ __ _
a Numbtr of Proposed Tabl e Tops: -'4'1--,----
o Both
n Homo/Op"a"o': -11. \urM
a b=!CJ M..c l /.t\ .. rtr'-____ _
AddUlannl materials /0 ond adachtd (llappl1coble):
o Adjacent used/or uarlngldlning area:
(Adjacent Property Owner Consent Form)
V Amplfj1edSoundAgr'eement"
Addra.s;
fagt I of1
a DISAPPROVED
o DISAPPROVED
On ibis Ibe \ day of it 1\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 incorporation)
on behalf ofthe corporation. Witness my hand and official seal. /

Please check ODe oCthe following:
o Personally known to me
identification
Please check one of the following:
a DID take an oath
o DID NOT take an oath.
CITY OF SOUTH MIAMI
Olary Public. Sta lorida
Print Name: Maria M Menendez

.;Ii fMRIA It MEHaa:z
.... W * UY COWJsstoH, EE J71G79
EXPIRES: March 16,2016
fIInIa.,.",
(Type of identification produced)
---
backup p. 36
On ibis Ibe \ day of it 1\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 incorporation)
on behalf ofthe corporation. Witness my hand and official seal. /

Please check ODe oCthe following:
o Personally known to me
identification
Please check one of the following:
a DID take an oath
o DID NOT take an oath.
CITY OF SOUTH MIAMI
Olary Public. Sta lorida
Print Name: Maria M Menendez

.;Ii fMRIA It MEHaa:z
.... W * UY COWJsstoH, EE J71G79
EXPIRES: March 16,2016
fIInIa.,.",
(Type of identification produced)
---
From: Palmer1,Velma<palmer2007@gmail.com>
Senttime: Wednesday,April06,20112:25:51PM
Subject: Re:ActingCityManagerChiefofPolice
OK.
SentfrommySamsungIntercept
"Mirabile,Hector"wrote:
>All,
>
>Iwillbeoncitybusinessoutsideofthecounty.InmyabsenceChiefofPoliceOrlandoMartinez
deCastroisleftinchargeasactingcitymanagerwithlimitedrightsandprivilege.Theexplic
itlimitationisthesigningofanycontractbindingthecity.Hedoeshaveauthoritytoapprove
anyandallpersonnel,financial,and/orotheradministrativefunctionsfortheefficientoperatio
nofthecity.IwillbereturningonThursday,April7,2011,atorabout7:00pm.Iwillretu
rntotheofficeonFriday,April8,2011.
>
>Sincerely,
>
>HectorMirabile,Ph.D.
>CityManager
backup p. 37
From: Newman,Valerie<ValerieNewman09@gmail.com>
Senttime: Monday,July04,201111:30:56AM
Subject: Re:CityManagerVacation
welldeserved...havefun
OnFri,Jul1,2011at2:14PM,Mirabile,Hector<HMirabile@southmiamifl.gov>wrote:
IwillbetakingvacationonJuly5,2011andwillreturnJuly6,2011.DuringmyabsenceChiefOrlandoMartinez
DeCastrowillbetheactingCityManager.Hewillhavetheauthoritytoadministratethecityandsignature
authorityinalladministrativerequirementsbutwillnothavesignatureauthorityforcontracts.
Sincerely,
CityManager
ValerieNewman
(786)3511648
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. Stoddard
Mayor of South Miami
305-342-0161 mobile
www.southmiamifl.gov
------------------------------------------------------------
Mayor Philip Stoddard <mayorstoddard@gmail.com>
To: Hector Mirabile
Re: City Manager vacationing

March 1, 2012 1:49 PM
backup p. 39
Re: Green Corridor Property Assessment Clean Energy (PACE) District
Stoddard, Philip K.
Sent:Thursday, July 26, 2012 3:53 PM
To: Payne, Nkenga

Yes
Philip Stoddard
Mayor of South Miami
305-342-0161 mobile
PStoddard@SouthMiamiFL.gov
MayorStoddard@gmail.com
PKStoddard@gmail.com
(from iPhone, thus brief)
On Jul 25, 2012, at 3:08 PM, "Payne, Nkenga" <NPayne@southmiamifl.gov> 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$
npayne@southmiamifl.gov$
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
Senttime: Thursday,June14,20122:44:45PM
To: Riverol,Alfredo<ARiverol@southmiamifl.gov>
Subject: Fw:BIDPROTESTsubmittedbySouthMiamiGreyGhostsSoccerClub
Fyi
From:Pepe,ThomasF.
Sent:Thursday,June14,201202:43PM
To:kulick,StevenPHectorMirabileMartinezdeCastro,Orlando
Subject:RE:BIDPROTESTsubmittedbySouthMiamiGreyGhostsSoccerClub
IwouldsuggestthefollowingresponsetotheGreyGhostbidprotest:
TheCityCommission,atthepubliclynoticedcommissionmeeting,gavedirectionstotheactingCity
ManagertoobtainthreequotesforthecurrentsoccerseasonendingonMay29,2013.Theonlyimplication
possibleisthatthecommissionwasauthorizingtheadministrationtorejectallbidsastotheupcoming
soccerseason.Inanyevent,itisourCityAttorney'sopinionthatthedecisiontoputanitemoutforbidand
theauthoritytorejectallbidsisanexecutivedecisionwhichisgrantedtotheCityManagerbyCharter.
Verytrulyyours,
ThomasF.Pepe
City Attorney
City of South Miami
1450MadrugaAvenue,Ste202,
CoralGables,Florida33146
Tel:(305)6672564
Fax:(305)3410584
Email:tpepe@southmiamifl.gov
ATTENTION:ThisemailcontainsPRIVILEGEDANDCONFIDENTIALINFORMATIONintendedonlyfortheuseoftheaddresseenamedabove.Ifyouarenottheintended
receiver,youareherebynotifiedthatanydisseminationofthiscommunicationisstrictlyprohibited.Ifyouhavereceivedthisemailinerror,pleaseimmediatelynotifyusby
telephone,callcollectifoutsideofyourareacodeanddeletethisemail.Wewillreimburseyouforthecostofyourlongdistancecall.Thankyou.
From:JavierRodriguez[jir@alvarezrodriguez.com]
Sent:Thursday,June14,20122:23PM
To:kulick,StevenPHectorMirabileStoddard,PhilipK.JoshLiebmanBobWelsh,Jr.Harris,WalterNewman,Valerie
Cc:Pepe,ThomasF.Riverol,AlfredoMenendez,MariaM.
Subject:RE:BIDPROTESTsubmittedbySouthMiamiGreyGhostsSoccerClub
Mr.Kulick,
WebelievetherearesufficientlegalgroundsforourbidprotestwhichstopsthebiddingprocessanddoesnotallowtheCityto
proceedfurther,namelywiththisnewsolicitedbidfortheBestandFinalOffer.
Yesterday,yousentanemailtitledBestandFinalOffers:SoccerProgramatSouthMiamiPark.Intheemailitwasstatedin
boldthattheCityherebyrejectsallbidssubmittedinresponsetotheManagementofSoccerProgramsatSouth
MiamiParkRFP.ThiswasthefirsttimethattheCityhasindicatedthatallofthebidswerebeingrejected.Thiswasnever
communicatedattheCommissionHearingthattookplaceonTuesday,June12,2012.Assuch,itisaclearviolationofthe
SunshineAct.
PursuanttoFloridassunshinelaw,allmeetingsofanystateagencyatwhichofficialactsmaybetakenmustbeconductedas
open,publicmeetings.Absentthat,anyactiontakenduringsuchmeetingsisimproperTheresultisthattheagencysactionis
voidandcanbegivennoeffect.(SeeFloridaStatuteSection286.011).
Basedontheforegoing,sincethedecisiontorejectallbidswasnevermadeattheCommissionMeeting,itisourpositionthatthe
Citycannotproceedfurtheratthisjuncture.
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 ALLEGIANCE
The 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.



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

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 brother
Garry.


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.




backup p. 44

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.




