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resolution RESOLUTION NO. __________ 1 2 A Resolution of the City of South Miami confirming the City 3 Commission’s prior interpretation of the City Charter, the 4 City Commission’s prior approval of all appointments of 5 Orlando Martinez de Castro to the office of Acting City 6 Manager and approving the termination of his 5-year 7 employment agreement with the City under the terms of 8 Florida Constitution Article II, Section 5(a). 9 10 WHEREAS, on October 8, 2010, the Mayor and City Commission voted to 11 authorize execution of a 5-year employment agreement (hereafter the “employment 12 agreement”) with Orlando Martinez de Castro to serve as Chief of Police [backup pp. 1-13 15]; and 14 15 WHEREAS, Article III, Section 4A of the City charter provides that “[t]he 16 Manager may recommend, by letter filed with the City Clerk, subject to the approval of 17 the Commission, a qualified City administrative officer to exercise the powers and 18 perform the duties of the Manager during any temporary absence or disability. Such acting 19 City Manager shall not serve for a period longer than 90 days. During such absence or 20 disability, the Commission may decline such recommendation at any time and appoint 21 another officer of the City to serve until the Manager shall return or his disability shall 22 cease.” 23 24 WHEREAS, the South Miami City Manager notified the Mayor and City 25 Commission, as per City Charter Article III, Section 4A [backup p. 16], that Police Chief 26 Martinez de Castro was appointed to serve as Acting City Manager on twelve (12) 27 occasions for a total of forty-five (45) days. 28 29 WHEREAS, the City Manager, Dr. Mirabile, on one occasion defined the Acting 30 City Manager’s authority thus: “He will have the authority to administrate the city and 31 signature authority in all administrative requirements but will not have signature authority 32 for contracts.” On another occasion Dr. Mirabile designated Orlando Martinez De Castro 33 “…as acting City Manager and designate him with limited signature authority, he will not 34 have signature authority to bind the City in the area of contracts or agreements. He does 35 have signature authority in the areas of routine City business and expenditures such as any 36 and all personnel actions, agenda items, purchases, etc.” On another occasion the City 37 Manager designated Mr. Martinez de Castro as acting City Manager without any 38 restriction on his authority to act for and bind the City [backup pp. 17-25]; and 39 40 WHEREAS, when a City Manager names an acting City Manager to cover the 41 City Manager’s duties during his absence, the City’s practice, under multiple city 42 attorneys and differing city commissions, is for the City Commission to do nothing to 43 formally approve the appointment/designation other than to accept the action of the City 44 Manager and the designated acting City Manager without the need for a resolution by the 45 Commission since a disapproval would necessarily require a resolution declining the 46 recommendation and naming another individual to the office of City Manager as required 47 under Charter Article III, Section 4A; and 48 Page 2 of 5 1 2 WHEREAS, in numerous decisions, Florida’s courts have ruled that concerning 3 questions of policy and procedure, the local agency’s views and administrative 4 interpretations are entitled to great deference; e.g., Rice v. Dept. of Health and Rehab. 5 Services, 386 So.2d 844, 850 (Fla. 1st DCA 1980); School Bd. of Leon County v. Hargis, 6 400 So.2d 103 (Fla. App. Dist. 1, 06/16/1981); Dept. of Environmental Regulation v. 7 Goldring, 477 So.2d 532, 10 Fla. L. Weekly 429 (Fla. 1985); State of Fla. Dept. of 8 Environmental Regulation v. C.P. Developers, Inc., 512 So.2d 258, 12 Fla. L. Weekly 9 2052 (Fla. App. Dist.1 08/24/1987); and 10 11 WHEREAS, Police Chief Martinez de Castro accepted such assignments to the 12 position of Acting City Manager [backup p. 26]; and 13 14 WHEREAS, during his assignments as Acting City Manager Mr. Martinez de 15 Castro sent email he signed as “Acting City Manager” or in which he referred to himself 16 as the “Acting City Manager” or “Acting CM”, and/or in which he communicated about 17 matters of City business outside the areas of Police, Code Enforcement, and Parking 18 [backup pp. 27-31]; and 19 20 WHEREAS, during his assignments as Acting City Manager Mr. Martinez de 21 Castro issued three city manager’s reports (11-Jun-2012, 19-Jul-2012, 26-Jul-2012), 22 listing himself on each as the “Acting City Manager” [backup pp. 32-34]; and 23 24 WHEREAS, during his assignments as Acting City Manager, Mr. Martinez de 25 Castro attended four city commission meetings (6-Mar-2012, 12-Jun-2012, 24-Jul-2012, 26 31-Jul-2012) in the capacity and chair of the city manager [backup pp. 42-45]; and 27 28 WHEREAS, during his assignments as Acting City Manager, Mr. Martinez de 29 Castro signed official city documents in the space designated for the city manager’s 30 signature [backup pp. 35-36]; and 31 32 WHEREAS, in every instance in which Mr. Martinez de Castro was appointed or 33 designated as the Acting City Manager the Mayor and City Commission approved of the 34 recommendation by accepting the City Manager’s appointments of Chief Martinez de 35 Castro and treating him as the City Manager [backup pp. 37-40]; and 36 37 WHEREAS, the Mayor and City Commission addressed Mr. Martinez de Castro 38 as “Mr. Acting City Manager” at city commission meetings in which he served in the role 39 of city manager, and directed him to carry out actions such as obtaining bids on behalf of 40 the City [backup p. 41]; and 41 42 WHEREAS, the Mayor and City Commission voted unanimously to approve the 43 official minutes of four city commission meetings (6-Mar-2012, 12-Jun-2012, 24-July-44 2012, 31-Jul-2012) in which Mr. Martinez de Castro was listed as “Acting City Manager” 45 [backup pp. 42-45]; and 46 47 Page 3 of 5 WHEREAS, City Manager Hector Mirabile sent email directing staff that Orlando 1 Martinez de Castro was to be the “Acting City Manager”, defining the Acting City 2 Manager’s authority thus: “He does have signature authority in the areas of routine City 3 business and expenditures such as any and all personnel actions, agenda items, purchases, 4 etc.” which included the right to hire, fire and discipline City employees [backup pp. 46-5 50]; and 6 7 WHEREAS, City staff treated Mr. Martinez de Castro as the Acting City Manager 8 during these appointments, referring to him as the “Acting City Manager” in email 9 [backup pp. 51-56]; and 10 11 WHEREAS, The Florida Constitution Article II, Section 5(a) states: “No person 12 shall hold at the same time more than one office under the government of the state and the 13 counties and municipalities therein” [backup p. 57]; and 14 15 WHEREAS, Florida’s courts and Attorneys General have determined that police 16 chiefs and city managers specifically (but not directors of other city departments) are 17 vested with and exercise a portion of the governmental or sovereign power of the City and 18 are “municipal officers”, and thus both positions are deemed as incompatible under the 19 constitutional ban on dual office-holding, e.g., AGOs 80-97, 84-25, 86-11, 2006-27, 2013-20 08, Butterworth & Wilson (1999) [backup pp. 58-99] (also AGOs 57-165, 69-2, 76-92, 21 77-89); and 22 23 WHEREAS, Florida’s Attorney General stated in AGO 2013-08 that appointment 24 of a police chief to the office of Acting City Manager for any duration, even temporary, 25 violates the dual office-holding prohibition in Section 5(a), Article II of the Florida 26 Constitution [backup pp. 77-80]; and 27 28 WHEREAS, the Supreme Court of Florida set forth the general rule: “The 29 acceptance of an incompatible office by one already holding office operates as a 30 resignation of the first”, Holley v. Adams, 238 So. 2d 401, 407 (Fla. 1970) [backup pp. 31 99-111]; and 32 33 WHEREAS, Florida’s Attorney General stated in AGO 2006-27 that because 34 Florida Constitution Article II, Section 5(a) prohibits a police chief from simultaneously 35 serving as the city manager, when a police chief is appointed acting city manager he 36 resigns as police chief [backup pp. 73-76]; and 37 38 WHEREAS, Florida’s Attorney General further stated in AGO 2006-27: 39 “Generally, the acceptance of a second office has been considered to be a vacancy in the 40 first office. Thus, the acceptance of the position as acting city manager created a vacancy 41 in the office of police chief, not a leave of absence” [backup pp. 73-76]; and 42 43 WHEREAS, by accepting the position of Acting City Manager and functioning in 44 that capacity, Mr. Martinez de Castro resigned from his position as Chief of Police, 45 leaving the chief position vacant, as per Florida Constitution Article II, Section 5(a) as 46 interpreted in AGO 2006-27; and 47 48 Page 4 of 5 WHEREAS, the employment agreement includes “resignation” as a basis for 1 termination of the agreement [backup p. 10]; and 2 3 WHEREAS, the City Commission never authorized a new multi-year employment 4 agreement with Mr. Martinez de Castro when he ceased to serve as Acting City Manager; 5 and 6 7 WHEREAS, Mr. Martinez de Castro has been the de facto police chief and an at 8 will employee of the City since his first appointment to the office of Acting City Manager 9 and his resulting resignation as police chief for the City at that time. 10 11 12 NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND CITY 13 COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA, THAT: 14 15 Section 1. The above recitals are statements of fact held to be true and are 16 incorporated into the body of this resolution. 17 18 Section 2. The City Commission hereby ratifies and approves of the 19 interpretation given to the City Charter by the current City Commission and the 20 interpretation given by all prior City Commissions concerning the procedure for the 21 appointments of Acting City Managers in the past, as explained in the recitals to this 22 resolution, and acknowledges the current City Commission’s past approval and acceptance 23 of the prior City Manager’s recommendation and appointment/designation of Mr. 24 Martinez de Castro as the Acting City Manager for the City of South Miami in all of those 25 instances referred to in the recitals to this resolution. 26 27 Section 3. The Commission affirms that, under the terms of Florida 28 Constitution Article II, Section 5(a), Orlando Martinez de Castro terminated his 5-year 29 employment agreement with the City by resigning, by operation of law, from his position 30 as Chief of Police to serve as Acting City Manager. Mr. Martinez de Castro is hereby 31 declared to be an at will employee of the City of South Miami. 32 33 Section 4. If any section clause, sentence, or phrase of this resolution is for 34 any reason held invalid or unconstitutional by a court of competent jurisdiction, the 35 holding shall not affect the validity of the remaining portions of this resolution. 36 37 Section 5. Effective Date. This resolution shall become effective immediately 38 upon adoption by vote of the City Commission. 39 40 PASSED AND ADOPTED this ____ day of _____________, 2013. 41 42 43 ATTEST: APPROVED: 44 45 46 _____________________ ______________________ 47 CITY CLERK MAYOR 48 Page 5 of 5 1 READ AND APPROVED AS TO FORM, COMMISSION VOTE: 2 LANGUAGE, LEGALITY AND Mayor Stoddard: 3 EXECUTION THEREOF Vice Mayor Liebman: 4 Commissioner Newman: 5 _____________________________ Commissioner Harris: 6 CITY ATTORNEY Commissioner Welsh: 7 RESOLUTION NO. _____ _ A Resolution of the Mayor and City Commission of the City of South Miami, Florida, relating to the position of Chief of Police; and relating to Contracts; authorizing the execution of a contract between the City of South Miami and Orlando Martinez de Castro; providing an effective date. WHEREAS, pursuant to Article III, Section 5 of the City of South Miami Charter the City Manager is vested with the power to appoint a Chief of Police; and, WHEREAS, the City Manager has exercised that power and appointed Orlando Martinez de Castro as Chief of Police subject to the entering into a contract of employment: and WHEREAS, the Mayor and City Commission authorized the City Attorney to enter into negotiations with Orlando Martinez de Castro, as the proposed Chief of Police to prepare a draft employment agreement; and, WHEREAS, the City of South Miami wish to employ the services of Orlando Martinez de Castro as Chief of Police of the City of South Miami by executing the attached contract. NOW THEREFORE BE IT RESOLVED BY THE MAYOR AND CITY COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA: THAT Section 1. this resolution. The above whereas clauses are incorporated by reference into the body of Section 2. The terms of the contract between the City of South Miami and Orlando Martinez de Castro shall be as provided for in the attached exhibit A and incorporated into this resolution as fully set forth herein, and which agreement shall be executed by the City Manager on behalf of the City. Section 3. The Chief of Police will meet individually with the City Manager on an annual basis to discuss his performance. Section 4. This resolution shall take effect immediately upon approval. PASSED AND ADOPTED this __ day of. ___ , 2010. ATTEST: APPROVED: CITY CLERK MAYOR Page 1 of2 backup p. 1 RESOLUTION NO. _____ _ A Resolution of the Mayor and City Commission of the City of South Miami, Florida, relating to the position of Chief of Police; and relating to Contracts; authorizing the execution of a contract between the City of South Miami and Orlando Martinez de Castro; providing an effective date. WHEREAS, pursuant to Article III, Section 5 of the City of South Miami Charter the City Manager is vested with the power to appoint a Chief of Police; and, WHEREAS, the City Manager has exercised that power and appointed Orlando Martinez de Castro as Chief of Police subject to the entering into a contract of employment: and WHEREAS, the Mayor and City Commission authorized the City Attorney to enter into negotiations with Orlando Martinez de Castro, as the proposed Chief of Police to prepare a draft employment agreement; and, WHEREAS, the City of South Miami wish to employ the services of Orlando Martinez de Castro as Chief of Police of the City of South Miami by executing the attached contract. NOW THEREFORE BE IT RESOLVED BY THE MAYOR AND CITY COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA: THAT Section 1. this resolution. The above whereas clauses are incorporated by reference into the body of Section 2. The terms of the contract between the City of South Miami and Orlando Martinez de Castro shall be as provided for in the attached exhibit A and incorporated into this resolution as fully set forth herein, and which agreement shall be executed by the City Manager on behalf of the City. Section 3. The Chief of Police will meet individually with the City Manager on an annual basis to discuss his performance. Section 4. This resolution shall take effect immediately upon approval. PASSED AND ADOPTED this __ day of~ __ , 2010. ATTEST: APPROVED: CITY CLERK MAYOR Page 1 of2 READ AND APPROVED AS TO FORM AND SUFICIENCY: CITY ATTORNEY Page 2 of2 COMMISSION VOTE: Mayor Stoddard: Vice Mayor Newman: Commissioner Beasley Commissioner Palmer: Commissioner Harris: backup p. 2 READ AND APPROVED AS TO FORM AND SUFICIENCY: CITY ATTORNEY Page 2 of2 COMMISSION VOTE: Mayor Stoddard: Vice Mayor Newman: Commissioner Beasley Commissioner Palmer: Commissioner Harris: {009931.0001/M1889250_7} EMPLOYMENT AGREEMENT Employment Agreement (“Agreement”) dated as of the 8th day of October, 2010, between the City of South Miami, a municipal corporation (“City”) and Orlando G. Martinez de Castro (“Employee”), collectively referred to as the Parties (“Parties”). BACKGROUND WHEREAS, the City is desirous of hiring a Chief of Police; and WHEREAS, the Employee is experienced and qualified to assume the duties of the police chief for the City; and WHEREAS, the City wishes to retain the services of the Employee as the Chief of Police, subject to terms and conditions of this Agreement. AGREEMENT NOW, THEREFORE, FOR Ten Dollars, the mutual covenants and conditions of this Agreement, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: 1. Employment. 1.1 City agrees to employ Employee as Police Chief to perform the duties and exercise powers as provided by State law, the City Charter and to perform such other legally permissible and proper duties and functions consistent with the Employee’s position as Chief of Police as may be assigned by the City Manager from time to time. 1.2 Employee shall report to the City Manager. Employee hereby accepts such employment. During the Term of Employee’s employment by City, Employee shall (a) devote substantially all of his full business time, abilities and attention exclusively to the diligent performance of his duties with City in a professional manner and in accordance with applicable law and (b) not engage in any other business activity, whether or not such activity is backup p. 3 {009931.0001/M1889250_7} 2 pursued for profit or advantage; provided, however, that Employee may engage in personal and/or passive investment and charitable activities and continue to operate Employee’s security consulting business (OMC Consultants, Inc., a Florida corporation), so long as such activities do not materially interfere with the performance of his duties under this Agreement and do not result in a conflict of interest in regards to Employee’s duties and obligations to the City. All non City related work will be done under the Employee’s personal time and will not use any City asset during that time. The City shall not be held responsible or liable for any and all action taken by Employee during his activities for OMC Consultants, Inc. or other personal engagements out of the scope of his employment. 1.3 Additional Duties. Employee may assume the duties of Code Enforcement at the discretion of the City Manager, but shall not assume other duties and obligations as to other City functions and departments (including, but not limited to managing the general parking enforcement or information technology operations of the City), except to the extent the parties mutually agree in writing to make such additional duties part of Employee’s obligations and further agree on additional compensation to be paid to Employee for performing those additional duties. 2. Term. Except as otherwise provided in this Agreement, the Term of this Agreement shall be for five (5) years commencing on the 20th day of October, 2010 and shall terminate at the close of business on the 19th day of October, 2015 (the “Term”); provided that any extension beyond the 19th day of October, 2015, shall require the approval of both City and Employee. 3. Compensation. During the course of Employee’s employment by City, pursuant to this Agreement: backup p. 4 {009931.0001/M1889250_7} 3 3.1 Annual Salary. Employee shall be paid an annual salary of $100,000.00, which shall be payable in equal installments in accordance with the City’s compensation practices and thereafter be subject to a performance based increase, calculated from the base salary, of up to a maximum of 5% in earnings based on an annual performance evaluation as described in the City’s Personnel Manual. The City shall annually contribute $20,000.00, in equal payroll period installments, to a City approved ICMA 401a or 457b plan. If the City requires Employee to enter the City’s Pension Plan the Employee shall be paid an annual salary of $107,000.00 and thereafter may be subject to a performance based increase, calculated from the base salary, of up to a maximum of 5% in earnings based on an annual performance evaluation as described in the City’s Personnel Manual. If City establishes another pay period for its employees, which is no less frequent than semi-monthly, Employee shall be paid in accordance with that schedule. 3.2 Fringe Benefits. During the Term, City, at its cost, shall make available to Employee: 3.2.1 Insurance. The City shall provide Employee and his dependents, if applicable, with insurance benefits including disability, medical, dental, and life insurance of the same type and coverage as provided to senior managers of the City. Employee’s dependents shall be covered only if the City insurance plan covers dependents for senior managers with the City. If dependents are covered at Employee’s cost, the Employee shall determine if he needs such coverage. 3.2.2 Automobile. In lieu of a vehicle allowance or a mileage reimbursement for use of Employee’s personal vehicle for City business, the City shall assign to Employee and for his use the newest unmarked motor vehicle of the same make as the City backup p. 5 {009931.0001/M1889250_7} 4 purchases for the police fleet maintained at the City’s expense, and which is owned or leased by the City, so as to assist the Employee in performing services for the City as Police Chief. The vehicle shall be replaced, if the City purchases a new police vehicle, by a like kind new vehicle every 24 months during the Term. The make of the vehicle shall be the standard police vehicle of the City. Employee may utilize the vehicle at any time (24 hours per day 7 days per week) in connection with providing services to the City, including official travel for the City and any personal use that occurs during Employee’s portal to portal travel from home to the City, or any work related assignment, and back to his home. City shall include the vehicle on the schedule of vehicles for which the City maintains automobile casualty and liability insurance coverage and pay for such coverage. City shall provide maintenance and fuel for the vehicle upon the same basis that it provides maintenance and fuel for other vehicles within the municipal fleet. The City will provide a Sunpass with the vehicle and the Sunpass account will be maintained at the City’s expense. Employee shall be responsible for any employee payroll taxes upon this vehicle allowance benefit in accordance with applicable law. 3.2.3 Vacation, Sick Leave, Holidays, Clothing Allowance, etc. (a) Commencing with the execution of this Agreement, Employee shall immediately receive vacation benefits equivalent to that received by senior management with the City based on the years of service by Employee to the City, which shall include all prior employment by Employee with the City. The Employee shall regain the sick time accumulated but unused when the Employee’s prior employment with the City was terminated in 2006 which the Parties hereto agree is 380.00 hours. backup p. 6 {009931.0001/M1889250_7} 5 (b) Employee shall receive one (1) day per month of sick time or such additional sick time, if greater, as is provided to City’s senior management. The sick time may be accrued and rolled over to a later date and shall otherwise be consistent with City policies for senior management. (c) Employee shall be entitled to holidays in the same manner as senior management employees of the City. (d) Employee shall receive a clothing allowance equivalent to that provided to a police investigator under the police union contract with City and shall be payable as required by the police union contract with the City. This allowance shall be provided only for actual clothing expenses incurred in the course and scope of Employee’s work and payments shall be made to Employee by City only upon presentation of receipts for payments for clothing expenses incurred in connection with Employee’s work. All such payments to be made within thirty (30) days upon presentation of such receipts. (e) The Employee understands that current City Ordinance governing Pension requires him to become part of the City’s Pension plan; Should the City modify its Pension ordinance to allow Employee to opt out and join an ICMA 401a or 457b defined contribution plan, then the City shall contribute Twenty Thousand and No/100 Dollars ($20,000.00) per year or such higher amount, if any, as it contributes to the pension of senior management at the City, whichever is greater, in addition to Employee’s salary, as a contribution to Employee’s City-sponsored retirement plan or any other retirement plan (IRA, 401k, etc.) selected by Employee for his benefit. backup p. 7 {009931.0001/M1889250_7} 6 3.2.4 The City shall Provide Employee, at City’s cost, with equipment necessary to fulfill Employee’s duties, including but not limited to uniforms, cell phone allowance of $90.00, a computer, and other necessary communication equipment. . 3.3 Expenses. City shall pay for or reimburse Employee for all City approved ordinary, necessary, and reasonable business expenses incurred or paid by the Employee in furtherance of City’s objectives, all of which shall be reimbursed and paid in accordance with City’s policies and procedures of general application. 3.4 Professional Development. Subject to City policy and State law, the City agrees to pay the reasonable professional dues and subscriptions of Employee necessary for his continuation and participation as a member in national, regional, state and local professional law enforcement associations and organizations necessary and desirable for his continued professional participation, growth and advancement, and for the good of the City, subject to budgetary approval. City shall pay for all City approved continuing education for Employee. The City shall further provide Employee all eligible State of Florida educational incentives. 4. Termination. 4.1 Termination for Cause. For purposes of this Agreement, a termination by Employer for “Cause” shall mean termination by action of Employer pursuant to this Section 4.1. Employer shall have the right to terminate Employee for Cause upon the occurrence of one or more of the following events: 4.1.1 A determination by Employer made reasonably and in good faith that Employee has breached this Agreement in any material respect, confirmed by an arbitrator in accordance with process set forth in this Section 4.1. backup p. 8 {009931.0001/M1889250_7} 7 4.1.2 Employee’s conviction by a court of competent jurisdiction of fraud with respect to the business or affairs of Employer or any affiliated person or entity of Employer. 4.1.3 Excessive alcohol or drug usage by Employee to an extent that it interferes with the performance of Employee’s duties under this Agreement. 4.1.4 The conviction by a court of competent jurisdiction of, or pleading nolo contendre by, Employee of (a) a misdemeanor involving dishonesty, fraud, theft, misappropriation, embezzlement or the like or (b) a felony. 4.1.5 The death of Employee. Upon his death the Employee shall be entitled to all severance payment allowance under the City policies upon the death of an Employee (one year salary at this time). City shall provide written notice of a termination (“Termination Notice”) for Cause and, with respect to termination pursuant to Sections 4.1.1 - 4.1.4, shall give Employee an opportunity to cure or disprove the grounds for termination by submitting the issue to non-binding mediation (“Mediation”) which unless the parties agree otherwise, shall be administered by the American Arbitration Association in accordance with their Mediation Procedures in effect at time of the dispute. The Termination Notice shall include a request for mediation to be filed with the person or entity administering the mediation and the cost of mediation shall be equally split by the parties. The parties shall cooperate so as to complete the Mediation in not more than forty-five (45) days from the time the mediation is filed with the selected mediator. In the event that the parties cannot resolve their differences during the Mediation they agree to submit the dispute to binding arbitration (“Arbitration”) before the American Arbitration Association and in accordance with said Association’s rules then in effect. The arbitrator to be chosen shall be backup p. 9 {009931.0001/M1889250_7} 8 someone with knowledge of police administration and work, if at all possible, and shall apply national performance criteria for comparable cities including size, population and departmental budgets, in order to evaluate Employee’s performance of its obligations under this Agreement. The Parties agree that Opa Locka, North Miami, North Miami Beach and Homestead are comparable cities for the purpose of evaluating changes in crime statistics over time. The decision and/or award rendered by the arbitrator shall be final, and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction. Initially, in order to commence the arbitration, the cost of the arbitrator and arbitration shall be split equally between the parties, however, the prevailing party in the arbitration proceeding shall be entitled to reimbursement for all costs and expenses, including attorneys’ fees and the cost of the Arbitration. Employee shall receive all compensation and benefits as set forth in Section 3 of this Agreement until final termination after conclusion of the Mediation and Arbitration process set forth herein. In the event Employee is terminated pursuant to this Section 4.1 and after the mediation and arbitration process set forth above, confirms the City’s right to terminate this Agreement, Employee shall be entitled to receive only such compensation and benefits thereafter (including, without limitation, annual salary and other benefits which Employee has earned through the effective date of such termination, and Employee shall not receive any compensation or benefits in respect of any periods after the effective date of such termination. If the arbitration process confirms that Employee did not breach the Agreement, the Agreement shall remain binding on the Parties hereto. 