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Res No 167-13-13985RESOLUTION NO. 167-13-13985 A Resolution of the City of South Miami confirming the City Commission's prior interpretation of the City Charter, the City Commission's prior approval of all appointments of Orlando Martinez de Castro to the office of Acting City Manager and approving the termination of his 5 -year employment agreement with the City under the terms of Florida Constitution Article II, Section 5(a). WHEREAS, on October 8, 2010, the Mayor and City Commission voted to authorize execution of a 5 -year employment agreement (hereafter the "employment agreement ") with Orlando Martinez de Castro to serve as Chief of Police [backup pp. 1 -15]; and WHEREAS, Article III, Section 4A of the City charter provides that "[t]he Manager may recommend, by letter fled 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." WHEREAS, the South Miami City Manager notified the Mayor and City Commission, as per City Charter Article III, Section 4A [backup p. 16], that Police Chief Martinez de Castro was appointed to serve as Acting City Manager on twelve (12) occasions for a total of forty -five (45) days. WHEREAS, the City Manager, Dr. Mirabile, on one occasion defined the Acting City Manager's authority thus: "He will have the authority to administrate the city and signature authority in all administrative requirements but will not have signature authority for contracts." On another occasion Dr. Mirabile designated Orlando Martinez De Castro "...as acting City Manager and designate him with limited signature authority, he will not have signature authority to bind the City in the area of contracts or agreements. He does have signature authority in the areas of routine City business and expenditures such as any and all personnel actions, agenda items, purchases, etc." On another occasion the City Manager designated Mr. Martinez de Castro as acting City Manager without any restriction on his authority to act for and bind the City [backup pp. 17 -25]; and WHEREAS, when a City Manager names an acting City Manager to cover the City Manager's duties during his absence, the City's practice, under multiple city attorneys and differing city commissions, is for the City Commission to do nothing to formally approve the appointment /designation other than to accept the action of the City Manager and the designated acting City Manager without the need for a resolution by the Commission since a disapproval would necessarily require a resolution declining the recommendation and naming another individual to the office of City Manager as required under Charter Article III, Section 4A; and Res. No. 167 -13 -13985 WHEREAS, in numerous decisions, Florida's courts have ruled that concerning questions of policy and procedure, the local agency's views and administrative interpretations are entitled to great deference; e.g., Rice v. Dept. of Health and Rehab. Services, 386 So.2d 844, 850 (Fla. 1 st DCA 1980); School Bd. of Leon County v. Hargis, 400 So.2d 103 (Fla. App. Dist. 1, 06/16/1981); Dept. of Environmental Regulation v. Goldring, 477 So.2d 532, 10 Fla. L. Weekly 429 (Fla. 1985); State of Fla. Dept. of Environmental Regulation v. C.P. Developers, Inc., 512 So.2d 258, 12 Fla. L. Weekly 2052 (Fla. App. Dist. 108/24/1987); and WHEREAS, Police Chief Martinez de Castro accepted such assignments to the position of Acting City Manager [backup p. 26]; and WHEREAS, during his assignments as Acting City Manager Mr. Martinez de Castro sent email he signed as "Acting City Manager" or in which he referred to himself as the "Acting City Manager" or "Acting CM ", and /or in which he communicated about matters of City business outside the areas of Police, Code Enforcement, and Parking [backup pp. 27 -31 ]; and WHEREAS, during his assignments as Acting City Manager Mr. Martinez de Castro issued three city manager's reports (11- Jun -2012, 19 -Jul -2012, 26- Jul - 2012), listing himself on each as the "Acting City Manager" [backup pp. 32 -34]; and WHEREAS, during his assignments as Acting City Manager, Mr. Martinez de Castro attended four city commission meetings (6- Mar -2012, 12- Jun -2012, 24 -Jul -2012, 31 -Jul -2012) in the capacity and chair of the city manager [backup pp. 42 -45]; and WHEREAS, during his assignments as Acting City Manager, Mr. Martinez de Castro signed official city documents in the space designated for the city manager's signature [backup pp. 35 -36]; and WHEREAS, in every instance in which Mr. Martinez de Castro was appointed or designated as the Acting City Manager the Mayor and City Commission approved of the recommendation by accepting the City Manager's appointments of Chief Martinez de Castro and treating him as the City Manager [backup pp. 37 -40]; and WHEREAS, the Mayor and City Commission addressed Mr. Martinez de Castro as "Mr. Acting City Manager" at city commission meetings in which he served in the role of city manager, and directed him to carry out actions such as obtaining bids on behalf of the City [backup p. 41]; and WHEREAS, the Mayor and City Commission voted unanimously to approve the official minutes of four city commission meetings (6- Mar -2012, 12- Jun -2012, 24 -July -2012, 31-Jul- 2012) in which Mr. Martinez de Castro was listed as "Acting City Manager" [backup pp. 42 -45]; and WHEREAS, City Manager Hector Mirabile sent email directing staff that Orlando Martinez de Castro was to be the "Acting City Manager ", defining the Acting City Manager's authority thus: "He does have signature authority in the areas of routine City business and expenditures such as any and all personnel actions, agenda items, purchases, etc." which included the right to hire, fire and discipline City employees [backup pp. 46 -50]; and Page 2 of 4 Res. No. 167 -13 -13985 WHEREAS, City staff treated Mr. Martinez de Castro as the Acting City Manager during these appointments, referring to him as the "Acting City Manager" in email [backup pp. 51 -56]; and WHEREAS, The Florida Constitution Article I1, Section 5(a) states: "No person shall hold at the same time more than one office under the government of the state and the counties and municipalities therein" [backup p. 57]; and WHEREAS, Florida's courts and Attorneys General have determined that police chiefs and city managers specifically (but not directors of other city departments) are vested with and exercise a portion of the governmental or sovereign power of the City and are "municipal officers ", and thus both positions are deemed as incompatible under the constitutional ban on dual office- holding, e.g., AGOs 80 -97, 84 -25, 86 -11, 2006 -27, 2013 -08, Butterworth & Wilson (1999) [backup pp. 58 -99] (also AGOs 57 -165, 69 -2, 76 -92, 77 -89); and WHEREAS, Florida's Attorney General stated in AGO 2013 -08 that appointment of a police chief to the office of Acting City Manager for any duration, even temporary, violates the dual office- holding prohibition in Section 5(a), Article II of the Florida Constitution [backup pp. 77 -80]; and WHEREAS, the Supreme Court of Florida set forth the general rule: "The acceptance of an incompatible office by one already holding office operates as a resignation of the first ", Holley v. Adams, 238 So. 2d 401, 407 (Fla. 1970) [backup pp. 99 -111]; and WHEREAS, Florida's Attorney General stated in AGO 2006 -27 that because Florida Constitution Article II, Section 5(a) prohibits a police chief from simultaneously serving as the city manager, when a police chief is appointed acting city manager he resigns as police chief [backup pp. 73 -76]; and WHEREAS, Florida's Attorney General further stated in AGO 2006 -27: "Generally, the acceptance of a second office has been considered to be a vacancy in the first office. Thus, the acceptance of the position as acting city manager created a vacancy in the office of police chief, not a leave of absence" [backup pp. 73 -76]; and WHEREAS, by accepting the position of Acting City Manager and functioning in that capacity, Mr. Martinez de Castro resigned from his position as Chief of Police, leaving the chief position vacant, as per Florida Constitution Article II, Section 5(a) as interpreted in AGO 2006- 27; and WHEREAS, the employment agreement includes "resignation" as a basis for termination of the agreement [backup p. 10]; and WHEREAS, the City Commission never authorized a new multi -year employment agreement with Mr. Martinez de Castro when he ceased to serve as Acting City Manager; and WHEREAS, Mr. Martinez de Castro has been the de facto police chief and an at will employee of the City since his first appointment to the office of Acting City Manager and his resulting resignation as police chief for the City at that time. Page 3 of 4 Res. No. 167 -13 -13985 NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND CITY COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA, THAT: Section 1. The above recitals are statements of fact held to be true and are incorporated into the body of this resolution. Section 2. The City Commission hereby ratifies and approves of the interpretation given to the City Charter by the current City Commission and the interpretation given by all prior City Commissions concerning the procedure for the appointments of Acting City Managers in the past, as explained in the recitals to this resolution, and acknowledges the current City Commission's past approval and acceptance of the prior City Manager's recommendation and appointment /designation of Mr. Martinez de Castro as the Acting City Manager for the City of South Miami in all of those instances referred to in the recitals to this resolution. Section 3. The Commission affirms that, under the terms of Florida Constitution Article II, Section 5(a), Orlando Martinez de Castro terminated his 5 -year employment agreement with the City by resigning, by operation of law, from his position as Chief of Police to serve as Acting City Manager. Mr. ..Martinez -de,- Castro ° -,i hereby- det%ated-ter-bt--- arr-at--wilf employe "f -the— ty of-Swt iiarni Section 4. If any section clause, sentence, or phrase of this resolution is for any reason held invalid or unconstitutional by a court of competent jurisdiction, the holding shall not affect the validity of the remaining portions of this resolution. Section 5. Effective Date. This resolution shall become effective immediately upon adoption by vote of the City Commission. PASSED AND ADOPTED this 1 4tl -lay of August , 2013. ATTEST: APPROVED: TY CLERK'— MAYOR TAG1 ' LEGALIT'Y,-AND / N THEREp3F TTORNEY RM, COMMISSION VOTE: 3 -2 Mayor Stoddard: Vice Mayor Liebman: Commissioner Newman: Commissioner Harris: Commissioner Welsh: Page 4 of 4 Yea Nay Nay Yea Yea 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, The above whereas clauses are incorporated by reference into the. body of this resolution. 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: CITY CLERK Page 1 of 2 APPROVED: MAYOR backup p. 1 READ AND APPROVED AS TO FORM AND SUFICIENCY: CITY ATTORNEY Page 2 of 2 COMMISSION VOTE: Mayor Stoddard: Vice Mayor Newman: Commissioner Beasley Commissioner Palmer: Commissioner Harris: backup p. 2 EMPLOYMENT AGREEMENT Employment Agreement ( "Agreement ") dated as of the 8th day of October, 2010, between the City of South Miami, a municipal corporation ( "City ") and Orlando G. Martinez de Castro ( "Employee "), collectively referred to as the Parties ( "Parties ") BACKGROUND WHEREAS, the City is desirous of hiring a Chief of Police; and WHEREAS, the Employee is experienced and qualified to assume the duties of the police chief for the City; and WHEREAS, the City wishes to retain the services of the Employee as the Chief of Police, subject to terms and conditions of this Agreement. AGREEMENT NOW, THEREFORE, FOR Ten Dollars, the mutual covenants and conditions of this Agreement, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: 1. Employment. 