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 ATTORNEYS REPORT

There were no City Attorney reports at this meeting.
backup p. 45
Senttime: Sunday,February27,201112:09:00PM
To: DeptHeads<DeptHeads@southmiamifl.gov>
Subject: VacationActingCityManager
IwillbetakingvacationonFriday,March4,2011.Iwillbeoutoftownattendingmydaughtersballetcompetitionrecitalintwodifferent
locationsinFlorida.Youmaystillreachmeviacellulartelephone.
InthisandfutureabsencesduetovacationIamdesignatingChiefofPolice,OrlandoMartinezDeCastro,asactingCityManagerand
designatehimwithlimitedsignatureauthority,hewillnothavesignatureauthoritytobindtheCityintheareaofcontractsor
agreements.HedoeshavesignatureauthorityintheareasofroutineCitybusinessandexpendituressuchasanyandallpersonnel
actions,agendaitems,purchases,etc.
Sincerely,
HectorMirabile,PhD
CityManager
backup p. 46
Senttime: Friday,July01,20112:11:50PM
To: Pepe,ThomasF.<TPepe@southmiamifl.gov>
Cc: MartinezDeCastro,Orlando<OMartinezDeCastro@southmiamifl.gov>
Subject: RE:SMHLegalMeeting
Iamothatday.WillbebackonWednesday.Tryschedulingifyouwantthemanagerpresent.TheChieforhisdesigneecanbepresentand
representtheposionofmanagement.ChiefMarnezdeCastrowillbeacngCityManagerforthatday.
OriginalAppointment
From:Pepe,ThomasF.
Sent:Friday,July01,201112:55PM
To:Mirabile,Hector
Subject:SMHLegalMeeting
When:Tuesday,July05,20114:00PM5:00PM(GMT05:00)EasternTime(US&Canada).
Where:CityHall
BTRmeetingwithSMHlegalteam
backup p. 47
Senttime: Monday,August15,20112:36:24PM
To: StoutTate,Maria<MStoutTate@southmiamifl.gov>MartinezDeCastro,Orlando<OMartinezDeCastro@southmiamifl.gov>
Cc: Riverol,Alfredo<ARiverol@southmiamifl.gov>
Subject: RE:HurricanePreparations
Maria,theacngCityManagerisAlfredoforthisweekandtheChieffornextweek.Pleaseensurethatyouremailsgoingout
toothersismoreaccuratesinceIonlyhavelimitedmetoreadtheseemailsfromwork.AlfredoandOrlando,pleasesend
yourrepresentavestoconductameengandnegoateappropriateresults.
From:StoutTate,Maria
Sent:Monday,August15,201110:35AM
To:Mirabile,HectorMartinezDeCastro,Orlando
Cc:Riverol,Alfredo
Subject:FW:HurricanePreparations
Importance:High
Goodmorninggentlemen.PleaseseebelowinreferencetoassistancefromLarkinHospitalincaseofastrongTropicalStormor
Hurricane.Thankyou.MariaElena
From:StoutTate,Maria
To:'DaisyBaez'
Subject:RE:HurricanePreparations
Yes.IshallforwardthistotheCityManagerandtheChiefandaprotocolwillbedeveloped.Thankyouagainforyoursupport.Maria
Elena
From:DaisyBaez[mailto:dbaez@larkinhospital.com]
To:StoutTate,Maria
Maria:
Thishasbeenapprovedingeneral.
ThereisnoquesonthatLarkinwilldoallpossibletosupporttheneedsofthepolicedepartmentduringsuchcatastrophic
circumstance.
However,whatweneedtodoiscomeupwithsomedelineaonsasIcannotguaranteethatIcansupportthisoperaoninits
enretyforanindeniteperiodofme.
Perhapsyoucanaddresswhenyoudevelopyourprotocol.
From:StoutTate,Maria[mailto:MStoutTate@southmiamifl.gov]
Sent:Friday,August12,20115:08PM
To:DaisyBaez
Thankyou.MariaElena
From:DaisyBaez[mailto:dbaez@larkinhospital.com]
To:StoutTate,Maria
Imsubmittingtoouremergencypreparednessteamforconsideration.
Illhaveananswerbacktoyounextweek.
From:StoutTate,Maria[mailto:MStoutTate@southmiamifl.gov]
To:DaisyBaez backup p. 48
Subject: Manager's Vacation Schedule for FY 2012
Date: May 30, 2012 10:46:07 AM EDT
"Riverol, Alfredo" <ARiverol@southmiamifl.gov>

OrlandoandAlfredo,seeifthisvacationofmineimpactanytimeyou
aregoingtobeoutasdescribedbelow.
DearmembersoftheCommission,
Iwillbeonvacationthefollowingdatesforthisyear:
July23thruAugust17,2012(160hours).
Atotalof224vacationhourswillbeused.AsoftheMay18,2012
payrollIhaveabalanceof263.44hoursofvacationavailable.
InmyabsenceChiefOrlandoMartinezDeCastrowillbetheactingCity
ManagerforJune11thru14;June25thru28;andJuly23thruAugust
10,2012.Mr.AlfredoRiverolwillthenbetheactingCityManager
fromAugust11through17,2012.
Sincerely,
CityManager
CityofSouthMiami
6130SunsetDrive,FL33143-5093
305-668-2510
hmirabile@southmiamifl.gov

backup p. 49
From: HectorMirabile<HMirabile@southmiamifl.gov>
Senttime: Thursday,August09,20128:50:32AM
To: Payne,Nkenga<NPayne@southmiamifl.gov>
Subject: RE:119RequestreferenceCamiloPadredabyAttorneyMichaelBand
Attachments: image001.png
Niki,whileIamonvacaontheChiefistheacngCityManager.Pleaseensurethatyoualsocopyhimsothathecanacon.
Thankyou.
From:Payne,Nkenga
Sent:Thursday,August09,20128:48AM
To:HectorMirabileidc
Cc:Menendez,MariaM.
Subject:FW:119RequestreferenceCamiloPadredabyAttorneyMichaelBand
GoodMorning,
Theattachedpublicrecordsrequesthasbeenpaidfor.PleaseforwardtotheClerksofficewhenready.
Thanks,
NkengaNikkiPayne,CMC
DeputyCityClerk
CityofSouthMiami
6130SunsetDrive
SouthMiami,FL33143
(305)6636340office
(305)6636348fax
npayne@southmiamifl.gov
Pleasenote:ThestateofFloridahasaverybroadpublicrecordslaw.Written
communications,includingemails,arethereforesubjecttodisclosuretothe
publicandmediauponrequest.
From:Menendez,MariaM.
Sent:Wednesday,July18,20122:36PM
To:michael@bandlawfirm.com
Cc:HectorMirabile
Subject:FW:119RequestreferenceCamiloPadredabyAttorneyMichaelBand
DearMr.Band,
Belowpleasendtheinformaonyourequestedregardingthecostofprovidingthepublicrecordsyourequested.
Letmetakethisopportunitytoassureyouthatyesterdaywastherstmethatmyoceheardofyourrequestasperthe
adviceofourCityManager,Dr.Mirabile.NeitherdidwereceiveanythingfromyoubyUSMail,norbyemail.Itakeprideofthe
factthatIhavethehabitofacknowledgingallpublicrecordsrequestsassoonasIreceivethem;notlater,notthenextday,but
immediately.ThenIforwardthemtothepernentdepartment(s)foraconandconnuetofollowupontheirstatusunl
theyaredone.
Ifthequotedgurebelowisokwithyou,youmayproceedtopaybycheckorcreditcard.Youmayeithermailthechecktomy
aenon,orifyouprefertopaybyphoneandcreditcardyoumaydosobycallingtheFinanceDepartmentat:3056636343.
Assoonaswereceivepaymentyourrequestwillbeprocessed.
Sincerely,
Maria M. Menendez, CMC, FCRM