4.2 Termination Upon Voluntary Resignation. In the event Employee voluntarily resigns his employment with City, Employee shall be entitled to receive the annual salary and other benefits, which Employee earned through the effective date of such resignation; backup p. 10 {009931.0001/M1889250_7} 9 provided, however, following receipt of Employee’s resignation, City shall have the right to accelerate the effective date of Employee’s resignation, provided it agrees to pay to Employee the amounts Employee would otherwise be paid hereunder through the intended resignation date. 4.3 Termination Other Than by Voluntary Resignation or For Cause. Employee shall have the right to terminate the Agreement upon a breach of the Agreement by the City and shall further be entitled to all rights and remedies under Florida law, in the event of a breach of the Agreement by City. The Employee shall provide City with written notice of any breach of the Agreement by City. Upon issuance of said notice, the issue shall be submitted for Mediation and, if necessary, Arbitration in accordance with the process outlined in section 4.1 for a termination by the City. All costs, expenses and attorneys’ fees shall be assessed or paid as stated in Section 4.1. Upon a final determination by the arbitrator that the City has breached the Agreement or if City terminates Employee for any reason other than for Cause, Employee shall be entitled to receive the following: (i) the annual salary due and payable to Employee through the balance of the Term of this Agreement paid in Employee’s sole discretion either in a lump-sum or on a bi- weekly basis; and (ii) continued benefits as set forth in Section 3 of this Agreement (or City can make payments 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. backup p. 11 {009931.0001/M1889250_7} 10 6.1 Notices. All notices, demands or requests provided for or permitted to be given pursuant to this Agreement must be in writing and shall be delivered or sent, with the copies indicated, by personal delivery, telecopy (with confirmation and additional copy sent by overnight delivery service) or overnight delivery service (by a reputable international carrier) to the parties as follows (or at such other address as a party may specify by notice given pursuant to this Section): To City: Hector Mirabile, Ph. D. City Manager 6130 Sunset Drive South Miami, Florida 33143-5093 With a copy to: Laurence Feingold, Esq. 6130 Sunset Drive South Miami, FL 33143-5093 Maria Menendez 6130 Sunset Drive South Miami, FL 33143-5093 To Employee: Orlando G. Martinez de Castro 3636 NW 36 Street Miami, Florida 33142 With a copy to: Adorno & Yoss LLP 2525 Ponce de Leon Boulevard Suite 400 Coral Gables, Florida 33134 Attention: Alfredo L. Gonzalez, Esq. Fax: (305) 460-1422 All notices shall be deemed given and received one business day after their delivery to the addresses for the respective party, with the copies indicated, as provided in this Section. 6.2 Entire Agreement. This Agreement and any other contemporaneous written agreements entered into by the parties contain the sole and entire binding agreement backup p. 12 {009931.0001/M1889250_7} 11 between and representations made by the parties to each other and supersede any and all other prior written or oral agreements and representations between them. 6.3 Amendment. No amendment or modification of this Agreement shall be valid unless in writing and duly executed by the parties affected by the amendment or modification. 6.4 Binding Effect. This Agreement shall be binding upon and inure to the benefit of the parties and their respective representatives, heirs, successors and permitted assigns. 6.5 Waiver. Waiver by either party of any breach of any provision of this Agreement shall not be considered as or constitute a continuing waiver or a waiver of any other breach of the same or any other provision of this Agreement. 6.6 Captions. The captions contained in this Agreement are inserted only as a matter of convenience or reference and in no way define, limit, extend or describe the scope of this Agreement or the intent of any of its provisions. 6.7 Construction. In the construction of this Agreement, whether or not so expressed, words used in the singular or in the plural, respectively, include both the plural and the singular and the masculine, feminine and neuter genders include all other genders. Since both parties have engaged in the drafting of this Agreement, no presumption of construction against any party shall apply. 6.8 Section References. All references contained in this Agreement to Sections shall be deemed to be references to Sections of this Agreement, except to the extent that any such reference specifically refers to another document. All references to Sections shall be deemed to also refer to all subsections of such Sections, if any. backup p. 13 {009931.0001/M1889250_7} 12 6.9 Severability. In the event that any portion of this Agreement is illegal or unenforceable, it shall affect no other provisions of this Agreement, and the remainder of this Agreement shall be valid and enforceable in accordance with its terms. 6.10 Business Day. As used in this Agreement, the term “business day” means any day other than a Saturday, Sunday or legal or bank holiday in the City of Miami, Florida (the “City”). If any time period set forth in this Agreement expires on other than a business day in the City, such period shall be extended to and through the next succeeding business day in the City. 6.11 Assignment. Neither this Agreement nor any rights under this Agreement may be assigned by either party without the written consent of the other party. 6.12 Other Documents. The parties shall take all such actions and execute all such documents which may be necessary to carry out the purposes of this Agreement, whether or not specifically provided for in this Agreement. 6.13 Governing Law. This Agreement and the interpretation of its terms shall be governed by the laws of the State of Florida, without application of conflicts of law principles. 6.14 Counterparts. This Agreement may be executed and delivered in two counterparts, each of which shall be deemed to be an original and both of which, taken together, shall be deemed to be one agreement. 6.15 Litigation/Arbitration. The parties have selected arbitration for binding dispute resolution under this Agreement. Any claims subject to, but not resolved by, mediation shall be subject to arbitration, unless mutually agreed in writing by the parties and shall be administered by the American Arbitration Association by an arbitrator, if at all possible, with experience in police work and administration. Initially and in order to commence the process, backup p. 14 {009931.0001/M1889250_7} 13 the parties shall split the cost of the arbitration proceedings. However, the prevailing party in regards to the dispute, shall be entitled to all costs and expenses including attorneys’ fees and cost of arbitration proceedings initially shared by the parties. 6.16 Chapter 112. Nothing in this Agreement shall diminish Employee’s rights under Florida Statute, Chapter 112, as it relates to law enforcement officers. 6.17 Indemnification. The City agrees to defend, hold harmless and indemnify Employee from any and all liability, fines, damages, attorneys fees, costs, expenses and all claims, suits, causes of action, or proceedings of any kind including payments in settlement brought against the Employee for actions taken by the Employee in the course and scope of his employment with the City. Should the City determine that it is disadvantageous or a conflict of interest to provide counsel to Employee, Employee will obtain separate counsel of his choice at the City’s expense. In the event that any separate counsel is hired by the Employee under this provision, the choice of counsel and rates to be charged must be approved by the City Commission before the City is required to pay for expenses of same, which approval shall not be unreasonably withheld. The parties have executed this Agreement as of the date set forth above. THE CITY OF SOUTH MIAMI By: Title: EMPLOYEE: By: Orlando G. Martinez de Castro backup p. 15 City of South Miami Charter Article III, SECTION 4. Acting City Manager A. Recommendation The Manager may recommend, by letter filed with the City Clerk, subject to the approval of the Commission, a qualified City administrative officer to exercise the powers and perform the duties of the Manager during any temporary absence or disability. Such acting City Manager shall not serve for a period longer than 90 days. During such absence or disability, the Commission may decline such recommendation at any time and appoint another officer of the City to serve until the Manager shall return or his disability shall cease. B. Failure to Recommend During such absence or disability as set forth in (A), if the City Manager fails to recommend an Acting City Manager, the Commission shall name an Acting Manager to serve at the pleasure of the Commission. backup p. 16 From: Mirabile, Hector <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@southmiamifl.gov> Cc: "Feingold, Laurence" <aslanf@aol.com>, "Palmer1, Velma" <palmer2007@gmail.com> Honorable Mayor, Vice Mayor, and Commissioners, I will be taking vacation on Friday, March 4, 2011. I will be out of town attending my daughters ballet competition recital in two different locations in Florida. You may still reach me via cellular telephone. In this and future absences due to vacation I am designating Chief of Police, Orlando Martinez De Castro, as acting City Manager and designate him with limited signature authority, he will not have signature authority to bind the City in the area of contracts or agreements. He does have signature authority in the areas of routine City business and expenditures. Sincerely, Hector Mirabile, PhD City Manager backup p. 18 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: Everyone1 <Everyone1@southmiamifl.gov> 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 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 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 Hector Mirabile <HMirabile@southmiamiﬂ.gov> To: Mayor & Comm <Mayor&Comm@southmiamiﬂ.gov> Cc: "MartinezdeCastro, Orlando" <OMartinezDeCastro@southmiamiﬂ.gov>, "Pepe, Thomas F." <TPepe@southmiamiﬂ.gov> Medical proceedure October 13, 2011 4:39 PM 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@southmiamifl.gov>, "Menendez, Maria M." <MMenendez@southmiamifl.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@southmiamifl.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" <OMartinezDeCastro@southmiamifl.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. 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 Mar nez de Castro Chief of Police South Miami Police Department 305.663.6336 Of. Sent from my Blackberry device (Please excuse brevity, punctua on and spelling). From : Mirabile, Hector Sent: Thursday, August 11, 2011 05:17 PM To : Dept Heads Cc : Garcia, Maria; Dennis Deblois Subject: City Manager Vacation Dear Team, I will be on vaca on from August 14 through the 30th (12 working days). In my absence I will be leaving the following personnel as ac ng 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 Mar nez De Castro All HR ma ers should be referred to Latasha Nickles who will serve as my authorized representa ve in disciplinary ma er including dispute resolu on and pre‐termina on hearings. Sincerely, Hector Mirabile, Ph. D. City Manager backup p. 26 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 City Manager Chief of Police 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@southmiamifl.gov Note: The State of Florida has a very broad public records law. Written communications, including emails, are therefore subject to disclosure to the public and media upon request based on Florida Statue #119. This email may contain confidential and/or privileged information. If you are not the intended recipient (or have received this email in error) please notify the sender immediately and destroy this email. Any unauthorized copy, disclosure or distribution of the material in this email is strictly forbidden. CM Brief to…ocx (109 KB) "MartinezdeCastro, Orlando" <OMartinezDeCastro@southmiamiﬂ.gov> To: Mayor & Comm <Mayor&Comm@southmiamiﬂ.gov> Cc: Dept Heads <DeptHeads@southmiamiﬂ.gov>, Hector Mirabile <hmirabile@bellsouth.net>, "Payne, Nkenga" <NPayne@southmiamiﬂ.gov>, "Menendez, Maria M." <MMenendez@southmiamiﬂ.gov> FW: CM Brief to Comm June 12 2012 June 11, 2012 5:04 PM 4 Attachments, 244 KB backup p. 27 To: Cc: Attachments: Mayor & Comm; Dept Heads Menendez, Maria M.; Garcia, Maria; Payne, Nkenga; Hector Mirabile image001.jpg (128 KB) Reply Reply All Forward Absence from the City MartinezdeCastro, Orlando Friday, August 03, 2012 11:53 AM Dear%All, As%you%are%aware,%the%City%Manager%has%designated%me%to%be%the%Acting%CM%until%08/10/12.%%I%will%be%out%of%town from%this%afternoon,%08/03/12%until%%08/05/12,%Sunday%afternoon.%%Therefore,%I%have%assigned%Mr.%Riverol%as%the Acting%CM%unit%I%return,%in%case%there%is%an%emergency.%%I%am%available%by%cell%phone%should%you%need%to%contact%me. % I%also%wanted%to%make%you%aware%that%the%City%Manager%has%assigned%Ms.%Carmen%Baker%to%run%the%next Commission%meeting,%August%7th. Regards, % Orlando Martinez de Castro Chief of Police %%%%%%%%%%%%%%%% 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@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 image003.jpg No problem. From : 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 vaca on 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, a ached 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 City Manager Chief of Police image002 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@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. PATCH1 backup p. 29 RE:RestrepoPropertyAbandonment MartinezdeCastro,Orlando Great,rockandroll, thanks Sent:Thursday,August02,201211:05AM To:Pepe,ThomasF.;Brimo,Christopher Cc:Baker,Carmen V. Orlando MartinezdeCastro ChiefofPolice SouthMiamiPoliceDepartment 6130SW72nd Street SouthMiami,Florida33143 Office:305.663.6336 Fax:305.663.2045 Main:305.663.6301 Email:omartinezdecastro@southmiamifl.gov Note: TheStateofFloridahasaverybroadpublicrecordslaw. Written communications,includingemails,arethereforesubjecttodisclosure tothepublicandmediauponrequestbasedonFloridaStatue#119. Thisemailmay containconfidentialand/orprivilegedinformation. If youarenottheintendedrecipient(orhavereceivedthisemailinerror)pleasenotifythe senderimmediatelyanddestroythisemail. Any unauthorizedcopy,disclosureordistributionofthematerialinthisemailisstrictlyforbidden. From:Pepe,ThomasF. Sent:Thursday,August02,201210:57AM To:Brimo,Christopher Cc:MartinezdeCastro,Orlando Subject:RE:RestrepoPropertyAbandonment Notifyousellit"asis".Therewouldneedtobeasimple"asis"salescontract waivingallwarranties,etc. Verytrulyyours, Thomas F.Pepe CityAttorney CityofSouthMiami 1450MadrugaAvenue,Ste202, CoralGables,Florida33146 Tel:(305)667-2564 Fax:(305)341-0584 E-mail:tpepe@southmiamifl.gov Page 1 of 2RE:RestrepoPropertyAbandonment 5/23/2013https://mail.southmiamifl.gov/owa/?ae=Item&t=IPM.Note&id=RgAAAACA0ojKx2%2bR... backup p. 30 ATTENTION:Thise-mailmaycontainsPRIVILEGEDANDCONFIDENTIALINFORMATIONintendedonlyfortheuseoftheaddresseenamedabove.Ifyouarenotthe intendedreceiver,youareherebynotifiedthatanydisseminationofthiscommunicationisstrictlyprohibited.Ifyouhavereceivedthise-mailinerror,please immediatelynotifyusbytelephone,callcollectifoutsideofyourareacodeanddeletethise-mail.Wewillreimburseyouforthecostofyourlongdistancecall. Thankyou.Pleasealsonote:Alle-mailstoandfromthise-mailsitearekeptasapublicrecord.Youre-mailcommunications,includingyoure-mailaddressmay bedisclosedtothepublicandmediaatanytimepursuanttoFloridaStatutes,ch.119. From:Brimo,Christopher Sent:Thursday,August02,201210:39AM To:Pepe,ThomasF. Cc:MartinezdeCastro,Orlando Subject:RestrepoPropertyAbandonment Mr.Pepe: PertheCityCommission'srequestfromtheJuly24thmeeting,Ididabriefanalysisonthedispositionof property(abandonmentvssale).IhaveattachedacopyofthememothatwillbegoingwiththeitemonAugust 7.However,theChiefrequestedthatwebeabletorespondtotheCommissionregardingtheissueofliability.If theCitysellsthepropertyratherthanjustabandoningittotheadjacentpropertyowner,isthereanyliabilityto theCityshouldaproblemariseafterthesale?Thankyou. Chris Christopher Brimo,AICP Planning Director CityofSouthMiami 6310SunsetDriveSouthMiami,FL33143 Tel:(305)663-6326/6327 The CityofSouthMiamiisapublicentity,subjecttoChapter119ofthe FloridaStatutesconcerningpublicrecords.E-mailmessagesand theirattachmentsarecoveredundersuchlawsandthussubjecttodisclosure.Alle-mailsenttoandreceivedatthisaddress,iscaptured byourserversandkeptasapublicrecord. Page 2 of 2RE:RestrepoPropertyAbandonment 5/23/2013https://mail.southmiamifl.gov/owa/?ae=Item&t=IPM.Note&id=RgAAAACA0ojKx2%2bR... backup p. 31 CITY OF SOUTH MIAMI OFFICE MEMORANDUM To: Hononible Mayor and City Commission Date: June 11,2012 From: Chief Orlando Martinez de Castro Acting City Manager Re: Manager's Report ., , .' .: I' , ,. .' " ';. "' . '. -:, ." ~ The following 'll"e the accomplishments of the entire City for.,the·,period ending June lO;2()l2 which are being ' stibmlUed for your review pdor to the June 12th Commission ,Meeting.· .Co'n~idering the current agenda, I wanted to inform you that as the Acting City Manager, I will not be reading this report in the interest dfmoving, the me~ting along b~t ifYQlI: have;a,ny .questiops pleAS,e;;feel free to contact me.· i. Accomplishments. • I , a. New IT IDe successes: I' 1. RebUilt and configured ~d ihstalled 3 desktops due to'vlrUSbs~. . .: ',: ' ", .... ',' !;. _ ", 'J" '(:.: ii. Rebuilt,. configured and installed 4 laptops due to yiruses. • _ .. t · '. ;- .' . •• t,' 111. IT deployed antivirus to 12 additional machines. IV. Organized and setup OSSI training for two locations. v. IT setup 4 laptops for QSSI trai,ning. '. , j ,) i JI.' /' " VI. IT assisted in the recovery and reconfiguration of corruption on ·the OSSI database. Vll. IT is currently working on completing inventory for SMPD. Vlll. IT reset 34 system passwords. June 1 st through June t h Total Hours: 52 backup p. 32 CITY OF SOUTH MIAMI OFFICE MEMORANDUM To: Honorable Mayor and City Commission Date: June 11,2012 From: Chief Orlando Martinez de Castro Acting City Manager Re: Manager's Report " 'j " • ..' 4 .: I' !. .' . .: ... ~ The following ~e the accomplishments of the 'entire City for.1the',period ending June 10; 2Q 12 which are being ' s~bmltted for your review pdor to the June 12th Commission ,tyfee4ng .. Co'n~idering the current agenda, I wanted to inform you that as the Acting City Manager, I will not be reading this report in the interest dfmoving ,the me~ting along b~t ifyq~:h,ave;a,ny ,questiops pleAS,.e;.ieel free to contact me., i. .' " j Accomplishments. • I " . I a. New IT IDe successes: , . i. Rebuilt and configured ~d installed 3 desktops due to viruSbs .. " ,",: 'j .' I " .' !:. . ~ 1 ' ( I . • I ii. Rebuilt, configured and installed 4 laptops due to yiruses. , _ , .. ". t : ,': ::. Ill. IT deployed antivirus to 12 additional machines. IV. Organized and setup OSSI training for two locations. v. IT setup 4 laptops for QSSI traiping. VI. IT assisted in the recovery and reconfiguration of corruption on ,the OSSI database. VIl. IT is currently working on completing inventory for SMPD. Vlll. IT reset 34 system passwords. June 1 sl through June 7th Total Hours: 52 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: i. Rebuilt and configured and installed 4 desktops for the Police Dept. ii. Rebuilt, configured and installed 8 laptops for the Police Dept. iii. Built, configured and installed 4 new laptops for the Police Dept. iv. IT coordinated OSSI Training for MCT and for MFR. Total hours for this project were 82. v. IT coordinated OSSI Webex Training. Total hours for this project were 2 hours. vi. IT coordinated MCT and MFR go live. Total hours for this project were 40. vii. IT has been working on issues with the GPS systems. IT has spent approximately 22 hours on this issue. viii. IT is currently working on Mobile printing issues. IT has spent approximately 18 hours on this issue. ix. IT has set up new users in the system along with their profiles and has moved users. x. There have been some AS-400 issues which have been resolved. backup p. 33 CITY OF SOUTH MIAMI OFFICE MEMORANDUM 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 31st. IT will have an update for the August 7th meeting. a. i. Rebuilt and configured and installed 4 desktops for the Police Dept. ii. Rebuilt, configured and installed 8 laptops for the Police Dept. iii. Built, configured and installed 4 new laptops for the Police Dept. iv. IT coordinated OSSI Training for MCT and for MFR. Total hours for this project were 82. v. IT coordinated OSSI Webex Training. Total hours for this project were 2 hours. vi. IT coordinated MCT and MFR go live. Total hours for this project were 40. vii. IT has been working on issues with the GPS systems. IT has spent approximately 22 hours on this issue. viii. IT is currently working on Mobile printing issues. IT has spent approximately 18 hours on this issue. backup p. 34 CITY OF SOUTH MlMll Dep.!'meot of Planniog & Zocing 6 130 Sunset Drive, South Miami, F!orida 33143 Phone: (305) 663-6326 Fax: (305) 668-73 56 APPLICATION FOR OUTDOOR SEATING / DINING R_tName: '10(,0 1\1 (tW .. <-,_---Phone 305 H6 o!, 88 Adthu: }2 ~ ... I., .,~ ... ~I'\"-'-"v"'6"----_:_-south Mimn, Fl orid. ~ ... ;1 L ~ Applicant: Cc£,:1 CS £.. :ia.1-"--,,,.J ~ Phone:.."..S 1 '0 0 4 tlR Ada"es.s : "-C~~~.....,);-t-1i--'-c.()Jo ILLLlt"'-'''' s'--<t!1U.!l<...c.. vlO<L1'o.u.t'_#==-'.ll.10","~'-"( L~jj~: I;t_--h ; ~ 1-4 :L App/lcClll/ i signatun Dol, p, cl/J3. J 1. oi L Do" NOTICE ThlJ permit l.J not rmnsferabJ~ In any manner, and lJ strictly II co nditional 113& permit l.wu:d /0(' n period of one yea r, rrncwablt! (lutomflrically at time 0/ annual occupaJlunnl IIceftsL unt!WaL All of the $/ondOff/S ond rtglliations sd jort" in the Land Devtlopmellf Code Sedion 2D-J.J(E), shall be applicable to an oUldoor Jcatinfl dlnlng areD. Any violation u/ thfl n!t:Il/IIlions and standard sd forth In Sect/an 10-J.J (E) o/Ih. LonJ DI!V~Japm~"1 Ca{/~ sJtall ca"stltlll~ If s~nrnU I"dd~n' a/vlalntlon n"rI shrrll rOil/lin a SSOO.OO II dUJ fIn~far encll day alcont fnlled vlalntlan. FEES Tht CIJy oj S ou I11 Miomi wlY cllarr e Ill! fJJtlluol/u/o r thl/o(Jowlnt: CDndIJlons: A fee ofns sh all be charged for esc.h seo.llhnt is located on the public ri gh l3-o(·way. The ~nnuill fee for each outdoor sen! shall be Iluromarically incre ASed by $10 each year until the fcc fo r each outdoor seal is S65. A fee ofS520 $h all be charged fo r eny stand alo ne table top with no sea t ing which is used for consumption ofbever3ges or food which is located on public ri gh U-O(·WilY. . A fee of$250 shall be charg=d for all outd oo r dininglseatins use pennhs u.!Ifn S priv ate pro perty . L~artol'/ ofrhe Outdoor SeQ1Irw'Dfnfng: a Prl\J(:ie Propeny Required Materials 10 be rubmfned and attached htrdo: a Public Proputy o Pro~I1)IBoundary SU r'V q o IndemnilyAgreem enl Ii( Outdo« Sea /frog Plan/Din ing Area Pf(Jll a Proof of J'IIIlJrtmce o Number of lndoorS~au: ~. ___ _ o Num btr of Pr opose d 01lldoo r Secrs within Public Rig},t.oj-Wuy:_-'6' ... ___ _ o Number of Proposed crJtdocr Sears within Pr/vot , Proputy: _____ _ a Number of Propos~ Ta ble TOJM: -'4'1--,---- o Both [] Hom oIOp"a.o"··: 1()Ar\ -11. \u(>M o Dot.&: 17meo/Cleanll[¥Mal nJeflQflce''';( !"(~ MqLk (C .... J rll\oIOO"r'--____ _ Addltlonnl1f1otuials 10 be $lIbmined 4nd artnched hereto (I/appllcoble): o Adjacen t property uudior seatlflgld!11lng area: (Adjacent Property Ow ner Const!n t Form) rI AmpJfjll!dSowld Agr-eemtnt" Addre.u: fajt I 0[1 a DISAPPROYED o DISAPPROVED backup p. 35 CITY OF SOUTH MWI1 Dcp'!1mcot ofPllUUliDg & Zoning 6 130 Sunsct Drivc , South Miami, F!o rida 33 143 Phone: (305) 663-6326 Fax: (305) 668-7356 So ulh i\'li;uni ~ imp ,~, APPLICATION FOR OUTDOOR SEATING / DINING R"""""'tNam~ 'io (~&!\I EtW.<.,_-__ Phone: 305 t 4 6 <:>t, 8S Adthu: 1 Z D"I <;. I., S-~~ii\""-"v"'6"_ __ _:_-SOuth Mimn, Florid. ~ ... :I L ~ Ap;>Iic.lnt: c.c&.:J r:.S E-i 0 I Co. ""JL-Phone: -y, S" l' 0 0 I.r S 8 Address : (.>..C~~~,.,...)-?1i'--"c-cowIlLUI ... ""'s-"t!ULv~<. ~v1t""t<'--"#==-c:J.f,'""~~Q(Lt(ti~:I;~"---h ~ ~ 1-4:L AppllcOIlI'lli grla/uri 00" p, NQTICE T1rb pamit u not rr(/nsfaab/~ In any mannu, (md Is strktly II co ndltJonaJ '1St: permit ~cd /0(' n period of on e y~nr. rrncwnblc autDmflflcally al lime 0/ annual occupaJionn/ /lett/.u unl!WoL An of 'he rtantfortls IJlld rttll/al/ons Jet fort" in the Land Dwt/6pmclll Code S«I;on lD-J.3(E), shalt bCllppllcablc to 111'1 aUldoor scat/nr/dlnlng tlml. Any vltI/allon til th. rt!gu/lllio ns a nd standard Sd forth In Sed/an 10-1.J(E) 01 th. Land Drvdopml!nl COII~ s"oll constltlll~ a SqlnrnU fn r:ld~n t olv/olntlon ond s""" r Olillin a fSOO.OO II dtrJ jIn~/or ench day olcontlnll~d violation. FEES Th~ ell] of SouIII Miami w/U cllarre Ill! tln lJunlfufo r thlfolloN'lnf condiJlonf: A fee ofru sha ll be chnrgcd for e&.h seLlt thllt is located on the public ri gh l3-of-w ay. The :lnnuel fee for each outdoor sen l shall be Gutomarically incre ased by SID C3ch year until th e foe fo r ellc h outdoo r seat is S6S. A fee of SS20 shal l be charged fo r My stand alo ne tabl e top with no sea ti ng which is used for consum ption ofbevtr3ges or food whlch is iDC:ltod on public righU-O(-WllY. . A fee ofS2S0 shD II be charged for all outd oo r di ningfsCl ting use permil s using private pro perty . L~arton of the Outdoor SeD1fngIDlnfng: a PrltJcJe Propury Re'lu/~d Materials (0 be submtrred and nnached htrc1o: a Public Propury o Pro~I1)'IBoundory Survey o indemnity AzreetntJ1t Ii( Outdoor Sea /f rog Plan/Dlnmg Area Pian a Proof of lrulJrance o Nu mbt!r o/lnaoo rSeau' ~. ___ _ o Numb" of Proposed Olltdoo r Scc ts within Pu bl,c Right-of-Way ~ __ _ o Number of Proposed ()oJtdoor Seols within Private Proputy: _____ _ a Numbtr of Proposed Tabl e Tops: -'4'1--,---- o Both n Homo/Op"a"o'··: 1~Ar\ -11 . \urM a DQ"&:Tim~ofCiean ufN'MOintt!1lanc:~''';<!''(~ ~t b=!CJ M..c l /.t\ .. rtr'-____ _ AddUlan nl materials /0 ~ sub",in~rf ond adachtd lter~/o (llappl1coble): o Adjacent prop~rry used/or uarlngldlning a rea: (Adjacent Prope rty Own er Consent Form) V Amplfj1edSoundAgr'eement" Addra.s; fagt I of1 a DISAPPROVED o DISA PPROVED On ibis Ibe \ ~ day of it 1\0 '; ~ 20jL before me, the undersigned Notary Public of the State of florida, Ibe foregoing instrument was acknowledge es c ,-(cJQ.Att.Je of (print name and title of corporate officer) (print name of corporation and state or place of incorporation) on behalf ofthe corporation. Witness my hand and official seal. / l~~~~~~ Please check ODe oCthe following: o Personally known to me ~roduccd identification Please check one of the following: a DID take an oath o DID NOT take an oath. CITY OF SOUTH MIAMI Olary Public. Sta lorida Print Name: Maria M Menendez ~.,.y~. .;Ii ••••••• ~ fMRIA It MEHaa:z .... W * UY COWJsstoH, EE J71G79 ,~ EXPIRES: March 16,2016 '"t"n.