1.1 City agrees to employ Employee as Police Chief to perform the duties and exercise powers as provided by State law, the City Charter and to perform such other legally permissible and proper duties and functions consistent with the Employee's position as Chief of Police as may be assigned by the City Manager from time to time. 1.2 Employee shall report to the City Manager. Employee hereby accepts such employment. During the Term of Employee's employment by City, Employee shall (a) devote substantially all of his full business time, abilities and attention exclusively to the diligent performance of his duties with City in a professional manner and in accordance with applicable law and (b) not engage in any other business activity, whether or not such activity is {009931.0001 /M 18892507} backup p. 3 pursued for profit or advantage; provided, however, that Employee may engage in personal and /or passive investment and charitable activities and continue to operate Employee's security consulting business (OMC Consultants, Inc., a Florida corporation), so long as such activities do not materially interfere with the performance of his duties under this Agreement and do not result in a conflict of interest in regards to Employee's duties and obligations to the City. All non City related work will be done under the Employee's personal time and will not use any City asset. during that time. The City shall not be held responsible or liable for any and all action taken by Employee during his activities for OMC Consultants, Inc. or other personal engagements out of the scope of his employment. 1.3 Additional Duties. Employee may assume the duties of Code Enforcement at the discretion of the City Manager, but shall not assume other duties and obligations as to other City functions and departments (including, but not limited to managing the general parking enforcement or information technology operations of the City), except to the extent the parties mutually agree in writing to make such additional duties part of Employee's obligations and further agree on additional compensation to be paid to Employee for performing those additional duties. 2. Term. Except as otherwise provided in this Agreement, the Term of this Agreement shall be for five (5) years commencing on the 20th day of October, 2010 and shall terminate at the close of business on the 19th day of October, 2015 (the "Term "); provided that any extension beyond the 19th day of October, 2015, shall require the approval of both City and Employee. 3. Compensation. During the course of Employee's employment by City, pursuant to this Agreement: {009931.0001 /M 1889250.71 4 backup p. 4 3.1 Annual Salary. Employee shall be paid an annual salary of $100,000.00, which shall be payable in equal installments in accordance with the City's compensation practices and thereafter be subject to a performance based increase, calculated from the base salary, of up to a maximum of 5% in earnings based on an annual performance evaluation as described in the City's Personnel Manual. The City shall annually contribute $20,000.00, in equal payroll period installments, to a City approved ICMA 401a or 457b plan. If the City requires Employee to enter the City's Pension Plan the Employee shall be paid an annual salary of $107,000.00 and thereafter may be subject to a performance based increase, calculated from the base salary, of up to a maximum of 5% in earnings based on an annual performance evaluation as described in the City's Personnel Manual. If City establishes another pay period for its employees, which is no less frequent than semi- monthly, Employee shall be paid in accordance with that schedule. Employee: 3.2 Fringe Benefits. During the Term, City, at its cost, shall make available to 3.2.1 Insurance. The City shall provide Employee and his dependents, if applicable, with insurance benefits including disability, medical, dental, and life insurance of the same type and coverage as provided to senior managers of the City. Employee's dependents shall be covered only if the City insurance plan covers dependents for senior managers with the City. If dependents are covered at Employee's cost, the Employee shall determine if he needs such coverage. 3.2.2 Automobile. In lieu of a vehicle allowance or a mileage reimbursement for use of Employee's personal vehicle for City business, the City shall assign to Employee and for his use the newest unmarked motor vehicle of the same make as the City 100993 1.000 1 /M 1889250_7} 3 backup p. 5 purchases for the police fleet maintained at the City's expense, and which is owned or leased by the City, so as to assist the Employee in performing services for the City as Police Chief. The vehicle shall be replaced, if the City purchases a new police vehicle, by a like kind new vehicle every 24 months during the Term. The make of the vehicle shall be the standard police vehicle of the City. Employee may utilize the vehicle at any time (24 hours per day 7 days per week) in connection with providing services to the City, including official travel for the City and any personal use that occurs during Employee's portal to portal travel from home to the City, or any work related assignment, and back to his home. City shall include the vehicle on the schedule of vehicles for which the City maintains automobile casualty and liability insurance coverage and pay for such coverage. City shall provide maintenance and fuel for the vehicle upon the same basis that it provides maintenance and fuel for other vehicles within the municipal fleet. The City will provide a Sunpass with the vehicle and the Sunpass account will be maintained at the City's expense. Employee shall be responsible for any employee payroll taxes upon this vehicle allowance benefit in accordance with applicable law. 3.2.3 Vacation, Sick Leave, Holidays, Clothing Allowance, etc. (a) Commencing with the execution of this Agreement, Employee shall immediately receive vacation benefits equivalent to that received by senior management with the City based on the years of service by Employee to the City, which shall include all prior employment by Employee with the City. The Employee shall regain the sick time accumulated but unused when the Employee's prior employment with the City was terminated in 2006 which the Parties hereto agree is 380.00 hours. 1009931.0001/M1 &89250_7} C! M. • • (b) Employee shall receive one (1) day per month of sick time or such additional sick time, if greater, as is provided to City's senior management. The sick time may be accrued and rolled over to a later date and shall otherwise be consistent with City policies for senior management. (c) Employee shall be entitled to holidays in the same manner as senior management employees of the City. (d) Employee shall receive a clothing allowance equivalent to that provided to a police investigator under the police union contract with City and shall be payable as required by the police union contract with the City. This allowance shall be provided only for actual clothing expenses incurred in the course and scope of Employee's work and payments shall be made to Employee by City only upon presentation of receipts for payments for clothing expenses incurred in connection with Employee's work. All such payments to be made within thirty (30) days upon presentation of such receipts. (e) The Employee understands that current City Ordinance governing Pension requires him to become part of the City's Pension plan; Should the City modify its Pension ordinance to allow Employee to opt out and join an ICMA 401a or 457b defined contribution plan, then the City shall contribute Twenty Thousand and No /100 Dollars ($20,000.00) per year or such higher amount, if any, as it contributes to the pension of senior management at the City, whichever is greater, in addition to Employee's salary, as a contribution to Employee's City- sponsored retirement plan or any other retirement plan (IRA, 401k, etc.) selected by Employee for his benefit. 100993 1.0001 /M 1 889250_7 } ki backup p. 7 3.2.4 The City shall Provide Employee, at City's cost, with equipment necessary to fulfill Employee's duties, including but not limited to uniforms, cell phone allowance of $90.00, a computer, and other necessary communication equipment. . 3.3 Expenses. City shall pay for or reimburse Employee for all City approved ordinary, necessary, and reasonable business expenses incurred or paid by the Employee in furtherance of City's objectives, all of which shall be reimbursed and paid in accordance with City's policies and procedures of general application. 3.4 Professional Development. Subject to City policy and State law, the City agrees to pay the reasonable professional dues and subscriptions of Employee necessary for his continuation and participation as a member in national, regional, state and local professional law enforcement associations and organizations necessary and desirable for his continued professional participation, growth and advancement, and for the good of the City, subject to budgetary approval. City shall pay for all City approved continuing education for Employee. The City shall further provide Employee all eligible State of Florida educational incentives. 4. Termination. 4.1 Termination for Cause. For purposes of this Agreement, a termination by Employer for "Cause" shall mean termination by action of Employer pursuant to this Section 4.1. Employer shall have the right to terminate Employee for Cause upon the occurrence of one or more of the following events: 4.1.1 A determination by Employer made reasonably and in good faith that Employee has breached this Agreement in any material respect, confirmed by an arbitrator in accordance with process set forth in this Section 4.1. {009931.00011M1889250 7} I backup p. 8 4.1.2 Employee's conviction by a court of competent jurisdiction of fraud with respect to the business or affairs of Employer or any affiliated person or entity of Employer. 4.1.3 Excessive alcohol or drug usage by Employee to an extent that it interferes with the performance of Employee's duties under this Agreement. 4.1.4 The conviction by a court of competent jurisdiction of, or pleading nolo contendre by, Employee of (a) a misdemeanor involving dishonesty, fraud, theft, misappropriation, embezzlement or the like or (b) a felony. 