City Clerk
6130 Sunset Drive
South Miami. Fl 33143
backup p. 50
From: Brimo,Christopher<CBrimo@southmiamifl.gov>
Senttime: Monday,August22,20118:18:33AM
To:
Cabrera,Lourdes<LCabrera@southmiamifl.gov>Lightfoot,Marcus<MLightfoot@southmiamifl.gov>Fernandez,Lidia
<LFernandez@southmiamifl.gov>
Subject: FW:CityManagerVacation
JustareminderthatChiefOrlandoMarnezDeCastroistheacngCityManagerunlthe30
th
.
Chris
ChristopherBrimo,AICP
PlanningDirector
CityofSouthMiami
3056636327
cbrimo@southmiamifl.gov
To:DeptHeads
DearTeam,
th
Sincerely,
CityManager
Novirusfoundinthismessage.
CheckedbyAVGwww.avg.com
Version:10.0.1392/VirusDatabase:1520/3826ReleaseDate:08/10/11
backup p. 51
From: Korth,Jennifer<JKorth@southmiamifl.gov>
Senttime: Tuesday,August23,20112:56:21PM
To: Goodson,LetitiaS.(HCD)(786)4692220<LGOODS@miamidade.gov>
Subject: FW:CityManagerVacation
Asperourconversation,hereistheemailwheretheCityManagerauthorizestheChieftoperformCityManagerdutiesduringtheweek
ofAugust2230,2011.
To:DeptHeads
DearTeam,
th
Sincerely,
CityManager
backup p. 52
From: David,Stephen<SDavid@southmiamifl.gov>
Senttime: Tuesday,August23,20114:01:42PM
To: sadavid@usa.net
Subject: FW:Nostaffmeetingtomorrow
From:Garcia,Maria
Sent:Tuesday,August23,20113:14PM
To:Baixauli,AnaBaker,CarmenV.Brimo,ChristopherCitarella,VictorKorth,JenniferLanda,ReneMenendez,MariaM.Ng,Keith
Nickle,LatashaPepe,ThomasF.Riverol,AlfredoStoutTate,MariaDavid,Stephen
Cc:MartinezDeCastro,Orlando
Subject:Nostaffmeetingtomorrow
Goodafternoontoall,
AsperChiefOrlandoMartinezdeCastro(ActingCityManager)thisweekthereisNOstaffmeetingtomorrow.Shouldanychanges
occurwithHurricaneIrene,theChiefandhisstaffwillcallameeting,ifthatoccurs,anotificationwillbesentout.
Thankyou,
Maria
backup p. 53
Senttime: Tuesday,June05,201211:12:12AM
To: Motta,Cathy<CMotta@southmiamifl.gov>
Subject: Fw:payrolldueMonday,June11,2012
Fyi
From:Garcia,Maria
Sent:Tuesday,June05,201211:11AM
To:Baker,CarmenV.Brimo,ChristopherNg,KeithKellyBarketRiverol,AlfredoMartinezdeCastro,OrlandoWoodley,Lorenzo
Citarella,VictorNickle,Latasha
Subject:payrolldueMonday,June11,2012
Goodmorningtoall,
IwillbeoutoftheofficestartingThrusday,June7,2012returningonTuesday,June12,2012.Ifyoucouldsubmityourrespective
payrollhoursbytomorrow,itwouldhelpIwillprepareandleavepayrollspreadsheetreadyforsignatureforActingManager,Chief
OrlandoMartinezdeCastro.Ifyouareunabletodoso,pleasemakesureyousubmityourrespectivespreadsheettoJackieDye(front
desk)onMonday,June11,2012.Thankyouinadvanceforyourcooperation.
Maria
backup p. 54
From: Garcia,Maria<MGarcia@southmiamifl.gov>
Senttime: Friday,June15,201211:09:21AM
To: DeptHeads<DeptHeads@southmiamifl.gov>DennisDeblois<ddeblois@intldata.com>
Cc:
HectorMirabile<HMirabile@southmiamifl.gov>MartinezdeCastro,Orlando<OMartinezDeCastro@southmiamifl.gov>Baixauli,
Ana<ABaixauli@southmiamifl.gov>Menendez,MariaM.<MMenendez@southmiamifl.gov>Payne,Nkenga
<NPayne@southmiamifl.gov>
Subject: CommissionMeetingAgendaItemsduedatesforJuly24,2012meeting
Goodmorning,
ThisisafriendlyremindernextCommissionMeetingisscheduledforJuly24,2012asyouareallaware,theChiefwillbethe
ActingManagerandwillconductthemeeting.InordertopreparetheCMsBriefingonatimelymanner,yourcooperationis
appreciated.YourrespectivereportswillbedueonJuly19,2012(nolaterthanNOON)therefore,pleasesubmityour
respectiveaccomplishments(encompassingJune12tillJuly18,2012).Pleaseemailyourreporttome,copytheChiefandMaj.
Baixauli(IwillassisttheChiefinpreparingtheCMBriefing).Thereportwillbeincludedintheagendapacketwhichis
deliveredtotheCommission.
Additionally,thecityclerkisalsoaskingforyourcooperation,ifyouhaveagendaitemtitlespleasesubmittoMaria
MenendezASAP(thecityclerkalreadyhastwoagendaitemtitlesfortheJuly24,2012)thiswillensurethatshewillhavethetitlein
theDRAFTAgenda.Ifyouhaveanyitemsthatwillrequireapublichearing,pleaserememberthatthetitlesneedtobeadvertising10
daysprior(JULY9,2012)tocommissionmeetingdate(JULY24,2012).BemindfulthatwehaveaholidayinJuly(4
th
ofJuly)
havingsaidthat,byMonday,July2,2012allagendaitemsshouldbesenttothecityattorneyforhisreviewandapprovalonceyou
havetheattorneysapproval,theymustgototheCFOforhisapprovalandfinallytheycometothemanagersofficefortheCMs
approval.
Note:ItisimperativethatyoucommencetheprocessASAP,asagendaitemsmayrequirecorrections,alongthecirculation
route.Ifyouhaveanyquestions,youcancallthecityclerksofficeortheCMsoffice.
Thankingyouinadvanceforyourcooperation.
Maria
backup p. 55
From: Baixauli,Ana<ABaixauli@southmiamifl.gov>
Senttime: Tuesday,July10,20124:14:06PM
To:
PoliceAdminStaff<AdminStaff@southmiamifl.gov>Baker,CarmenV.<CBaker@southmiamifl.gov>CarlosMarenco
<Cmarenco@lazparking.com>StoutTate,Maria<MStoutTate@southmiamifl.gov>Alvarez,Al<AAlvarez@southmiamifl.gov>
Cc: Garcia,Maria<MGarcia@southmiamifl.gov>
Subject: CM'sCommissionBriefingreportdueonJuly19th
Attachments: image001.jpg
ThenextCommissionmeetingisscheduledforthe24
th
ofJulyandtheChiefwillbetheActingCity
Manager.InordertopreparetheCMsbriefingtotheCommissionweneedtogetourDepartments
reportstoMariaGarciabyJuly19
th
,nolaterthannoonthatmeansyouneedtogetittomebyJuly
18
th
nolaterthannoon,sothatIcancompileitandformatit.Startworkingonyourreportsnowso
thatyouonlyhavetoupdateitnextweek.ThetimeperiodshouldbefromJune11
th
toJuly18
th
.
GoodLuckandThankyouforyourcooperation.
Major Ana Baixauli

AdministrativeMajor,SMPD
6130SunsetDrive
SouthMiami,Florida33143
abaixauli@southmiamifl.gov
"GreatvisionwithoutgreatpeopleisirrelevantJimCollins/GoodtoGreat
Office:3056682498(Direct)
Fax:3056632045
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 email communications may therefore be subject to public disclosure. If you feel that you are not the intended recipient, then please delete this
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 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 statutory body
having only advisory powers.
backup p. 57
Florida Attorney General
Advisory Legal Opinion

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

DUAL OFFICEHOLDING--APPLICABILITY TO APPOINTED MUNICIPAL
OFFICIALS SERVING ON PROPOSED SEMIAUTONOMOUS PERMITTING
BOARD

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 ordinance
to grant building permits and issue necessary variances
from 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 Fire
Department 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 their
appointment to or holding office as members of a
semiautonomous board vested with the exercising a portion
of the governmental or sovereign power of the city. The
legislative body of the city may, however, by appropriate
legislative action, designate such officers to perform ex
officio the duties of the office of a member of such board,
provided the additional or ex officio duties imposed on
such officers are in no way inconsistent with the duties
already being performed by such officers.

Based on the provisions of s. 266.107, F. S., the City
Planner of the City of Pensacola, in his capacity as a
member of the Architectural Review Board, the composition
and powers of which are prescribed by s. 266.107, is a
municipal officer and as such may not lawfully be appointed
to or hold office as a member of a semiautonomous board
vested with and exercising a portion of the governmental or
sovereign power of the city. However, the legislative body
backup p. 58
of the city may by appropriate legislative action designate
such officer to perform ex officio the duties of the office
of a member of such semiautonomous board, provided the
additional duties imposed on such officer are in no way
inconsistent with the duties already being performed by
such officer.

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

Based upon excerpts from the city's code of ordinances and
supplemental information supplied to this office, the
Inspection Superintendent (denominated in the code as
"building official") of the City of Pensacola is a
municipal officer and as such may not lawfully be appointed
to or hold office as a member of a semiautonomous board
vested with and exercising a portion of the governmental or
sovereign power of the city. As with the several officers
of the city above named and subject to the same conditions,
the city inspection superintendent may be designated to
perform ex officio the duties of such semiautonomous board.

Based upon the supplemental information and materials
supplied to this office, the City Engineer of the City of
Pensacola is an employee of the city and as such may be
lawfully appointed for a fixed term to membership on a
semiautonomous board which is vested with and exercises a
portion 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 has
created a Palafox Place Redevelopment Area. I assume that
this area is a historical district created and established
pursuant to ss. 266.106(9) and 266.107(1), F. S. You state
that presently there exist three separate boards which
review private redevelopment plans for construction within
the Palafox Place Redevelopment Area (or historical
district) to ensure that local building or architectural
code 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 is
established under, and has its composition and powers
prescribed by, Ch. 67-303, Laws of Florida, as amended, and
codified as s. 266.107, F. S. You state that it is the
city's desire to create by ordinance a "super permitting
board" which would fulfill the responsibilities of the
three existing boards. For the purposes of this opinion, I
assume that the proposed permitting board will be vested
with and exercise a portion of the governmental or
sovereign power of the city in relation to a historical
district 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 inspection
superintendent, and city fire marshal. Against the factual
background, you inquire whether the membership of the
aforementioned 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 any
subsistent special law or municipal charter enacted or
adopted prior to July 1, 1973, pertaining to matters
prescribed by the charter relating to appointive boards may
not be changed except upon approval by referendum of the
electors, as provided in s. 166.031, F. S. Furthermore, the
provisions of Ch. 67-303, Laws of Florida, as amended,
codified as part II of Ch. 266, F. S., pertaining to the
Historic Pensacola Preservation Board of Trustees of the
Department of State and the aforementioned Architectural
Review Board established pursuant to s. 266.107, are not
subject to s. 166.021(4) and (5), F. S., and the latter do
not apply to or operate on the general law or either of
such boards. While s. 266.107 authorizes the governing body
of the city to "name an architectural review board"; to
prescribe the procedure for review of building plans of any
building which is to be erected, renovated, or razed and is
located or to be located within historical districts
established by the governing body of the city, including
rules and governing decisions of the Architectural Review
Board, and the procedure for appeal from decisions of the
board; and to adopt other regulations necessary to effect
the 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 members
are fixed by paragraph (2)(b), and the board's powers are
prescribed by paragraphs (2)(c) and (d). Thus, the
governing body of the city possesses no authority to
abolish the Architectural Review Board or to divert any of
backup p. 60
its powers to another body or alter or divest it of any of
its statutorily prescribed functions or powers. This
advisory opinion and all conclusions and views hereinafter
expressed, and any future action taken by the city based
upon anything said in the following opinion, are subject to
and circumscribed or limited by the foregoing
considerations and factual statements and assumptions.