~ ~ fIInIa.,.", ~ (Type of identification produced) --- backup p. 36 On ibis Ibe \ ~ day of it 1\0 '; ~ 20jL before me, the undersigned Notary Public of the State of florida, Ibe foregoing instrument was acknowledge es c ,-(cJQ.Att.Je of (print name and title of corporate officer) (print name of corporation and state or place of incorporation) on behalf ofthe corporation. Witness my hand and official seal. / l~~~~~~ Please check ODe oCthe following: o Personally known to me ~roduccd identification Please check one of the following: a DID take an oath o DID NOT take an oath. CITY OF SOUTH MIAMI Olary Public. Sta lorida Print Name: Maria M Menendez ~.,.y~. .;Ii ••••••• ~ fMRIA It MEHaa:z .... W * UY COWJsstoH, EE J71G79 ,~ EXPIRES: March 16,2016 '"t"n.~ ~ fIInIa.,.", ~ (Type of identification produced) --- From: Palmer1, Velma <palmer2007@gmail.com> Sent time: Wednesday, April 06, 2011 2:25:51 PM To: Mirabile, Hector <HMirabile@southmiamifl.gov> Subject: Re: Acting City ManagerChief 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@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) 3511648 backup p. 38 Hector, Going somewhere fun? -Phil On Feb 29, 2012, at 6:18 PM, Hector Mirabile wrote: 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 ------------------------------------------------------------ Dr. Philip K. Stoddard Mayor of South Miami 305-342-0161 mobile www.southmiamifl.gov ------------------------------------------------------------ Mayor Philip Stoddard <mayorstoddard@gmail.com> To: Hector Mirabile Re: City Manager vacationing March 1, 2012 1:49 PM backup p. 39 Re: Green Corridor Property Assessment Clean Energy (PACE) District Stoddard, Philip K. Sent:Thursday, July 26, 2012 3:53 PM To:Payne, Nkenga Yes Philip Stoddard Mayor of South Miami 305-342-0161 mobile PStoddard@SouthMiamiFL.gov MayorStoddard@gmail.com PKStoddard@gmail.com (from iPhone, thus brief) On Jul 25, 2012, at 3:08 PM, "Payne, Nkenga" <NPayne@southmiamifl.gov> wrote: Good$Afternoon$Mayor, $ Regarding$the$PACE$agreement$the$City$Manger$needs$to$sign$but$as$you$know$he$is$not$here.$$Should I$have$the$acting$city$manager$Chief$Martinez$sign?$$Please$let$me$know$because$Steven$Alexander called$and$stated$that$the$agreement$needs$to$be$recorded$tomorrow. $ Please$advise. $ Thanks, $ Nkenga “Nikki” Payne, CMC$ Deputy City Clerk$ City of South Miami$ 6130 Sunset Drive$ South Miami, FL 33143$ (305)663-6340 office$ (305)663-6348 fax$ npayne@southmiamifl.gov$ www.southmiamifl.gov$ Please note: $The state of Florida has a very broad public records law. Written communications, including emails, are therefore subject to disclosure to the$ public and media upon request. $ backup p. 40 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) 6672564 Fax: (305) 3410584 Email: tpepe@southmiamifl.gov ATTENTION: This email 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 email in error, please immediately notify us by telephone, call collect if outside of your area code and delete this email. We will reimburse you for the cost of your long distance call. Thank you. From: Javier Rodriguez [jir@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. Kulick, We believe there are sufficient legal grounds for our bid protest which stops the bidding process and does not allow the City to proceed further, namely with this new solicited bid for the “Best and Final Offer”. Yesterday, you sent an email titled “Best and Final Offers: Soccer Program at South Miami Park”. In the email it was stated in bold that “the City hereby rejects all bids submitted in response to the Management of Soccer Programs at South Miami Park RFP”. This was the first time that the City has indicated that all of the bids were being rejected. This was never communicated at the Commission Hearing that took place on Tuesday, June 12, 2012. As such, it is a clear violation of the Sunshine Act. Pursuant to Florida’s “sunshine law”, all meetings of any state agency at which official acts may be taken must be conducted as open, public meetings. Absent that, any action taken during such meetings is improper The result is that the agency’s action is void and can be given no effect. (See Florida Statute Section 286.011). Based on the foregoing, since the decision to reject all bids was never made at the Commission Meeting, it is our position that the City cannot proceed further at this juncture. backup p. 41 City of South Miami Regular City Commission Minutes March 6, 2012 A. SILENCE OR TURN OFF ALL CELL PHONES The City Commission of the City of South Miami, Florida met in regular session on Tuesday, March 6, 2012, beginning at 7:43 p.m., in the City Commission Chambers, 6130 Sunset Drive. B. ADD-ON ITEM(S) NONE C. ROLL CALL The following members of the City Commission were present: Mayor Philip K. Stoddard, Vice Mayor Josh Liebman, and, Commissioners Valerie Newman, Walter A. Harris and Bob Welsh. Also in attendance were: City Attorney Thomas F. Pepe, City Clerk Maria M. Menendez and Acting City Manager Police Chief Orlando Martinez de Castro. City Manager Hector Mirabile was absent. D. MOMENT OF SILENCE By Mayor Stoddard E. PLEDGE OF ALLEGIANCE The Pledge of Allegiance was recited in unison. F. LOBBYIST(S) ADDRESSING THE CITY COMMISSION TONIGHT MUST HAVE BEEN REGISTERED WITH THE CITY CLERK G. PRESENTATIONS NONE H. APPROVAL OF MINUTES Minutes of February 21, 2012 backup p. 42 CITY COMMISSION MINUTES June 12, 2012 1 City of South Miami 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, 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 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 backup p. 43 CITY COMMISSION MINUTES July 24, 2012 1 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, 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 backup p. 44 CITY COMMISSION MINUTES July 31, 2012 1 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/clientuploads/Archive/CSM_CityManagerBriefings2012/CM%20 Brief%20to%20Comm%20July%2031%202012.pdf J. CITY ATTORNEY’S REPORT There were no City Attorney reports at this meeting. 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: VacationActing 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 posi on of management. Chief Mar nez de Castro will be ac ng City Manager for that day. Original Appointment From: Pepe, Thomas F. Sent: Friday, July 01, 2011 12:55 PM To: Mirabile, Hector Subject: SMH Legal Meeting When: Tuesday, July 05, 2011 4:00 PM5:00 PM (GMT05:00) 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: StoutTate, Maria <MStoutTate@southmiamifl.gov>; MartinezDeCastro, Orlando <OMartinezDeCastro@southmiamifl.gov> Cc: Riverol, Alfredo <ARiverol@southmiamifl.gov> Subject: RE: Hurricane Preparations Maria, the ac ng 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 me to read these emails from work. Alfredo and Orlando, please send your representa ves to conduct a mee ng and nego ate appropriate results. From: StoutTate, 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: StoutTate, 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, 2011 9:59 AM To: StoutTate, Maria Subject: RE: Hurricane Preparations Maria: This has been approved in general. There is no ques on 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 delinea ons as I cannot guarantee that I can support this opera on in its en rety for an indefinite period of me. Perhaps you can address when you develop your protocol. From: StoutTate, Maria [mailto:MStoutTate@southmiamifl.gov] Sent: Friday, August 12, 2011 5:08 PM To: Daisy Baez Subject: RE: Hurricane Preparations Thank you. Maria Elena From: Daisy Baez [mailto:dbaez@larkinhospital.com] Sent: Friday, August 12, 2011 4:15 PM To: StoutTate, 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: StoutTate, 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@southmiamifl.gov> Cc: "MartinezdeCastro, Orlando" <OMartinezDeCastro@southmiamifl.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 <NPayne@southmiamifl.gov> Subject: RE: 119 Request reference Camilo Padreda by Attorney Michael Band Attachments: image001.png Niki, while I am on vaca on the Chief is the ac ng City Manager. Please ensure that you also copy him so that he can ac on. 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)6636340 office (305)6636348 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 informa on you requested regarding the cost of providing the public records you requested. Let me take this opportunity to assure you that yesterday was the first me that my office heard of your request as per the advice of our City Manager, Dr. Mirabile. Neither did we receive anything from you by US Mail, nor by email. I take pride of 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 per nent department(s) for ac on and con nue to follow up on their status un l 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 a en on, 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, Maria M. Menendez, CMC, FCRM City Clerk 6130 Sunset Drive South Miami. Fl 33143 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 <LFernandez@southmiamifl.gov> Subject: FW: City Manager Vacation Just a reminder that Chief Orlando Mar nez De Castro is the ac ng City Manager un l the 30 th. Chris Christopher Brimo, AICP Planning Director City of South Miami 3056636327 cbrimo@southmiamifl.gov www.southmiamifl.gov From: Mirabile, Hector Sent: Thursday, August 11, 2011 5:17 PM To: Dept Heads Cc: Garcia, Maria; Dennis Deblois Subject: City Manager Vacation Dear Team, I will be on vaca on from August 14 through the 30th (12 working days). In my absence I will be leaving the following personnel as ac ng 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 Mar nez De Castro All HR ma ers should be referred to Latasha Nickles who will serve as my authorized representa ve in disciplinary ma er including dispute resolu on and pre‐termina on 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 <JKorth@southmiamifl.gov> Sent time: Tuesday, August 23, 2011 2:56:21 PM To: Goodson, Letitia S. (HCD) (786) 4692220 <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, 2011 5:17 PM To: Dept Heads Cc: Garcia, Maria; Dennis Deblois Subject: City Manager Vacation Dear Team, I will be on vaca on from August 14 through the 30th (12 working days). In my absence I will be leaving the following personnel as ac ng 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 Mar nez De Castro All HR ma ers should be referred to Latasha Nickles who will serve as my authorized representa ve in disciplinary ma er including dispute resolu on and pre‐termina on hearings. Sincerely, Hector Mirabile, Ph. D. City Manager backup p. 52 From: David, Stephen <SDavid@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, 2011 3:14 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; StoutTate, 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> Cc: Hector Mirabile <HMirabile@southmiamifl.gov>; MartinezdeCastro, Orlando <OMartinezDeCastro@southmiamifl.gov>; Baixauli, 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 email 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>; StoutTate, 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 24th 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 11th to July 18th . Good Luck and Thank you for your cooperation. Major Ana Baixauli Administrative Major, SMPD 6130 Sunset Drive South Miami, Florida 33143 abaixauli@southmiamifl.gov "Great vision without great people is irrelevant JimCollins/Good to Great Office: 3056682498 (Direct) Fax: 3056632045 Please note: Florida has a very broad public records law. Most written communications are public records and available to the public and media upon request. Your 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. backup p. 56 Article II, section 5(a) of the Florida Constitution: No person holding any office of emolument under any foreign government, or civil office of emolument under the United States or any other state, shall hold any office of honor or of emolument under the government of this state. No person shall hold at the same time more than one office under the government of the state and the counties and municipalities therein, except that a notary public or military officer may hold another office, and any officer may be a member of a constitution revision commission, taxation and budget reform commission, constitutional convention, or statutory body having only advisory powers. backup p. 57 Florida Attorney General Advisory Legal Opinion Number: AGO 80-97 Date: December 5, 1980 Subject: Dual officeholding; semiautonomous board DUAL OFFICEHOLDING--APPLICABILITY TO APPOINTED MUNICIPAL OFFICIALS SERVING ON PROPOSED SEMIAUTONOMOUS PERMITTING BOARD To: Don J. Caton, City Attorney, Pensacola Prepared by: Bill Hall, Assistant Attorney General QUESTION: Does s. 5(a), Art. II, State Const., prohibit certain members of the appointed staff of a municipality from serving on a semiautonomous board created by city ordinance to grant building permits and issue necessary variances from local architectural and building codes? SUMMARY: Based on the provision of Ch. 15425, 1931, Laws of Florida, as amended, the City Manager and the Chief of the Fire Department of the City of Pensacola are municipal officers; and, as such, the dual-officeholding provisions of s. 5(a), Art. II, State Const., operate to prohibit their appointment to or holding office as members of a semiautonomous board vested with the exercising a portion of the governmental or sovereign power of the city. The legislative body of the city may, however, by appropriate legislative action, designate such officers to perform ex officio the duties of the office of a member of such board, provided the additional or ex officio duties imposed on such officers are in no way inconsistent with the duties already being performed by such officers. Based on the provisions of s. 266.107, F. S., the City Planner of the City of Pensacola, in his capacity as a member of the Architectural Review Board, the composition and powers of which are prescribed by s. 266.107, is a municipal officer and as such may not lawfully be appointed to or hold office as a member of a semiautonomous board vested with and exercising a portion of the governmental or sovereign power of the city. However, the legislative body backup p. 58 of the city may by appropriate legislative action designate such officer to perform ex officio the duties of the office of a member of such semiautonomous board, provided the additional duties imposed on such officer are in no way inconsistent with the duties already being performed by such officer. Inasmuch as the composition of the Architectural Review Board is established by paragraph (2)(a) of s. 266.107, F. S., the terms of office of its members are fixed by paragraph (2)(b), and its powers are prescribed by paragraphs (2)(c) and (d), the governing body of the City of Pensacola possesses no authority to abolish the board or to divert any of its powers to another body or alter or divest it of any of its statutorily prescribed functions or powers. Based upon excerpts from the city's code of ordinances and supplemental information supplied to this office, the Inspection Superintendent (denominated in the code as "building official") of the City of Pensacola is a municipal officer and as such may not lawfully be appointed to or hold office as a member of a semiautonomous board vested with and exercising a portion of the governmental or sovereign power of the city. As with the several officers of the city above named and subject to the same conditions, the city inspection superintendent may be designated to perform ex officio the duties of such semiautonomous board. Based upon the supplemental information and materials supplied to this office, the City Engineer of the City of Pensacola is an employee of the city and as such may be lawfully appointed for a fixed term to membership on a semiautonomous board which is vested with and exercises a portion of the governmental or sovereign power of the city. The dual-officeholding provisions of s. 5(a), Art. II, State Const., do not apply to or operate on employments. You state in your letter that the City of Pensacola has created a Palafox Place Redevelopment Area. I assume that this area is a historical district created and established pursuant to ss. 266.106(9) and 266.107(1), F. S. You state that presently there exist three separate boards which review private redevelopment plans for construction within the Palafox Place Redevelopment Area (or historical district) to ensure that local building or architectural code requirements are met and to grant or deny variances when requested by local developers. Among these three backup p. 59 boards is the Architectural Review Board, which is established under, and has its composition and powers prescribed by, Ch. 67-303, Laws of Florida, as amended, and codified as s. 266.107, F. S. You state that it is the city's desire to create by ordinance a "super permitting board" which would fulfill the responsibilities of the three existing boards. For the purposes of this opinion, I assume that the proposed permitting board will be vested with and exercise a portion of the governmental or sovereign power of the city in relation to a historical district duly established pursuant to part II of Ch. 266, F. S. The proposed board would be composed of the city manager, city engineer, city planner, city inspection superintendent, and city fire marshal. Against the factual background, you inquire whether the membership of the aforementioned city staff people on the proposed board would violate the dual-officeholding prohibition of s. 5(a), Art. II, State Const. It must be noted at the outset that the provisions of any subsistent special law or municipal charter enacted or adopted prior to July 1, 1973, pertaining to matters prescribed by the charter relating to appointive boards may not be changed except upon approval by referendum of the electors, as provided in s. 166.031, F. S. Furthermore, the provisions of Ch. 67-303, Laws of Florida, as amended, codified as part II of Ch. 266, F. S., pertaining to the Historic Pensacola Preservation Board of Trustees of the Department of State and the aforementioned Architectural Review Board established pursuant to s. 266.107, are not subject to s. 166.021(4) and (5), F. S., and the latter do not apply to or operate on the general law or either of such boards. While s. 266.107 authorizes the governing body of the city to "name an architectural review board"; to prescribe the procedure for review of building plans of any building which is to be erected, renovated, or razed and is located or to be located within historical districts established by the governing body of the city, including rules and governing decisions of the Architectural Review Board, and the procedure for appeal from decisions of the board; and to adopt other regulations necessary to effect the purposes of s. 266.106(9), the composition of the Architectural Review Board is established by paragraph (2)(a) of s. 266.107, the terms of office of its members are fixed by paragraph (2)(b), and the board's powers are prescribed by paragraphs (2)(c) and (d). Thus, the governing body of the city possesses no authority to abolish the Architectural Review Board or to divert any of backup p. 60 its powers to another body or alter or divest it of any of its statutorily prescribed functions or powers. This advisory opinion and all conclusions and views hereinafter expressed, and any future action taken by the city based upon anything said in the following opinion, are subject to and circumscribed or limited by the foregoing considerations and factual statements and assumptions. Section 166.021(4), F. S., contains no limitations (except as may be inherent in "matters prescribed by the [ante 1973] charter relating to appointive boards"), in connection with appointive municipal officers or the duties and powers of such officers. Cf. s. 166.031(5), F. S., which empowers municipalities to abolish municipal departments provided for in the municipal charter. Therefore, the governing or legislative body of the City of Pensacola, pursuant to s. 166.021(1) and (4) and s. 2(b), Art. VIII, State Const., has the power to create and abolish municipal offices and to prescribe the duties, powers, and responsibilities of such offices. For the purposes of s. 5(a), Art. II, State Const., such appointive municipal officers are forbidden to hold at the same time more than one office under the government of the municipality. Such appointive officers derive their municipal governmental or sovereign powers from and exercise such powers pursuant to the duly enacted ordinances of the city (unless otherwise expressly provided or prohibited by law). Cf. s. 166.041(1)(a), F. S., referring to an ordinance as "an official legislative action . . . enforceable as a local law." Section 5(a), Art. II, does not require that municipal offices be established or the governmental duties, powers, and responsibilities of the same be conferred, defined, or prescribed by statute; and the limitations prescribed by s. 5(c) of Art. II do not apply to municipal officers. Section 5(a), Art. II, supra, prohibits a person from simultaneously holding "more than one office under the government of the state and the counties and municipalities therein . . .." Although the term "office" has not been constitutionally defined, the Florida Supreme Court has stated: "The term 'office' implies a delegation of a portion of the sovereign power to, and the possession of it by, the person filling the office . . .. The term 'office' embraces the idea of tenure, duration, and duties in exercising some portion of the sovereign power, conferred or defined by law backup p. 61 and not by contract." [State ex rel. Holloway v. Sheats, 83 So. 508 (Fla. 1919).] The threshold question is whether the city staff members in question are "officers" of the city for the purposes of s. 5(a), Art. II. Employments are not within the purview of s. 5(a), Art. II. See AGO's 069-2 and 069-3; cf. In re Advisory Opinion to the Governor, 132 So.2d 1 (Fla. 1961). The city manager is clearly an officer. He is the chief administrative officer of the city, and his powers and duties are as provided in ss. 14-19 of Ch. 15425, 1931, Laws of Florida, as amended. Insofar as these provisions, powers, and duties may affect the form of government of the city or the distribution of powers among the elected officers, they may not be changed by ordinance without approval by referendum of the electors. Section 166.021(4), F. S. Section 18 of Ch. 15425, among other things, requires the city manager to "perform such other duties as may be . . . required of him by ordinance or resolution of the council." If the enabling legislation for the "super permitting board," assuming its validity, by appropriate language places an additional or ex officio duty and responsibility on the city manager to serve as a member of the new board, then the city manager may be a member of and perform ex officio the duties of the office of a member of the new "super permitting board," provided such additional duties are in no way inconsistent with his duties as city manager. Such legislative designation of local officers by the legislative body of the city to perform ex officio the functions of another or second municipal office does not violate the dual-officeholding prohibition of s. 5(a), Art. II, State Const. See AGO 80-12, citing State v. Florida State Turnpike Authority, 80 So.2d 337 (Fla. 1955); State v. Gordon, 189 So. 437 (Fla. 1939); and Amos v. Mathews, 126 So. 308 (Fla. 1930); cf. AGO 074-50. If no such ex officio designation is properly made, the city manager's membership on the "super permitting board" would probably violate s. 5(a), Art. II. The city fire marshal is not, as you have suggested, a state employee or officer. Prior to the effective date of ch. 80-215, October 1, 1980, his duties under Ch. 633, F. S., were given to him as an ex officio agent of the State Fire Marshal, see s. 633.121. Chapter 80-215 deleted the provisions for ex officio agents of the State Fire Marshal and authorized the chiefs of municipal fire departments, and other fire department personnel designated by the backup p. 62 chief, to enforce the fire prevention and control law and all rules prescribed by the State Fire Marshal within their respective jurisdictions. However, such personnel, acting under the authority of s. 633.121, are deemed to be agents of their respective jurisdictions and not agents of the State Fire Marshal. Section 26(B) of Ch. 15425, 1931, Laws of Florida, establishes the department of public safety and the division of fire of the city, provides that the fire force shall be composed of a chief and other designated personnel, and vests the immediate direction and control of the fire department and other governmental or sovereign power in the chief of the city fire department. Section 22 of Ch. 15425 provides for the distribution of the work of each department of the city among divisions and specifies that "there shall be a single officer in charge of each division." (Emphasis supplied.) The city fire chief would appear to be an officer of the city. Therefore, the city fire chief may not be appointed to or hold another office under the government of the city. However, the imposition of additional or ex officio duties and responsibilities upon the fire chief by the legislative body of the city or the legislative designation of such officer to perform ex officio the duties of the office of a member of such "super permitting board" would not be violative of s. 5(a), Art. II, State Const., provided that the additional duties imposed are in no way inconsistent with the municipal duties already being performed by such officer. See AGO's 080-12 and 074-50 and authorities cited therein. The city planner, in his capacity as a member of the Architectural Review Board, appears to be an officer of the municipality and could not hold another office under the government of the city. Under s. 266.107, F. S., the city planner is appointed to the Architectural Review Board for a fixed term of office, and there is no apt language designating such appointment as ex officio. As a member of such board, the city planner exercises the governmental or sovereign powers delineated in s. 266.107(2)(c) and (d). Therefore, the city planner, as a member of the Architectural Review Board, may not be appointed to or hold another office under the government of the city. The city's legislative body may, however, by appropriate legislative action designate such officer to perform ex officio the duties of a member of the "super permitting board," provided that the additional duties and responsibilities imposed do not conflict with the municipal duties already being performed by such officer. See AGO's 074-50 and 080- 12. No other law or ordinance relating to the position of backup p. 63 city planner having been drawn to my attention, I am unable to reach any conclusion otherwise as to the status of such position as an office or an employment. I do note that the job description material supplementing your inquiry refers to the planner as an employee and, generally, describes ministerial and advisory functions and duties for this position. As hereinabove noted, employments are not within the purview of s. 5(a), Art. II, State Const. There does not appear to be any statutory investment of governmental or sovereign power in or on the city engineer; in the absence of any ordinance granting such power or imposing duties of a sovereign nature on the city engineer, he is probably an employee, not an officer, and, as an employee, could be directly appointed (unless otherwise prohibited by charter or statute) to the proposed board for a fixed term without violating s. 5(a), Art. II, State Const., which does not apply to or operate on employments. I note that the job description for the city engineer, which supplements your letter of inquiry, refers to the engineer as an employee and states, among other things, that the engineer acts as chief engineer for the planning board. Such job description or classification does not operate to effectively and legally vest in, grant to, or impose on the city engineer any powers or duties of a sovereign nature or operate to constitute such position as an office. If the city engineer is in fact and law an officer by virtue of the provisions of some subsistent statute or ordinance which has not been drawn to my attention, then, by appropriate legislative action, such officer may be designated to perform ex officio the duties of the office of a member of the "super permitting board," as hereinabove discussed in relation to the city planner and subject to the same limitations. While s. 61 of ch. 15425, supra, provides that "[t]he city engineer shall serve as chief engineer of the city planning board and [has the] duty to make