4.1.5 The death of Employee. Upon his death the Employee shall be entitled to all severance payment allowance under the City policies upon the death of an Employee (one year salary at this time). City shall provide written notice of a termination ( "Termination Notice ") for Cause and, with respect to termination pursuant to Sections 4.1.1 - 4.1.4, shall give Employee an opportunity to cure or disprove the grounds for termination by submitting the issue to non - binding mediation ( "Mediation ") which unless the parties agree otherwise, shall be administered by the American Arbitration Association in accordance with their Mediation Procedures in effect at time of the dispute. The Termination Notice shall include a request for mediation to be filed with the person or entity administering the mediation and the cost of mediation shall be equally split by the parties. The parties shall cooperate so as to complete the Mediation in not more than forty -five (45) days from the time the mediation is filed with the selected mediator. In the event that the parties cannot resolve their differences during the Mediation they agree to submit the dispute to binding arbitration ( "Arbitration ") before the American Arbitration Association and in accordance with said Association's rules then in effect. The arbitrator to be chosen shall be 100993 1.0001 /M 18892507} 7 backup p. 9 someone with knowledge of police administration and work, if at all possible, and shall apply national performance criteria for comparable cities including size, population and departmental budgets, in order to evaluate Employee's performance of its obligations under this Agreement. The Parties agree that Opa Locka, North Miami, North Miami Beach and Homestead are comparable cities for the purpose of evaluating changes in crime statistics over time. The decision and /or award rendered by the arbitrator shall be final, and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction. Initially, in order to commence the arbitration, the cost of the arbitrator and arbitration shall be split equally between the parties, however, the prevailing party in the arbitration proceeding shall be entitled to reimbursement for all costs and expenses, including attorneys' fees and the cost of the Arbitration. Employee shall receive all compensation and benefits as set forth in Section 3 of this Agreement until final termination after conclusion of the Mediation and Arbitration process set forth herein. In the event Employee is terminated pursuant to this Section 4.1 and after the mediation and arbitration process set forth above, confirms the City's right to terminate this Agreement, Employee shall be entitled to receive only such compensation and benefits thereafter (including, without limitation, annual salary and other benefits which Employee has earned through the effective date of such termination, and Employee shall not receive any compensation or benefits in respect of any periods after the effective date of such termination. If the arbitration process confirms that Employee did not breach the Agreement, the Agreement shall remain binding on the Parties hereto. 4.2 Termination Upon Voluntary Resignation. In the event Employee voluntarily resigns his employment with City, Employee shall be entitled to receive the annual salary and other benefits, which Employee earned through the effective date of such resignation; 100993 1.000 /M 1889250_71 8 backup p. 10 provided, however, following receipt of Employee's resignation, City shall have the right to accelerate the effective date of Employee's resignation, provided it agrees to pay to Employee the amounts Employee would otherwise be paid hereunder through the intended resignation date. 4.3 Termination Other Than by Voluntary Resifznation or For Cause. Employee shall have the right to terminate the Agreement upon a breach of the Agreement by the City and shall further be entitled to all rights and remedies under Florida law, in the event of a breach of the Agreement by City. The Employee shall provide City with written notice of any breach of the Agreement by City. Upon issuance of said notice, the issue shall be submitted for Mediation and, if necessary, Arbitration in accordance with the process outlined in section 4.1 for a termination by the City. All costs, expenses and attorneys' fees shall be assessed or paid as stated in Section 4.1. Upon a final determination by the arbitrator that the City has breached the Agreement or if City terminates Employee for any reason other than for Cause, Employee shall be entitled to receive the following: (i) the annual salary due and payable to Employee through the balance of the Term of this Agreement paid in Employee's sole discretion either in a lump -sum or on a bi- weekly basis; and (ii) continued benefits as set forth in Section 3 of this Agreement (or City can make payments 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 Employee's estate or beneficiaries shall be subject to the withholding of such amounts, if any, relating to tax and other payroll deductions as Employer may reasonably determine it should withhold pursuant to applicable law or regulation. 6. Miscellaneous. {009931.0001 /M 1889250_7} 9 backup p. 11 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 {009931.0001 /M1 8892507} 10 backup p. 12 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. 100993 1.0001 /M 1889250_7} II backup p. 13 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 Assi ng_ment. 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, 100993 1.000 1 /M 1889250_7} 12 backup p. 14 the parties shall split the cost of the arbitration proceedings. However, the prevailing party in regards to the dispute, shall be entitled to all costs and expenses including attorneys' fees and cost of arbitration proceedings initially shared by the parties. 6.16 Chapter 112. Nothing in this Agreement shall diminish Employee's rights under Florida Statute, Chapter 112, as it relates to law enforcement officers. 6.17 Indemnification. The City agrees to defend, hold harmless and indemnify Employee from any and all liability, fines, damages, attorneys fees, costs, expenses and all claims, suits, causes of action, or proceedings of any kind including payments in settlement brought against the Employee for actions taken by the Employee in the course and scope of his employment with the City. Should the City determine that it is disadvantageous or a conflict of interest to provide counsel to Employee, Employee will obtain separate counsel of his choice at the City's expense. In the event that any separate counsel is hired by the Employee under this provision, the choice of counsel and rates to be charged must be approved by the City Commission before the City is required to pay for expenses of same, which approval shall not be unreasonably withheld. The parties have executed this Agreement as of the date set forth above. 100993 1.0001 /M 1889250_71 THE CITY OF SOUTH MIAMI By:_ Title: EMPLOYEE: In 13 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> Sent time: Sunday, February 27, 2011 12:05:54 PM To: Mayor & Comm < Mayor &Comm @southmiamifl.gov> Cc: Feingold, Laurence <aslanf @aol.com >; Palmer1, Velma <palmer2007 @gmail.com> Subject: Vacation Honorable Mayor, Vice Mayor, and Commissioners, I will be taking vacation on Friday, March 4, 2011. I will be out of town attending my daughters ballet competition recital in two 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. 17 From: Hector Mirabile <HMirabile @southmiamifl.gov> Subject: Vacation Date: February 27, 2011 12:05:54 PM EST To: Mayor & Comm < Mayor &Comm@ south miamifl.gov> Cc: "Feingold, Laurence" <aslanf @aol.com >, "Palmerl, Velma" <palmer20079gmail.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 From: Hector Mirabile <HMirabile@southmiamifl.gov> Subject: City Manager Vacation Date: July 1, 2011 2:14:19 PM EDT To: Mayor & Comm <Mayor &Comm@southmiamifl.gov> Cc: "Pepe, Thomas F." <TPepe@southmiamifl.gov >, "Menendez, Maria M." <MMenendez @southmiamifl.gov >, "Garcia, Maria" <MGarcia @southmiamifl.gov >, "MartinezdeCastro, Orlando" <OMartinezDeCastro @southmiamifl.gov> Honorable Mayor, Vice Mayor, and Commissioners, I will be taking vacation on July 5, 2011 and will return July 6, 2011. During my absence Chief Orlando Martinez De Castro will be the acting City Manager. He will have the authority to administrate the city and signature authority in all administrative requirements but will not have signature authority for contracts. Sincerely, Hector Mirabile, Ph. D. City Manager backup p. 19 From: Hector Mirabile <HMirabile @southmiamifl.gov> Subject: Acting City Manager -Chief of Police Date: April 5, 2011 4:29:18 PM EDT To: Everyonel < Everyonel @southmiamifl.gov> W I will be on city business outside of the county. In my absence Chief of Police Orlando Martinez de Castro is left in charge as acting city manager with limited rights and privilege. The explicit limitation is the signing of any contract binding the city. He does have authority to approve any and all personnel, financial, and /or other administrative functions for the efficient operation of the city. I will be returning on Thursday, April 7, 2011, at or about 7:00 pm. I will return to the office on Friday, April 8, 2011. Sincerely, Hector Mirabile, Ph. D. City Manager backup p. 20 w Hector Mirabile <HMirabile @southmiamifl.gov> October 13, 2011 4:39 PM To: Mayor & Comm < Mayor &Comm @southmiamifl.gov> Cc: "MartinezdeCastro, Orlando" < OMartinezDeCastro @southmiamifl.gov >, "Pepe, Thomas F." <TPepe@southmiamifl.gov> Medical proceedure Dear Commission, I will be going through a medical procedure tomorrow and consequently I will be out using illness time. In my absence I am leaving Chief Orlando Martinez De Castro in charge. You may reach me via email and I will respond as soon as I am out of the hospital. Therefore, any immediate action items need to be submitted or addressed through the Chief. Sincerely, Hector Mirabile, Ph. D. City Manager backup p. 21 From: Hector Mirabile <HMirabile @southmiamifl.gov> 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> Dear Commission, I will be attending jury duty at Broward County Court House tomorrow all day until released. In my absence Chief Orlando Martinez De Castro will be acting City Manager. I may not be available on the cellular telephone due to restrictions in the courts but please feel free to contact the Chief. Sincerely, Hector Mirabile, PhD City Manager backup p. 22 From: Hector Mirabile <HMirabile @southmiamifl.gov> Subject: Manager taking vacation Date: January 12, 2012 3:05:49 PM EST To: Mayor & Comm <Mayor &Comm@southmiamifl.gov> Cc: "MartinezdeCastro, Orlando" < OMartinezDeCastro @ south miamif1.gov >, "Menendez, Maria M." <M Menendez 9 south miamifl.gov >, "Pepe, Thomas F." <TPepe @southmiamifl.gov> Dear Commission, I will be taking a vacation day tomorrow, January 13, 2012. In my absence Chief Orlando Martinez De Castro will be the acting City Manager. Sincerely, Hector Mirabile, PhD City Manager backup p. 23 From: Hector Mirabile <HMirabile@southmiamifl.gov> Subject: City Manager vacationing Date: February 29, 2012 6:18:57 PM EST To: Mayor & Comm < Mayor &Comm@ south miamifl.gov> Cc: "Menendez, Maria M." <MMenendez @southmiamifl.gov >, "Garcia, Maria" <MGarcia@southmiamifl.gov >, "Pepe, Thomas F." <TPepe @southmiamifl.gov >, "MartinezdeCastro, Orlando" < OMartinezDeCastro @southmiamifl.gov> Dear Commission, I will be on vacation from Sunday, 4 March thru Thursday, 8 March 2012. In my absence I will be leaving Chief Orlando Martinez De Castro as the acting City Manager. Since we have a Commission meeting on Tuesday, 7 March 2012, please feel free to contact the respective department directors of the various agenda items for an appointment to meet with them and discuss the items. Sincerely, Hector Mirabile, PhD City Manager backup p. 24 From: Hector Mirabile <HMirabile @southmiamifl.gov> Subject: Manager's Vacation Schedule for FY 2012 Date: May 30, 2012 10:46:07 AM EDT To: Mayor & Comm <Mayor &Comm@southmiamifl.gov> Cc: "MartinezdeCastro, Orlando" < 0 Martinez DeCastro @southmiamifl.gov >, "Riverol, Alfredo" <ARiverol9 south miamifl.gov> Orlando and Alfredo, see if this vacation of mine impact any time you are going to be out as described below. Dear members of the Commission, I will be on vacation the following dates for this year: June 11 thru 14, 