Section 166.021(4), F. S., contains no limitations (except
as may be inherent in "matters prescribed by the [ante
1973] charter relating to appointive boards"), in
connection with appointive municipal officers or the duties
and powers of such officers. Cf. s. 166.031(5), F. S.,
which empowers municipalities to abolish municipal
departments provided for in the municipal charter.
Therefore, the governing or legislative body of the City of
Pensacola, pursuant to s. 166.021(1) and (4) and s. 2(b),
Art. VIII, State Const., has the power to create and
abolish municipal offices and to prescribe the duties,
powers, and responsibilities of such offices. For the
purposes 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 and
exercise such powers pursuant to the duly enacted
ordinances of the city (unless otherwise expressly provided
or prohibited by law). Cf. s. 166.041(1)(a), F. S.,
referring to an ordinance as "an official legislative
action . . . enforceable as a local law." Section 5(a),
Art. II, does not require that municipal offices be
established or the governmental duties, powers, and
responsibilities 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, supra, prohibits a person from
simultaneously holding "more than one office under the
government of the state and the counties and municipalities
therein . . .." Although the term "office" has not been
constitutionally defined, the Florida Supreme Court has
stated:

"The term 'office' implies a delegation of a portion of the
sovereign power to, and the possession of it by, the person
filling the office . . .. The term 'office' embraces the
idea of tenure, duration, and duties in exercising some
portion of the sovereign power, conferred or defined by law
backup p. 61
and not by contract." [State ex rel. Holloway v. Sheats, 83
So. 508 (Fla. 1919).]

The threshold question is whether the city staff members in
question 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. See 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 chief
administrative officer of the city, and his powers and
duties 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 the
city or the distribution of powers among the elected
officers, they may not be changed by ordinance without
approval by referendum of the electors. Section 166.021(4),
F. S. Section 18 of Ch. 15425, among other things, requires
the city manager to "perform such other duties as may be .
. . required of him by ordinance or resolution of the
council." If the enabling legislation for the "super
permitting board," assuming its validity, by appropriate
language places an additional or ex officio duty and
responsibility on the city manager to serve as a member of
the new board, then the city manager may be a member of and
perform ex officio the duties of the office of a member of
the new "super permitting board," provided such additional
duties are in no way inconsistent with his duties as city
manager. Such legislative designation of local officers by
the legislative body of the city to perform ex officio the
functions of another or second municipal office does not
violate the dual-officeholding prohibition of s. 5(a), Art.
II, State Const. See AGO 80-12, citing State v. Florida
State Turnpike Authority, 80 So.2d 337 (Fla. 1955); State
v. Gordon, 189 So. 437 (Fla. 1939); and Amos v. Mathews,
126 So. 308 (Fla. 1930); cf. AGO 074-50. If no such ex
officio designation is properly made, the city manager's
membership on the "super permitting board" would probably
violate s. 5(a), Art. II.

The city fire marshal is not, as you have suggested, a
state employee or officer. Prior to the effective date of
ch. 80-215, October 1, 1980, his duties under Ch. 633, F.
S., were given to him as an ex officio agent of the State
Fire Marshal, see s. 633.121. Chapter 80-215 deleted the
provisions for ex officio agents of the State Fire Marshal
and 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 and
all rules prescribed by the State Fire Marshal within their
respective jurisdictions. However, such personnel, acting
under the authority of s. 633.121, are deemed to be agents
of their respective jurisdictions and not agents of the
State Fire Marshal. Section 26(B) of Ch. 15425, 1931, Laws
of Florida, establishes the department of public safety and
the division of fire of the city, provides that the fire
force shall be composed of a chief and other designated
personnel, and vests the immediate direction and control of
the fire department and other governmental or sovereign
power in the chief of the city fire department. Section 22
of Ch. 15425 provides for the distribution of the work of
each department of the city among divisions and specifies
that "there shall be a single officer in charge of each
division." (Emphasis supplied.) The city fire chief would
appear to be an officer of the city. Therefore, the city
fire chief may not be appointed to or hold another office
under the government of the city. However, the imposition
of additional or ex officio duties and responsibilities
upon the fire chief by the legislative body of the city or
the legislative designation of such officer to perform ex
officio the duties of the office of a member of such "super
permitting board" would not be violative of s. 5(a), Art.
II, State Const., provided that the additional duties
imposed are in no way inconsistent with the municipal
duties already being performed by such officer. See AGO's
080-12 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 the
government of the city. Under s. 266.107, F. S., the city
planner is appointed to the Architectural Review Board for
a fixed term of office, and there is no apt language
designating such appointment as ex officio. As a member of
such board, the city planner exercises the governmental or
sovereign 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's
legislative body may, however, by appropriate legislative
action designate such officer to perform ex officio the
duties of a member of the "super permitting board,"
provided that the additional duties and responsibilities
imposed do not conflict with the municipal duties already
being performed by such officer. See 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 unable
to reach any conclusion otherwise as to the status of such
position as an office or an employment. I do note that the
job description material supplementing your inquiry refers
to the planner as an employee and, generally, describes
ministerial and advisory functions and duties for this
position. As hereinabove noted, employments are not within
the purview of s. 5(a), Art. II, State Const.

There does not appear to be any statutory investment of
governmental or sovereign power in or on the city engineer;
in the absence of any ordinance granting such power or
imposing duties of a sovereign nature on the city engineer,
he is probably an employee, not an officer, and, as an
employee, could be directly appointed (unless otherwise
prohibited by charter or statute) to the proposed board for
a 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 the
engineer as an employee and states, among other things,
that the engineer acts as chief engineer for the planning
board. Such job description or classification does not
operate to effectively and legally vest in, grant to, or
impose on the city engineer any powers or duties of a
sovereign nature or operate to constitute such position as
an office. If the city engineer is in fact and law an
officer by virtue of the provisions of some subsistent
statute or ordinance which has not been drawn to my
attention, then, by appropriate legislative action, such
officer may be designated to perform ex officio the duties
of 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, supra, provides that "[t]he city engineer shall
serve as chief engineer of the city planning board and [has
the] duty to make recommendations," it does not prescribe
any governmental powers or duties, and I am unable to
determine therefrom the status of this position as an
office or employment. Such language could be construed to
provide for the placing of an additional or ex officio duty
on the city engineer, if such position is in fact an
office. See AGO 080-12.

From the supplemental information and excerpts from the
city's code of ordinances you have furnished me, it appears
that the city inspection superintendent described in your
supplemental letter and the building official denominated
backup p. 64
in the extracts from the code of ordinances are one and the
same position in the government of the city. The code not
only refers to this position or official as an "office" but
the excerpts therefrom, as well as your supplemental
letter, also describe, prescribe, and vest in this official
governmental or sovereign powers and duties. The city
inspection superintendent/building official therefore,
would appear to be an officer of the city. Such being the
case, such officer could not hold another office under the
government of the city. However, as hereinbefore discussed
with respect to the other affected officials, the city's
legislative body may, by appropriate legislative action,
designate the city inspection superintendent/building
official to perform ex officio the duties of the office of
a member of the "super permitting board," provided that the
additional duties and responsibilities imposed are in no
way inconsistent with the duties already being performed by
such official. See AGO 080-12.
backup p. 65


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

Mr. Albert R. Cook
City Attorney
City of Longwood
394 South U.S. Highway 17-92
Post Office Box 895
Casselberry, Florida 32707

RE: DUAL OFFICEHOLDING--Office of part-time municipal
police officer constitutes an office for purposes of
constitutional dual officeholding

Dear Mr. Cook:

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

Does a sworn municipal police officer who serves part-time
hold an "office," and is he an "officer," as those terms
are used in s. 5, Art. II, State Const., which prohibits
dual officeholding?

Your letter of inquiry states that a member of your city's
board 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, is
authorized to carry a weapon and to make arrests. You
additionally note that the extent of his duties is limited
and that he performs such duties only a few hours per
month. Your letter also notes your concern that this
individual's appointment to and service in these two
positions simultaneously might involve the constitutional
prohibition against dual officeholding.

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

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

backup p. 66
"No person shall hold at the same time more than one office
under the government of the state and the counties and
municipalities therein, except that a notary public or
military officer may hold another office, and any officer
may be a member of a constitution revision commission,
constitutional convention, or statutory body having only
advisory powers." (e.s.)

Thus, s. 5(a) of Art. II prohibits a person from
simultaneously holding more than one "office" under the
government of the state and the counties and municipalities
therein. This constitutional provision does not define the
terms "office" or "officer" for its purposes, or draw any
distinction between part-time or full-time police officers
or make any exceptions therefor, such as the exception made
for service by any officer on a statutory body having only
advisory powers. The rule expressio unius est exclusio
alterius therefore applies and no other exceptions from the
operation 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 on
the board of adjustment is an office and such board is not
within the exception made for an officer's services on
statutory bodies having only advisory powers. Therefore,
the remaining consideration is whether a sworn, part-time
police officer is an officer within the purview of s. 5,
Art. II, State Const.