recommendations," it does not prescribe any governmental powers or duties, and I am unable to determine therefrom the status of this position as an office or employment. Such language could be construed to provide for the placing of an additional or ex officio duty on the city engineer, if such position is in fact an office. See AGO 080-12. From the supplemental information and excerpts from the city's code of ordinances you have furnished me, it appears that the city inspection superintendent described in your supplemental letter and the building official denominated backup p. 64 in the extracts from the code of ordinances are one and the same position in the government of the city. The code not only refers to this position or official as an "office" but the excerpts therefrom, as well as your supplemental letter, also describe, prescribe, and vest in this official governmental or sovereign powers and duties. The city inspection superintendent/building official therefore, would appear to be an officer of the city. Such being the case, such officer could not hold another office under the government of the city. However, as hereinbefore discussed with respect to the other affected officials, the city's legislative body may, by appropriate legislative action, designate the city inspection superintendent/building official to perform ex officio the duties of the office of a member of the "super permitting board," provided that the additional duties and responsibilities imposed are in no way inconsistent with the duties already being performed by such official. See AGO 080-12. backup p. 65 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: backup p. 66 "No person shall hold at the same time more than one office under the government of the state and the counties and municipalities therein, except that a notary public or military officer may hold another office, and any officer may be a member of a constitution revision commission, constitutional convention, or statutory body having only advisory powers." (e.s.) Thus, s. 5(a) of Art. II prohibits a person from simultaneously holding more than one "office" under the government of the state and the counties and municipalities therein. This constitutional provision does not define the terms "office" or "officer" for its purposes, or draw any distinction between part-time or full-time police officers or make any exceptions therefor, such as the exception made for service by any officer on a statutory body having only advisory powers. The rule expressio unius est exclusio alterius therefore applies and no other exceptions from the operation of s. 5 of Art. II may be implied. See, e.g., Interlachen Lakes Estates, Inc. v. Snyder, 304 So.2d 433 (Fla. 1974); Dobbs v. Sea Isle Hotel, Inc., 56 So.2d 341 (Fla. 1952). As indicated in your inquiry, a position on the board of adjustment is an office and such board is not within the exception made for an officer's services on statutory bodies having only advisory powers. Therefore, the remaining consideration is whether a sworn, part-time police officer is an officer within the purview of s. 5, Art. II, State Const. The Florida Supreme Court has stated, in construing the term "office," that the term "implies a delegation of a portion of the sovereign power to, and the possession of it by, the person filling the office, while an 'employment' does not comprehend a delegation of any part of the sovereign authority." State ex rel. Holloway v. Sheats, 83 So. 508, 509 (Fla. 1919); see also AGO 69-2 and authorities cited therein. Numerous opinions of the Attorney General have indicated that a law enforcement officer, such as a municipal police officer, is an "officer" within the scope of the dual officeholding provision. Cf. AGO's 57-165, 58-26, 69-2, 71- 167, 72-348, 76-92; see also Curry v. Hammond, 16 So.2d 523 (Fla. 1944) (noting that a patrolman on a city police force is clothed with the sovereign power of the city); AGO 77-89 and authorities cited therein. Cf. Blackburn v. Brorein, 70 So.2d 293 (Fla. 1954). backup p. 67 Additionally, AGO 77-63 concluded that a part-time auxiliary or certified reserve police officer is an "officer" within the purview of the constitutional prohibition against dual officeholding. Compare Vinales v. State, 394 So.2d 993 (Fla. 1981) (holding that s. 5[a], Art. II, did not apply to the appointment of two municipal police officers as state attorney investigators, since the appointment was temporary and no additional remuneration was paid to such municipal police officers for performing such additional criminal investigative duties), and Case Nos. 81-365, 81-366, 81-408 to 81-414, 81-418, 81-606, 81- 879, 81-1015 to 81-1022, 81-1229 and 81-1230, 422 So.2d 868 (2 D.C.A. Fla., 1982) (following the Vinales exception and concluding that it did not violate the dual officeholding provision for a city police officer, in conducting a wiretap, to act in the capacity of a deputy sheriff, since that officer received no remuneration for such duties). From the description of the part-time police officer's duties contained in your letter, it appears that those duties are performed on a periodic and regular basis, and not on a temporary one, and thus would probably not fall within the Vinales exception. Additionally, the Vinales exception deals with the performance of additional law enforcement functions and duties in a police capacity and not the exercise of governmental power or performance of official duties on a disparate municipal board exercising and performing quasi-judicial power and duties. In summary, it is my opinion, until judicially determined otherwise, that a sworn municipal police officer who serves part-time holds an "office" and is an "officer" for purposes of s. 5, Art. II, State Const. Sincerely, Jim Smith Attorney General Prepared by: Anne Curtis Terry Assistant Attorney General backup p. 68 Florida Attorney General  Advisory Legal Opinion Number: AGO 86-11 Date: February 4, 1986 Subject: Dual officeholding, police chief Mr. Gerald Korman City Attorney City of Longwood 175 West Warren Avenue Longwood, Florida 32750 RE: DUAL OFFICEHOLDING--Chief of police simultaneously serving as city administrator prohibited Dear Mr. Korman: This is in response to your request for an opinion on substantially the following question: May the Police Chief of the City of Longwood be appointed as city administrator and act in both capacities simultaneously? The constitutional prohibition against dual officeholding is contained in s. 5(a), Art. II, State Const., which provides in pertinent part that: "No person shall hold at the same time more than one office under the government of the state and the counties and municipalities therein . . . ." The foregoing constitutional provision does not define the terms "office" or "officer" for its purposes. However, this office has previously stated that a chief of police is a municipal officer when such officer is vested with official powers and duties for and in behalf of the municipality in question. See AGO's 72-348, 69-2. See also State ex rel. Holloway v. Sheats, 83 So. 508, 509 (Fla. 1919) (term "office" implies delegation of portion of sovereign power to, and possession of it by person filling the office, while "employment" does not comprehend delegation of any part of sovereign authority). And see In re Advisory Opinion to the Governor, 132 So.2d 1 (Fla. 1961). Cf. AGO's 77-89, 77-63 and 76-92 concluding that a deputy sheriff, town marshal and a part-time auxiliary or reserve police officer, certified by the Police Standards and Training Commission are all "officers" within the purview of s. 5(a), Art. II, State Const. Thus, for purposes of s. 5(a), Art. II, State Const., the police backup p. 69 chief is a municipal officer. The question remains as to whether the city administrator is an "officer" for purposes of the dual officeholding prohibition. According to s. 4.07, City Charter of Longwood, the city administrator is the chief administrative officer of the city and is granted extensive powers and duties including, inter alia, the power to appoint, suspend or remove all city employees and department heads; direct and supervise the administration of city departments, officers and agencies; prepare and submit the annual budget and capital program; prepare and submit reports concerning the finances, administrative activities and operations of city departments, offices and agencies; advise the city commission as to the financial condition and future needs of the city; and make recommendations concerning affairs of the city. Pursuant to s. 5.01(b) of said charter, the city administrator is authorized to appoint a department head to administer all departments under his direction and supervision. Moreover, the administrator may serve as the head of one or more of such departments or may appoint one person as the head of one or more of them with the consent of the city commission. Thus it appears clear under the city charter that the City Administrator of the City of Longwood is a municipal officer. His powers and duties contemplate "a delegation of a portion of the sovereign power . . . ." Additionally, his office "embraces the idea of tenure, duration, and duties in exercising some portion of the sovereign power . . . ." State ex rel. Holloway v. Sheats, supra, at 509. See State v. Glidewell, 311 So.2d 126 (2 D.C.A. Fla., 1975), wherein the court held that a city manager, who was the chief administrative officer of a municipality and had extensive powers and responsibilities to perform his duties was a "municipal official." See also AGO 80-97. Therefore, it is my opinion that the City Administrator and Chief of Police of the City of Longwood are both municipal officers; as such, the dual officeholding provisions of s. 5(a), Art. II, State Const., operate to prohibit an individual from holding both such offices simultaneously. In reaching this conclusion, I am not unaware of those cases or opinions which hold that the mere imposition on an officeholder of additional or ex officio duties compatible with the duties the officeholder is already required to perform is not a violation of the constitutional dual officeholding prohibition. See Whitaker v. Parsons, 86 So. backup p. 70 247 (Fla. 1920); State ex rel. Landis v. Reardon, 154 So. 868 (Fla. 1934); State v. Florida State Turnpike Authority, 80 So.2d 337 (Fla. 1955); AGO's 81-72, 81-61 and 80-97. However, in the instant inquiry it does not appear that the office of city administrator or that of police chief is being abolished; but rather that the police chief is being appointed to exercise the powers and perform the functions of another office which is still in existence. Moreover, the duties of the two offices appear to be incompatible. You have referred to, as authority for such appointment, s. 5.01(b) of the city charter which provides in pertinent part that with the consent of the city commission, the city administrator may serve as the head of one or more departments under the direction and supervision of the city administrator or may appoint one person as the head of one or more of them. I have been informed that the chief of police is under the supervision and direction of the city administrator. Thus, performance of both offices simultaneously would appear to be in violation of the public policy rule prohibiting the holding of two incompatible public offices. See AGO 76-92 wherein this office concluded that the city council could not authorize the mayor to assume and perform the duties of town marshall since such appointment would violate the dual officeholding prohibition of s. 5(a), Art. II, State Const., as well as the public policy rule against holding two incompatible public offices because the mayor was empowered by charter to appoint and supervise the town marshall. In Gryzik v. State, 380 So.2d 1102, 1104 (1 D.C.A. Fla., 1980), petition for review denied, 388 So.2d 1113 (Fla. 1980), the court, in setting forth the doctrine of incompatibility, stated: "Incompatibility exists 'where in the established governmental scheme one office is subordinate to another, or subject to its supervision or control, or the duties clash, inviting the incumbent to prefer one obligation to another.' . . . If the duties of the two offices are such that when 'placed in one person they might disserve the public interests, or if the respective offices might or will conflict even on rare occasions, it is sufficient to declare them legally incompatible.'" In addition, a conflict of interest exists where the holder of one office has the power of appointment as to the other office, or is empowered to remove, punish, regulate the compensation of the other or to audit his accounts. The applicability of the doctrine does not, however, turn upon backup p. 71 the integrity of the officeholder or his ability to achieve impartiality. 67 C.J.S. Officers and Public Employees s. 27. See AGO's 70-46, 76-92, 80-17, 85-24. Cf. Lovejoy v. Grubbs, 432 So.2d 678 (5 D.C.A. Fla., 1983). Thus, it seems clear that an individual, acting as both chief of police and city administrator, would fall squarely within the foregoing prohibition. See s. 4.07, City Charter of Longwood, discussed supra. In sum, it is my opinion that the constitutional prohibition against dual officeholding, s. 5(a), Art. II, State Const., as well as the public policy rule prohibiting the holding of two incompatible public offices by the same individual preclude the Police Chief of the City of Longwood from being appointed as city administrator and serving in both offices simultaneously. Sincerely, Jim Smith Attorney General Prepared by: John Rosner Assistant Attorney General backup p. 72 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 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 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 Your letter indicates that the city manager is the appointed head of the administrative branch of city government and is empowered to exercise control over all departments and divisions of the city, execute contracts, and carry out policies adopted by the city commission. During temporary absences, the mayor, subject to the city commission’s approval, may designate a qualified administrative officer to carry out the duties of the city manager. Section 5(a), Article II of the Florida Constitution, provides in pertinent part: "No person shall hold at the same time more than one office under the government of the state and the counties and municipalities therein, except that a notary public or military officer may hold another office, and any officer may be a member of a constitution revision commission, taxation and budget reform commission, constitutional convention, or statutory body having only advisory powers." This provision prohibits a person from simultaneously serving in more than one "office" under the governments of the state, counties, or municipalities. This office has concluded that the constitutional prohibition applies to both elected and appointed offices.[1] While the Constitution does not define the term "office," the courts have stated that the term "implies a delegation of a portion of the sovereign power . . . [and] embraces the idea of tenure, duration, and duties in exercising some portion of the sovereign power, conferred or defined by law and not by contract."[2] A long recognized rule in this state, however, is that a legislative designation of an officer to perform ex officio the function of another office does not constitute holding two offices at the same time, provided the duties imposed are consistent with those being exercised.[3] Rather, the legislatively assigned duties are considered an addition to the existing duties of the officer.[4] It does not appear, nor have you proposed, that the law enforcement officer would be appointed to temporarily serve as city manager in an ex officio capacity. The Florida Supreme Court in Vinales v. State,[5] held that the constitutional dual office-holding prohibition did not apply to the appointment of municipal police officers as state attorney investigators since the appointment was temporary and no additional remuneration was paid to such municipal police officers for performing such additional criminal investigative duties. In Vinales, however, there was a statute which specifically authorized the appointment of municipal police officers for some purposes as investigators for the state attorney.[6] The district court's opinion, adopted by the Supreme Court, concluded that "the legislature has thus construed the applicable section of our state constitution as one which does not prohibit dual office holding on a temporary basis without remuneration for the purpose of criminal backup p. 78 investigation."[7] In Attorney General Opinion 84-25, this office considered whether a member of a municipal board of adjustment could also serve as a part-time municipal police officer. Concluding that the Vinales exception would not apply to such a situation because the law enforcement duties were performed on a periodic and regular basis, not a temporary one, the opinion also observed that the Vinales case dealt "with the performance of additional law enforcement functions and duties in a police capacity and not the exercise of governmental power or performance of official duties on a disparate municipal board exercising and performing quasi-judicial power[s] and duties." While the courts have enumerated "tenure, duration and duties in exercising some portion of the sovereign power, conferred or defined by law and not by contract" as noted above, I have found no discussion which imposes a minimum or maximum time on the duration of serving in an office which would otherwise affect the 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 law. He holds an honorary doctor of laws degree from Stetson Universi- ty. After nearly two decades of service as a prosecutor, judge, sheriff, executive director of the Florida Department of Highway Safety and Motor Vehicles, and mayor, Butterworth was elected as Florida's 33rd attorney general in 1986. He was re-elected in 1990, 1994, and 1998. *** Joslyn Wilson was admitted to The Florida Bar in 1977. She earned a BA. degree from the University of Colorado in 1973 and graduated with honors from the Florida State University Law School in 1976, where she served as Law Review Editor. Following graduation, she began work in the Opinions Division of the Attorney General's Office where she has served as Division Director since 1984. 1. See Bath Club, Inc. v. Dade County, 394 So. 2d 110, 112 (Fla. 1981). HeinOnline -- 29 Stetson L. Rev. 307 1999-2000 backup p. 81 ONE IS ENOUGH -FLORIDA'S CONSTITUTIONAL DUAL OFFICE HOLDING PROHIBITION* Robert A. Butterworth** Joslyn Wilson*** Since its adoption over thirty years ago, and despite review by two constitutional revision commissions, the provisions of article II, section 5(a) of the Florida Constitution, have remained unchanged. The constitutional provision concerns the accumulation of offices by a single individual and was fashioned to ensure that the same per- son would not simultaneously hold multiple state, county, or munic- ipal offices. Underlying this objective was the concern that a con- flict of interest will arise if one person simultaneously serves in two offices.l While its purpose is laudable, application of this constitu- tional provision continues to be problematic for public office holders and public office seekers. Article II, section 5(a) of the Florida Constitution states: No person holding any office of emolument under any foreign gov- ernment, or civil office of emolument under the United States or any other state, shall hold any office of honor or of emolument under the government of this state. No person shall hold at the same time more than one office under the government of the state and the counties and municipalities therein, except that a notary public or military officer may hold another office, and any officer may be a member of a constitution revision commission, taxation and budget reform commission, constitutional convention, or * © Robert A. Butterworth and Joslyn Wilson, 1999. All rights reserved. ** Robert A. "Bob" Butterworth was admitted to The Florida Bar in 1969. He earned a B.S.B.A. degree in 1965 at the University of Florida, and in 1969 received a juris doctorate from the University of Miami Law School, followed by advanced studies in international law. He holds an honorary doctor of laws degree from Stetson Universi- ty. After nearly two decades of service as a prosecutor, judge, sheriff, executive director of the Florida Department of Highway Safety and Motor Vehicles, and mayor, Butterworth was elected as Florida's 33rd attorney general in 1986. He was re-elected in 1990, 1994, and 1998. *** Joslyn Wilson was admitted to The Florida Bar in 1977. She earned a B.A. degree from the University of Colorado in 1973 and graduated with honors from the Florida State University Law School in 1976, where she served as Law Review Editor. Following graduation, she began work in the Opinions Division of the Attorney General's Office where she has served as Division Director since 1984. 1. See Bath Club, Inc. v. Dade County, 394 So. 2d 110, 112 (Fla. 1981). Stetson Law Review statutory body having only advisory powers.2 The prohibition applies to both elected and appointed offices.3 Moreover, nothing in article II, section 5(a) requires that the two offices be within the same governmental unit. Thus, for example, a municipal officer is precluded from holding not only another munic- ipal office, but also a state or county office. A HISTORICAL PERSPECTIVE Earlier Florida constitutions contained limited prohibitions against dual office holding. Article VI, section 18 of the 1838 Con- stitution, adopted in anticipation of statehood, prohibited a member of Congress or any person holding or exercising any office of profit under the United States or any foreign power from serving as a member of Florida's General Assembly or from holding any office of profit under the State.4 It further stated that "no person in this State shall ever hold two offices of profit, at the same time, except the office of Justice of the Peace, notary public, constable, and mili- tia offices."5 The 1861 and 1865 constitutions both contained simi- lar proscriptions, although the 1865 constitution added an incom- patibility prohibition.6 The 1868 constitution, however, was silent on the issue of dual office holding. The 1885 constitution revived the prohibition. Article XVI, section 15 of the 1885 constitution is similar to the provisions of the current constitution, except that the 1885 constitution referred to offices under the government of the state.7 While this language 2. FLA. CoNST. art. fI, § 5(a). 3. See Blackburn v. Brorein, 70 So. 2d 293, 296 (Fla. 1954) (noting that "election by the people or the appointment by the Governor is not the true test in determining whether ...an office exists and the individual filling the position is an officer [rather than] an employee"); Op. Att'y Gen. Fla. 94-66 (1994); Op. Att'y Gen. Fa. 80-97 (1980); Op. Att'y Gen. Fla. 69-2 (1969). 4. See FLA. CoNsT. art. II, § 18 (1838). 5. Id. 6. See id. art. VI, § 14 (1861); id. art. VI, § 14 (1865) ("IThe Legislature shall never unite in the same person two offices, the duties of which are incompatible."). While subsequent constitutions did not contain such a provision, questions of common- law incompatibility still arose until the Florida Supreme Court's decision in State ex rel. Clayton v. Board of Regents, 635 So. 2d 937, 938 (Fla. 1994). The court concluded that "conduct involving public officers, such as dual office-holding, financial benefit from office, and abuse of public trust, are issues directly addressed by" the state Constitution and thus are not governed by common law. Id. 7. Article XVI, section 15 of the 1885 Florida Constitution states: 308 [Vol. XXIX HeinOnline -- 29 Stetson L. Rev. 308 1999-2000 backup p. 82 308 Stetson Law Review [Vol. XXIX statutory body having only advisory powers.2 The prohibition applies to both elected and appointed offices.3 Moreover, nothing in article II, section 5(a) requires that the two offices be within the same governmental unit. Thus, for example, a municipal officer is precluded from holding not only another munic- ipal office, but also a state or county office. A HISTORICAL PERSPECTNE Earlier Florida constitutions contained limited prohibitions against dual office holding. Article VI, section 18 of the 1838 Con- stitution, adopted in anticipation of statehood, prohibited a member of Congress or any person holding or exercising any office of profit under the United States or any foreign power from serving as a member of Florida's General Assembly or from holding any office of profit under the State.4 It further stated that "no person in this State shall ever hold two offices of profit, at the same time, except the office of Justice of the Peace, notary public, constable, and mili- tia offices."5 The 1861 and 1865 constitutions both contained simi- lar proscriptions, although the 1865 constitution added an incom- patibility prohibition.6 The 1868 constitution, however, was silent on the issue of dual office holding. The 1885 constitution revived the prohibition. Article XVI, section 15 of the 1885 constitution is similar to the provisions of the current constitution, except that the 1885 constitution referred to offices under the government of the state.7 While this language 2. F'LA. CONST. art. il, § 5(a). 3. See Blackburn v. Brorein, 70 So. 2d 293, 296 (Fla. 1954) (noting that "election by the people or the appointment by the Governor is not the true test in determining whether . . . an office exists and the individual filling the position is an officer [rather than] an employee"); Op. Att'y Gen. Fla. 94-66 (1994); Op. Att'y Gen. Fla. 80·97 (1980); Op. Att'y Gen. Fla. 69·2 (1969). 4. See F'LA. CaNST. art. il, § 18 (1838). 5. Id. 6. See id. art. VI, § 14 (1861); id. art. VI, § 14 (1865) ("[T]he Legislature shall never unite in the same person two offices, the duties of which are incompatible."). While subsequent constitutions did not contain such a provision, questions of common· law incompatibility still arose until the Florida Supreme Court's decision in State ex reI. Clayton v. Board of Regents, 635 So. 2d 937, 938 (Fla. 1994). The court concluded that "conduct involving public officers, such as dual 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. [d. 7. Article XVI, section 15 of the 1885 Florida Constitution states: 1999]Dual Office Holding Prohibition 309 was held to extend to county offices,' decisions under the 1885 Con- stitution excluded municipal officers from its coverage.' The dual office holding prohibition contained in the 1968 Con- stitution is the broadest statement of public policy on this issue to date. While the first sentence of the constitutional provision ad- dresses interstate dual office holding,s it is primarily the second sentence relating to intrastate office holding that has been the subject of interpretation and controversy. AN OFFICE BY ANY OTHER NAME Most of the questions involving article II, section 5(a) of the current Florida Constitution have concerned what constitutes an"office." The constitution does not define the term, and the legis- lature has not sought to define the term to clarify the parameters of the constitutional provision. In the absence of such clarification, the courts and the Attorney General's Office have referred to several early Florida Supreme Court decisions generally considering what constitutes an "office" as opposed to an "employment."" No person holding or exercising the functions of any office under any foreign Government, under the Government of the United States, or under any other State, shall hold any office of honor or profit under the government of this State; and no person shall hold, or perform the functions of, more than one office under the government of this State at the same time: Provided, Notaries Public, militia officers, county school officers and commissioners of Deeds may be elected or appointed to fill any Legislative, executive or judicial office. FLA. CoNsT. art. XVI, § 15 (1885). 8. See generally State ex rel. Gibbs v. Gordon, 189 So. 437, 440 (Fla. 1939); State ex rel. Landis v. Reardon, 154 So. 868, 871 (Fla. 1934); Op. Att'y Gen. Fla. 47-115 (1947). 9. See, e.g., Attorney Gen. ex rel. Wilkins v. Connors, 9 So. 7, 8 (Fla. 1891) (noting that constitutional prohibition does not preclude performance by sheriff of duties of a city marshal, as a city marshal is not a state officer); Op. Att'y Gen. Fla. 52-96 (1952). 