2012 (32 hours); June 25 thru 28, 2012 (32 hours); July 23 thru August 17, 2012 (160 hours). A total of 224 vacation hours will be used. As of the May 18, 2012 payroll I have a balance of 263.44 hours of vacation available. In my absence Chief Orlando Martinez De Castro will be the acting City Manager for June 11 thru 14; June 25 thru 28; and July 23 thru August 10, 2012. Mr. Alfredo Riverol will then be the acting City Manager from August 11 through 17, 2012. Sincerely, Hector Mirabile, Ph.D. City Manager City of South Miami 6130 Sunset Drive, FL 33143 -5093 305- 668 -2510 hmirabile @southmiamifl.gov backup p. 25 From: MartinezDeCastro, Orlando < OMartinezDeCastro @southmiamifl.gov> Sent time: Thursday, August 11, 2011 5:40:47 PM To: Mirabile, Hector <HMirabile @southmiamifl.gov> Subject: Re: City Manager Vacation Perfect Right on Orlando Martinez de Castro Chief of Police South Miami Police Department 305.663.6336 Of. Sent from my Blackberry device (Please excuse brevity, punctuation and spelling). From: Mirabile, Hector Sent: Thursday, August 11, 201105:17 PM To: Dept Heads Cc: Garcia, Maria; Dennis Deblois Subject: City Manager Vacation Dear Team, I will be on vacation from August 14 through the 30th (12 working days). In my absence I will be leaving the following personnel as acting city manager with the authority of the City Manager except signing contracts: August 14 -21, 2011: Alfredo Riverol, CPA August 22 -30, 2011: Chief Orlando Martinez De Castro All HR matters should be referred to Latasha Nickles who will serve as my authorized representative in disciplinary matter including dispute resolution and pre - termination hearings. Sincerely, Hector Mirabile, Ph. D. City Manager backup p. 26 "MartinezdeCastro, Orlando" &R June 11, 2012 5:04 PM < OMartinezDeCastro @southmiamifl.gov> To: Mayor & Comm < Mayor &Comm @southmiamifl.gov> Cc: Dept Heads <DeptHeads @southmiamifl.gov >, Hector Mirabile <hmirabile @bellsouth.net >, "Payne, Nkenga" <N Payne 9southmiamifl.gov >, "Menendez, Maria M." <M Menendez 9southmiamifl.gov> FW: CM Brief to Comm June 12 2012 4 Attachments, 244 KB Mayor • Commissioners, - • • of departments for the period June 5-11, 2012, for your • tomorrow's • South Miami Police Department 6130 SW 72nd Street South Miami, Florida 33143 Office: 305.663.6336 Fax: 305.663.2045 Main: 305.663.6301 Email: omartinezdecastro @southmiamifLgov 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 to ... ocx (109. KB) backup p. 27 Reply Reply All Forward Absence from the City Marti nezdeCastro, Orlando To: Mayor & Comm; Dept Heads Cc: Menendez, Maria M.; Garcia, Maria; Payne, Nkenga; Hector Mirabile Attachments: image001.jpg (128 KB) 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. 1 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 7th Regards, 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. backup p. 28 From: MartinezdeCastro, Orlando < OMartinezDeCastro @southmiamifl.gov> Sent time: Wednesday, June 13, 2012 12:35:55 PM To: Woodley, Lorenzo <LWoodley @southmiamifl.gov> Cc: Garcia, Maria <MGarcia @southmiamifl.gov> Subject: Re: CM Brief to Comm June 12 2012 Attachments: image001 Jpg image002.jpg image003Jpg No problem. Prom: Woodley, Lorenzo Sent: Wednesday, June 13, 2012 12:32 PM To: MartinezdeCastro, Orlando Subject: Re: CM Brief to Comm June 12 2012 This is taken much longer than I expected I will. Use a vacation day today if you need me call From: MartinezdeCastro, Orlando Sent: Monday, June 11, 2012 05:04 PM To: Mayor & Comm Cc: Dept Heads; Hector Mirabile; Payne, Nkenga; Menendez, Maria M. Subject: FW: CM Brief to Comm June 12 2012 Mayor and Commissioners, attached are the accomplishments of the city departments for the period June 5 -11, 2012, for your review for tomorrow's commission meeting. Regards, Orlando Martinez de Castro, Acting Cit3y Manager Chief of Police t ij South Miami Police Department 6130 SW 72nd Street South Miami, Florida 33143 Office: 305.663.6336 Fax: 305.663.2045 Main: 305.663.6301 Email: zimartinezl ashotilsothmiarnifi.<iv Note: The State of Florida has a very broad public records lacy. 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. 29 RE: Restrepo Property Abandonment RE: Restrepo Property Abandonment MartinezdeCastro, Orlando Sent: Thursday, August 02, 2012 11:05 AM To: Pepe, Thomas F.; Brimo, Christopher Cc: Baker, Carmen V. Great, rock and roll, thanks #r1ando Martinez de Castro Chief of • . Page 1 of 2 Office: 305.663.6336 Fax: 305.663.2045 Main: 305.663.6301 Email: omartinezdecastro @southmiamifl. 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. Sent: Thursday, August 02, 2012 10:57 AM 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 -256I Fax: (305) 341 -0584 E -nmil: Wepe @southmiamifl.00v backup p. 30 https: / /maii.southin iam ifl.gov /owa / ?ae= Item &t = IPM. Note &id= RgAAAACAOojKx2 %2bR... 5/23/2013 RE: Restrepo Property Abandonment Page 2 of 2 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 a -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 Sent: Thursday, August 02, 2012 10:39 AM To: Pepe, Thomas F. Cc: Marti nezdeCastro, Orlando Subject: Restrepo Property Abandonment 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 - 632616327 Al FIR 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. backup p. 31 https:/hnail.southm iam ifl.gov /owa / ?ae= Item &t= IPM. Note &id= RgAAAACAOojKx2 %2bR... 5/23/2013 CITY OF SOUTH MIAMI OFFICE MEMORANDUM To: Honorable Mayor and City Commission Date: June 1. 1, 2012 From: Chief Orlando Martinez de Castro Acting City Manager Re: Manager's Report The following are the accomplishments of the entirq City,fbrfli6,peri6d ending which are being'�ubmitted for your review prior to the June 1.2`',. Con un' ission, e'ting.-,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 cif moving, the meeting' along but if yoo- have --any,questiops piece; eel fr ee to contact me.. it, Accomplishments. ,a. Nevv IT IDC successes: i. Rebuilt and con 1�d 3 ddskt _'d t viruses: figured and m's'tal .,ops ueovird� ii. Rebuilt,, configured and installed 4 laptops due to viruses. iii. IT deployed antivirus to 12 additional machines. iv, Organized and setup OSSI training for two locations. v. IT setup 4 laptops for OSSI training. vi. IT assisted in the recovery and reconfiguration of corruption on the OSSI database. vii. IT is currently working on completing inventory for SMPD. viii, IT reset 34 system passwords. June I" through June 7'h Total Hours: 52 backup p. 32 y � 2 CITY OF SOUTH MIAMI OFFICE MEMORANDUM To: Honorable Mayor and City Commission Date: July 19, 2012 From: Chief Orlando Martinez de Castro Acting City Manager Re: Manager's 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: L 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 1k; CITY OF SOUTH MIAMI OFFICE MEMORANDUM To: Honorable Mayor and City Commission Date: July 26, 2012 From: Chief Orlando Martinez de Castro Acting City Manager Re: Manager's 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 31 st. 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 MUNU Department of Planning & Zoning 6130 Stmet Drive, South Miarnl, Florida 33143 Phone: (305) 663-6326 Fax. (300 668-7356 APPLICATION FOR OUTDOOR SEATING 1 DINING RtstaurarAlOwne: South Miami, Florida -1 Appllcant : Addrew ;'1-4:L t .- 1. must i2ljAl —1- prq-vrammo*�i�— Date Ah'p;rmu & not Aranslerahic In any nuranci,,opil bsok* a conditional tree permit issued far a period ol one year, renewoble ant"191WAY at tlffie Of 'annual OCCUT010fln' lice"Te re"Wat ,ill. of 11)e Standard$ and r4911101045 sd jorth In the Land Development Codeswiao 20-13 r),shaltbe applienhicto an ouldoorseating1dining ar" ,4qy violation of the regutiationx and standoM serforth In Section of the Land Development Code shall ronsfinat a separal, Incident 46y,#a.-jor ra h day oftantintrodyllolation. Ems - k fro of= shAR ho.cbergod for each seat that is ocated Olathe public righm-of-way. The annual Pew for each outdoor nW at sI t-_ autornarically Increased by $10 each year until die too for, eacbolvtdoor seat Is $65. . A lee of $520 ;ball bi charged for any stend 41orc table lop with no stating which h, used foa consurnplion of beverages or food which is tocatw on public tights-of-vvay, . A Pea ors2so shallbe zharlltd for 411 outdoor dining/sating use pcnWu using private property, I orcalon of the Outdoor-SeathVID1ning., 0, PrAlav P-peM 0 Puhl10,Pr0Fer1Y C3 Both Required Materials to he submitted andatfached herdo. 0 ?rqPcrt;iBaVnfkfly Survey 0 IndbanityAgroement ;C. Outdoor Seating PfanlDinlng Area Plan tj ProqfqfJnrur=c.- * Number alIndave seofv AL-1 —1- — * Number q(Proposed Outdoor Scats Within.pubil. If"r a Date & 77mo AJ, &I t- AdjacentpropRtly wedfarsewing1dining area: ('4djacent Property avrier cotuent Form) bra .IxrptedSaund'agreemcrlt ' a 0 APPROVEDAS REVISVP/117'71 COffDrFIONS 0 DISOPROVED Zq 2,1 DIVPPROVED 1-1 �JPPROVED A3 REVISELOV1771 (It"I ? 12- backup p. 35 On this the -a day of 20-U before me, the undersigned Notary Public of the State of Florida, the foregoing instrument was acknowledge of (print name and title of corporate officer) En V3 c� RP-s'To (print name of corporation and state or place of incorporation) on behalf of the corporation. Witness my hand and official seal. j 4jraov 7 (t ` —Notary Public, Sta •lorida Print Name: Maria M_Menendez Please check one of the following: O Personally known to me ,,8froduccd Identification (TYPe Please check one of the following: O DID take an oath O DID NOT take an oath. CITY OF SOUTH MIAMI TTEST: CLE / ... I� W COW MM # EE 171679 EXPIRES: March 18, 2018 �'+a n� ae�+md nxy ttn�yd ttoyry s backup p. 36 From: Palmer1, Velma <palmer2007 @gm ail.com> Sent time: Wednesday, April 06, 2011 2:25:51 PM To: Mirabile, Hector <HMirabile @southmiamifl.gov> Subject: Re: Acting City Manager -Chief of Police OK. Sent from my Samsung Intercept - "Mirabile, Hector" wrote: >All, >I will be on city business outside of the county. In my absence Chief of Police Orlando Martinez de Castro is left in charge as acting city manager with limited rights and privilege. The explic it limitation is the signing of any contract binding the city. He does have authority to approve any and all personnel, financial, and /or other administrative functions for the efficient operatio n of the city. I will be returning on Thursday, April 7, 2011, at or about 7:00 pm. I will retu rn to the office on Friday, April 8, 2011. >Sincerely, >Hector Mirabile, Ph. D. >City Manager backup p. 37 From: Newman, Valerie <ValerieNewman09 @gmail.com> Sent time: Monday, July 04, 2011 11:30:56 AM To: Mirabile, Hector <HMirabile @southmiamifl.gov> Subject: Re: City Manager Vacation well deserved... have fun On Fri, Jul 1, 2011 at 2:14 PM, Mirabile, Hector <HMirabile(a)southmiamifl.gov> wrote: Honorable Mayor, Vice Mayor, and Commissioners, I will be taking vacation on July 5, 2011 and will return July 6, 2011. During my absence Chief Orlando Martinez De Castro will be the acting City Manager. He will have the authority to administrate the city and signature authority in all administrative requirements but will not have signature authority for contracts. Sincerely, Hector Mirabile, Ph. D. City Manager Valerie Newman (786) 351 -1648 backup p. 38 W18yOr Philip Stoddard <nO8y0[G1ndd8rd9 g mail. coDl> &48rCh 1' 2012 1:49 P&4 TD: HeCtOrMi[Rbi|8 Re: City Manager vacationing Going somewhere fun? Balm On Feb 29, 2012' at 6:18 PM, Hector W1i[8bi|8wrote: Hector Mirabile, PhD City Manager Dc Philip K. Stoddard Mayor OfSouth Miami 305-342-0161 mobile _______________________________ backup p. 39 dL 4a 4z �i k"� 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 naayne _.