The Florida Supreme Court has stated, in construing the
term "office," that the term "implies a delegation of a
portion of the sovereign power to, and the possession of it
by, the person filling the office, while an 'employment'
does not comprehend a delegation of any part of the
sovereign authority." State ex rel. Holloway v. Sheats, 83
So. 508, 509 (Fla. 1919); see also AGO 69-2 and authorities
cited therein.

Numerous opinions of the Attorney General have indicated
that a law enforcement officer, such as a municipal police
officer, is an "officer" within the scope of the dual
officeholding 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 force
is clothed with the sovereign power of the city); AGO 77-89
and authorities cited therein. Cf. Blackburn v. Brorein, 70
So.2d 293 (Fla. 1954).

backup p. 67
Additionally, AGO 77-63 concluded that a part-time
auxiliary or certified reserve police officer is an
"officer" within the purview of the constitutional
prohibition 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 municipal
police officers as state attorney investigators, since the
appointment was temporary and no additional remuneration
was paid to such municipal police officers for performing
such additional criminal investigative duties), and Case
Nos. 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 and
concluding that it did not violate the dual officeholding
provision for a city police officer, in conducting a
wiretap, to act in the capacity of a deputy sheriff, since
that officer received no remuneration for such duties).
From the description of the part-time police officer's
duties contained in your letter, it appears that those
duties are performed on a periodic and regular basis, and
not on a temporary one, and thus would probably not fall
within the Vinales exception. Additionally, the Vinales
exception deals with the performance of additional law
enforcement functions and duties in a police capacity and
not the exercise of governmental power or performance of
official duties on a disparate municipal board exercising
and performing quasi-judicial power and duties.

In summary, it is my opinion, until judicially determined
otherwise, that a sworn municipal police officer who serves
part-time holds an "office" and is an "officer" for
purposes of s. 5, Art. II, State Const.

Sincerely,

Jim Smith
Attorney General

Prepared by:

Anne Curtis Terry
Assistant Attorney General

backup p. 68
Florida Attorney General Advisory Legal Opinion
Number: 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 of
the 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 In
re 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 is
authorized 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 city
administrator. 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 to
declare 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
backup p. 72
Number: AGO 2006-27
Date: June 29, 2006
Subject: Dual Office Holding, police chief as city manager
Ms. Catherine D. Reischmann
Casselberry City Attorney
1001 Heathrow Park Lane, Suite 4001
Lake Mary, Florida 32746
RE: MUNICIPALITIESDUAL OFFICE HOLDINGpolice chief serving as temporary
city manager. Art. II, s. 5(a), Fla. Const.
Dear Ms. Reischmann:
On behalf of the Casselberry City Commission, you ask substantially the
following questions:
1) Does Article II, section 5(a), Florida Constitution, preclude the city
and the former police chief, who resigned in order to temporarily serve
as acting city manager, from entering into an agreement that the former
chief will again serve as police chief once he no longer serves as acting
city manager?
2) Does the exception to dual officeholding recognized by the courts in
Vinales v. State[1] and Rampil v. State[2] permit the police chief to
serve as acting city manager without resigning his or her office when
such 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 the
government of the state and the counties and municipalities therein,
except . . . any officer may be a member of a . . . statutory body having
only advisory powers."
This constitutional provision prohibits a person from simultaneously
serving in more than one state, county, or municipal office, regardless
of whether elected or appointed.
Recognizing that this office has stated that the constitutional provision
backup p. 73
prohibits a police chief from simultaneously serving as the city
administrator,[3] the police chief resigned as police chief when he was
named by the city commission as acting city manager. You ask, however,
whether the city is precluded from entering into an agreement providing
that the acting city manager may return to his position as police chief
once the position of city manager has permanently been filled by another
individual.
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 as
acting city manager created a vacancy in the office of police chief, not
a 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 no
longer is serving as city manager.
Question Two
The Supreme Court of Florida recognized a limited exception to the
constitutional dual officeholding prohibition in Vinales v. State,[5]
which concerned the appointment of municipal police officers as state
attorney investigators pursuant to statute. Since the police officers'
appointment was temporary and no additional remuneration was paid for
performing the additional criminal investigative duties, the Court held
that the officers were not simultaneously holding two offices and thus
the constitutional dual office holding prohibition did not apply. The
Second District Court of Appeal in Rampil v. State,[6] following the
Vinales exception, concluded that it was not a violation of Article II,
section 5(a), Florida Constitution, for a city police officer to act in
the capacity of deputy sheriff since that officer received no
remuneration for such duties.
The above exception, however, has been applied only when both offices
have related to criminal investigation or prosecution and not to the
exercise of governmental power or performance of official duties on a
disparate board or position. Thus, this office, in considering the
Vinales and Rampil exception, has stated that the exception is limited
and does not apply to a member of a municipal board of adjustment serving
as a part-time law enforcement officer or to a police officer who serves
as a law enforcement officer.[7]
Accordingly, I am of the opinion that the exception to dual officeholding
recognized by the courts in Vinales v. State, supra, and Rampil v. State,
supra, does not permit the police chief to serve as acting city manager
without resigning his or her office.[8]
Sincerely,
Charlie Crist
Attorney General
backup p. 74
CC/tjw
--------------------------------------------------
[1] 394 So. 2d 993 (Fla. 1981).
[2] 422 So. 2d 867 (Fla. 2nd DCA 1982).
[3] See Op. Att'y Gen. Fla. 86-11 (1986). This office has repeatedly
stated that a certified law enforcement officer, such as a municipal
police officer, is an "officer" within the scope of the constitutional
prohibition against dual office holding. See, e.g., Ops. Att'y Gen. Fla.
57-165 (1957), 69-2 (1969) , 76-92 (1976), 77-89 (1977), 84-25 (1984),
and 86-11 (1986). And see Curry v. Hammond, 16 So. 2d 523, 524 (Fla.
1944). ("It can hardly be questioned that a patrolman on a city police
force is clothed with sovereign power of the city while discharging his
duty."). This office has also considered the position of city manager, as
the chief administrative officer of the city, to constitute an office for
purposes of Article II, section 5(a), Florida Constitution. See, e.g.,
Ops. Att'y Gen. Fla. 80-97 (1980) and 86-11 (1986).
[4] See In re Advisory Opinion to the Governor, 79 So. 874 (Fla. 1918)
(when a person holding one office is appointed to and accepts another
office, such appointment and acceptance vacates the person's right and
status to the first office); and Ops. Att'y Gen. Fla. 94-40 (1994) and
77-63 (1977). Cf., Holley v. Adams, 238 So. 2d 401, 407 (Fla. 1970)
(acceptance of an incompatible office by one already holding office
operates as a resignation of the first).
[5] 394 So. 2d 993 (Fla. 1981).
[6] 422 So. 2d 867 (Fla. 2nd DCA 1982).
[7] See Op. Att'y Gen. Fla. 84-25 (1984). And see Op. Att'y Gen. Fla. 86-
84 (1986) (Vinales and Rampil exceptions do not apply to a city council
member simultaneously serving as a certified auxiliary law enforcement
officer).
[8] You have advised this office that the city charter provides that the
city manager may designate, subject to the city commission's approval, a
qualified administrative officer to exercise the powers of the city
manager due to the city manager's temporary absence or disability. The
courts of this state have recognized that the legislative designation of
an officer to perform ex officio the functions of another or additional
office does not violate the dual officeholding prohibition, provided that
the duties imposed are consistent with those already being exercised.
See, e.g., Bath Club, Inc. v. Dade County, 394 So. 2d 110 (Fla. 1981).
There is, however, a distinction between a statute or charter provision
imposing an ex officio position on the holder of another office and one
authorizing the appointment of one officeholder to another distinct
backup p. 75
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 of
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 duties
of the city manager.
backup p. 76
Number: AGO 2013-08
Date: April 18, 2013
Subject: Dual Office-holding, temporary office
Ms. Julie O. Bru
City Attorney
City of Miami
444 Southwest 2nd Avenue
Miami, Florida 33130-1910
RE: PUBLIC OFFICERS DUAL OFFICE-HOLDING MUNICIPALITIES LAW
ENFORCEMENT temporary appointment of law enforcement officer as city
manager violates dual office-holding prohibition when city manager is an
officer. 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 such
appointment is of a limited and finite duration, without tenure or
additional remuneration?
In sum:
A law enforcement officer may not serve as acting city manager when the
city managers position constitutes an office, regardless of the limited
duration or benefits attendant to the office, without violating the dual
office-holding prohibition in section 5(a), Article II, Florida
Constitution.
You acknowledge that a law enforcement officer is an officer for purposes
of the constitutional prohibition against dual office-holding in section
5(a), Article II, Florida Constitution, and state that the city manager
for the City of Miami is also such an office. While you cite to Attorney
General Opinion 2006-27, in which this office concluded that a city
police chief could not serve as city manager until a successor was
appointed without violating the dual office-holding prohibition, you
question whether the fact that the appointment is temporary due to the
city managers being away from his or her office due to vacation or a
medical procedure would affect the application of the dual office-holding
prohibition.
backup p. 77
Your letter indicates that the city manager is the appointed head of the
administrative branch of city government and is empowered to exercise
control over all departments and divisions of the city, execute
contracts, and carry out policies adopted by the city commission. During
temporary absences, the mayor, subject to the city commissions approval,
may designate a qualified administrative officer to carry out the duties
of the city manager.
Section 5(a), Article II of the Florida Constitution, provides in
pertinent part:
"No person shall hold at the same time more than one office under the
government of the state and the counties and municipalities therein,
except that a notary public or military officer may hold another office,
and any officer may be a member of a constitution revision commission,
taxation and budget reform commission, constitutional convention, or
statutory body having only advisory powers."
This provision prohibits a person from simultaneously serving in more
than one "office" under the governments of the state, counties, or
municipalities. This office has concluded that the constitutional
prohibition applies to both elected and appointed offices.[1] While the
Constitution 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 exercising
some portion of the sovereign power, conferred or defined by law and not
by 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 another
office does not constitute holding two offices at the same time, provided
the duties imposed are consistent with those being exercised.[3] Rather,
the legislatively assigned duties are considered an addition to the
existing duties of the officer.[4] It does not appear, nor have you
proposed, that the law enforcement officer would be appointed to
temporarily serve as city manager in an ex officio capacity.
The Florida Supreme Court in Vinales v. State,[5] held that the
constitutional dual office-holding prohibition did not apply to the
appointment of municipal police officers as state attorney investigators
since the appointment was temporary and no additional remuneration was
paid to such municipal police officers for performing such additional
criminal investigative duties. In Vinales, however, there was a statute
which specifically authorized the appointment of municipal police
officers 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 our
state constitution as one which does not prohibit dual office holding on
a temporary basis without remuneration for the purpose of criminal
backup p. 78
investigation."[7] In Attorney General Opinion 84-25, this office
considered whether a member of a municipal board of adjustment could also
serve as a part-time municipal police officer. Concluding that the
Vinales exception would not apply to such a situation because the law
enforcement duties were performed on a periodic and regular basis, not a
temporary one, the opinion also observed that the Vinales case dealt
"with the performance of additional law enforcement functions and duties
in a police capacity and not the exercise of governmental power or
performance of official duties on a disparate municipal board exercising
and performing quasi-judicial power[s] and duties."
While the courts have enumerated "tenure, duration and duties in
exercising some portion of the sovereign power, conferred or defined by
law and not by contract" as noted above, I have found no discussion which
imposes a minimum or maximum time on the duration of serving in an office
which would otherwise affect the positions characterization as such.
While in the instance you have proposed, the law enforcement officer
would be serving only for a limited time, he would be holding the office
for a specified time and exercising the powers attendant thereto.[8] Had
the constitution considered temporary appointments to be an exception to
the dual office-holding prohibition, the provisions in section 5(a),
Article II, Florida Constitution, could have easily addressed such a
situation as an exemption.[9]
Accordingly, it is my opinion that a law enforcement officer may not be
appointed to act as the city manager for the City of Miami, where the
city managers position is an office, without violating the dual office-
holding prohibition in section 5(a), Article II of the Florida
Constitution.
Sincerely,
Pam Bondi
Attorney 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); City
of Riviera Beach v. Palm Beach County Solid Waste Authority, 502 So. 2d
1335 (Fla. 4th DCA 1987) (special act authorizing county commissioners to
sit 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 of
municipal police and firefighters' pensions trust funds, such provision
did 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 an
office").
[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 not
violate the dual office-holding provision for a city police officer, in
conducting a wiretap, to act in the capacity of a deputy sheriff, since
that officer received no remuneration for such duties.
[8] See Websters Third New International Dictionary Tenure, p. 2357
(unabridged ed. 1981) ("tenure" means "the act, action, or a means of
holding 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 office,
and any officer may be a member of a constitution revision commission,
taxation and budget reform commission, constitutional convention, or
statutory body having only advisory powers."
backup p. 80
ONE IS ENOUGH - FLORIDA'S
CONSTITUTIONAL 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 for 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 the
same time more than one office under the government of the state
and the counties and municipalities therein, except that a notary
public or military officer may hold another office, and any officer
may be a member of a constitution revision commission, 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 a
juris 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. She earned a BA.
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).
HeinOnline -- 29 Stetson L. Rev. 307 1999-2000
backup p. 81
ONE IS ENOUGH - FLORIDA'S
CONSTITUTIONAL 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.
l
While its purpose is laudable, application of this constitu-
tional provision continues to be problematic for 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 the
same time more than one office under the government of the state
and the counties and municipalities therein, except that a notary
public or military officer may hold another office, and any officer
may be a member of a constitution revision commission, 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.B.A. degree in 1965 at the University of Florida, and in 1969 received a
juris 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. 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, a
municipal 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 a
member 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 to
offices 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 "election
by 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 shall
never 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 and
thus are not governed by common law. Id.
7. Article XVI, section 15 of the 1885 Florida Constitution states:
308
[Vol. XXIX
backup p. 82
308 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, a
municipal officer is precluded from holding not only another munic-
ipal office, but also a state or county office.
A HISTORICAL PERSPECTNE
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 a
member 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 to
offices 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 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. Fla. 8097 (1980);
Op. Att'y Gen. Fla. 692 (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 shall
never 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 officeholding, financial benefit from office,
and abuse of public trust, are issues directly addressed by" the state Constitution and
thus 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 to
date. While the first sentence of the constitutional provision ad-
dresses interstate dual office holding,
s
it is primarily the second
sentence relating to intrastate office holding that has been the
subject of interpretation and controversy.
AN OFFICE BY ANY OTHER 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 of
the constitutional provision. In the absence of such clarification, the
courts 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 a
member 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.
backup p. 83
was held to extend to county offices,S decisions under the 1885 Con-
stitution excluded municipal officers from its coverage.
9
The dual office holding prohibition contained in the 1968 Con-
stitution is the broadest statement of public policy on this issue to
date. While the first sentence of the constitutional provision ad-
dresses interstate dual office holding,IO it is primarily the second
sentence relating to intrastate office holding that has been the