10. See Informal Op. from AtVy Gn. Jim Smith to the Honorable Lawton M. Chiles (Jan. 16, 1986) (stating that the first sentence of article 1I, § 5(a), Florida Consti- tution "prohibit[ed] a county commissioner from simultaneously holding office as a member of the Board of Governors of the United States Postal Service"); see also Op. Att'y Gen. Fla. 51-468 (1951) (finding that a justice of the peace cannot hold office of United States Commissioner). But see Grant v. State, 474 So. 2d 259, 260 (Fla. 1st Dist. Ct. App. 1985), in which the court rejected claims of a dual office holding violation where a state prosecutor had been appointed as a Special Assistant United States Attorney for one case arising out of a local criminal investigation when it appeared that he received no remuneration for serving in that position; see also Op. Att'y Gen. Fla. 72- 244 (1972) (advising that an "executive director of a private nonprofit corporation [that] serves a public purpose and is financed largely from federal funds is not a 'civil office of emolument under the United States' within the dual-office [holding] prohibition). 11. See generally In re Advisory Op. to the Governor, 171 So. 2d 539, 541 (Fla. HeinOnline -- 29 Stetson L. Rev. 309 1999-2000 backup p. 83 1999] Dual Office Holding Prohibition 309 was held to extend to county offices,S decisions under the 1885 Con- stitution excluded municipal officers from its coverage.9 The dual office holding prohibition contained in the 1968 Con- stitution is the broadest statement of public policy on this issue to date. While the first sentence of the constitutional provision ad- dresses interstate dual office holding,IO it is primarily the second sentence relating to intrastate office holding that has been the subject of interpretation and controversy. AN OFFICE BY ANY OTHER NAME Most of the questions involving article II, section 5(a) of the current Florida Constitution have concerned what constitutes an "office." The constitution does not define the term, and the legis- lature has not sought to define the term to clarify the parameters of the constitutional provision. In the absence of such clarification, the courts and the Attorney General's Office have referred to several early Florida Supreme Court decisions generally considering what constitutes an "office" as opposed to an "employment."ll No person holding or exercising the functions of any office under any foreign Government, under the Government of the United States, or under any other State, shall hold any office of honor or profit under the government of this State; and no person shall hold, or perform the functions of, more than one office under the government of this State at the same time: Provided, Notaries Public, militia officers, county school officers and commissioners of Deeds may be elected or appointed to fill any Legislative, executive or judicial office. FLA. CONST. art. XVI, § 15 (1885). 8. See generally State ex rei. Gibbs v. Gordon, 189 So. 437, 440 (Fla. 1939); State ex rei. Landis v. Reardon, 154 So. 868, 871 (Fla. 1934); Op. Att'y Gen. Fla. 47-115 (1947). 9. See, e.g., Attorney Gen. ex rei. Wilkins v. Connors, 9 So. 7, 8 (Fla. 1891) (noting that constitutional prohibition does not preclude performance by sheriff of duties of a city marshal, as a city marshal is not a state officer); Op. Att'y Gen. Fla. 52-96 (1952). 10. See Informal Op. from Att'y Gen. Jim Smith to the Honorable Lawton M. Chiles (Jan. 16, 1986) (stating that the first sentence of article II, § 5(a), Florida Consti- tution "prohibit[ed] a county commissioner from simultaneously holding office as a member of the Board of Governors of the United States Postal Service"); see also Op. Att'y Gen. Fla. 51-468 (1951) (finding that a justice of the peace cannot hold office of United States Commissioner). But see Grant v. State, 474 So. 2d 259, 260 (Fla. 1st Dist. Ct. App. 1985), in which the court rejected claims of a dual office holding violation where a state prosecutor had been appointed as a Special Assistant United States Attorney for one case arising out of a local criminal investigation when it appeared that he received no remuneration for serving in that position; see also Op. Att'y Gen. Fla. 72- 244 (1972) (advising that an "executive director of a private nonprofit corporation [that] serves a public purpose and is financed largely from federal funds is not a 'civil office of emolument under the United States' within the dual-office [holding] prohibition"). 11. See generally In re Advisory Op. to the Governor, 171 So. 2d 539, 541 (Fla. Stetson Law Review In State ex rel. Holloway v. Sheats,2 the Florida Supreme Court stated: The term "office" implies a delegation of a portion of the sovereign power to, and the possession of it by, the person filling the office, while an "employment" does not comprehend a delegation of any part of the sovereign authority. The term "office" embraces the idea of tenure, duration, and duties in exercising some portion of the sovereign power, conferred or defined by law and not by con- tract. An employment does not authorize the exercise in one's own right of any sovereign power or any prescribed independent au- thority of a governmental nature; and this constitutes, perhaps, the most decisive difference between an employment and an of- fice."3 Under this "sovereign power principle," it is the nature of the pow- ers and duties of a particular position that determines whether it is an "office" or an "employment" for purposes of article II, section 5(a).14 Thus, membership in the governing body of a governmental entity, such as a county or municipality, clearly constitutes an of- fice. It may not be evident, however, that other positions are "offic- es."15 Over the years, the Attorney General's Office has issued a number of opinions regarding when a position may be considered 1965) (holding that members of Board of Regents are officers); In re Advisory Op. to the Governor, 63 So. 2d 321, 325 (Fla. 1953) (stating that the Hotel and Restaurant Com- missioner is an officer); State ex rel. Brown v. Dewell, 179 So. 695, 701 (Fla. 1938) (Ellis, C.J., dissenting) (determining that a prosecuting attorney is a public officer); State ex rel. Gibbs v. Bloodworth, 184 So. 1, 16 (Fla. 1938) (holding that the Miami City Clerk is an officer, whose office is created and duties imposed by the charter act); Dade County v. State, 116 So. 72, 76 (Fla. 1928) (finding that persons entrusted by legal authority "with receipt of public money, or through whose hands such money may pass, ...are 'public officers,' whether service [is] general or special, transient or perma- nent"); State ex rel. Clyatt v. Hocker, 22 So. 721, 722 (Fla. 1897); Demby v. English, 667 So. 2d 350, 354 (Fla. 1st Dist. Ct. App. 1995) (concluding that the director of animal control is an officer); Orange County v. Gillespie, 239 So. 2d 132, 133-34 (Fa. 4th Dist. Ct. App. 1970) (holding that membership on regional planning council constitutes an office). 12. 83 So. 508 (Fla. 1919). 13. Id. at 509 (citations omitted). 14. See id. 15. See Palmer v. State ex rel. Axleroad, 6 So. 2d 550, 552 (Fla. 1942) (stating that the statutory omission to fix a definite tenure for the executive secretary of the Ever- glades National Park Commission, in itself would not "stamp the position as an employ- ment but may be considered as an element in construing its status"). [Vol. X=I HeinOnline -- 29 Stetson L. Rev. 310 1999-2000 backup p. 84 310 Stetson Law Review [Vol. XXIX In State ex rel. Holloway v. Sheats/2 the Florida Supreme Court stated: The term. "office" implies a delegation of a portion of the sovereign power to, and the possession of it by, the person filling the office, while an "employment" does not comprehend a delegation of any part of the sovereign authority. The term. "office" embraces the idea of tenure, duration, and duties in exercising some portion of the sovereign power, conferred or defined by law and not by con- tract. An employment does not authorize the exercise in one's own right of any sovereign power or any prescribed independent au- thority of a governmental nature; and this constitutes, perhaps, the most decisive difference between an employment and an of- fice.13 Under this "sovereign power principle," it is the nature of the pow- ers and duties of a particular position that determines whether it is an "office" or an "employment" for purposes of article II, section 5(a).14 Thus, membership in the governing body of a governmental entity, such as a county or municipality, clearly constitutes an of- fice. It may not be evident, however, that other positions are "offic- es."15 Over the years, the Attorney General's Office has issued a number of opinions regarding when a position may be considered 1965) (holding that members of Board of Regents are officers); In re Advisory Op. to the Governor, 63 So. 2d 321, 325 (Fla. 1953) (stating that the Hotel and Restaurant Com- missioner is an officer); State ex reI. Brown v. Dewell, 179 So. 695, 701 (Fla. 1938) (Ellis, C.J., dissenting) (determining that a prosecuting attorney is a public officer); State ex reI. Gibbs v. Bloodworth, 184 So. 1, 16 (Fla. 1938) (holding that the Miami City Clerk is an officer, whose office is created and duties imposed by the charter act); Dade County v. State, 116 So. 72, 76 (Fla. 1928) (finding that persons entrusted by legal authority "with receipt of public money, or through whose hands such money may pass, . . . are 'public officers,' whether service [is] general or special, transient or permo- nent"); State ex reI. Clyatt v. Hocker, 22 So. 721, 722 (Fla. 1897); Demby v. English, 667 So. 2d 350, 354 (Fla. 1st Dist. Ct. App. 1995) (concluding that the director of animal control is an officer); Orange County v. Gillespie, 239 So. 2d 132, 133-34 (Fla. 4th Dist. Ct. App. 1970) (holding that membership on regional planning council constitutes an office). 12. 83 So. 508 (Fla. 1919). 13. Id. at 509 (citations omitted). 14. See id. 15. See Palmer v. State ex reI. Axleroad, 6 So. 2d 550, 552 (Fla. 1942) (stating that the statutory omission to fix a definite tenure for the executive secretary of the Ever- glades National Park Commission, in itself would not "stamp the position as an employ- ment but may be considered as an element in construing its status"). Dual Office Holding Prohibition an office for purposes of the dual office holding prohibition. While earlier opinions reflect a broader view of what constitutes an office, recent Attorney General Opinions have taken a more cautious view, keeping in mind that the right to hold office is an important right of citizenship that should not be curtailed except by clear provision of law. Based upon its review of the particular powers of the position and the language of the statute, charter, or ordinance creating the position, the Attorney General's Office has considered the following to be "offices" for purposes of article II, section 5(a) of the Florida Constitution: chief of police;" city attorney;7 member of the Flor- ida Barbers' Sanitary Commission;8 chief of a municipal fire de- partment, member of an architectural review board, and city in- spection superintendent;9 code enforcement board member;° board of adjustment member;2 city administrator;22 member of a municipal building board of appeals;' commissioner of the South- east Interstate Compact;2 4 city board of adjustment and appeals;' city water resources advisory board;2" board of commissioners of a community redevelopment agency;7 membership on the governing board of the Alternative Education Institute, a nonprofit corpora- tion within the Department of Education;2 8 special master of a val- ue adjustment board;29 city clerk in charge of all elections within a city;3" pension fund board member; ' and membership on the State Board of Community Colleges.2 The constitutional prohibition against dual office holding, how- ever, does not generally apply to those persons who are not vested with official powers in their own right but rather merely exercise 16. See Op. Att'y Gen. Fla. 69-2 (1969). 17. See Op. Att'y Gen. Fla. 70-13 (1970). 18. See Op. Att'y Gen. Fla. 72-101 (1972). 19. See Op. Att'y Gen. Fla. 80-97 (1980). 20. See Op. Att'y Gen. Fla. 97-37 (1997); Op. Att'y Gen. Fla. 81-61 (1981). 21. See Op. Att'y Gen. Fla. 85-21 (1985); Op. Att'y Gen. Fla. 84-25 (1984). 22. See Op. Att'y Gen. Fla. 86-11 (1986). 23. See Op. Att'y Gen. Fla. 86-105 (1986). 24. See Op. Att'y Gen. Fla. 93-27 (1993). 25. See Op. Att'y Gen. Fla. 85-21 (1985); Op. Att'y Gen. Fla. 84-25 (1984). 26. See Op. Att'y Gen. Fla. 98-36 (1998). 27. See Op. Att'y Gen. Fla. 98-36 (1998); Op. Att'y Gen. Fla. 97-04 (1997). 28. See Op. Att'y Gen. Fla. 96-95 (1996). 29. See Op. Att'y Gen. Fla. 96-91 (1996). 30. See Op. Att'y Gen. Fla. 96-48 (1996). 31. See Op. Att'y Gen. Fla. 90-45 (1990). 32. See Op. Att'y Gen. Fla. 91-79 (1991). 1999]311 HeinOnline -- 29 Stetson L. Rev. 311 1999-2000 backup p. 85 1999] 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;16 city attorney;17 member of the Flor- ida Barbers' Sanitary Commission;18 chief of a municipal fire de- partment, member of an architectural review board, and city in- spection superintendent;19 code enforcement board member;20 board of adjustment member;21 city administrator;22 member of a municipal building board of appeals;23 commissioner of the South- east Interstate Compact;24 city board of adjustment and appeals;25 city water resources advisory board;26 board of commissioners of a community redevelopment agency;27 membership on the governing board of the Alternative Education Institute, a nonprofit corpora- tion within the Department of Education;28 special master of a val- ue adjustment board;29 city clerk in charge of all elections within a city;30 pension fund board member;31 and membership on the State Board of Community Colleges.32 The constitutional prohibition against dual office holding, how- ever, does not generally apply to those persons who are not vested with official powers in their own right but rather merely exercise 16. See Op. Att'y Gen. Fla. 69-2 (1969). 17. See Op. Att'y Gen. Fla. 70-13 (1970). 18. See Op. Att'y Gen. Fla. 72-101 (1972). 19. See Op. Att'y Gen. Fla. 80-97 (1980). 20. See Op. Att'y Gen. Fla. 97-37 (1997); Op. Att'y Gen. Fla. 81-61 (1981). 21. See Op. Att'y Gen. Fla. 85-21 (1985); Op. Att'y Gen. Fla. 84-25 (1984). 22. See Op. Att'y Gen. Fla. 86-11 (1986). 23. See Op. Att'y Gen. Fla. 86-105 (1986). 24. See Op. Att'y Gen. Fla. 93-27 (1993). 25. See Op. Att'y Gen. Fla. 85-21 (1985); Op. Att'y Gen. Fla. 84-25 (1984). 26. See Op. Att'y Gen. Fla. 98-36 (1998). 27. See Op. Att'y Gen. Fla. 98-36 (1998); Op. Att'y Gen. Fla. 97-04 (1997). 28. See Op. Att'y Gen. Fla. 96-95 (1996). 29. See Op. Att'y Gen. Fla. 96-91 (1996). 30. See Op. Att'y Gen. Fla. 96-48 (1996). 31. See Op. Att'y Gen. Fla. 90-45 (1990). 32. See Op. Att'y Gen. Fla. 91-79 (1991). Stetson Law Review [Vol. XXIX certain powers as agents of governmental officers.3 The Attorney General, in determining whether a deputy clerk was an officer or employee, considered the nature of the duties performed by that position.' Finding that the deputy clerk performed largely the ministerial duties of an assistant to the clerk rather than the sub- stitute duties of a true deputy, Attorney General Opinion 88-56 concluded that the position of deputy clerk under those circum- stances constituted an employment rather than an office.35 Examples of positions found to be an "employment" rather than an office include assistant public defender;6 assistant state at- torney;7 county commission attorney;8 deputy tax assessor;39 com- munity college district comptroller;" city engineer;4 ' code enforce- ment board attorney;42 firefighter;43 code enforcement officer un- der Chapter 162, Florida Statutes;44 Charter Review Commission attorney;45 charter school board member;6 assistant city attor- ney;47 public works inspector;48 member of a board of highway secondary funds trustees;4" official court reporter;0 and supervi- 33. See State ex rel. Dresskell v. City of Miami, 13 So. 2d 707, 708 (Fla. 1943) (finding that unlike an "office," "[the term 'employment' does not comprehend a delega- tion of any part of the sovereign authority, or authorize the exercise in one's own right of any sovereign power, or any prescribed independent authority of a governmental nature"). 34. See Op. Att'y Gen. Fla. 88-56 (1988). 35. See id. 36. See Op. Att'y Gen. Fla. 69-05 (1969). 37. See Op. Att'y Gen. Fla. 71-296 (1971); Op. Att'y Gen. Fla. 71-263 (1971). 38. See Op. Att'y Gen. Fla. 73-332 (1973). 39. See Op. Att'y Gen. Fla. 74-73 (1974). 40. See Op. Att'y Gen. Fla. 77-31 (1977). 41. See Op. Att'y Gen. Fla. 86-105 (1986); Op. Att'y Gen. Fla. 80-97 (1980). 42. See Op. Att'y Gen. Fla. 91-13 (1991); Op. Att'y Gen. Fla. 84-93 (1984). 43. See Op. Att'y Gen. Fla. 93-39 (1993); see also Rubin v. Shapiro, 198 So. 2d 854, 856 (Fla. 3d Dist. Ct. App. 1967) (finding that a discharged fireman was not a public officer but was an employee). 44. See Op. Att'y Gen. Fa. 94-40 (1994). 45. See Op. Att'y Gen. Fa. 94-88 (1994). 46. See Op. Att'y Gen. Fla. 98-48 (1998). 47. See Op. Att'y Gen. Fa. 96-24 (1996). 48. See Lewis v. Evans, 406 So. 2d 489, 491 n.1 (Fn. 2d Dist. Ct. App. 1981). 49. See State v. State Rd. Dep't, 173 So. 2d 693, 695 (Fa. 1965). 50. See In re Opinion of the Justices, 163 So. 76, 77-78 (Fa. 1935) (stating that "official court reporters are not state officers, but are officially employed court functionar- ies"); Robbin v. Brewer, 236 So. 2d 448, 451 (Fn. 4th Dist. Ct. App. 1970) (noting the "logic of a court reporter being an employee rather than an officer is more impressive"). But see In re Advisory Op. to the Governor, 154 So. 154, 156 (Fla. 1934) (finding that a court reporter is an officer). 312 HeinOnline -- 29 Stetson L. Rev. 312 1999-2000 backup p. 86 312 Stetson Law Review [Vol. XXIX certain powers as agents of governmental officers.33 The Attorney General, in determining whether a deputy clerk was an officer or employee, considered the nature of the duties performed by that position.34 Finding that the deputy clerk performed largely the ministerial duties of an assistant to the clerk rather than the sub- stitute duties of a true deputy, Attorney General Opinion 88-56 concluded that the position of deputy clerk under those circum- stances constituted an employment rather than an office.3S Examples of positions found to be an "employment" rather than an office include assistant public defender;36 assistant state at- torney;37 county commission attorney;38 deputy tax assessor;39 com- munity college district comptroller;40 city engineer;41 code enforce- ment board attorney;42 firefighter;43 code enforcement officer un- der Chapter 162, Florida Statutes;44 Charter Review Commission attorney;45 charter school board member;46 assistant city attor- ney;47 public. works inspector;48 member of a board of highway secondary funds trustees;49 official court reporter;60 and supervi- 33. See State ex rel. Dresskell v. City of Miami, 13 So. 2d 707, 708 (Fla. 1943) (finding that unlike an "office," "[t]he term 'employment' does not comprehend a delega- tion of any part of the sovereign authority, or authorize the exercise in one's own right of any sovereign power, or any prescribed independent authority of a governmental nature"). 34. See Op. Att'y Gen. Fla. 88-56 (1988). 35. See id. 36. See Op. Att'y Gen. Fla. 69-05 (1969). 37. See Op. Att'y Gen. Fla. 71-296 (1971); Op. Att'y Gen. Fla. 71-263 (1971). 38. See Op. Att'y Gen. Fla. 73-332 (1973). 39. See Op. Att'y Gen. Fla. 74-73 (1974). 40. See Op. Att'y Gen. Fla. 77-31 (1977). 41. See Op. Att'y Gen. Fla. 86-105 (1986); Op. Att'y Gen. Fla. 80-97 (1980). 42. See Op. Att'y Gen. Fla. 91-13 (1991); Op. Att'y Gen. Fla. 84-93 (1984). 43. See Op. Att'y Gen. Fla. 93-39 (1993); see also Rubin v. Shapiro, 198 So. 2d 854, 856 (Fla. 3d Dist. Ct. App. 1967) (finding that a discharged fireman was not a public officer but was an employee). 44. See Op. Att'y Gen. Fla. 94-40 (1994). 45. See Op. Att'y Gen. Fla. 94-88 (1994). 46. See Op. Att'y Gen. Fla. 98-48 (1998). 47. See Op. Att'y Gen. Fla. 96-24 (1996). 48. See Lewis v. Evans, 406 So. 2d 489, 491 n.l (Fla. 2d Dist. Ct. App. 1981). 49. See State v. State Rd. Dep't, 173 So. 2d 693, 695 (Fla. 1965). 50. See In re Opinion of the Justices, 163 So. 76, 77-78 (Fla. 1935) (stating that "official court reporters are not state officers, but are officially employed court functionar- ies"); Robbin v. Brewer, 236 So. 2d 448, 451 (Fla. 4th Dist. Ct. App. 1970) (noting tho "logic of a court reporter being an employee rather than an officer is more impressive"). But see In re Advisory Op. to the Governor, 154 So. 154, 156 (Fla. 1934) (finding that a court reporter is an officer). Dual Office Holding Prohibition sor of nurses at public hospital.5 In determining whether a particular position is an employment or office, the powers and responsibilities imposed upon such a posi- tion must be carefully considered. The above opinions were based upon a consideration of the particular language used in the statute, charter, or ordinance creating the position and establishing its powers. CAUGHT IN THE MIDDLE -LAW ENFORCEMENT OFFICERS Because of the powers that they exercise, law enforcement officers have historically been considered to be officers for purposes of article II, section 5(a).52 The Supreme Court of Florida has stat- ed: It can hardly be questioned that a patrolman on a city police force is clothed with [the] sovereign power of the city while discharging his duty.... True, he is an employee of the city but he is also an officer. It is the character of duty performed that must determine his status.' It is the powers that a law enforcement officer may exercise, particularly the authority to arrest without a warrant, rather than the salary or certification requirements, that characterize the law enforcement officer as an "officer."54 Using this analysis, the Attor- ney General's Office has stated that a part-time auxiliary officer and a certified reserve police officer, based upon the powers exer- cised by such individuals, are "officers" for purposes of article II, section 5(a)."5 51. See Glendinning v. Curry, 14 So. 2d 794, 799 (Fla. 1943) (concluding that the supervisor of nurses of the Jackson Memorial Hospital is not an officer). 52. See, e.g., Op. Att'y Gen. Fla. 89-10 (1989); Op. Att'y Gen. Fla. 86-11 (1986); Op. Atty Gen. Fla. 77-89 (1977); Op. Att'y Gen. Fla. 76-92 (1976); Op. Att'y Gen. Fla. 72-348 (1972); Op. Att'y Gen. Fla. 71-167 (1971); Op. Att'y Gen. Fla. 69-2 (1969); Op. Att'y Gen. Fla. 58-26 (1958); Op. Atey Gen. Fla. 57-165 (1957); see also Blackburn, 70 So. 2d at 299 (noting that a deputy sheriff is an officer); State ex rel. Watson v. Hurlbert, 20 So. 2d 693 (Fla. 1945) (finding that county detectives are officers). 53. Curry v. Hammond, 16 So. 2d 523, 523-24 (Fla. 1944). 54. See Mudsley v. City of N. Lauderdale, 300 So. 2d 304, 305 (Fla. 4th Dist. Ct. App. 1974). And see State ex rel. Gibbs v. Martens, 193 So. 835, 837 (Fla. 1940), in which the Supreme Court of Florida held that a probation officer was an "officer" since he had the right to arrest without a warrant because "no right is more sacred or more jealously guarded than the one that liberty shall not be infringed except by due process of law." 55. See Op. Att'y Gen. Fla. 77-63 (1977); see also Op. Att'y Gen. Fla. 86-105 (1986) 1999]313 HeinOnline -- 29 Stetson L. Rev. 313 1999-2000 backup p. 87 1999] Dual Office Holding Prohibition 313 sor of nurses at public hospital.51 In determining whether a particular position is an employment or office, the powers and responsibilities imposed upon such a posi- tion must be carefully considered. The above opinions were based upon a consideration of the particular language used in the statute, charter, or ordinance creating the position and establishing its powers. CAUGHT IN THE MIDDLE -LAW ENFORCEMENT OFFICERS Because of the powers that they exercise, law enforcement officers have historically been considered to be officers for purposes of article II, section 5(a).52 The Supreme Court of Florida has stat- ed: It can hardly be questioned that a patrolman on a city police force is clothed with [the] sovereign power of the city while discharging his duty .... True, he is an employee of the city but he is also an officer. It is the character of duty performed that must determine his status. 53 It is the powers that a law enforcement officer may exercise, particularly the authority to arrest without a warrant, rather than the salary or certification requirements, that characterize the law enforcement officer as an "officer."54 Using this analysis, the Attor- ney General's Office has stated that a part-time auxiliary officer and a certified reserve police officer, based upon the powers exer- cised by such individuals, are "officers" for purposes of article II, section 5(a).55 51. See Glendinning v. Curry, 14 So. 2d 794, 799 (Fla. 1943) (concluding that the supervisor of nurses of the Jackson Memorial Hospital is not an officer). 52. See, e.g., Op. Att'y Gen. Fla. 89-10 (1989); Op. Att'y Gen. Fla. 86-11 (1986); Op. Att'y Gen. Fla. 77-89 (1977); Op. Att'y Gen. Fla. 76-92 (1976); Op. Att'y Gen. Fla. 72-348 (1972); Op. Att'y Gen. Fla. 71-167 (1971); Op. Att'y Gen. Fla. 69-2 (1969); Op. Att'y Gen. Fla. 58-26 (1958); Op. Att'y Gen. Fla. 57-165 (1957); see also Blackburn, 70 So. 2d at 299 (noting that a deputy sheriff is an officer); State ex reI. Watson v. Hurlbert, 20 So. 2d 693 (Fla. 1945) (finding that county detectives are officers). 53. Curry v. Hammond, 16 So. 2d 523, 523-24 (Fla. 1944). 54. See Mudsley v. City of N. Lauderdale, 300 So. 2d 304, 305 (Fla. 4th Dist. Ct. App. 1974). And see State ex reI. Gibbs v. Martens, 193 So. 835, 837 (Fla. 1940), in which the Supreme Court of Florida held that a probation officer was an "officer" since he had the right to arrest without a warrant because "no right is more sacred or more jealously guarded than the one that liberty shall not be infringed except by due process of law." 55. See Op. Att'y Gen. Fla. 77-63 (1977); see also Op. Att'y Gen. Fla. 86·105 (1986) Stetson Law Review While the constitution generally prohibits a law enforcement officer from simultaneously serving in another office, including another law enforcement office, the Florida Supreme Court in Vinales v. State" recognized a narrow exception when municipal police officers were appointed pursuant to statute as state attorney investigators. Since their appointment was temporary and no addi- tional remuneration was paid to the police officers for performing the additional criminal investigative duties they were not holding two offices.5 7 The following year, the Second District Court of Ap- peal in Rampil v. State" followed the Vinales exception and con- cluded that it was not a violation of article II, section 5(a) for a city police officer to act in the capacity of deputy sheriff since the officer received no remuneration for these additional duties.9 The Vinales case dealt with the performance of additional law enforcement functions and duties in a police capacity, and not the exercise of governmental power or performance of official duties on a disparate municipal board exercising and performing quasi-judi- cial powers and duties." Similarly, Rampil concerned the perfor- mance of additional law enforcement functions.1 In considering the Vinales and Rampil exception, therefore, the Attorney General's Office has stated that the exception is limited and does not apply, for example, to a member of a municipal board of adjustment serv- ing as a part-time law enforcement officer on a periodic and regular basis.62 In contrast, the Attorney General's Office has determined that correctional officers are not "officers" for purposes of article II, sec- tion 5(a).' In Attorney General Opinion 98-31, it was noted that (concluding that auxiliary police officers who did not have the authority to make arrests but who were certified, carried firearms, and assisted regular police officers in carrying out their duties were "officers"). But see Op. Att'y Gen. Fla. 89-10 (1989) (concluding "that an administrative law enforcement position having no law enforcement certification requirements or arrest powers" and not authorized to independently exercise the sov- ereign powers of the state, was not an office but an employment for purposes of dual office holding). 56. 394 So. 2d 993 (Fla. 1981). 57. See id. at 994. 58. 422 So. 2d 867 (Fla. 2d Dist. Ct. App. 1982). 