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 From: MartinezdeCastro, Orlando <OMartinezDeCastro @southmiamifl.gov> Sent time: Thursday, June 14, 2012 2:44:45 PM To: Riverol, Alfredo <ARiverol @southmiamifl.gov> Subject: Fw: BID PROTEST submitted by South Miami Grey Ghosts Soccer Club Fyi From: Pepe, Thomas F. Sent: Thursday, June 14, 2012 02:43 PM To: kulick, Steven P; Hector Mirabile; MartinezdeCastro, Orlando Subject: RE: BID PROTEST submitted by South Miami Grey Ghosts Soccer Club I would suggest the following response to the Grey Ghost bid protest: The City Commission, at the publicly noticed commission meeting, gave directions to the acting City Manager to obtain three quotes for the current soccer season ending on May 29, 2013. The only implication possible is that the commission was authorizing the administration to reject all bids as to the up coming soccer season. In any event, it is our City Attorney's opinion that the decision to put an item out for bid and the authority to reject all bids is an executive decision which is granted to the City Manager by Charter. Very truly yours, Thomas F Pepe City Attorney City of South Miami 1450 Madruga Avenue, Ste 202, Coral Gables, Florida 33146 Tel: (305) 667 -2561 Far: (305) 311 -0581 F- avail: lhere-ii'srtitlnrsicani6`.y<n TI'E ION: This e -mail contains 111211 II.1:GED 1ND CO.-IN IDENTIAL INFORMATION intended only for the use of the addressee named above. Ifyou are not the intended receives, You are hereby notified that any dissemination of this communication is strictly prohibited. If y u have received this e-mail in error, please- immediately notify Its by telephone, call collect II outside of voul area code ant) delete this a -rail. We {vill reimburse you for the cost of Your long, distance call. Thank you. From: Javier Rodriguez Uir @alvarezrodriguez.com] Sent: Thursday, June 14, 2012 2:23 PM To: kulick, Steven P; Hector Mirabile; Stoddard, Philip K.; Josh Liebman; Bob Welsh, Jr.; Harris, Walter; Newman, Valerie Cc: Pepe, Thomas F.; Riverol, Alfredo; Menendez, Maria M. Subject: RE: BID PROTEST submitted by South Miami Grey Ghosts Soccer Club Mr. Kclick, We believe there are sufficient legal grounds for our bid protest which stops the bidding process and does not allow the City to proceed further, namely with this new solicited bid for the "Best and final Offer ". Yesterday, you sent an email titled `Best and Final Oilers: Soccer Program at South Miami Park ". In the email it was stated in bold that "the City hereby rejects all bids submitted in response to the Management of Soccer Programs at South Miami Park RFP ". This was the first time that the City has indicated that all of the bids were being rejected. This was never communicated at the Commission I Tearing that took place on Tuesday, June '12, 2012. As such, it is a clear violation of the Sunshine Act. Pursuant to Florida's "*sunshine law "; all meetings of any state agency at which official acts may be taken must be conducted as open, public meetings. Absent that, any action taken during such meetings is improper The result is that the agency's action is void and can be given no effect. (See Florida Statute Section 2186.0111). Based on the foregoing, since the decision to reject all bids was never made at the Commission cetin�Ct is our position that the City cannot proceed further at this juncture. K p p' 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 of South Miami Regular City Commission Minutes June 12, 2012 A. SILENCE OR TURN OFF ALL CELL PHONES 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, CIVIC. D. MOMENT OF SILENCE E. PLEDGE OF ALLEGIANCE F. LOBBYIST(S) ADDRESSING THE CITY COMMISSION TONIGHT MUST HAVE BEEN REGISTERED WITH THE CITY CLERK G. PRESENTATIONS Detective Jose Lopez was presented the Officer of the Month award. H. APPROVAL OF MINUTES 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 CITY COMMISSION MINUTES 1 June 12, 2012 backup p. 43 City of South Miami Regular City Commission Minutes 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. A. SILENCE OR TURN OFF ALL CELL PHONES 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, 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, CIVIC. D. MOMENT OF SILENCE E. PLEDGE OF ALLEGIANCE F. LOBBYIST(S) ADDRESSING THE CITY COMMISSION TONIGHT MUST HAVE BEEN REGISTERED WITH THE CITY CLERK CITY COMMISSION MINUTES 1 July 24, 2012 backup p. 44 City of South Miami Regular City Commission Minutes July 31, 2012 A. SILENCE OR TURN OFF ALL CELL PHONES 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, 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. D. MOMENT OF SILENCE E. PLEDGE OF ALLEGIANCE F. LOBBYIST(S) ADDRESSING THE CITY COMMISSION TONIGHT MUST HAVE BEEN REGISTERED WITH THE CITY CLERK G. PRESENTATIONS H. APPROVAL OF MINUTES I. CITY MANAGER'S REPORT http:// www .southmiamifl.gov /clientul2loads /Archive /CSM CityManagerBriefings2012 /CM %20 Brief %20to %20Com m %20J my %2031 %202012. pdf J. CITY ATTORNEY'S REPORT There were no City Attorney reports at this meeting. CITY COMMISSION MINUTES 1 July 31, 2012 backup p. 45 From: Mirabile, Hector <HMirabile @southmiamifl.gov> Sent time: Sunday, February 27, 2011 12:09:00 PM To: Dept Heads <DeptHeads @southmiamifl.gov> Subject: Vacation- Acting City Manager I will be taking vacation on Friday, March 4, 2011. I will be out of town attending my daughters ballet competition recital in two 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 such as any and all personnel actions, agenda items, purchases, etc. Sincerely, Hector Mirabile, PhD City Manager backup p. 46 From: Mirabile, Hector <HMirabile @southmiamifl.gov> Sent time: Friday, July 01, 2011 2:11:50 PM To: Pepe, Thomas F. <TPepe @southmiamifl.gov> Cc: MartinezDeCastro, Orlando < OMartinezDeCastro @southmiamifl.gov> Subject: RE: SMH Legal Meeting I am off that day. Will be back on Wednesday. Try scheduling if you want the manager present. The Chief or his designee can be present and represent the position of management. Chief Martinez de Castro will be acting City Manager for that day. - - - -- Original Appointment---- - From: Pepe, Thomas F. Sent: Friday, July 01, 2011 12:55 PM To: Mirabile, Hector Subject: SMH Legal Meeting When: Tuesday, July 05, 20114:00 PM -5:00 PM (GMT- 05:00) Eastern Time (US & Canada). Where: City Hall BTR meeting with SMH legal team backup p. 47 From: Mirabile, Hector <HMirabile @southmiamifl.gov> Sent time: Monday, August 15, 2011 2:36:24 PM To: Stout -Tate, Maria <MStoutTate @southmiamifl.gov >; MartinezDeCastro, Orlando < OMartinezDeCastro @southmiamifl.gov> Cc: Riverol, Alfredo <ARiverol @southmiamifl.gov> Subject: RE: Hurricane Preparations Maria, the acting City Manager is Alfredo for this week and the Chief for next week. Please ensure that your emails going out to others is more accurate since I only have limited time to read these emails from work. Alfredo and Orlando, please send your representatives to conduct a meeting and negotiate appropriate results. From: Stout -Tate, Maria Sent: Monday, August 15, 2011 10:35 AM To: Mirabile, Hector; MartinezDeCastro, Orlando Cc: Riverol, Alfredo Subject: FW: Hurricane Preparations Importance: High Good morning gentlemen. Please see below in reference to assistance from Larkin Hospital in case of a strong Tropical Storm or Hurricane. Thank you. Maria Elena From: Stout -Tate, Maria Sent: Monday, August 15, 2011 10:32 AM To: 'Daisy Baez' Subject: RE: Hurricane Preparations Yes. I shall forward this to the City Manager and the Chief and a protocol will be developed. Thank you again for your support. Maria Elena From: Daisy Baez [ mailto :dbaez @larkinhospital.com] Sent: Monday, August 15, 20119:59 AM To: Stout -Tate, Maria Subject: RE: Hurricane Preparations Maria: This has been approved in general. There is no question that Larkin will do all possible to support the needs of the police department during such catastrophic circumstance. However, what we need to do is come up with some delineations as I cannot guarantee that I can support this operation in its entirety for an indefinite period of time. Perhaps you can address when you develop your protocol. From: Stout -Tate, Maria [ mailto :MStoutTate @southmiamifl.gov] Sent: Friday, August 12, 20115:08 PM To: Daisy Baez Subject: RE: Hurricane Preparations Thank you. Maria Elena From: Daisy Baez [mailto :dbaez @larkinhospital.com] Sent: Friday, August 12, 20114:15 PM To: Stout -Tate, Maria Subject: RE: Hurricane Preparations I'm submitting to our emergency preparedness team for consideration. I'll have an answer back to you next week. From: Stout -Tate, Maria [mailto :MStoutTate @southmiamifl.gov] Sent: Friday, August 12, 2011 12:40 PM To: Daisy Baez backup p. 48 From: Hector Mirabile <HMirabile@southmiamifl.gov> Subject: Manager's Vacation Schedule for FY 2012 Date: May 30, 2012 10:46:07 AM EDT To: Mayor & Comm < Mayor &Comm @southmiamif l.gov> Cc: "MartinezdeCastro, Orlando" < 0 Martinez DeCastro @southmiamif1.gov >, "Riverol, Alfredo" <ARiverol@southmiamifl.gov> Orlando and Alfredo, see if this vacation of mine impact any time you are going to be out as described below. Dear members of the Commission, I will be on vacation the following dates for this year: June 11 thru 14, 2012 (32 hours); June 25 thru 28, 2012 (32 hours); July 23 thru August 17, 2012 (160 hours). A total of 224 vacation hours will be used. As of the May 18, 2012 payroll I have a balance of 263.44 hours of vacation available. In my absence Chief Orlando Martinez De Castro will be the acting City Manager for June 11 thru 14; June 25 thru 28; and July 23 thru August 10, 2012. Mr. Alfredo Riverol will then be the acting City Manager from August 11 through 17, 2012. Sincerely, Hector Mirabile, Ph.D. City Manager City of South Miami 6130 Sunset Drive, FL 33143 -5093 305 - 668 -2510 hmirabile @southmiamifl.gov backup p. 49 From: Hector Mirabile <HMirabile @southmiamifl.gov> Sent time: Thursday, August 09, 2012 8:50:32 AM To: Payne, Nkenga <N Payne @southmiamifl.gov> Subject: RE: 119 Request reference Camilo Padreda by Attorney Michael Band Attachments: image001.png Niki, while I am on vacation the Chief is the acting City Manager. Please ensure that you also copy him so that he can action. Thank you. From: Payne, Nkenga Sent: Thursday, August 09, 2012 8:48 AM To: Hector Mirabile; idc Cc: Menendez, Maria M. Subject: FW: 119 Request reference Camilo Padreda by Attorney Michael Band Good Morning, The attached public records request has been paid for. Please forward to the Clerk's office when ready. Thanks, Nkenga `'Nikki" Payne, CMC Deputy City Clerk City of South Miami 6130 Sunset Drive South Miami, FL 33143 (305)663 -6340 office (305)663 -6348 fax 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. From: Menendez, Maria M. Sent: Wednesday, July 18, 2012 2:36 PM To: michael @bandlawfirm.com Cc: Hector Mirabile Subject: FW: 119 Request reference Camilo Padreda by Attorney Michael Band Dear Mr. Band, Below please find the information you requested regarding the cost of providing the public records you requested. Let me take this opportunity to assure you that yesterday was the first time that my office heard of your request as per the advice of our City Manager, Dr. Mirabile. Neither did we receive anything from you by US Mail, nor by email. I take pride of the fact that I have the habit of acknowledging all public records requests as soon as I receive them; not later, not the next day, but immediately. Then I forward them to