subject of interpretation and controversy.
AN OFFICE BY ANY OTHER 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 of
the constitutional provision. In the absence of such clarification, the
courts 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."ll
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 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 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 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 a
member 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.
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 any
part of the sovereign authority. The term "office" embraces the
idea of tenure, duration, and duties in exercising some portion of
the sovereign power, conferred or defined by law and not by con-
tract. An employment does not authorize the exercise in one's own
right 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 is
an "office" or an "employment" for purposes of article II, section
5(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 a
number 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); State
ex rel. Gibbs v. Bloodworth, 184 So. 1, 16 (Fla. 1938) (holding that the Miami City Clerk
is an officer, whose office is created and duties imposed by the charter act); Dade
County v. State, 116 So. 72, 76 (Fla. 1928) (finding that persons entrusted by legal
authority "with receipt of public money, or through whose hands such money may
pass, . . .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, 667
So. 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=I
backup p. 84
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 any
part of the sovereign authority. The term. "office" embraces the
idea of tenure, duration, and duties in exercising some portion of
the sovereign power, conferred or defined by law and not by con-
tract. An employment does not authorize the exercise in one's own
right 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.
13
Under this "sovereign power principle," it is the nature of the pow-
ers and duties of a particular position that determines whether it is
an "office" or an "employment" for purposes of article II, section
5(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 a
number 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 reI. Brown v. Dewell, 179 So. 695, 701 (Fla. 1938)
(Ellis, C.J., dissenting) (determining that a prosecuting attorney is a public officer); State
ex reI. Gibbs v. Bloodworth, 184 So. 1, 16 (Fla. 1938) (holding that the Miami City Clerk
is an officer, whose office is created and duties imposed by the charter act); Dade
County v. State, 116 So. 72, 76 (Fla. 1928) (finding that persons entrusted by legal
authority "with receipt of public money, or through whose hands such money may
pass, . . . 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, 667
So. 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 (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 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").
Dual Office Holding Prohibition
an office for purposes of the dual office holding prohibition. While
earlier 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 provision
of law.
Based upon its review of the particular powers of the position
and the language of the statute, charter, or ordinance creating the
position, the Attorney General's Office has considered the following
to 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 a
municipal 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 a
community 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 a
city;
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).
20. See Op. Att'y Gen. Fla. 97-37 (1997); Op. Att'y Gen. Fla. 81-61 (1981).
1999]
311
backup p. 85
an office for purposes of the dual office holding prohibition. While
earlier 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 provision
of law.
Based upon its review of the particular powers of the position
and the language of the statute, charter, or ordinance creating the
position, the Attorney General's Office has considered the following
to be "offices" for purposes of article II, section 5(a) of the Florida
Constitution: chief of police;16 city attorney;17 member of the Flor-
ida Barbers' Sanitary Commission;18 chief of a municipal fire de-
partment, member of an architectural review board, and city in-
spection superintendent;19 code enforcement board member;20
board of adjustment member;21 city administrator;22 member of a
municipal building board of appeals;23 commissioner of the South-
east Interstate Compact;24 city board of adjustment and appeals;25
city water resources advisory board;26 board of commissioners of a
community redevelopment agency;27 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 a
city;30 pension fund board member;31 and membership on the
State Board of Community Colleges.
32
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
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 the
ministerial duties of an assistant to the clerk rather than the sub-
stitute duties of a true deputy, Attorney General Opinion 88-56
concluded 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 Commission
attorney;
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 own right
of any sovereign power, or any prescribed independent authority of a governmental
nature").
35. See id.
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).
312
backup p. 86
certain powers as agents of governmental officers.
33
The Attorney
General, in determining whether a deputy clerk was an officer or
employee, 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 sub-
stitute duties of a true deputy, Attorney General Opinion 88-56
concluded that the position of deputy clerk under those circum-
stances 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 com-
munity college district comptroller;40 city engineer;41 code enforce-
ment board attorney;42 firefighter;43 code enforcement officer un-
der Chapter 162, Florida Statutes;44 Charter Review Commission
attorney;45 charter school board member;46 assistant city attor-
ney;47 public. works inspector;48 member of a board of highway
secondary 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 delega-
tion of any part of the sovereign authority, or authorize the exercise in one's own right
of any sovereign power, or any prescribed independent authority of a governmental
nature").
35. See id.
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).
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 functionar-
ies"); 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 a
court reporter is an officer).
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 ENFORCEMENT OFFICERS
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 force
is clothed with [the] sovereign power of the city while discharging
his duty.... True, he is an employee of the city but he is also an
officer. It is the character of 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" since
he had the right to arrest without a warrant because "no right is more sacred or more
jealously guarded than the one that liberty shall not be infringed except by due process
of law."
55. See Op. Att'y Gen. Fla. 77-63 (1977); see also Op. Att'y Gen. Fla. 86-105 (1986)
1999]
313
backup p. 87
sor of nurses at public hospital.
51
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 ENFORCEMENT OFFICERS
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 force
is clothed with [the] sovereign power of the city while discharging
his duty .... True, he is an employee of the city but he is also an
officer. It is the character of duty performed that must determine
his status. 53
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).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), in
which the Supreme Court of Florida held that a probation officer was an "officer" since
he had the right to arrest without a warrant because "no right is more sacred or more
jealously guarded than the one that liberty shall not be infringed except by due process
of law."
55. See Op. Att'y Gen. Fla. 77-63 (1977); see also Op. Att'y Gen. Fla. 86105 (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 law
enforcement functions and duties in a police capacity, and not the
exercise of governmental power or performance of official duties on
a disparate municipal board exercising and performing quasi-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 who were certified, carried firearms, and assisted regular police officers in carrying
out 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 certification
requirements 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 dual
office 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. XXIX
backup p. 88
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
5S
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
5S
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.
69
The Vinales case dealt with the performance of additional law
enforcement functions and duties in a police capacity, and not the
exercise of governmental power or performance of official duties on
a disparate municipal board exercising and performing quasi-judi-
cial powers and duties.
so
Similarly, Rampil concerned the perfor-
mance of additional law enforcement functions.
61
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).63 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 who were certified, carried firearms, and assisted regular police officers in carrying
out 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 certification
requirements 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 dual
office 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).
"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 arrest
any 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, a
correctional 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 state
and county offices, it does not refer to special districts. A special
district is a governmental entity created by law to perform a special
and limited governmental function.
The courts and the Attorney General's Office, therefore, have
concluded that the dual office holding prohibition does not apply to
the officers of an independent special district."
8
In a 1994 advisory
64. Id.
65. Id.
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 municipal
officer 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 on
airport authority and on school board); Op. Att'y Gen. Fla. 94-42 (1994) (finding that a
person 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 Cypress
Basin'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
1999] 315
backup p. 89
"unlike law enforcement officers, correctional officers do not have
broad 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 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, a
correctional 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.
66
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.
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 special
and limited governmental function.
The courts and the Attorney General's Office, therefore, have
concluded that the dual office holding prohibition does not apply to
the 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 municipal
officer 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 on
airport authority and on school board); Op. Att'y Gen. Fla. 94-42 (1994) (finding that a
person 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 Cypress
Basin'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. 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 court concluded that a member of a community college district
board of trustees
is an officer of a special district created to perform the special
governmental function of operating a community college and is not
a state, municipal, or county officer within the meaning of article
II, section 5(a). Thus, the dual office-holding prohibition does not
keep 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 of
a community college district to constitute a special district office
and thus to be outside of the parameters of article II, section 5(a),
the Supreme Court in Advisory Opinion to the Governor - School
Board Member - Suspension Authority,
7
rejected the designation
of 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 members
could be suspended under the constitutional provisions governing
county officers or whether a suspension should be accomplished
under the statutory provisions governing district officers.
73
The
court concluded that school board members are county officers who
have 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 college
district may serve as member of parks, planning, and zoning commission); Op. Att'y
Gen. Fla. 71-324 (1971) (finding that a member of hospital district's governing body is
not 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.
316
[Vol. XXIX
backup p. 90
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 Of{ice-Holding,69
the court concluded that a member of a community college district
board of trustees
is an officer of a special district created to perform the special
governmental function of operating a community college and is not
a state, municipal, or county officer within the meaning of article
II, section 5(a). Thus, the dual office-holding prohibition does not
keep a state, county, or municipal officer from serving on a com-
munity college board oftrustees.
7o
While the court considered membership on the board of trustees of
a community college district to constitute a special district office
and thus to be outside of the parameters of article II, section 5(a),
the Supreme Court in Advisory Opinion to the Governor - School
Board Member - Suspension Authority /1 rejected the designation
of 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 members
could be suspended under the constitutional provisions governing
county officers or whether a suspension should be accomplished
under the statutory provisions governing district officers.
73
The
court concluded that school board members are county officers who
have 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. 7874
(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. 75153 (1975)
(stating that a legislator may serve as a member of a community college district board
of trustees); Op. Att'y Gen. Fla. 7347 (1973) (noting that a member of junior college
district may serve as member of parks, planning, and zoning commission); Op. Att'y
Gen. Fla. 71-324 (1971) (finding that a member of hospital district's governing body is
not 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 control
over 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. The Supreme Court was advised that the Attorney General had previously
considered school board members to be special district officers and outside the scope of
article 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 who may be holding
dual 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 application
should 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 been
invested 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.
81. See id.
19991 317
backup p. 91
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.76 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.
77
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.
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 in
the nature of a district office and thus not subject to the constitu-
tional prohibition.
so
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 control
over the functions or actions of the council.sl 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. The Supreme Court was advised that the Attorney General had previously
considered school board members to be special district officers and outside the scope of
article II, section 5(a). 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 who may be holding
dual 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 application
should 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 been
invested 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 prohibition
against dual office holding. Article II, section 5(a), itself expressly
states that a notary public or military officer may hold another
office." In addition, any officer may be a member of a constitution-
al revision commission or constitutional convention.
84
Statutory
bodies having only advisory powers are also expressly exempted,
and it is this exception that has been the subject of interpretation
both 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 mem-
ber of the State Planning Board was a state "officer" within the
dual 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 of
office, performed duties imposed upon them by statute, and were
authorized to "expend public funds appropriated for that purpose in
the discharge of [their] duties, exercising [their] own discretion in
that regard."
86
Thus, the court concluded that powers and at-
tributes of sovereignty had been "delegated to or reposed in the
State Planning Board."
87
Similarly, the Attorney General in Opinion 76-241 concluded
that membership on the Florida Human Relations Commission was
an office rather than service on a statutory body possessing only
advisory powers." The opinion was based upon an examination of
the powers of the commission, which included, among other things:
the right to accept moneys, both public and private, to help finance
its 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.
318
[Vol. XXIX
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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 prohibition
against dual office holding. Article II, section 5(a), itself expressly