59. See id. at 869. 60. Vinales, 394 So. 2d at 994. 61. Rampil, 422 So. 2d at 868. 62. See Op. Att'y Gen. Fla. 90-15 (1990); Op. Att'y Gen. Fla. 84-25 (1984); see also Op. Att'y Gen. Fla. 86-84 (1986) (finding that a city council member may not simulta- neously serve as a certified auxiliary law enforcement officer). 63. See Op. Att'y Gen. Fa. 98-31 (1998). 314 [Vol. XXIX HeinOnline -- 29 Stetson L. Rev. 314 1999-2000 backup p. 88 314 Stetson Law Review [Vol. XXIX 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. State5S recognized a narrow exception when municipal police officers were appointed pursuant to statute as state attorney investigators. Since their appointment was temporary and no addi- tional remuneration was paid to the police officers for performing the additional criminal investigative duties they were not holding two offices.57 The following year, the Second District Court of Ap- peal in Rampil v. State5S followed the Vinales exception and con- cluded that it was not a violation of article II, section 5(a) for a city police officer to act in the capacity of deputy sheriff since the officer received no remuneration for these additional duties.69 The Vinales case dealt with the performance of additional law enforcement functions and duties in a police capacity, and not the exercise of governmental power or performance of official duties on a disparate municipal board exercising and performing quasi-judi- cial powers and duties.so Similarly, Rampil concerned the perfor- mance of additional law enforcement functions.61 In considering the Vinales and Rampil exception, therefore, the Attorney General's Office has stated that the exception is limited and does not apply, for example, to a member of a municipal board of adjustment serv- ing as a part-time law enforcement officer on a periodic and regular basis.62 In contrast, the Attorney General's Office has determined that correctional officers are not "officers" for purposes of article II, sec- tion 5(a).63 In Attorney General Opinion 98-31, it was noted that (concluding that auxiliary police officers who did not have the authority to make arrests but who were certified, carried firearms, and assisted regular police officers in carrying out their duties were "officers"). But see Op. Att'y Gen. Fla. 89-10 (1989) (concluding "that an administrative law enforcement position having no law enforcement certification requirements or arrest powers" and not authorized to independently exercise the sov- ereign powers of the state, was not an office but an employment for purposes of dual office holding). 56. 394 So. 2d 993 (Fla. 1981). 57. See id. at 994. 58. 422 So. 2d 867 (Fla. 2d Dist. Ct. App. 1982). 59. See id. at 869. 60. Vinales, 394 So. 2d at 994. 61. Rampil, 422 So. 2d at 868. 62. See Op. Att'y Gen. Fla. 90-15 (1990); Op. Att'y Gen. Fla. 84-25 (1984); see also Op. Att'y Gen. Fla. 86-84 (1986) (finding that a city council member may not simulta- neously serve as a certified auxiliary law enforcement officer). 63. See Op. Att'y Gen. Fla. 98-31 (1998). Dual Office Holding Prohibition "unlike law enforcement officers, correctional officers do not have broad authority to make arrests without a warrant."' Rather, correctional officers have only been authorized to arrest any convict who has escaped or any person who, without authori- ty, interferes with or interrupts the work of a prisoner or the disci- pline or good conduct of a prisoner, or who by illicit means at- tempts to gain admission to a state correctional institution.65 There is a difference between law enforcement officers' and correc- tional officers' responsibilities. Unlike a law enforcement officer, a correctional officer does not have a legal duty to provide aid to ill, injured, and distressed persons who are not under his or her super- vision.6" Moreover, although a number of statutes treat "law en- forcement officers" and "correctional officers" similarly, the legisla- ture has generally deemed it necessary to specifically include cor- rectional officers within such provisions to ensure their inclusion, where the statute is not specific.7 THE SPECIAL DISTRICT DISTINCTION While the 1968 Constitution broadened the language of the dual office holding prohibition to include municipal as well as state and county offices, it does not refer to special districts. A special district is a governmental entity created by law to perform a special and limited governmental function. The courts and the Attorney General's Office, therefore, have concluded that the dual office holding prohibition does not apply to the officers of an independent special district."8 In a 1994 advisory 64. Id. 65. Id. 66. See Op. Att'y Gen. Fla. 89-62 (1989). 67. See id. 68. For examples where the Attorney General's Office has stated that there was no violation of the dual office holding prohibition when the state, county, or municipal officer also served as an officer of a special district, see Op. Att'y Gen. Fla. 96-84 (1996) (answering that a person may serve as city commissioner and executive director of area housing authority); Op. Att'y Gen. Fla. 94-83 (1994) (stating that a person may serve on airport authority and on school board); Op. Att'y Gen. Fla. 94-42 (1994) (finding that a person may serve as city commissioner and serve on a local multi-agency career service authority); Op. Att'y Gen. Fla. 86-55 (1986) (noting that a member of Big Cypress Basin's governing board may serve as city mayor); Op. Att'y Gen. Fla. 85-24 (1985) (finding that a mayor may serve on a community redevelopment district established by general law); Op. Atfy Gen. Fla. 80-16 (1980) (stating that a legislator may serve as a 1999]315 HeinOnline -- 29 Stetson L. Rev. 315 1999-2000 backup p. 89 1999] Dual Office Holding Prohibition 315 "unlike law enforcement officers, correctional officers do not have broad authority to make arrests without a warrant."64 Rather, correctional officers have only been authorized to arrest any convict who has escaped or any person who, without authori- ty, interferes with or interrupts the work of a prisoner or the disci- pline or good conduct of a prisoner, or who by illicit means at- tempts to gain admission to a state correctional institution.65 There is a difference between law enforcement officers' and correc- tional officers' responsibilities. Unlike a law enforcement officer, a correctional officer does not have a legal duty to provide aid to ill, injured, and distressed persons who are not under his or her super- vision.66 Moreover, although a number of statutes treat "law en- forcement officers" and "correctional officers" similarly, the legisla- ture has generally deemed it necessary to specifically include cor- rectional officers within such provisions to ensure their inclusion, where the statute is not specific.67 THE SPECIAL DISTRICT DISTINCTION While the 1968 Constitution broadened the language of the dual office holding prohibition to include municipal as well as state and county offices, it does not refer to special districts. A special district is a governmental entity created by law to perform a special and limited governmental function. The courts and the Attorney General's Office, therefore, have concluded that the dual office holding prohibition does not apply to the officers of an independent special district.58 In a 1994 advisory 64. [d. 65. [d. 66. See Op. Att'y Gen. Fla. 89-62 (1989). 67. See id. 68. For examples where the Attorney General's Office has stated that there was no violation of the dual office holding prohibition when the state, county, or municipal officer also served as an officer of a special district, see Op. Att'y Gen. Fla. 96-84 (1996) (answering that a person may serve as city commissioner and executive director of area housing authority); Op. Att'y Gen. Fla. 94-83 (1994) (stating that a person may serve on airport authority and on school board); Op. Att'y Gen. Fla. 94-42 (1994) (finding that a person may serve as city commissioner and serve on a local multi-agency career service authority); Op. Att'y Gen. Fla. 86-55 (1986) (noting that a member of Big Cypress Basin's governing board may serve as city mayor); Op. Att'y Gen. Fla. 85-24 (1985) (finding that a mayor may serve on a community redevelopment district established by general law); Op. Att'y Gen. Fla. 80-16 (1980) (stating that a legislator may serve as a Stetson Law Review opinion, the Supreme Court of Florida reiterated that special dis- trict officers are not included within the dual office holding prohibi- tion. In Advisory Opinion to the Governor -Dual Office-Holding,9 the court concluded that a member of a community college district board of trustees is an officer of a special district created to perform the special governmental function of operating a community college and is not a state, municipal, or county officer within the meaning of article II, section 5(a). Thus, the dual office-holding prohibition does not keep a state, county, or municipal officer from serving on a com- munity college board of trustees.70 While the court considered membership on the board of trustees of a community college district to constitute a special district office and thus to be outside of the parameters of article II, section 5(a), the Supreme Court in Advisory Opinion to the Governor -School Board Member -Suspension Authority,7 rejected the designation of school board members as district officers which would have re- moved them from application of the dual office holding prohibi- tion.72 The court had been asked whether school board members could be suspended under the constitutional provisions governing county officers or whether a suspension should be accomplished under the statutory provisions governing district officers.73 The court concluded that school board members are county officers who have equivalent powers and authority to that of the county commis- sion although their power is exercised in different local governmen- tal spheres.74 As county officers, however, school board members are precluded from simultaneously holding another state, county, or member of a community college district board of trustees); Op. Att'y Gen. Fla. 78-74 (1978) (answering question that a municipal parking board member may serve as mem- ber of community college district board of trustees); Op. Att'y Gen. Fla. 75-153 (1975) (stating that a legislator may serve as a member of a community college district board of trustees); Op. Att'y Gen. Fla. 73-47 (1973) (noting that a member of junior college district may serve as member of parks, planning, and zoning commission); Op. Att'y Gen. Fla. 71-324 (1971) (finding that a member of hospital district's governing body is not an officer within constitutional dual office holding prohibition). 69. 630 So. 2d 1055, 1058 (Fla. 1994). 70. Id. 71. 626 So. 2d 684 (Fla. 1993) [hereinafter Advisory Op. on Suspension Auth.]. 72. See id. at 689. 73. See id. at 687. 74. See id. at 689. 316 [Vol. XXIX HeinOnline -- 29 Stetson L. Rev. 316 1999-2000 backup p. 90 316 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 Of{ice-Holding,69 the court concluded that a member of a community college district board of trustees is an officer of a special district created to perform the special governmental function of operating a community college and is not a state, municipal, or county officer within the meaning of article II, section 5(a). Thus, the dual office-holding prohibition does not keep a state, county, or municipal officer from serving on a com- munity college board oftrustees.7o While the court considered membership on the board of trustees of a community college district to constitute a special district office and thus to be outside of the parameters of article II, section 5(a), the Supreme Court in Advisory Opinion to the Governor -School Board Member -Suspension Authority /1 rejected the designation of school board members as district officers which would have re- moved them from application of the dual office holding prohibi- tion.72 The court had been asked whether school board members could be suspended under the constitutional provisions governing county officers or whether a suspension should be accomplished under the statutory provisions governing district officers.73 The court concluded that school board members are county officers who have equivalent powers and authority to that of the county commis- sion although their power is exercised in different local governmen- tal spheres.74 As county officers, however, school board members are precluded from simultaneously holding another state, county, or member of a community college district board of trustees); Op. Att'y Gen. Fla. 78·74 (1978) (answering question that a municipal parking board member may serve as memo ber of community college district board of trustees); Op. Att'y Gen. Fla. 75·153 (1975) (stating that a legislator may serve as a member of a community college district board of trustees); Op. Att'y Gen. Fla. 73·47 (1973) (noting that a member of junior college district may serve as member of parks, planning, and zoning commission); Op. Att'y Gen. Fla. 71-324 (1971) (finding that a member of hospital district's governing body is not an officer within constitutional dual office holding prohibition). 69. 630 So. 2d 1055, 1058 (Fla. 1994). 70. [d. 71. 626 So. 2d 684 (Fla. 1993) [hereinafter Advisory Op. on Suspension Auth.]. 72. See id. at 689. 73. See id. at 687. 74. See id. at 689. Dual Office Holding Prohibition municipal office.75 Care must be taken, therefore, in determining the nature and character of a district or authority to determine whether the gov- ernmental entity is an agency of the state, county, or municipality, such that its officers may be subject to the dual office prohibition. For example, in Attorney General Opinion 84-90, the question was asked whether a member of the Volusia County Health Facili- ties Authority was an officer of the county." While the authority was created and organized under part III, chapter 154, Florida Statutes, as a public body corporate and politic, it was created by the county by ordinance or resolution.7 ' The governing body of the county appointed the authority members, was empowered to re- move the members, and was authorized to abolish the authority at any time. It was concluded that the authority was an instrumental- ity of the county and its officers were county officers.7 ' Thus, the constitutional prohibition against dual office holding precluded the mayor from also serving on the governing body of the county health facilities authority.79 More recently, Attorney General Opinion 94-42 stated that membership on the Monroe County Career Service Council was in the nature of a district office and thus not subject to the constitu- tional prohibition." The council was created by law to perform a limited function and its members were appointed by a diverse group of governmental agencies that had no oversight or control over the functions or actions of the council.8 ' Similarly, Attorney General Opinion 94-83 concluded that the Panama City-Bay County Airport Authority was a special district and thus membership on its 75. The Supreme Court was advised that the Attorney General had previously considered school board members to be special district officers and outside the scope of article H, section 5(a). See Advisory Op. on Suspension Auth., 626 So. 2d at 690. Thus, there could have been school board members who were in fact holding dual offices. In response, the court held that "[w]ith regard to those individuals who may be holding dual offices because of the attorney general's opinion 84-73, we conclude that this [i.e., the Court's] opinion should be prospective in its application. This prospective application should apply only until such time as the term of one of the dual offices expires." Id.; cf Op. Att'y Gen. Fla. 98-48 (1998) (concluding that charter school members have not been invested by statute with the powers that would make them officers). 76. See Op. Atty Gen. Fla. 84-90 (1984). 77. See id. 78. See id. 79. See id. 80. See Op. Att'y Gen. Fla. 94-42 (1994). 81. See id. 19991 317 HeinOnline -- 29 Stetson L. Rev. 317 1999-2000 backup p. 91 1999] Dual Office Holding Prohibition 317 municipal office.75 Care must be taken, therefore, in determining the nature and character of a district or authority to determine whether the gov- ernmental entity is an agency of the state, county, or municipality, such that its officers may be subject to the dual office prohibition. For example, in Attorney General Opinion 84-90, the question was asked whether a member of the Volusia County Health Facili- ties Authority was an officer of the county.76 While the authority was created and organized under part III, chapter 154, Florida Statutes, as a public body corporate and politic, it was created by the county by ordinance or resolution.77 The governing body of the county appointed the authority members, was empowered to re- move the members, and was authorized to abolish the authority at any time. It was concluded that the authority was an instrumental- ity of the county and its officers were county officers.7S Thus, the constitutional prohibition against dual office holding precluded the mayor from also serving on the governing body of the county health facilities authority.79 More recently, Attorney General Opinion 94-42 stated that membership on the Monroe County Career Service Council was in the nature of a district office and thus not subject to the constitu- tional prohibition.so The council was created by law to perform a limited function and its members were appointed by a diverse group of governmental agencies that had no oversight or control over the functions or actions of the council.sl Similarly, Attorney General Opinion 94-83 concluded that the Panama City-Bay County Airport Authority was a special district and thus membership on its 75. The Supreme Court was advised that the Attorney General had previously considered school board members to be special district officers and outside the scope of article II, section 5(a). See Advisory Op. on Suspension Auth., 626 So. 2d at 690. Thus, there could have been school board members who were in fact holding dual offices. In response, the court held that "[w]ith regard to those individuals who may be holding dual offices because of the attorney general's opinion 84-73, we conclude that this [i.e., the Court's] opinion should be prospective in its application. This prospective application should apply only until such time as the term of one of the dual offices expires." Id.; cf. Op. Att:y Gen. Fla. 98-48 (1998) (concluding that charter school members have not been invested by statute with the powers that would make them officers). 76. See Op. Atf!y Gen. Fla. 84-90 (1984). 77. See id. 78. See id. 79. See id. 80. See Op. Att:y Gen. Fla. 94-42 (1994). 81. See id. Stetson Law Review governing board was not an office for purposes of article II, section 5(a).82 EXCEPTIONS TO THE RULE There are several exceptions to the constitutional prohibition against dual office holding. Article II, section 5(a), itself expressly states that a notary public or military officer may hold another office." In addition, any officer may be a member of a constitution- al revision commission or constitutional convention.84 Statutory bodies having only advisory powers are also expressly exempted, and it is this exception that has been the subject of interpretation both by the courts and by the Attorney General's Office. In a 1941 advisory opinion based on similar language in the 1885 constitution, the Supreme Court of Florida held that a mem- ber of the State Planning Board was a state "officer" within the dual office holding prohibition despite authorization for the board to act in an advisory capacity.85 The court noted that the members of the board were appointed by the Governor, served a fixed term of office, performed duties imposed upon them by statute, and were authorized to "expend public funds appropriated for that purpose in the discharge of [their] duties, exercising [their] own discretion in that regard."86 Thus, the court concluded that powers and at- tributes of sovereignty had been "delegated to or reposed in the State Planning Board."87 Similarly, the Attorney General in Opinion 76-241 concluded that membership on the Florida Human Relations Commission was an office rather than service on a statutory body possessing only advisory powers." The opinion was based upon an examination of the powers of the commission, which included, among other things: the right to accept moneys, both public and private, to help finance its activities; to recommend measures to eliminate discrimination; to receive, initiate, investigate, hold hearings on, and act upon 82. See Op. Att'y Gen. Fla. 94-83 (1994). 83. See FLA. CoNsT. art. II, § 5(a). 84. See id. art. XI, § 2 (providing for the establishment of a constitutional 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. Att'y Gen. Fla. 76-241 (1976). 318 [Vol. XXIX HeinOnline -- 29 Stetson L. Rev. 318 1999-2000 backup p. 92 318 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. sa In addition, any officer may be a member of a constitution- al revision commission or constitutional convention.84 Statutory bodies having only advisory powers are also expressly exempted, and it is this exception that has been the subject of interpretation both by the courts and by the Attorney General's Office. In a 1941 advisory opinion based on similar language in the 1885 constitution, the Supreme Court of Florida held that a mem- ber of the State Planning Board was a state "officer" within the dual office holding prohibition despite authorization for the board to act in an advisory capacity.85 The court noted that the members of the board were appointed by the Governor, served a fixed term of office, performed duties imposed upon them by statute, and were authorized to "expend public funds appropriated for that purpose in the discharge of [their] duties, exercising [their] own discretion in that regard. "86 Thus, the court concluded that powers and at- tributes of sovereignty had been "delegated to or reposed in the State Planning Board. "87 Similarly, the Attorney General in Opinion 76-241 concluded that membership on the Florida Human Relations Commission was an office rather than service on a statutory body possessing only advisory powers.88 The opinion was based upon an examination of the powers of the commission, which included, among other things: the right to accept moneys, both public and private, to help finance its activities; to recommend measures to eliminate discrimination; to receive, initiate, investigate, hold hearings on, and act upon 82. See Op. Att'y Gen. Fla. 94-83 (1994). 83. See FLA. CONST. art. II, § 5(a). 84. See id. art. XI, § 2 (providing for the establishment of a constitutional 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. Att'y Gen. Fla. 76-241 (1976). Dual Office Holding Prohibition complaints alleging discrimination; to render, at least annually, a comprehensive written report to the Governor and Legislature; and to adopt, amend, and rescind rules and regulations to effectuate the purposes and policies of the act.89 Since the commission was au- thorized to exercise powers associated with those of an office, it could not be characterized as purely an advisory body." Attorney General Opinion 91-79 concluded that the State Board of Community Colleges of the Department of Education did not constitute an advisory board since the state board was responsible for establishing rules and policies for the operation and mainte- nance of the state community college system and for adopting guidelines relating to salary and fringe benefits for community college administrators."1 In addition, the board was responsible for reviewing and administering the state program of support for the community college system, and in this capacity, reviewed and ap- proved all budgets and recommended budget amendments in the system.92 Local planning and zoning commissions possessing the power to grant variances without review or that are final unless appealed to the county commission, would not fall within the exception for advisory bodies.9" Only those statutory bodies possessing advisory powers are excepted; article II, section 5(a), "does not provide for or recognize an exception for statutory bodies whose [powers] are substantially or predominately advisory."94 An examination of the duties and responsibilities imposed on a board must be conducted, rather than merely relying on the name of the board or position.95 In contrast, members of a state park advisory council, who served without compensation at the pleasure of the Division of Recreation and Parks in a purely advisory capacity and who had lacked authority to expend public funds or to in any way exercise the state's "sovereign power" were determined in Attorney General Opinion 71-43 to constitute a "statutory advisory body."98 Other 89. See id. 90. See id. 91. See Op. Att'y Gen. Fla. 91-79 (1991). 92. See id. 93. See Op. Att'y Gen. Fla. 90-33 (1990); Op. Att'y Gen. Fla. 89-25 (1989). 94. Op. Att'y Gen. Fla. 89-25 (1989). 95. See Op. Att'y Gen. Fla. 98-36 (1998) (determining that membership on a city water resources advisory board which, despite its name, exercised substantive powers, constituted an "office"). 96. Op. Att'y Gen. Fla. 71-43 (1971). 1999]319 HeinOnline -- 29 Stetson L. Rev. 319 1999-2000 backup p. 93 1999] 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.59 Since the commission was au- thorized to exercise powers associated with those of an office, it could not be characterized as purely an advisory body.90 Attorney General Opinion 91-79 concluded that the State Board of Community Colleges of the Department of Education did not constitute an advisory board since the state board was responsible for establishing rules and policies for the operation and mainte- nance of the state community college system and for adopting guidelines relating to salary and fringe benefits for community college administrators.91 In addition, the board was responsible for reviewing and administering the state program of support for the community college system, and in this capacity, reviewed and ap- proved all budgets and recommended budget amendments in the system.92 Local planning and zoning commissions possessing the power to grant variances without review or that are final unless appealed to the county commission, would not fall within the exception for advisory bodies.93 Only those statutory bodies possessing advisory powers are excepted; article II, section 5(a), "does not provide for or recognize an exception for statutory bodies whose [powers] are substantially or predominately advisory."94 An examination of the duties and responsibilities imposed on a board must be conducted, rather than merely relying on the name of the board or position.95 In contrast, members of a state park advisory council, who served without compensation at the pleasure of the Division of Recreation and Parks in a purely advisory capacity and who had lacked authority to expend public funds or to in any way exercise the state's "sovereign power" were determined in Attorney General Opinion 71-43 to constitute a "statutory advisory body."96 Other 89. See id. 90. See id. 91. See Op. Att'y Gen. Fla. 91-79 (1991). 92. See id. 93. See Op. Att'y Gen. Fla. 90-33 (1990); Op. Att'y Gen. Fla. 89-25 (1989). 94. Op. Att'y Gen. Fla. 89-25 (1989). 95. See Op. Att'y Gen. Fla. 98-36 (1998) (determining that membership on a city water resources advisory board which, despite its name, exercised substantive powers, constituted an "office"). 96. Op. Att'y Gen. Fla. 71-43 (1971). Stetson Law Review examples of positions within the scope of the exception include an ad hoc charter revision commission appointed by a local govern- ment to study and recommend changes in a charter;97 a municipal zoning board having only advisory powers;" an advisory county planning commission;99 the Florida Advisory Council on Intergov- ernmental Relations;1 0 the board of trustees of a county public health trust;' a local planning agency whose function is informa- tion gathering and advising local government.0 2 An additional constitutional exception to article II, section 5(a) has been recognized. Under article IV, section 6, certain designated state officials are specifically authorized to serve as the heads of state departments.' In Opinion 75-115, the Attorney General's Office concluded that this express constitutional mandate consti- tuted an exception to article II, section 5(a). Thus, the opinion states that the Lieutenant Governor may also serve as the Secre- tary of the Department of Administration.' THE EX OFFICIO DILEMMA While the constitution does not expressly provide an exception for ex officio service, it has long been settled in this state that the legislative designation of an officer to perform ex officio the func- tions of another or additional office does not violate the dual office holding prohibition, provided that the duties imposed are consistent with those already being exercised.' 