the pertinent department(s) for action and continue to follow up on their status until they are done. If the quoted figure below is ok with you, you may proceed to pay by check or credit card. You may either mail the check to my attention, or if you prefer to pay by phone and credit card you may do so by calling the Finance Department at: 305 - 663 -6343. As soon as we receive payment your request will be processed. Sincerely, Ca p/,- 6,71 30 Swwtmt- backup p. 50 From: Brimo, Christopher <CBrimo @southmiamifl.gov> Sent time: Monday, August 22, 2011 8:18:33 AM To: Cabrera, Lourdes <LCabrera @southmiamifl.gov >; Lightfoot, Marcus <MLightfoot @southmiamifl.gov >; Fernandez, Lidia <LFern and ez @southmiamifl.gov> Subject: FW: City Manager Vacation Just a reminder that Chief Orlando Martinez De Castro is the acting City Manager until the 30th Chris Christopher Brimo, AICP Planning Director City of South Miami 305 - 663 -6327 cbrimo(a southmiamifl.gov www.southmiamifLgov From: Mirabile, Hector Sent: Thursday, August 11, 20115:17 PM To: Dept Heads Cc: Garcia, Maria; Dennis Deblois Subject: City Manager Vacation Dear Team, I will be on vacation from August 14 through the 30th (12 working days). In my absence I will be leaving the following personnel as acting city manager with the authority of the City Manager except signing contracts: August 14 -21, 2011: Alfredo Riverol, CPA August 22 -30, 2011: Chief Orlando Martinez De Castro' All HR matters should be referred to Latasha Nickles who will serve as my authorized representative in disciplinary matter including dispute resolution and pre - termination hearings. Sincerely, Hector Mirabile, Ph. D. City Manager No virus found in this message. Checked by AVG - www.avg.com Version: 10.0.1392 / Virus Database: 1520/3826 - Release Date: 08/10/11 backup p. 51 From: Korth, Jennifer <J Korth @southmiamifl.gov> Sent time: Tuesday, August 23, 2011 2:56:21 PM To: Goodson, Letitia S. (HCD) (786) 469 -2220 <LGOODS @miamidade.gov> Subject: FW: City Manager Vacation As per our conversation, here is the email where the City Manager authorizes the Chief to perform City Manager duties during the week of August 22 — 30, 2011. From: Mirabile, Hector Sent: Thursday, August 11, 20115:17 PM To: Dept Heads Cc: Garcia, Maria; Dennis Deblois Subject: City Manager Vacation Dear Team, I will be on vacation from August 14 through the 30th (12 working days). In my absence I will be leaving the following personnel as acting city manager with the authority of the City Manager except signing contracts: August 14 -21, 2011: Alfredo Riverol, CPA August 22 -30, 2011: Chief Orlando Martinez De Castro All HR matters should be referred to Latasha Nickles who will serve as my authorized representative in disciplinary matter including dispute resolution and pre - termination hearings. Sincerely, Hector Mirabile, Ph. D. City Manager backup p. 52 From: David, Stephen <S David @southmiamifl.gov> Sent time: Tuesday, August 23, 2011 4:01:42 PM To: sadavid @usa.net Subject: FW: No staff meeting tomorrow From: Garcia, Maria Sent: Tuesday, August 23, 20113:14 PM To: Baixauli, Ana; Baker, Carmen V.; Brimo, Christopher; Citarella, Victor; Korth, Jennifer; Landa, Rene; Menendez, Maria M.; Ng, Keith; Nickle, Latasha; Pepe, Thomas F.; Riverol, Alfredo; Stout -Tate, Maria; David, Stephen Cc: MartinezDeCastro, Orlando Subject: No staff meeting tomorrow Good afternoon to all, As per Chief Orlando Martinez de Castro (Acting City Manager) this week — there is NO staff meeting tomorrow. Should any changes occur with "Hurricane Irene ", the Chief and his staff will call a meeting, if that occurs, a notification will be sent out. Thank you, Maria backup p. 53 From: MartinezdeCastro, Orlando <OMartinezDeCastro @southmiamifl.gov> Sent time: Tuesday, June 05, 2012 11:12:12 AM To: Motta, Cathy <CMotta @southmiamifl.gov> Subject: Fw: payroll due Monday, June 11, 2012 Fyi From: Garcia, Maria Sent: Tuesday, June 05, 2012 11:11 AM To: Baker, Carmen V.; Brimo, Christopher; Ng, Keith; Kelly Barket; Riverol, Alfredo; MartinezdeCastro, Orlando; Woodley, Lorenzo; Citarella, Victor; Nickle, Latasha Subject: payroll due Monday, June 11, 2012 Good morning to all, I will be out of the office starting Thrusday, June 7, 2012 returning on Tuesday, June 12, 2012. If you could submit your respective payroll hours by tomorrow, it would help; I will prepare and leave payroll spreadsheet ready for signature for Acting Manager, Chief Orlando Martinez de Castro. If you are unable to do so, please make sure you submit your respective spreadsheet to Jackie Dye (front desk) on Monday, June 11, 2012. Thank you in advance for your cooperation. Maria backup p. 54 From: Garcia, Maria <MGarcia @southmiamifl.gov> Sent time: Friday, June 15, 2012 11:09:21 AM To: Dept Heads <DeptHeads @southmiamifl.gov >; Dennis Deblois <ddeblois @intldata.com> Hector Mirabile <HMirabile @southmiamifl.gov >; MartinezdeCastro, Orlando < OMartinezDeCastro @southmiamifl.gov >; Baixauli, Cc: Ana <ABaixauli @southmiamifl.gov >; Menendez, Maria M. <MMenendez @southmiamifl.gov >; Payne, Nkenga <NPayne @southmiamifl.gov> Subject: Commission Meeting Agenda Items due dates for July 24, 2012 meeting Good morning, This is a friendly reminder - next Commission Meeting is scheduled for July 24, 2012— as you are all aware, the Chief will be the Acting Manager and will conduct the meeting. In order to prepare the CM's Briefing on a timely manner, your cooperation is appreciated. Your respective reports will be due on July 19, 2012 (no later than NOON); therefore, please submit your respective accomplishments (encompassing June 12 till July 18, 2012). Please e-mail your report to me, copy the Chief and Maj. Baixauli ( I will assist the Chief in preparing the CM Briefing). The report will be included in the agenda packet which is delivered to the Commission. Additionally, the city clerk is also asking for your cooperation, if you have agenda item titles please submit to Maria Menendez ASAP ( the city clerk already has two agenda item titles for the July 24, 2012 ) this will ensure that she will have the title in the DRAFT Agenda. If you have any items that will require a public hearing, please remember that the titles need to be advertising 10 days prior (JULY 9, 2012) to commission meeting date (JULY 24, 2012). Be mindful that we have a holiday in July ( 4th of July ); having said that, by Monday, .July 2, 2012 all agenda items should be sent to the city attorney for his review and approval; once you have the attorney's approval, they must go to the CFO for his approval; and finally they come to the managers office for the CM's approval. Note: It is imperative that you commence the process ASAP, as agenda items may require corrections, along the circulation route. If you have any questions, you can call the city clerk's office or the CM's office. Thanking you in advance for your cooperation. Maria backup p. 55 From: Baixauli, Ana <ABaixauli @southmiamifl.gov> Sent time: Tuesday, July 10, 2012 4:14:06 PM To: Police Admin Staff <AdminStaff @southmiamifl.gov >; Baker, Carmen V. <CBaker @southmiamifl.gov >; Carlos Marenco <Cmarenco @lazparking.com >; Stout -Tate, Maria <MStoutTate @southmiamifl.gov >; Alvarez, Al <AAlvarez @southmiamifl.gov> Cc: Garcia, Maria <MGarcia @southmiamifl.gov> Subject: CM's Commission Briefing report due on July 19th Attachments: image001.jpg The next Commission meeting is scheduled for the 24 of July and the Chief will be the Acting City Manager. In order to prepare the CM's briefing to the Commission we need to get our Departments' reports to Maria Garcia by July 19th, no later than noon; that means you need to get it to me by July 18th no later than noon, so that I can compile it and format it. Start working on your reports now so that you only have to update it next week. The time period should be from June I Ith to July 18th. Good Luck and Thank you for your cooperation. Mcyeyl,° A vwv tBa Administrative Major, SMPD 6130 Sunset Drive South Miami, Florida 33143 abaixauli@southmiamifl.gov "Great vision without great people is irrelevant - YmCollins/Gaod to Great Office: 305 - 668 -2498 (Direct) Fax: 305 - 663 -2045 Tease notes Florida has o very broad public records lacy. Most written communications are public records and available to the public and media upon request. Your e -mail communications may therefore be subject to public disclosure. if you feel that you are not the intended recipient, then please delete this message. RMWONT611=0 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 ^ 41, 4 &G 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 Florida Attorney General Advisory Legal Opinion 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: '• . • • . • "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 6 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 otherwise, that a part -time holds a purposes of s. 5, Sincerely, Jim Smith Attorney General Prepared by: my opinion, until judicially determined sworn municipal police officer who serves a "office" and is an "officer" for Art. II, State Const. Anne Curtis Terry Assistant Attorney General •. • • •: 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 N 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 Florida Attorney General Advisory Legal Opinion 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: MUNICIPALITIES -DUAL OFFICE HOLDING - police 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 0: 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 sY< fr; Fy fi< Florida Attorney General Advisory Legal Opinion 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 manager's 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 manager's 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 0 Your letter indicates that the city manager is t administrative branch of city government and is control over all departments and divisions of th contracts, and carry out policies adopted by the temporary absences, the mayor, subject to the ci may designate a qualified administrative officer of the city manager. he appointed head of the empowered to exercise e city, execute city commission. During ty commission's approval, to carry out the duties 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 position's 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 manager's 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 Webster "s 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 Iaw. 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). 9. 9 M 1 • i HeinOnline -- 29 Stetson L. Rev. 307 1999 -2000 308 Stetson Law Review [Vol. XXIX statutory body having only advisory powers.' The prohibition applies to both elected and appointed offices' 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.' 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."' The 1861 and 1865 constitutions both contained simi- lar proscriptions, although the 1865 constitution added an incom- patibility prohibition.' 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.' While this language 2. FL n. CONST. art. II, § 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. 80 -97 (1980); Op. Att'y Gen. Fla. 69 -2 (1969). 4. See FLA. CoNsr. art. II, § 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 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: backup p. 82 HeinOnhiie -- 29 Stetson L. Rev. 308 1999 -2000 19991 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,10 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. Willdns 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. backup p. 83 HeinOnline -- 29 Stetson L. Rev. 309 1999 -2000 310 Stetson Law Review [Vol. )= In State ex rel. Holloway v. Sheats,12 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." 