states that a notary public or military officer may hold another
office. sa In addition, any officer may be a member of a constitution-
al revision commission or constitutional convention.
84
Statutory
bodies having only advisory powers are also expressly exempted,
and it is this exception that has been the subject of interpretation
both 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 mem-
ber of the State Planning Board was a state "officer" within the
dual 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 of
office, performed duties imposed upon them by statute, and were
authorized to "expend public funds appropriated for that purpose in
the discharge of [their] duties, exercising [their] own discretion in
that regard. "86 Thus, the court concluded that powers and at-
tributes of sovereignty had been "delegated to or reposed in the
State Planning Board. "87
Similarly, the Attorney General in Opinion 76-241 concluded
that membership on the Florida Human Relations Commission was
an office rather than service on a statutory body possessing only
advisory powers.
88
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 finance
its 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.
complaints alleging discrimination; to render, at least annually, a
comprehensive 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.
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 not
constitute an advisory board since the state board was responsible
for establishing rules and policies for the operation and mainte-
nance of the state community college system and for adopting
guidelines relating to salary and fringe benefits for community
college administrators."
1
In addition, the board was responsible for
reviewing and administering the state program of support for the
community college system, and in this capacity, reviewed and ap-
proved all budgets and recommended budget amendments in the
system.
92
Local planning and zoning commissions possessing the power
to 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 or
recognize an exception for statutory bodies whose [powers] are
substantially or predominately advisory."
94
An examination of the
duties 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 had
lacked authority to expend public funds or to in any way exercise
the 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).
1999]
319
backup p. 93
complaints alleging discrimination; to render, at least annually, a
comprehensive 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 au-
thorized to exercise powers associated with those of an office, it
could not be characterized as purely an advisory body.90
Attorney 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 responsible
for establishing rules and policies for the operation and mainte-
nance of the state community college system and for adopting
guidelines relating to salary and fringe benefits for community
college administrators.91 In addition, the board was responsible for
reviewing and administering the state program of support for the
community college system, and in this capacity, reviewed and ap-
proved all budgets and recommended budget amendments in the
system.
92
Local planning and zoning commissions possessing the power
to grant variances without review or that are final unless appealed
to the county commission, would not fall within the exception for
advisory bodies.
93
Only those statutory bodies possessing advisory
powers 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 the
duties 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 had
lacked authority to expend public funds or to in any way exercise
the state's "sovereign power" were determined in Attorney General
Opinion 71-43 to constitute a "statutory advisory body."96 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).
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 opinion
states 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 in
the constitution, "shall be placed by law under the direct supervision of the governor,
the lieutenant governor, the governor and cabinet, a cabinet member, or an officer or
board appointed by and serving at the pleasure of the governor").
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 perform
the 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. XXI
backup p. 94
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;9S an advisory county
planning commission;99 the Florida Advisory Council on Intergov-
ernmental Relations;loo the board of trustees of a county public
health trust;lOl a local planning agency whose function is informa-
tion 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 designated
state officials are specifically authorized to serve as the heads of
state departments. lOa 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).104 Thus, the opinion
states that the Lieutenant Governor may also serve as the Secre-
tary of the Department of Administration.
los
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. lOS
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 othenvise provided in
the constitution, "shall be placed by law under the direct supervision of the governor,
the lieutenant governor, the governor and cabinet, a cabinet member, or an officer or
board appointed by and serving at the pleasure of the governor").
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 perform
the 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
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 city
manager 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. 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. 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 the
board 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 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).
1999] 321
backup p. 95
As noted above,lo7 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."lOS 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.
lo9
The newly assigned duties are viewed as an addi-
tion 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 city
manager on the office of the city clerk.
l11
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.
112
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).113
More 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 the
board 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 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 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 a
community redevelopment agency and that such designation consti-
tuted an ex officio designation of the agency's duties."' Although
the community redevelopment agency is a separate entity from the
city commission, the city commission's service as the governing
body of the agency is viewed as an addition to the existing duties of
the city commission."'
The courts have also recognized this distinction. In City of
Riviera Beach v. Palm Beach County Solid Waste Authority,"
6
the
Fourth District Court of Appeal stated that a special act authoriz-
ing county commissioners to sit as members of the county solid
waste authority did not violate article II, section 5(a), but merely
imposed additional duties upon an existing office."
7
In City of Or-
lando v. State Department of Insurance,"' the First District Court
of Appeal concluded that where the statutes had been amended to
authorize municipal officials to serve on the board of trustees of
municipal police and firefighters' pension trust funds, there was no
violation of the constitutional dual office holding prohibition.
"
'
There is, however, a distinction between a statute imposing an
ex officio position on the holder of another office and a statute au-
thorizing the appointment of an officeholder to a second distinct
office. For example, the Supreme Court of Florida has pointed out
that while additional duties may be validly imposed by the legisla-
ture on a state office ex officio, a legislative attempt to authorize
the Governor to appoint a state official to another separate and
distinct office would be ineffectual under the constitutional dual
office 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 the
city code to serve on the board of trustees of the police officers' and firefighters' pension
trust fund would not violate article II, section 5(a)). But cf Op. Att'y Gen. Fla. 90-45
(1990) (concluding that a member of the civil service board could not be appointed to the
board 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 charter
created office of municipal judge as a separate and distinct office and did not designate
that office as an ex officio office to be performed by the city commissioner).
322
[Vol. XXIX
backup p. 96
a city commission may designate itself as the governing body of a
community redevelopment agency and that such designation consti-
tuted an ex officio designation of the agency's duties.
114
Although
the community redevelopment agency is a separate entity from the
city commission, the city commission's service as the governing
body of the agency is viewed as an addition to the existing duties of
the city commission.ll5
The 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 authoriz-
ing county commissioners to sit as members of the county solid
waste authority did not violate article II, section 5(a), but merely
imposed additional duties upon an existing office.l17 In City of Or-
lando v. State Department of Insurance, 118 the First District Court
of Appeal concluded that where the statutes had been amended to
authorize municipal officials to serve on the board of trustees of
municipal police and firefighters' pension trust funds, there was no
violation 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 au-
thorizing the appointment of an officeholder to a second distinct
office. For example, the Supreme Court of Florida has pointed out
that while additional duties may be validly imposed by the legisla-
ture on a state office ex officio, a legislative attempt to authorize
the Governor to appoint a state official to another separate and
distinct office would be ineffectual under the constitutional dual
office holding prohibition.
12o
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 the
city code to serve on the board of trustees of the police officers' and fIrefIghters' pension
trust fund would not violate article II, section 5(a. But cf. Op. Att'y Gen. Fla. 9045
(1990) (concluding that a member of the civil service board could not be appointed to the
board 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 charter
created office of municipal judge as a separate and distinct office and did not designate
that office as an ex officio office to be performed by the city commissioner).
chairman of the state road department a member of the state plan-
ning board.
12
' The court found that the act simply placed specific
additional 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 particular
State 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 the
general rule that "[t]he acceptance of an incompatible office by one
already holding office operates as a resignation of the first."'
25
Un-
der the rationale of that decision, the action of an officer accepting
another office in violation of the dual office holding prohibition
creates 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 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 covered
by this provision, but these bills have failed to pass.' The lack of
a constitutional definition and the inability of the legislature to
provide 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 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 being
considered "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
1999] 323
backup p. 97
chairman of the state road department a member of the state plan-
ning board.
121
The court found that the act simply placed specific
additional duties on the chairman, and therefore, was constitution-
al.
l22
However, the act also permitted the Governor to appoint two
state 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 vio-
lated 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 one
already holding office operates as a resignation of the first."125 Un-
der the rationale of that decision, the action of an officer accepting
another office in violation of the dual office holding prohibition
creates 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 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 covered
by this provision, but these bills have failed to pass.
126
The lack of
a constitutional definition and the inability of the legislature to
provide 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 plain
provisions 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 being
considered "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. XXIXK
324
backup p. 98
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
funds, 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,128 revision
and 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 "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).
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 Overview
Governments > 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
[HN2] In determining the validity of the statute certain basic principles of constitutional construction must be followed.
Governments > Courts > Authority to Adjudicate
Governments > Legislation > Interpretation
[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.
Governments > State & Territorial Governments > Elections
Governments > State & Territorial Governments > Employees & Officials
[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.
[HN5] Fla. Laws 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.
Governments > Courts > Judges
[HN6] The right to seek public office is not a constitutional absolute, but such privilege is subject to reasonable restraint
and conditions.
[HN7] The acceptance of an incompatible office by one already holding office operates as a resignation of the first.
[HN8] Fla. Laws 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 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 Fla. Laws ch. 70-80 operates as an abandonment of the first.
[HN9] The privilege of seeking public office is subject to reasonable restraint and conditions.
[HN10] Fla. Laws ch. 70-80 does not violate the appointive powers of the governor.
Governments > State & Territorial Governments > Police Power
[HN11] Police power is the sovereign right of the state to enact laws for the protection of lives, health, morals, comfort
and general welfare.
Governments > State & Territorial Governments > Legislatures
Governments > State & Territorial Governments > Police Power
[HN12] The state may enact laws whenever demanded by public interest, and large discretion is vested in the legislature
Page 2
238 So. 2d 401, *; 1970 Fla. LEXIS 2597, **
backup p. 100
to determine public interest and measures for its protection.
[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 3
238 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 into
play 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 upon
an 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 4
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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 the
Thomas 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 university
for 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)
Page 5
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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 a
requirement 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 eligibility
of 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
Page 6
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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 merely
conditions 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
Page 7
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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 office
unless 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.
Page 8
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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 shed
their 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 a
particular 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.
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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 not
subject 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
Page 10
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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 posed
hereinbefore, 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 offends
traditional 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
Page 11
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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 seeks
and 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,
Page 12
238 So. 2d 401, *413; 1970 Fla. LEXIS 2597, **34
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 a
person 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.
Page 13
238 So. 2d 401, *414; 1970 Fla. LEXIS 2597, **36
backup p. 111

Orlando Martinez de Castro Resolution To Void Employment Contract

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Orlando Martinez de Castro Resolution To Void Employment Contract

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RESOLUTION NO.

Hector Mirabile, Ph. D.

Hector Mirabile, Ph. D.

Hector Mirabile, Ph. D.

Orlando Martinez de Castro, Acting City Manager

South Miami Police Department

Orlando Martinez de Castro, Acting City Manager

Maria M. Menendez, CMC, FCRM

Major Ana Baixauli

board of adjustment member;

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