97. See Op. Att'y Gen. Fla. 96-59 (1996) (regarding a county charter); Op. Att'y Gen. Fla. 72-179 (1972) (pertaining to a municipal charter). 98. See Op. Att'y Gen. Fla. 73-288 (1973). 99. See Op. Att'y Gen. Fla. 74-232 (1974). 100. See Op. Att'y Gen. Fla. 77-74 (1977). 101. See Op. Att'y Gen. Fla. 78-36 (1978). 102. See Op. Att'y Gen. Fla. 86-105 (1986). 103. See FLA. CONST. art. IV, § 6 (providing in part that the administration of each department in the executive branch of state government, unless 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. Att'y Gen. Fla. 75-115 (1975). 105. See id. 106. See, e.g., Bath Club, 394 So. 2d at 112; Op. Att'y Gen. Fla. 94-66 (1994) (both finding that designation by ordinance of the board of county commissioners to perform the functions of the board of adjustment was an ex officio designation and thus did not violate constitutional dual office holding prohibition); Op. Att'y Gen. Fla. 93-42 (1993) (determining that the positions of fire chief and community development director, and the positions of assistant city administrator and the finance/personnel director may be 320 [Vol. XXI HeinOnline -- 29 Stetson L. Rev. 320 1999-2000 backup p. 94 320 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;97 a municipal zoning board having only advisory powers;9S an advisory county planning commission;99 the Florida Advisory Council on Intergov- ernmental Relations;loo the board of trustees of a county public health trust;lOl a local planning agency whose function is informa- tion gathering and advising local government. 102 An additional constitutional exception to article II, section 5(a) has been recognized. Under article IV, section 6, certain designated state officials are specifically authorized to serve as the heads of state departments. lOa In Opinion 75-115, the Attorney General's Office concluded that this express constitutional mandate consti- tuted an exception to article II, section 5(a).104 Thus, the opinion states that the Lieutenant Governor may also serve as the Secre- tary of the Department of Administration.los THE EX OFFICIO DILEMMA While the constitution does not expressly provide an exception for ex officio service, it has long been settled in this state that the legislative designation of an officer to perform ex officio the func- tions of another or additional office does not violate the dual office holding prohibition, provided that the duties imposed are consistent with those already being exercised. lOS 97. See Op. Att'y Gen. Fla. 96-59 (1996) (regarding a county charter); Op. Att'y Gen. Fla. 72-179 (1972) (pertaining to a municipal charter). 98. See Op. Att'y Gen. Fla. 73-288 (1973). 99. See Op. Att'y Gen. Fla. 74-232 (1974). 100. See Op. Att'y Gen. Fla. 77-74 (1977). 101. See Op. Att'y Gen. Fla. 78-36 (1978). 102. See Op. Att'y Gen. Fla. 86-105 (1986). 103. See FLA. CONST. art. IV, § 6 (providing in part that the administration of each department in the executive branch of state government, unless othenvise provided 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. Att'y Gen. Fla. 75-115 (1975). 105. See id. 106. See, e.g., Bath Club, 394 So. 2d at 112; Op. Att'y Gen. Fla. 94-66 (1994) (both finding that designation by ordinance of the board of county commissioners to perform the functions of the board of adjustment was an ex officio designation and thus did not violate constitutional dual office holding prohibition); Op. Att'y Gen. Fla. 93-42 (1993) (determining that the positions of fire chief and community development director, and the positions of assistant city administrator and the finance/personnel director may be Dual Office Holding Prohibition As noted above,"7 the purpose of the constitutional prohibi- tion against dual office holding is "to ensure that multiple state, county, and municipal offices will not be held by the same person. Underlying this objective is the concern that a conflict of interest will arise by dual office holding whenever the respective duties of office are inconsistent."' Where, however, additional or ex officio duties are assigned to a particular office by the legislative body and there is no inconsistency between the new and the preexisting du- ties, the dual office holding prohibition does not preclude such an assignment."9 The newly assigned duties are viewed as an addi- tion to the existing duties of the officer."0 For example, the Attorney General's Office has stated that the city council, as the legislative body for the municipality, may by ordinance impose additional or ex officio duties of the office of city manager on the office of the city clerk."' In Attorney General Opinion 93-42, the Attorney General concluded that a municipality could legislatively merge the offices of fire chief and community development director into one office and have that officer perform ex officio the duties of both offices.1 2 Similarly, Attorney General Opinion 94-66 concluded that the designation by ordinance of the Board of County Commissioners to perform the functions of the Board of Adjustment appeared to be an ex officio designation and, therefore, would not violate the dual office holding prohibition con- tained in article II, section 5(a)."3 More recently, Attorney General Opinion 98-16 concluded that combined without violating the dual office holding prohibition). 107. See supra text accompanying note 1. 108. Bath Club, 394 So. 2d at 112. 109. See id. 110. See id. 111. Accord Op. Att'y Gen. Fla. 91-48 (1991); Op. Att'y Gen. Fla. 80-97 (1980); see Op. Atty Gen. Fla. 81-72 (1981); see also Op. Atey Gen. Fla. 94-98 (1994) (determining that the mayor or other member of the city council may be appointed to serve on the board of trustees of the police officers' and firefighters' pension trust fund); Op. Att'y Gen. Fla. 82-92 (1982) (stating that a city may, by ordinance, designate members of code enforcement board as ex officio members of minimum housing and commercial property appeals board); Op. Att'y Gen. Fla. 80-12 (1980) (concluding that membership of elected municipal officer on metropolitan planning organization as prescribed by statute does not violate dual office holding prohibition); Op. Att'y Gen. Fla. 70-46 (1970) (finding that a statute imposing ex officio post on holder of another office must be distinguished from a statute authorizing appointment of one office holder to another separate and distinct office). 112. See Op. Att'y Gen. Fla. 93-42 (1993). 113. See Op. Att'y Gen. Fla. 94-66 (1994). 1999]321 HeinOnline -- 29 Stetson L. Rev. 321 1999-2000 backup p. 95 1999] Dual Office Holding Prohibition 321 As noted above,lo7 the purpose of the constitutional prohibi- tion against dual office holding is "to ensure that multiple state, county, and municipal offices will not be held by the same person. Underlying this objective is the concern that a conflict of interest will arise by dual office holding whenever the respective duties of office are inconsistent."lOS Where, however, additional or ex officio duties are assigned to a particular office by the legislative body and there is no inconsistency between the new and the preexisting du- ties, the dual office holding prohibition does not preclude such an assignment.lo9 The newly assigned duties are viewed as an addi- tion to the existing duties of the officer. no For example, the Attorney General's Office has stated that the city council, as the legislative body for the municipality, may by ordinance impose additional or ex officio duties of the office of city manager on the office of the city clerk.l11 In Attorney General Opinion 93-42, the Attorney General concluded that a municipality could legislatively merge the offices of fire chief and community development director into one office and have that officer perform ex officio the duties of both offices.112 Similarly, Attorney General Opinion 94-66 concluded that the designation by ordinance of the Board of County Commissioners to perform the functions of the Board of Adjustment appeared to be an ex officio designation and, therefore, would not violate the dual office holding prohibition con- tained in article II, section 5(a).113 More recently, Attorney General Opinion 98-16 concluded that combined without violating the dual office holding prohibition). 107. See supra text accompanying note 1. 108. Bath Club, 394 So. 2d at 112. 109. See id. 110. See id. 111. Accord Op. Att'y Gen. Fla. 91-48 (1991); Op. Att'y Gen. Fla. 80-97 (1980); see Op. Att'y Gen. Fla. 81-72 (1981); see also Op. Att'y Gen. Fla. 94-98 (1994) (determining that the mayor or other member of the city council may be appointed to serve on the board of trustees of the police officers' and firefighters' pension trust fund); Op. Att'y Gen. Fla. 82-92 (1982) (stating that a city may, by ordinance, designate members of code enforcement board as ex officio members of minimunl housing and commercial property appeals board); Op. Att'y Gen. Fla. 80-12 (1980) (concluding that membership of elected municipal officer on metropolitan planning organization as prescribed by statute does not violate dual office holding prohibition); Op. Att'y Gen. Fla. 70-46 (1970) (finding that a statute imposing ex officio post on holder of another office must be distinguished from a statute authorizing appointment of one office holder to another separate and distinct office). 112. See Op. Att'y Gen. Fla. 93-42 (1993). 113. See Op. Att'y Gen. Fla. 94-66 (1994). Stetson Law Review a city commission may designate itself as the governing body of a community redevelopment agency and that such designation consti- tuted an ex officio designation of the agency's duties."' Although the community redevelopment agency is a separate entity from the city commission, the city commission's service as the governing body of the agency is viewed as an addition to the existing duties of the city commission."' The courts have also recognized this distinction. In City of Riviera Beach v. Palm Beach County Solid Waste Authority,"6 the Fourth District Court of Appeal stated that a special act authoriz- ing county commissioners to sit as members of the county solid waste authority did not violate article II, section 5(a), but merely imposed additional duties upon an existing office."7 In City of Or- lando v. State Department of Insurance,"' the First District Court of Appeal concluded that where the statutes had been amended to authorize municipal officials to serve on the board of trustees of municipal police and firefighters' pension trust funds, there was no violation of the constitutional dual office holding prohibition."' There is, however, a distinction between a statute imposing an ex officio position on the holder of another office and a statute au- thorizing the appointment of an officeholder to a second distinct office. For example, the Supreme Court of Florida has pointed out that while additional duties may be validly imposed by the legisla- ture on a state office ex officio, a legislative attempt to authorize the Governor to appoint a state official to another separate and distinct office would be ineffectual under the constitutional dual office holding prohibition.'20 The legislation in question made the 114. See Op. Att'y Gen. Fla. 98-16 (1998). 115. See id. 116. 502 So. 2d 1335 (Fla. 4th Dist. Ct. App. 1987). 117. See id. at 1336. 118. 528 So. 2d 468 (Fla. 1st Dist. Ct. App. 1988). 119. See id. at 469; Op. Att'y Gen. Fla. 94-98 (1994) (concluding that the imposition of additional or ex officio duties on the mayor or other city council members under the city code to serve on the board of trustees of the police officers' and firefighters' pension trust fund would not violate article II, section 5(a)). But cf Op. Att'y Gen. Fla. 90-45 (1990) (concluding that a member of the civil service board could not be appointed to the board of trustees of the general pension trust board). In Attorney General Opinion 90-45, there was no ex officio designation imposing the duties of one office on the other. 120. See Advisory Op. to Governor, 1 So. 2d at 638; Op. Att'y Gen. Fla. 70-46 (1970) (finding it doubtful that city commissioner could also be municipal judge where charter created office of municipal judge as a separate and distinct office and did not designate that office as an ex officio office to be performed by the city commissioner). 322 [Vol. XXIX HeinOnline -- 29 Stetson L. Rev. 322 1999-2000 backup p. 96 322 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.114 Although the community redevelopment agency is a separate entity from the city commission, the city commission's service as the governing body of the agency is viewed as an addition to the existing duties of the city commission.ll5 The courts have also recognized this distinction. In City of Riviera Beach v. Palm Beach County Solid Waste Authority,116 the Fourth District Court of Appeal stated that a special act authoriz- ing county commissioners to sit as members of the county solid waste authority did not violate article II, section 5(a), but merely imposed additional duties upon an existing office.l17 In City of Or- lando v. State Department of Insurance, 118 the First District Court of Appeal concluded that where the statutes had been amended to authorize municipal officials to serve on the board of trustees of municipal police and firefighters' pension trust funds, there was no violation of the constitutional dual office holding prohibition. 119 There is, however, a distinction between a statute imposing an ex officio position on the holder of another office and a statute au- thorizing the appointment of an officeholder to a second distinct office. For example, the Supreme Court of Florida has pointed out that while additional duties may be validly imposed by the legisla- ture on a state office ex officio, a legislative attempt to authorize the Governor to appoint a state official to another separate and distinct office would be ineffectual under the constitutional dual office holding prohibition.12o The legislation in question made the 114. See Op. Att'y Gen. Fla. 98-16 (1998). 115. See id. 116. 502 So. 2d 1335 (Fla. 4th Dist. Ct. App. 1987). 117. See id. at 1336. 118. 528 So. 2d 468 (Fla. 1st Dist. Ct. App. 1988). 119. See id. at 469; Op. Att'y Gen. Fla. 94-98 (1994) (concluding that the imposition of additional or ex officio duties on the mayor or other city council members under the city code to serve on the board of trustees of the police officers' and fIrefIghters' pension trust fund would not violate article II, section 5(a». But cf. Op. Att'y Gen. Fla. 90·45 (1990) (concluding that a member of the civil service board could not be appointed to the board of trustees of the general pension trust board). In Attorney General Opinion 90-45, there was no ex officio designation imposing the duties of one office on the other. 120. See Advisory Op. to Governor, 1 So. 2d at 638; Op. Att'y Gen. Fla. 70-46 (1970) (finding it doubtful that city commissioner could also be municipal judge where charter created office of municipal judge as a separate and distinct office and did not designate that office as an ex officio office to be performed by the city commissioner). Dual Office Holding Prohibition chairman of the state road department a member of the state plan- ning board.12' The court found that the act simply placed specific additional duties on the chairman, and therefore, was constitution- al."= However, the act also permitted the Governor to appoint two state officials or employees to the board."= The court stated that "Itihis provision [did] not impose additional duties on any particular State officer," but rather created a separate position, and thus vio- lated the dual office holding prohibition.'24 THE PENALTY FOR VIOLATIONS In a 1970 decision, the Supreme Court of Florida set forth the general rule that "[t]he acceptance of an incompatible office by one already holding office operates as a resignation of the first."'25 Un- der the rationale of that decision, the action of an officer accepting another office in violation of the dual office holding prohibition creates a vacancy in the first office. PROBLEMS YET TO BE SOLVED Thirty years after its adoption, article II, section 5(a) of the Florida Constitution, continues to generate questions requiring resolution of what constitutes an office subject to its prohibition. For example, in recent years several bills have been filed in the legislature seeking to address whether law enforcement is covered by this provision, but these bills have failed to pass.' The lack of a constitutional definition and the inability of the legislature to provide such a definition has resulted in continuing problems of determining who is covered by the dual office holding prohibition. The right to hold public office is one of the most valuable rights of citizenship and should not be prohibited or curtailed except by plain provisions of law.7 121. See Advisory Op. to Governor, 1 So. 2d at 637. 122. See id. at 638. 123. See id. 124. Id. 125. Holley v. Adams, 238 So. 2d 401, 407 (Fla. 1970). 126. See for example, H.B. 545 (Fla. 1997), S.B. 996 (Fla. 1997), and H.B. 335 (Fla. 1996), which would have allowed certified law enforcement officers employed with an employing agency to work part-time with another employing agency without being considered "officers" for purposes of article I, section 5(a). 127. See Ervin v. Collins, 85 So. 2d 852, 858 (Fla. 1956) (en banc); State ex rel. West v. Gray, 70 So. 2d 471, 473 (Fla. 1954) (en banc); State ex rel. Fraser v. Gay, 28 1999]323 HeinOnline -- 29 Stetson L. Rev. 323 1999-2000 backup p. 97 1999] 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.l22 However, the act also permitted the Governor to appoint two state officials or employees to the board.l23 The court stated that "[t]his provision [did] not impose additional duties on any particular State officer," but rather created a separate position, and thus vio- lated the dual office holding prohibition.124 THE PENALTY FOR VIOLATIONS In a 1970 decision, the Supreme Court of Florida set forth the general rule that "[t]he acceptance of an incompatible office by one already holding office operates as a resignation of the first."125 Un- der the rationale of that decision, the action of an officer accepting another office in violation of the dual office holding prohibition creates a vacancy in the first office. PROBLEMS YET TO BE SOLVED Thirty years after its adoption, article II, section 5(a) of the Florida Constitution, continues to generate questions requiring resolution of what constitutes an office subject to its prohibition. For example, in recent years several bills have been filed in the legislature seeking to address whether law enforcement is covered by this provision, but these bills have failed to pass.126 The lack of a constitutional definition and the inability of the legislature to provide such a definition has resulted in continuing problems of determining who is covered by the dual office holding prohibition. The right to hold public office is one of the most valuable rights of citizenship and should not be prohibited or curtailed except by plain provisions of law.127 121. See Advisory Op. to Governor, 1 So. 2d at 637. 122. See id. at 638. 123. See id. 124. rd. 125. Holley v. Adams, 238 So. 2d 401, 407 (Fla. 1970). 126. See for example, H.B. 545 (Fla. 1997), S.B. 996 (Fla. 1997), and H.B. 335 (Fla. 1996), which would have allowed certified law enforcement officers employed with an employing agency to work part-time with another employing agency without being considered "officers" for purposes of article II, section 5(a). 127. See Ervin v. Collins, 85 So. 2d 852, 858 (Fla. 1956) (en bane); State ex rel. West v. Gray, 70 So. 2d 471, 473 (Fla. 1954) (en bane); State ex rel. Fraser v. Gay, 28 Stetson Law Review Moreover, the exclusion of district offices from the dual office holding prohibition has lead to inequities. An auxiliary police officer with limited jurisdiction and authority is included within the con- stitutional provision but a member of a large multi-county special district, exercising broad powers and controlling substantial public fimds, is not. Until these issues are addressed, questions regarding the inter- pretation and application of article II, section 5(a) will continue. While some points might be addressed legislatively,12 revision and refinement of this constitutional provision seems advisable. So. 2d 901, 904 (Fla. 1947) (en banc). 128. See Smith v. Brantley, 400 So. 2d 443, 448 (Fla. 1981) (stating that a "statute may adopt one of several possible meanings attributable to a constitutional provision and that, where appropriate, such legislative constructions are to be given great weight in interpreting provision"); Vinales, 394 So. 2d at 994 (finding that "[w]here a constitutional provision is susceptible to more than one meaning, the meaning adopted by the legisla- ture is conclusive"); Greater Loretta Improvement Ass'n v. State ex rel. Boone, 234 So. 2d 665, 669 (Fla. 1970) (noting that "where a constitutional provision may well have ei- ther of several meanings, it is a fundamental rule of constitutional construction that, if the Legislature has by statute adopted one, its action" is controlling unless it manifestly infringes on some provision of the constitution). [Vol. XXIXK324 HeinOnline -- 29 Stetson L. Rev. 324 1999-2000 backup p. 98 324 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,128 revision and refinement of this constitutional provision seems advisable. So. 2d 901, 904 (Fla. 1947) (en bane). 128. See Smith v. Brantley, 400 So. 2d 443, 448 (Fla. 1981) (stating that a "statute may adopt one of several possible meanings attributable to a constitutional provision and that, where appropriate, such legislative constructions are to be given great weight in interpreting provision"); Vinales, 394 So. 2d at 994 (finding that "[w]here a constitutional provision is susceptible to more than one meaning, the meaning adopted by the legisla- ture is conclusive"); Greater Loretta Improvement Ass'n v. State ex rel. Boone, 234 So. 2d 665, 669 (Fla. 1970) (noting that "where a constitutional provision may well have ei- ther of several meanings, it is a fundamental rule of constitutional construction that, if the Legislature has by statute adopted one, its action" is controlling unless it manifestly infringes on some provision of the constitution). 9of14DOCUMENTS CharlesR.HOLLEY,Appellant,v.Tom ADAMS,asSecretaryoftheStateof Florida,andtheStateofFlorida,Appellees No.39816 SupremeCourtofFlorida 238So.2d401;1970Fla.LEXIS2597 June26,1970 CASESUMMARY: PROCEDURALPOSTURE:AppealfromthejudgmentoftheCircuitCourtoftheSecondJudicialCircuitinLeon County(Florida)infavorofappellees,appellantarguingthatFla.Lawsch.70-80improperlyimposedqualifications uponhisbidtoqualifyfortheofficeofJusticeoftheSupremeCourtofFlorida. OVERVIEW:Appellant,acircuitcourtjudge,intendedtoqualifyfortheofficeofJusticeoftheSupremeCourtof Florida,butwasfacedwiththeprovisionsofFla.Lawsch.70-80.Thesupremecourtheldthatch.70-80didnotrelate tothequalificationsonewasrequiredtopossessinordertoholdoffice,butmerelysetforththeconditionsunderwhich theindividualmaybecomeeligibletobeacandidate.Thelegislaturehadconsidereditinequitableforanelectedofficial orappointedofficialholdingofficetousetheprestigeandpowerofthatofficeinseekingelectiontoahigheror differentoffice.Furthermore,byprovidingforprospectiveresignationsthepublicwouldnotbecompelledtobearthe unnecessarycostofspecialelections.Finally,toconstruech.70-80asimposingadditionalqualificationswouldhave beentolegislateandnottointerpret. OUTCOME:ThejudgmentofthetrialcourtinfavorofrespondentswasaffirmedbecausetheconstructionofFla. Lawsch.70-80asimposingadditionalqualificationsupontheofficeofJusticeoftheSupremeCourtoranyotheroffice wouldhaveforcedthecourttolegislateandnotinterpretthelaw. CORETERMS:qualification,candidate,publicoffice,election,qualify,resignation,elected,disqualification, eligibility,officeholder,eligible,stateconstitution,prescribe,governor,publicofficer,electiveoffices,vacancy,resign, candidacy,campaign,wisdom,prescribed,declaratory,qualifying,announced,holder,vested,termofoffice,hold office,stateoffices LexisNexis(R)Headnotes CivilProcedure>DeclaratoryJudgmentActions>StateJudgments>GeneralOverview Governments>Courts>AuthoritytoAdjudicate [HN1]UndertheprovisionsofFla.Stat.§86.011(2)(formerlyFla.Stat.§87.01(2)),thecourtmayrenderadeclaratory judgmentofanyfactuponwhichtheexistenceornonexistenceofsuchimmunity,power,privilegeorrightdoesormay depend,whethersuchimmunity,power,privilegeorrightnowexistsorwillariseinthefuture.Anypersonseekinga declaratoryjudgmentmayalsodemandadditional,alternative,coercive,subsequentorsupplementalreliefinthesame action.Thefactthatacontroversyhasnotmaturedisnotalwaysessential. Governments>Legislation>Interpretation Page1 backup p. 99 [HN2]Indeterminingthevalidityofthestatutecertainbasicprinciplesofconstitutionalconstructionmustbefollowed. Governments>Courts>AuthoritytoAdjudicate Governments>Legislation>Interpretation [HN3]Thejudiciarywillnotnullifylegislativeactsmerelyongroundsofthepolicyandwisdomofsuchact,nomatter howunwiseorunpolitictheymightbe,solongasthereisnoplainviolationoftheconstitution. Governments>State&TerritorialGovernments>Elections Governments>State&TerritorialGovernments>Employees&Officials [HN4]Thewordeligible,whenusedinspeakingofacandidateforofficeasbeingeligible,meanscapableofbeing chosen,whilequalifiedmeanstheperformanceoftheactswhichthepersonchosenisrequiredtoperformbeforehecan enterintooffice. Governments>State&TerritorialGovernments>Elections Governments>State&TerritorialGovernments>Employees&Officials [HN5]Fla.Lawsch.70-80doesnotprescribeadditionalqualificationsfortheoffice,asthecandidatemaywellbe qualifiedinalegalsensetoholdeither.Thelawissimplyalimitationupontherighttoretaintheofficealreadyheld whenseekinganother.Itisnotalimitationupontherighttoseekanotheroffice,fortheincumbentofanofficehasthe choiceunderthestatutetoretainitunmolestedorgiveitupandseekanother. Governments>Courts>Judges Governments>State&TerritorialGovernments>Employees&Officials [HN6]Therighttoseekpublicofficeisnotaconstitutionalabsolute,butsuchprivilegeissubjecttoreasonablerestraint andconditions. Governments>State&TerritorialGovernments>Elections Governments>State&TerritorialGovernments>Employees&Officials [HN7]Theacceptanceofanincompatibleofficebyonealreadyholdingofficeoperatesasaresignationofthefirst. Governments>State&TerritorialGovernments>Elections Governments>State&TerritorialGovernments>Employees&Officials [HN8]Fla.Lawsch.70-80simplyextendstheruleofresignationorabandonmentofofficetothosewhobecome candidatesforanotherofficewhentheyalreadyholdoneoffice,thetermofwhichoranypartthereofrunsconcurrentto thetermofofficeforwhichheseekstoqualify.Certainly,apersonwillbeheldtohaveabandonedhisofficewhenhe leavesthestateorchangeshisresidencefromtheterritorialjurisdictionoftheoffice.Similarly,thereisno constitutionalprovisionprohibitingthelegislaturefromdeclaringthatthemerefilingforasecondofficebytheholder ofoneofficeunderthecircumstancescoveredbyFla.Lawsch.70-80operatesasanabandonmentofthefirst. Governments>State&TerritorialGovernments>Elections Governments>State&TerritorialGovernments>Employees&Officials [HN9]Theprivilegeofseekingpublicofficeissubjecttoreasonablerestraintandconditions. Governments>State&TerritorialGovernments>Employees&Officials [HN10]Fla.Lawsch.70-80doesnotviolatetheappointivepowersofthegovernor. Governments>State&TerritorialGovernments>PolicePower [HN11]Policepoweristhesovereignrightofthestatetoenactlawsfortheprotectionoflives,health,morals,comfort andgeneralwelfare. Governments>State&TerritorialGovernments>Legislatures Governments>State&TerritorialGovernments>PolicePower [HN12]Thestatemayenactlawswheneverdemandedbypublicinterest,andlargediscretionisvestedinthelegislature Page2 238So.2d401,*;1970Fla.LEXIS2597,** backup p. 100 todeterminepublicinterestandmeasuresforitsprotection. Governments>State&TerritorialGovernments>Elections Governments>State&TerritorialGovernments>Employees&Officials [HN13]Fla.Lawsch.70-80doesnotrelatetothequalificationsonemustpossessinordertoholdoffice,butmerely conditionsunderwhichhemaybecomeeligibletobeacandidate. COUNSEL:[**1]JamesG.Mahorner,ofDickens,Graham,Miller,Mahorner&Linn,Tallahassee,forAppellant. EarlFaircloth,Atty.Gen.,T.T.Turnbull,andRonaldW.Sabo,Asst.Attys.Gen.,forAppellees. MartinD.Kahn,ofKahn&Clein,N.Miami,forEltonJ.Gissendanner,AmicusCuriae. JUDGES:Adkins,Justice.Drew,CarltonandBoyd,JJ.,andMason,CircuitJudge,concur.Thornal,J.,concurswith opinion.Ervin,C.J.,dissentswithopinion. OPINIONBY:ADKINS OPINION [*403]ThisisanappealfromafinaljudgmentrenderedbytheCircuitCourtoftheSecondJudicialCircuitinLeon County,Florida,directlypassinguponthevalidityofCh.70-80,LawsofFlorida,amending§99.012,Fla.Stat.,F.S.A. Wehavejurisdiction.Art.V,§4(2). Theappellant,hereinafterreferredtoasHolley,iscurrentlyaCircuitCourtJudgeandthetermofhisofficedoesnot expireuntilJanuaryof1973.HeintendstoqualifyfortheofficeofJusticeoftheSupremeCourtofFlorida,butisfaced withthefollowingprovisionsofCh.70-80,LawsofFlorida: "(2)Noindividualmayqualifyasacandidateforpublicofficewhoholdsanotherelectiveorappointiveoffice,whetherstate, countyormunicipal,[**2]thetermofwhichoranypartthereofrunsconcurrenttothetermofofficeforwhichheseekstoqualify withoutresigningfromsuchofficenotlessthanten(10)dayspriortothefirstdayofqualifyingfortheofficeheintendstoseek. Saidresignationshallbeeffectivenotlaterthanthedateuponwhichhewouldassumeoffice,ifelectedtotheofficetowhichhe seekstoqualify,ortheexpirationdateofthetermoftheofficewhichhepresentlyholds,orthegeneralelectiondayatwhichhis successoriselected,whicheveroccursearlier.Withregardtoelectiveofficessaidresignationshallcreateavacancyinsaidoffice therebypermittingpersonstoqualifyascandidatesfornominationandelectiontothatoffice,inthesamemannerasifthetermof suchpublicofficerwereotherwisescheduledtoexpire;or,inregardtoelectivemunicipalorhomerulechartercountyoffices,said resignationshallcreateavacancywhichmaybefilledfortheunexpiredtermoftheresignedofficerinsuchmannerasprovidedin themunicipalorcountycharter.Thisdoesnotapplytopoliticalpartyoffices. "(3)Anyincumbentpublicofficerwhosetermofofficeoranypartthereof [**3]runsconcurrenttothetermofofficeforwhichhe seekstoqualifyandwhodesirestoresignhisofficepursuanttotheprovisionsofthisactshallexecuteaninstrumentinwriting directedtothegovernorirrevocablyresigningfromtheofficehecurrentlyoccupies.Theresignationshallbepresentedtothe governorwithacopytothedepartmentofstate.Theresignationshallbecomeeffectiveandshallhavetheeffectofcreatinga vacancyinofficeasprovidedherein,andthepublicofficershallcontinuetoserveuntilhissuccessoriselectedorthevacancy otherwisefilledasprovidedaboveinsubsection(2). "(4)Nothingcontainedinthisactshallrelatetopersonsholdinganyfederaloffice." NotwishingtoresignhispresentofficeunlessheissuccessfulinhisquestfortheofficeofJusticeoftheSupreme Court,HolleybroughtadeclaratoryactionagainstTomAdams,asSecretaryoftheStateofFlorida,andtheStateof Florida.Inhiscomplaint,Holleyallegesthathe"intends,andhaspubliclyannounced,heintends,thisyeartobea RepublicancandidatefornominationandelectiontotheofficeofJusticeoftheSupremeCourtofFlorida."Hefurther [**4]allegesthat,althoughhehascompliedwithallotherrequirementsoflaw,theSecretaryofStatehasinformed Holleythatunlesshesubmits [*404]anirrevocableresignationfromhisofficeofCircuitJudgeten(10)daysbefore Page3 238So.2d401,*;1970Fla.LEXIS2597,** backup p. 101 thefirstdateofqualifying(theresignationfilingdatebeingJune27,1970)thattheSecretarywillrejecthisqualification papersfortheofficeofJusticeoftheSupremeCourt.Inhiscomplaint,HolleyattackedtheconstitutionalityofCh. 