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); Dads 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 porma- 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 (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 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 "). backup p. 84 HeinOnline -- 29 Stetson L. Rev. 310 1999 -2000 19991 Dual Office Holding .Prohibition 311 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;` member of the Flor- ida Barbers' Sanitary Commission;` chief of a municipal fire de- partment, member of an architectural review board, and city in- spection superintendent;19 code enforcement board member;26 board of adjustment member." city administrator." member of a east Interstate Compact;` city board of adjustment and appeals;' city water resources advisory board-,'6 board of commissioners of a community redevelopment agency -" 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;" city clerk in charge of all elections within a city;30 pension fund board member;` and membership on the State Board of Community Colleges as 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. My Gen. Fla. 69 -2 (1969). 17. See Op. My Gen. Fla. 70 -13 (1970). 18. See Op. My Gen. Fla. 72 -101 (1972). 19. See Op. Atey Gen. Fla. 80 -97 (1980). 20. See Op. Att'y Gen. Fla. 97 -37 (1997); Op. Atey Gen. Fla. 81 -61 (1981). 21. See Op. Att'y Gen. Fla. 85 -21 (1985); Op. Atey Gen. Fla. 84-25 (1984). 22. See Op. Att'y Gen. Fla. 86 -11 (1986). 23. See Op. Att'y Gen. Fla. 86 -105 (1986). 24. See Op. Atey Gen. Fla. 93 -27 (1993). 25. See Op. Atey Gen. Fla. 85 -21 (1985); Op. Att'y Gen. Fla. 84-25 (1984). 26. See Op. Atey Gen. Fla. 98 -36 (1998). 27. See Op. Att'y Gen. Fla. 98 -36 (1998); Op. Att'y Gen. Fla. 97 -04 (1997). 28. See Op. Atey Gen. Fla. 96 -95 (1996). 29. See Op. Atey Gen. Fla. 96 -91 (1996). 30. See Op. Atey Gen. Fla. 96-48 (1996). 31. See Op. Att'y Gen. FIa. 90 -45 (1990). 32. See Op. Atey Gen. Fla. 91 -79 (1991). HeinOnline -- 29 Stetson L. Rev. 311 1999 -2000 312 Stetson Law Review [Vol. XXXX 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 3' 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 31 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;" deputy tax assessor -," 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;" Charter Review Commission attorney;45 charter school board member;" assistant city attor- ney;" public works inspector;48 member of a board of highway secondary funds trustees -" official court reporter;'° 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 "). 34. See Op. Atey Gen. Fla. 88 -56 (1988). 35. See id. 36. See Op. Att'y Gen. Fla. 69 -05 (1969). 37. See Op. Atey Gen. Fla. 71 -296 (1971); Op. Att'y Gen. Fla. 71 -263 (1971). 38. See Op. Atey Gen. Fla. 73 -332 (1973). 39. See Op. Atey Gen. Fla. 74-73 (1974). 40. See Op. Atey Gen. Fla. 77 -31 (1977). 41. See Op. Atey Gen. Fla. 86 -105 (1986); Op. Att'y Gen. Fla. 80 -97 (1980). 42. See Op. Att'y Gen. Fla. 91 -13 (1991); Op. AtVy Gen. Fla. 84 -93 (1984). 43. See Op. Atey 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. Atey Gen. Fla. 94-40 (1994). 45. See Op. Atey Gen. Fla. 94-88 (1994). 46. See Op. Atey Gen. Fla. 98-48 (1998). 47. See Op. Atey Gen. Fla. 96 -24 (1996). 48. See Lewis v. Evans, 406 So. 2d 489, 491 n.1 (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 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). backup p. 86 HeinOnline -- 29 Stetson L. Rev. 312 1999 -2000 19991 Dual Office Holding Prohibition 313 sor of nurses at public hospital.61 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)." 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. Atey Gen. Fla. 89 -10 (1989); Op. AtVy Gen. Fla. 86 -11 (1986); Op. AtVy Gen. Fla. 77 -89 (1977); Op. Atey Gen. Fla. 76 -92 (1976); Op. Atey Gen. Fla. 72 -348 (1972); Op. Atey Gen. Fla. 71 -167 (1971); Op. Atey Gen. Fla. 69 -2 (1969); Op. Atey 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 MudsIey 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. Atey Gen. Fla. 77 -63 (1977); see also Op. Atey Gen. Fla. 86 -105 (1986) backup p. 87 HeinOnline -- 29 Stetson 1,. Rev. 313 1999 -2000 314 Stetson Law Review [Vol. X M 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. State66 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 offces.57 The following year, the Second District Court of Ap- peal in Rampil v. State68 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 60 Similarly, Rampil concerned the perfor- mance of additional law enforcement functions.81 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." 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. Atey 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. Atey Gen. Fla. 90 -15 (1990); Op. Att'y Gen. Ms. 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. Atey Gen. Fla. 98 -31 (1998). backup p. 88 HeinOnline -- 29 Stetson L. Rev. 314 1999 -2000 19991 Dual Office Holding Prohibition 315 "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." 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." 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" 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." In a 1994 advisory 64. Id. 65. Id. 66. See Op. Atey Gen. Fla. 89 -62 (1989). 67. See id. 68. For examples where the Attorney General's Office has stated that there was no violation of the dual office holding prohibition when the state, county, or municipal officer also served as an officer of a special district, see Op. Atey Gen. Fla. 96 -84 (1996) (answering that a person may serve as city commissioner and executive director of area housing authority); Op. Atey Gen. Fla. 94-83 (1994) (stating that a person may serve on airport authority and on school board); Op. Atey 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. Atey 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 e • W0,001 HeinOiihne -- 29 Stetson L. Rev. 315 1999 -2000 316 Stetson Law Review [Vol. XXIX 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,88 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 R, 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,71 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.'2 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. Atey Gen. Fla. 75 -153 (1975) (stating that a legislator may serve as a member of a community college district board of trustees); Op. AtVy 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. backup p. 90 HeinOnline -- 29 Stetson L. Rev. 316 1999 -2000 19991 Dual Office Holding Prohibition 317 municipal office.76 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." 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.78 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 80 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 81 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. FIa. 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. Att'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. O. • • o HeinOnlme -- 29 Stetson L. Rev. 317 1999 -2000 318 Stetson Law Review [Vol. XXIX 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. "" 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 82. See Op. Atey Gen. Fla. 94-83 (1994). 83. See Frei. 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. 88. See Op. Atey Gen. Fla. 76 -241 (1976). backup p. 92 Heinonline -- 29 Stetson L. Rev. 318 1999 -2000 19991 Dual Office Holding Prohibition 319 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.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." 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. 91. See Op. Atey Gen. Fla. 91 -79 (1991). 92. See id. 93. See Op. Atey Gen. Fla. 90 -33 (1990); Op. Atey Gen. Fla. 89 -25 (1989). 94. Op. Att'y Gen. Fla. 89 -25 (1989). 95. See Op. Att'y Gen. Fla. 98 -36 (1998) (determining that membership on a city water resources advisory board which, despite its name, exercised substantive powers, constituted an "office"). 96. Op. Atey Gen. Fla. 71-43 (1971). •. M SUPT 0 M HeinOnline -- 29 Stetson L. Rev. 319 1999 -2000 320 Stetson Law Review [Vol. XXIX examples of positions within the scope of the exception include an ad hoc charter revision commission appointed by a local govern- ment to study and recommend changes in a charter -" a municipal zoning board having only advisory powers;98 an advisory county planning commission;99 the Florida Advisory Council on Intergov- ernmental Relations;100 the board of trustees of a county public health trust;101 a local planning agency whose function is informa- tion gathering and advising local government. "' An additional constitutional exception to article II, section 5(a) has been recognized. Under article N, 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).roa 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 fimc- 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. AtVy Gen. Fla. 72 -179 (1972) (pertaining to a municipal charter). 98. See Op. AtVy Gen. Fla. 73 -288 (1973). 99. See Op. Atey Gen. Fla. 74 -232 (1974). 100. See Op. Atey Gen. Fla. 77 -74 (1977). 101. See Op: Atey Gen. Fla. 78 -36 (1978). 102. See Op. Atey Gen. Fla. 86 -105 (1986). 103. See FLA. CONST. art. IV, § 6 (providing in part that the administration of each department in the executive branch of state government, unless 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"). 104. See Op. Atey Gen. Fla. 75 -115 (1975). 105. See id. 106. See, e.g., Bath Club, 394 So. 2d at 112; Op. Atey 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. Atey 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 financelpersonnel director may be backup p. 94 HemOnline -- 29 Stetson L. Rev. 320 1999 -2000 19991 Dual Office Holding Prohibition 321 As noted above,107 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."' The newly assigned duties are viewed as an addi- tion to the existing duties of the officer."' 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.11' 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. Atey Gen. Fla. 80 -97 (1980); see Op. AtVy 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. Atey 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. Atey 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). 112. See Op. Atey Gen. Fla. 93-42 (1993). 113. See Op. Atey Gen. Fla. 94-66 (1994). backup p. 95 HeinOnline -- 29 Stetson L. Rev. 321 1999 -2000 322 ,Stetson Law Review [Vol. XXIX 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,"' 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."' 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.11' 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.12' The legislation in question made the 114. See Op. Atey Gen. Fla. 98 -16 (1998). 115. See id. 116. 502 So. 2d 1335 (Fla. 4th Dist. Ct. App. 1987). 117. See id. at 1336. 118. 528 So. 2d 468 (Fla. 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 H, section 5(a)). But cf. Op. Atey 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. Atey 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). HeinOnline -- 29 Stetson L. Rev. 322 1999 -2000 19991 Dual Office Holding Prohibition 323 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." However, the act also permitted the Governor to appoint two state officials or employees to the board." 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."' 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.l "' 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 II, 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 backup p. 97 HeinOnline -- 29 Stetson L. Rev. 323 1999 -2000 324 Stetson Law Review [Vol. XXIX 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,"' 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 Assn 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). 7ORMPOTOIC611,01 1leinOnline -- 29 Stetson L. Rev. 324 1999 -2000 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: Page 1 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 [HN I] Under the provisions of Fla. Stat. § 86.01](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 backup p. 99 Page 2 238 So. 2d 401, *; 1970 Fla. LEXIS 2597, ** [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 impolitic 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. Governments > State & Territorial Governments > Elections Governments > State & Territorial Governments > Employees & Officials [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 Governments > State & Territorial Governments > Employees & Officials [HN6] The right to seek public office is not a constitutional absolute, but such privilege is subject to reasonable restraint and conditions. Governments > State & Territorial Governments > Elections Governments > State & Territorial Governments > Employees & Officials [HN7] The acceptance of an incompatible office by one already holding office operates as a resignation of the first. Governments > State & Territorial Governments > Elections Governments > State & Territorial Governments > Employees & Officials [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. Governments > State & Territorial Governments > Elections Governments > State & Territorial Governments > Employees & Officials [HN9] The privilege of seeking public office is subject to reasonable restraint and conditions. Governments > State & Territorial Governments > Employees & Offtcials [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 backup p. 100 Page 3 238 So. 2d 401, *; 1970 Fla. LEXIS 2597, ** to determine public interest and measures for its protection. Governments > State & Territorial Governments > Elections Governments > State & Territorial Governments > Employees & Officials [HN 13] 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 [x403] 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, F1a.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, [ * *21 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 tern 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 tern 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 1* *31 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 1 *4041 an irrevocable resignation from his office of Circuit Judge ten (10) days before backup p. 101 Page 4 238 So. 2d 401, *404; 1970 Fla. LEXIS 2597, * *4 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 [ * *51 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 (F1a.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, [ *x61 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 ofthem, clearly violate some express or implied inhibition of the Constitution. Fourth, every reasonable [ * *71 doubt must be indulged in favor of the act. ]fit can be rationally interpreted to harmonize with the Constitution, it is the duty of the Court to adopt that construction and sustain the act. 1 *4051 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 (F1a.1928). See also Williams v. City of Jacksonville, 118 Fla. 671, 160 So. 15 (1935). backup p. 102 Page 5 238 So. 2d 401, *405; 1970 Fla. LEXIS 2597, * *7 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 (F1a.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 [* *101 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 1 *4061 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 (F1a.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 1* *111 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,oublic office must necessarily be subject to all reasonable rules and regulations promulgated by the government in the interest of the public and for the well -being of the public services." (p. 717) backup p. 103 Page 6 238 So. 2d 401, *406; 1970 Fla. LEXIS 2597, * *11 "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. § I I 8 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 [ **121 the employees against political retaliation and providingjob 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. 1*4071 [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 [* *141 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 I* *151 later than the date upon which he would assume office, if elected to the office to which he seeks to qualify, or the expiration date of the term of the office which he presently holds, or the general election day at which his successor is elected, whichever occurs earlier. With regard to elective offices the resignation creates a vacancy in the office thereby permitting persons to qualify as candidates for nomination and election in the backup p. 104 Page 7 238 So. 2d 401, '407; 1970 Fla. LEXIS 2597, *x15 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 [**161 occasioned by elected or appointed officials who, while holding one office, seek and obtain another elective office." [HNI l] 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 [x4081 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 [* *171 collateral to those under consideration and intervention should not be allowed. See Dickinson v. Segal, 219 So.2d 435 (Fla.] 969). 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. 1* *181 The judgment of the Circuit Court is Affirmed. DREW, CARLTON and BOYD, JJ., and MASON, Circuit Judge, concur. THORNAL, J., concurs with opinion. ERVIN, C.J., dissents with opinion. CONCUR BY: THORNAL backup p. 105 238 So. 2d 401, *408; 1970 Fla. LEXIS 2597, * *18 CONCUR THORNAL, Justice (concurring). Page 8 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 (F1a.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 [*x191 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 I(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 1*4091 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 I4, Article V of the State Constitution provides that judicial vacancies shall be filled by appointment or election for the unexpired [* *201 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 1* *211 or who has been adjudged mentally incompetent, Judge Holley must remove his disability of holding office as a Circuit Judge before he will even be able to seek election as a Justice of the Supreme Court. In this respect, the fact that Judge Holley has the power and ability to alter eo instante his present status by resigning his state office so as to conform to the condition imposed by the statute cannot operate to preserve as constitutional the qualifications impact of Chapter 70 -80. The same could be said of a bank officer or minister of the gospel under the bygone provisions above cited; yet, curiously, such provisions were not creations of legislative wisdom but were set forth in the Constitution itself. backup p. 106 Page 9 238 So. 2d 401, *409; 1970 Fla. LEXIS 2597, * *21 In Thomas v. State, Fla.] 952, 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 [* *221 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 [ *x23] the electorate of the state or county the candidacies of those who are unwilling to shed their current offices in order to become candidates. [ *4101 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 [* *241 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 [* *251 eligible by satisfying the condition precedent prescribed in Ch. 70 -80. But even if the statute only related to the right to continue to hold a current office, there are serious questions as to its validity. One cannot be legislated out of a constitutional office, for an unconstitutional reason although certain officers may be suspended for cause or impeached in other situations. But the right to continue to hold office under the Constitution cannot be made subject to coercive legislative forfeit merely because one seeks another office. There are certain quasi- property rights to hold a public office that are protected by the Constitution (see State, ex rel. Hatton v. Joughin, 103 Fla. 877, 138 So. 392) from legislative forfeit or reduction during the elective term and particularly is this true of the office of a circuit judge. See Sections 16 and 24, Article V, State Constitution. backup p. 107 Page 10 238 So. 2d 401, *410; 1970 Fla. LEXIS 2597, * *25 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 apolitical candidate in order [* *261 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 atthe 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 [* *271 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 [* *291 and of differing philosophies. The discriminatory nature of the statute generates cause to suspect that it is class legislation contrary to express constitutional office - holding qualification provisions adopted by the people which as presently written do not indicate they frown on officeholders' candidacies for other offices than those they hold. Regardless of the wisdom of the reasons which prompted the instant statute, the test of its constitutional survival does not lie in the wisdom of its remedial intendment but, rather, rests exclusively in the constitutional power of the Legislature to affect the premises in the manner implemented by this statute. Suppose the Legislature enacted a statute reading: "No individual may qualify as a candidate for public office who is either a physician, banker, lawyer, bingo game or race track operator, or insurance agent, without first surrendering his right and entitlement to pursue and practice said profession or means of livelihood." Of course, this is only a hypothetical enactment and the Legislature no doubt will never find an evil, or cause or alarm sufficient to justify such a backup p. 108 Page 11 238 So. 2d 401, *411; 1970 Fla. LEXIS 2597, **29 statute. However, I 1x4121 am judicially concerned, [* *301 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 [* *321 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 [* *331 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 1 *4131 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 [* *341 an excessive vesting of power in the Legislature to prescribe added qualifications or disqualifications on a citizen's right to seek and hold public office, and the right of the people to backup p. 109 Page 12 238 So. 2d 401, *413; 1970 Fla. LEXIS 2597, * *34 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 [* *351 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 I 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 [* *361 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, 1*4141 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. Semler, 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 x * K shall be eligible for nomination or election K x ".' Subsection C provided that upon resignation from the office the person shall not be prohibited'from qualifying as a candidate for another office.' We turd this language to be a clear and unambiguous affirmation of qualification requirements for candidates to public office. To quality 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 lie aspires to the constitutionally created position. Buckingham v. State, backup p. 110 Page 13 238 So. 2d 401, *414; 1970 Fla. LEXIS 2597, **36 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. backup p. 111