70-80.ThelowercourtheldthatithadjurisdictionandthensustainedtheprovisionsofCh.70-80,LawsofFlorida,as notviolatingtheprovisionsoftheFloridaConstitutionoroftheUnitedStatesConstitution. Thisappealresultedandthecausehasbeenacceleratedsoastomakepossibletherenditionofadecisionpriortothe June27,1970deadlineforsubmissionoftheresignation. TheappelleesmaintainthatHolleyonlyseeksadviceastohisfutureactionandisnotentitledtoreliefunderthe decisioninBryantv.Gray,70So.2d581(Fla.1954).The Bryant case,asuitfordeclaratorydecree,soughta constructionoftheconstitutionalprovisiondeclaringtheGovernorineligibleforre-election [**5]forthenext succeedingterm.Itwasallegedthatplaintiff Bryantdesired tobeacandidateand mightbe acandidateforthenext succeedingterm.Hewasnotsure.Thequestionwasthereforehypotheticalandtooremoteastotimeandtoouncertain astocontingenciestowarrantdeclaratoryrelief. Inthecase subjudice,Holleyallegesthathe intends tobeacandidateandhas publiclyannouncedhisintention tobea candidate.HehasfiledwiththeSecretaryofStateadeclarationofsuchintention,designationofcampaigntreasurerand campaignfundanddepositorycollection,depositanddisbursementofcampaignfunds.Thesecircumstancescallinto playtheprincipleannouncedinJamesv.Golson,92So.2d180(Fla.1957),whichheldthat[HN1]undertheprovisions of§86.011(2)(formerly§87.01(2),Fla.Stat.,F.S.A.,theCourtmayrenderadeclaratoryjudgment, "Ofanyfactuponwhichtheexistenceornonexistenceofsuchimmunity,power,privilegeorrightdoesormaydepend,whether suchimmunity,power,privilegeorrightnowexistsorwillariseinthefuture.Anypersonseekingadeclaratoryjudgmentmay alsodemandadditional,alternative,coercive,[**6]subsequentorsupplementalreliefinthesameaction." thefactthatacontroversyhadnotmaturedisnotalwaysessential. TheactionfordeclaratoryjudgmentwasappropriateandtheCircuitCourthadjurisdiction. HolleycontendsthatCh.70-80,LawsofFlorida,isinvalidasalegislativeattempttoprescribequalificationsof eligibilitytoaconstitutionalpublicoffice,thequalificationsforwhichareprescribedbytheFloridaConstitution.In consideringthiscontention,thedistinctionbetweeneligibilityforofficeandqualificationsorconditionsimposedupon anofficeseekershouldbekeptclear. [HN2]Indeterminingthevalidityofthestatutecertainbasicprinciplesofconstitutionalconstructionmustbefollowed. First,itisthefunctionoftheCourttointerpretthelaw,nottolegislate. Second,courtsarenotconcernedwiththemerewisdomofthepolicyofthelegislation,solongassuchlegislationsquareswiththe Constitution. Third,thecourtshavenopowertostrikedownanactoftheLegislatureunlesstheprovisionsoftheact,orsomeofthem,clearly violatesomeexpressorimpliedinhibitionoftheConstitution. Fourth,everyreasonable [**7]doubtmustbeindulgedinfavoroftheact.Ifitcanberationallyinterpretedtoharmonizewiththe Constitution,itisthedutyoftheCourttoadoptthatconstructionandsustaintheact. [*405]Fifth,totheextent,however,thatsuchanactviolatesexpresslyorclearlyimpliedmandatesoftheConstitution,theact mustfall,notmerelybecausethecourtssodecree,butbecauseofthedominantforceoftheConstitution,anauthoritysuperiorto boththeLegislatureandtheJudiciary.Amosv.Mathews,99Fla.1,126So.308,99Fla.65(1930). [HN3]Thejudiciarywillnotnullifylegislativeactsmerelyongroundsofthepolicyandwisdomofsuchact,nomatter howunwiseorunpolitictheymightbe,solongasthereisnoplainviolationoftheConstitution.JacksonLumber Companyv.WaltonCompany,95Fla.632,116So.771(Fla.1928).SeealsoWilliamsv.CityofJacksonville,118Fla. 671,160So.15(1935). Page4 238So.2d401,*404;1970Fla.LEXIS2597,**4 backup p. 102 HolleyreliesuponBurroughsv.Lyles,142Tex.704,181S.W.2d570(1944),wheretheCourtconsideredastatute requiringresignationbyanyexecutiveoradministrativeofficersbeforerunningforanotheroffice.TheTexasSupreme Courtheldthatthestatute [**8]wasunconstitutionalasattemptingtoimposeanadditionalqualificationbeyondthat requiredbytheConstitution. Ontheotherhand,theappelleesrelyuponMulhollandv.Ayers,109Mont.558,99P.2d234(1940),whichalso involvedaresignationstatutesubstantiallysimilartotheoneatissueinthecase subjudice.TheCourtupheldthestatute asbeingconstitutional,saying, "Apersonmaypossesstherequisitequalificationsormaybeeligibletomanydifferentoffices.Thelegalrequirement,however, thathemaynotholdmorethanoneatatimedoesnotaffecthiseligibilitytoholdthemall.Ontheotherhand,therequirementthat anofficeheldbyonewhobecomesacandidateforanotherbecomesvacatedgoesnottohiseligibilitytoholdeitheroffice."(p. 239) Decisionsinotherjurisdictionsconcerningthisquestionareinconflict,soitisnecessarytodeterminetherulewhich wouldbeapplicableinthisjurisdictioninthelightofourpreviousdecisions. InWebster'sThirdNewInternationalDictionary,theword"eligible"isdefinedas"fittedorqualifiedtobechosenor used."Theword"qualified"isdefinedas"fitted(asbyendowments [**9]oraccomplishments)foragivenpurpose: competent,fit." [HN4]Theword"eligible,"whenusedinspeakingofacandidateforofficeasbeingeligible,meanscapableofbeing chosen,whilequalifiedmeanstheperformanceoftheactswhichthepersonchosenisrequiredtoperformbeforehecan enterintooffice.SeeBradleyv.Clark,133Cal.196,65P.395(1901). HolleyreliesuponThomasv.Stateexrel.Cobb,58So.2d173(Fla.1952),whereastatuterequiringcandidatesforthe officeofcountysuperintendentofpublicinstructiontohaveavalidFloridaGraduateTeacher'sCertificatewasheldto beunconstitutionalinthatitaddedqualificationstotheofficesoastomakesuchqualificationsdifferentfromthose prescribedintheConstitution.TherequirementoftheFloridaGraduateTeacher'sCertificatewasclearlyaqualification forofficeandquitedifferentfromastatutepertainingtoeligibilityasacandidateforelection.Therequirementinthe Thomas caserelatedtotheacademic,professional,ormentalrequirementsasaqualificationforholdingtheoffice.Ch. 70-80isnotalegislativedeterminationthatapersonwhocurrentlyholdstheofficeofCircuitJudge [**10]isnotfitto beaSupremeCourtJustice. Stateexrel.Fairv.Adams,139So.2d879(Fla.1962),involvedthequestionofwhetheranofficeseekercouldrunfor twoofficesatthesametime.ThisCourtconcededthattherewasnoconstitutionalorstatutoryprohibitioninFlorida againstrunningforseveralofficesatthesametime.TheCourtpointedoutthatanoffice [*406]holdermaybecomea candidateforanotherofficeifthetermofthatofficebeginsbeforethetermoftheofficewhichheholdsexpires.He wouldhavetoresignhispresentofficebeforeenteringuponthedutiesoftheofficetowhichhemightbeelected.The Courtheldacandidatecouldnotseekthenominationtoseveralstateofficesatthesametime,eventhoughtherewasno constitutionalorstatutoryprovision. Jonesv.BoardofControl,131So.2d713(Fla.1961),wasanactionbyaformerfacultymemberofastateuniversity forallegedbreachofcontractinterminatinghisemploymentonthegroundthathehadbreachedaruleinfilingasa candidateforajudgeship.TheCourtheldthataruleprohibitinguniversityemployeesfromseekingelectiontopublic officewasconstitutional.TheCourt [**11]initsopinionsaid: "Wethinkthatwecandisposeofourproblemonamuchbroaderplateauofreasoningwiththeviewthatanyrightwhichan individualdoeshavetoworkforthegovernmentortocontinueinthepublicemploy ortoseekpublicoffice mustnecessarilybe subjecttoallreasonablerulesandregulationspromulgatedbythegovernmentintheinterestofthepublicandforthewell-beingof thepublicservices."(p.717) Page5 238So.2d401,*405;1970Fla.LEXIS2597,**7 backup p. 103 "*** "WethinkthatthedecisionofthetrialjudgeandourownconclusionisclearlysupportedbytheopinionoftheSupremeCourtof theUnitedStatesinUnitedPublicWorkersofAmericav.Mitchell,330U.S.75,67S.Ct.556,91L.Ed.754.There,thehighest Courtsustainedtheconstitutionalityoftheso-calledHatchAct,18U.S.C.A.§594etseq.,5U.S.C.A.§118ietseq.which prohibitedgovernmentemployeesintheCivilServicefromseekingelectiontopublicoffice.Wethinkitunnecessarytoelaborate uponthedetailsofthatdecision.ItisperfectlyclearthattheUnitedStatesSupremeCourtfoundadequatejustificationfora requirementwhichwouldprecludeparticipationinpoliticalcampaignsintheinterestofsaving [**12]theemployeesagainst politicalretaliationandprovidingjobsecurity."(p.718) [HN5]Ch.70-80doesnotprescribeadditionalqualificationsfortheoffice,asthecandidatemaywellbequalifiedina legalsensetoholdeither.Thelawissimplyalimitationupontherighttoretaintheofficealreadyheldwhenseeking another.Itisnotalimitationupontherighttoseekanotheroffice,fortheincumbentofanofficehasthechoiceunder thestatutetoretainitunmolestedorgiveitupandseekanother.SeeMulhollandv.Ayers,supra. ThisholdingisnotinconflictwithWilsonv.Newell,223So.2d734(Fla.1969),whereastatute,requiringacandidate forcountycommissionerorcountyschoolboardtohavebeenabonafideresidentofthedistrictfromwhichhe qualifiedforaperiodofatleastsix(6)monthspriortothequalifyingdate,washeldunconstitutional.Thisstatute requiredadditional"qualifications"fortheoffice.Ch.70-80doesnotprescribequalificationbutrelatestotheeligibility ofthosewhomaybecomecandidates. HolleyalsosaysthatCh.70-80mustbegivenprospectiveapplicationonlyandshouldnotapplytothoseofficeholders who [**13]obtaintheirofficesatatimewhenitwasunburdenedbytheprovisions. [HN6]Therighttoseekpublicofficeisnotaconstitutionalabsolute,butsuchprivilegeissubjecttoreasonable restraintandconditions.Jonesv.BoardofControl,supra.Ch.70-80isnotaburdenimposedupontheofficeofcircuit judgepresentlyheldbyHolley.Histermofofficeascircuitjudgeremainsasbeforeandthisrightisaffectedonlyby thevoluntaryactoftheincumbentinoffice. [*407][HN7]Theacceptanceofanincompatibleofficebyonealreadyholdingofficeoperatesasaresignationofthe first.IntheabsenceofCh.70-80,Holleywouldhavebeenrequiredtoresignascircuitjudgeintheeventhewere electedandassumedthedutiesofaJusticeoftheSupremeCourt.SeeStateexrel.Fairv.Adams,supra.[HN8]Ch. 70-80simplyextendstheruleofresignationorabandonmentofofficetothosewhobecomecandidatesforanother officewhentheyalreadyholdoneoffice,thetermofwhichoranypartthereofrunsconcurrenttothetermofofficefor whichheseekstoqualify.Certainly,apersonwillbeheldtohaveabandonedhisofficewhenheleavesthestateor changeshisresidence [**14]fromtheterritorialjurisdictionoftheoffice.Similarly,thereisnoconstitutional provisionprohibitingtheLegislaturefromdeclaringthatthemerefilingforasecondofficebytheholderofoneoffice underthecircumstancescoveredbyCh.70-80operatesasanabandonmentofthefirst.Mulhollandv.Ayers,supra. HolleycontendsthatunderStateexrel.Hattonv.Joughin,103Fla.877,138So.392(1931)andStateexrel.Hollandv. Ledwith,14Fla.220(1872),althoughtherightsoftheofficemayberestrictedpriortoitsterms,anofficeholderupon electionreceivesapropertyinterestintheoffice,whichinterestisprotectedagainstreductionbytheLegislature.This principleisnotapplicable,becausethereductionoftheterm,ifany,iscausedsolelybytheactoftheofficeholderin abandoningtheofficewhichhepresentlyholds.ThisisparticularlytrueundertheprincipleannouncedinJonesv. BoardofControl,supra,that[HN9]theprivilegeofseekingpublicofficeissubjecttoreasonablerestraintand conditions. Thestatute[HN10]doesnotviolatetheappointivepowersoftheGovernor.Withregardtoelectiveofficesthe resignationiseffectivenot [**15]laterthanthedateuponwhichhewouldassumeoffice,ifelectedtotheofficeto whichheseekstoqualify,ortheexpirationdateofthetermoftheofficewhichhepresentlyholds,orthegeneral electiondayatwhichhissuccessoriselected,whicheveroccursearlier.Withregardtoelectiveofficestheresignation createsavacancyintheofficetherebypermittingpersonstoqualifyascandidatesfornominationandelectioninthe Page6 238So.2d401,*406;1970Fla.LEXIS2597,**11 backup p. 104 samemannerasifthetermsofsuchpublicofficeswereotherwisescheduledtoexpire.Thevacancywouldoccurasof theeffectivedateoftheresignationand,intheeventnoonequalifiedforelectiontotheoffice,thevacancywouldthen befilledbytheGovernor. Ch.70-80containsthefollowingstatementoflegislativeintent: "WHEREAS,itisgenerallyagreedtobeconsideredinequitabletopermitanelectedofficialorappointiveofficialholdingofficeto usetheprestigeandpowerofthatofficeinseekingelectiontoahigherordifferentoffice,and "WHEREAS,itisgenerallyagreedthatbyprovidingforprospectiveresignationsthepeopleoftheStateofFloridawouldnotbe compelledtobearunnecessarycostofspecialelections [**16]occasionedbyelectedorappointedofficialswho,whileholdingone office,seekandobtainanotherelectiveoffice." [HN11]PolicepoweristhesovereignrightoftheStatetoenactlawsfortheprotectionoflives,health,morals,comfort and generalwelfare.Stateexrel.MunicipalBondandInv.Co.,Inc.v.Knott,114Fla.120,154So.143(1934). [HN12]TheStatemayenactlawswheneverdemandedbypublicinterest,andlargediscretionisvestedinthe Legislaturetodeterminepublicinterestandmeasuresforitsprotection.Scarboroughv.Newsome,150Fla.220,7 So.2d321(1942). Ch.70-80wasenactedforthebenefitofthepublicwelfareasstatedintheabovequotedclauses.Thestatutefulfillsits purposes. Holleyisnotinapositiontoasserttheconstitutionalrightofanotarypublicor [*408]militaryofficerto simultaneouslyholdanotheroffice,northerightofaLegislatortoholdjudicialoffice,northequestionofwhetherthe statuteplacesanunduequalificationonafederalofficer. EltonJ.Gissendanner,MayoroftheCityofNorthMiami,hasfiledapetitiontointerveneorinthealternativetoappear asamicuscuriae.Thepetitionraisesissues [**17]collateraltothoseunderconsiderationandinterventionshouldnot beallowed.SeeDickinsonv.Segal,219So.2d435(Fla.1969).However,thebrieffiledonbehalfofMr.Gissendanner hasbeentreatedasthatofanamicuscuriae. Insummary,[HN13]Ch.70-80doesnotrelatetothequalificationsonemustpossessinordertoholdoffice,butmerely conditionsunderwhichhemaybecomeeligibletobeacandidate.TheLegislature,initswisdom,consideredit inequitableforanelectedofficialorappointiveofficialholdingofficetousetheprestigeandpowerofthatofficein seekingelectiontoahigherordifferentoffice.Furthermore,theLegislatureagreedthatbyprovidingforprospective resignationsthepeopleoftheStateofFloridawouldnotbecompelledtobeartheunnecessarycostofspecialelections occasionedbyelectedorappointedofficialswho,whileholdingoneoffice,seekandobtainanotherelectiveoffice. ToconstruetheprovisionsofCh.70-80asimposingadditionalqualificationsupontheofficeofJusticeoftheSupreme Courtoranyotherofficewouldbetolegislateandnottointerpret.Theobjectionsmadetothelawaremattersof legislativeconcern. [**18]ThejudgmentoftheCircuitCourtis Affirmed. DREW,CARLTONandBOYD,JJ.,andMASON,CircuitJudge,concur. THORNAL,J.,concurswithopinion. ERVIN,C.J.,dissentswithopinion. CONCURBY:THORNAL Page7 238So.2d401,*407;1970Fla.LEXIS2597,**15 backup p. 105 CONCUR THORNAL,Justice(concurring). IconcurintheopinionandjudgmentpreparedbyJusticeADKINS.Indoingso,however,Ideemitappropriatetonote thatwedonotheredealwithalegislativeencroachmentonavestedorcontractualrightofanofficeholder.Gayv. Whitehurst,44So.2d430(Fla.1950);Greenev.Gray,87So.2d504(Fla.1956);1956Op.Atty.Gen.056-238,August 13,1956;CityofJacksonvillev.State,151So.2d430(Fla.1963).Astheopinionemphasizes,theelementsofeligibility toseekanofficearenotvestedrightsconstitutionallyprotected.Thisistheaspectoftheinstantstatutewhich distinguishesitfromanenactmentwhichwouldimpingeoncontractualorvestedrights. DREW,CARLTONandADKINS,JJ.,andMASON,CircuitJudge,concur. DISSENTBY:ERVIN DISSENT ERVIN,ChiefJustice(dissenting). Section13AofArticleVoftheStateConstitutionsetsforthalloftheeligibilityrequirementsorqualificationsprovided bytheConstitutionfortheoffice [**19]ofaJusticeoftheSupremeCourt.Section4,ArticleVIoftheState Constitutionsetsforthalloftheconstitutionaldisqualificationstoholdpublicoffice;thatis,thatnopersonconvictedof afelonyoradjudicatedtobementallyincompetentshallbequalifiedtoholdofficeuntilrestorationofhiscivilrightsor removalofhisdisabilityhasoccurred.Section5ofArticleIIoftheStateConstitutionprovidesnopersonshallholdat thesametimemorethanoneofficeunderthegovernmentofthestateandthecountiesandthemunicipalities,excepta notarypublicormilitaryofficer.Section1(f)ofArticleIVoftheStateConstitutionprovidesthatexceptasotherwise providedintheConstitutionthegovernorshallfillbyappointmentanyvacancyinstateorcountyofficeforthe remainderof [*409]thetermofanappointiveoffice,andfortheremainderofthetermofanelectiveofficeiflessthan twenty-eightmonths;otherwise,untilthefirstTuesdayafterthefirstMondayinJanuaryfollowingthenextgeneral election.Section14,ArticleVoftheStateConstitutionprovidesthatjudicialvacanciesshallbefilledbyappointment orelectionfortheunexpired [**20]term. ItappearstomeChapter70-80,the"resign-to-run"act,imposesadisqualificationinadditiontothosesetforthinthe aboverelatedconstitutionalprohibitionsandthuscollideswiththeconstitutionalmaximthattheLegislaturemaynot imposeorprescribequalificationsordisqualificationsofeligibilitytoaconstitutionalpublicofficeinadditiontothose setoutinthebasicdocumentitself. TherewasatimewhentheConstitutionforbadeabankofficerbeingelectedgovernor(Const.1838,Sec.3,Art.VI),and forbadeaministerofthegospelservingintheLegislatureorasgovernor(Const.1838,Sec.10,Art.VI).These prohibitionswereclearlyexpressedintheConstitution.Theywerelaterremovedbyvoteofthepeople,andtheonly qualificationsanddisqualificationsinthepresentConstitutionarethoseIhavereferredtoabove. ButnowChapter70-80ineffectstatutorilyprohibits(withcertainglaringexceptions)manycurrentpublicofficers, includingJudgeHolley,fromeligibilitytoseekorholdtheofficeofJusticeoftheSupremeCourtorotherpublicoffice unlesstheyfirstshedtheircurrentoffices.Similarlyasapersonwhoisaconvictedfelon [**21]orwhohasbeen adjudgedmentallyincompetent,JudgeHolleymustremove his disabilityofholdingofficeasaCircuitJudgebeforehe willevenbeabletoseekelectionasaJusticeoftheSupremeCourt.Inthisrespect,thefactthatJudgeHolleyhasthe powerandabilitytoaltereoinstantehispresentstatusbyresigninghisstateofficesoastoconformtothecondition imposedbythestatutecannotoperatetopreserveasconstitutionalthequalificationsimpactofChapter70-80.The samecouldbesaidofabankofficerorministerofthegospelunderthebygoneprovisionsabovecited;yet,curiously, suchprovisionswerenotcreationsoflegislativewisdombutweresetforthintheConstitutionitself. Page8 238So.2d401,*408;1970Fla.LEXIS2597,**18 backup p. 106 InThomasv.State,Fla.1952,58So.2d173,thisCourt,afterfirstreferringtoconstitutionalqualificationsand disqualificationstoholdpublicofficesimilartothosereferredtoabove,said: "***ThissolemndeclarationinourConstitutionaboutqualificationsor disqualifications toholdpublicofficeareconclusiveof thewholematterwhetherintheaffirmativeorinthenegativeform.***"(Thomasv.State,supra,at183.) Chapter70-80 [**22]isinnosenseacorruptpracticesactrelatingtothepurityoftheballotorregulatingcampaign practices.SeeMaloneyv.Kirk,Fla.,212So.2d609,text616.Itsimplysetsupastatusorienteddisqualificationto seekelectiontoapublicofficesolongasoneisholderofanotherpublicoffice.Itsays"noindividualmayqualify"fora publicofficeuntilheremovesthedisqualificationofholdinghiscurrentoffice.Hemustpresenthisirrevocable resignationtherefromasanitemofhisqualificationspaperstorunforanotheroffice.Heisdisqualifiedbystatuteto seekanotherpublicofficeuntilheremovesthedisqualification.Ineffect,Chapter70-80isalegislativelyimposed requirementaffectingandconditioningthestatusofapersonseekingtoqualifyforelectiontoaparticularpublicoffice andassuchiscontrarytothequalificationanddisqualificationprovisionsspelledoutwithspecificityinthe Constitution;burdensthepotentialcandidatewithadisqualificationnotprescribedintheConstitution;depriveshimof thesamefreedomenjoyedbyotherelectorsnototherwiseprohibitedbytheConstitutionfromseekingelectiontoa publicoffice;anddenies [**23]theelectorateofthestateorcountythecandidaciesofthosewhoareunwillingtoshed theircurrentofficesinordertobecomecandidates. [*410]AreadingoftheopinionsinMaloneyv.Kirk,supra,willfurtherillustratetheinvalidityofChapter70-80. MuchoftheopinionofMr.JusticeRobertsquotingCircuitJudgeHughM.Taylor'sopinionbelowispertinenttoan understandingofthereasonswhyadditionalqualificationsordisqualificationsotherthanthoseprescribedinthe Constitutionareimpermissible.IdisagreedtoMr.JusticeRoberts'viewsthereexpressedbecauseIdidnotconsiderthe campaignspendinglaw,whichrelatedtocampaigncontributionsandspendingandcorruptpractices,asanenactment prescribingqualificationsordisqualificationsfortheofficeofGovernorotherthanthoseenumeratedinthe Constitution.Here,however,itisquiteclearthereisastatutorydisqualificationpertainingtothestatusofaseekerof publicofficewhichmustberemovedbyirrevocableresignationasapartofhisqualifyingproceduralcomplianceasa candidateforanotherpublicoffice.Theinstantenactmentisnotofthetypewhichmerelyregulatesthemanner [**24] andmodeofconductwhichanotherwiseeligibleandqualifiedcandidatemustobserveinseekingelectiontoa particularoffice.WhatJusticeRobertssaidinMaloneyv.Kirkdefinitelyapplieshere. Wilsonv.Newell,Fla.1969,223So.2d734,istothesameeffect.There,thestatuterequiredthatforonetobea candidatefortheofficeofcountycommissionerhe"shallhavebeena bonafideresident ofthedistrictfromwhichhe qualifiesforaperiodofatleastsixmonthspriortothequalifyingdate."Thisstatuteweheldtobeunconstitutional because"itprescribes qualifications fortheofficeofCountyCommissionerinadditiontothoseprescribedbythe Constitution."(At736.) Itissheersophistrytosaythatthereisadichotomyhere-thatChapter70-80onlyregulatestherighttocontinuetohold acurrentofficewithoutrelationtoeligibilityorqualificationtoseekandholdanother.Inthefirstplace,the requirementofirrevocableresignationismadeaconditionprecedent-arequireditemincomplyingwithqualification regulations-toseekinganotheroffice.JustasintheWilsoncase,onecannotbecomeacandidateunlesshefirstrenders himself [**25]eligiblebysatisfyingtheconditionprecedentprescribedinCh.70-80. Butevenifthestatuteonlyrelatedtotherighttocontinuetoholdacurrentoffice,thereareseriousquestionsastoits validity.Onecannotbelegislatedoutofaconstitutionaloffice,foranunconstitutionalreasonalthoughcertainofficers maybesuspendedforcauseorimpeachedinothersituations.Buttherighttocontinuetoholdofficeunderthe Constitutioncannotbemadesubjecttocoercivelegislativeforfeitmerelybecauseoneseeksanotheroffice.Thereare certainquasi-propertyrightstoholdapublicofficethatareprotectedbytheConstitution(seeState,exrel.Hattonv. Joughin,103Fla.877,138So.392)fromlegislativeforfeitorreductionduringtheelectivetermandparticularlyisthis trueoftheofficeofacircuitjudge.SeeSections16and24,ArticleV,StateConstitution. Page9 238So.2d401,*409;1970Fla.LEXIS2597,**21 backup p. 107 Jonesv.BoardofControl,Fla.1961,131So.2d713,isaltogetherinappositetotheinstantcase.Apublicemployee,not apublicofficerwasinvolved.Requirementofapublicemployerorofagenerallaw,e.g.,HatchAct,thatapublic employeerefrainfrombecomingapoliticalcandidateinorder [**26]toretainhisjobisquitedissimilarfromastatute requiringpublicofficersasaconditionprecedenttobecomingcandidatestoresigntheiroffices.Theformerisnota statutoryrequisitethatmustbecompliedwithinordertoqualifyasacandidate.Thesanctionorpenaltyislossofpublic employment,notdeprivationoftherighttobeacandidatebystateaction. Stateexrel.Fairv.Adams,Fla.1962,139So.2d879,dealtwithmultiplecandidaciesofoneindividualfortwopublic officesinthesameelection.Thepreclusionannouncedthereindidnotinvolvetherighttorunforasingleoffice,butto runfor [*411]twoatthesametime.TheConstitutionexcludesadditionalstatutoryqualificationsoreligibility conditionsaffectingtherighttoseekortoholdasingleoffice,butdoesnotexcludestatutesorrulesoflawprohibiting multiplecandidaciesofoneindividual,sincesuchmultiplecandidaciesappeartobecontrarytothefurther constitutionalprovisionagainstanindividualoccupyingtwopublicofficesatthesametime. TheincongruitiesofChapter70-80arestriking.Itisarguedtheprincipalobjectoftheactistoprecludeacurrent officeholder [**27]candidatefromcapitalizingonthefactthatifdefeatedhewillstillretainhiscurrentoffice-afact thatcouldinfluencesupportandcampaigncontributionsfromthosewhomightseekfavorsorconsiderationsfromsuch publicofficer.Thiscontentionblandlyoverlooksthatallcandidatesforre-election,includingtheGovernor,arenot subjecttoChapter70-80,norarepublicofficercandidatesforotherofficeswhoholdoverafterthegeneralelection untiltheirtermsexpirethefollowingJanuary.Exclusionofsolargeagroupofpublicofficercandidatesfromthe "resign-to-run"lawmakessuchclaimedpurposesquitedubious. Timedoesnotpermitbecauseoftheurgencyfordispositionofthislitigationpriortotheperiodofqualificationof candidaciestofullydiscussotherfacetsthatrenderChapter70-80suspectandquestionable.Forexample,theapparent impingingimpactoftheactontheGovernor'spowerstofillvacanciesinelectiveofficespursuanttoSection1(f), ArticleIV,StateConstitution,isahighlysuspectconstitutionalfeature.Also,theacthasmanyglaringdiscriminatory featuresinadditiontoimpinginguponthepublic'srighttohaveafullrange [**28]ofcandidates,whethercurrent officeholdersornot.Itwillbringinitswakeanumberofsituationsthatcreateuncertaintiesandconfusion.The FloridaConstitution,astheFederalConstitutionhasbeensointerpreted,shouldbethepolestarguidinginthiscritical areaoftherightofFloridacitizenstoseekandtoholdofficeinthestate.Innovativelegislationofthiskindisabreak fromhistoryandmustbecloselyscrutinizedinordertoprotectagainstuntowardresultsoutofharmonywithinviolate constitutionalguidelines. Althoughthewisdomoflegislativeenactmentsasopposedtotheirconstitutionalityisnotthefocalpointforjudicial study,itappearstometheLegislaturehasfashionedthisstatuteonamerescintillaofevidenceshowingabuseinthe premises.Ontheotherhand,theoffensivefeaturesofthestatutepredominateagainsttheadvantagesflowingfrom eliminationofthesuspectedevil.Thestatuteunquestionablylaysaburdenontheofficeholderwhobecauseofhis experienceseekspromotiontoanotheroffice,andwilltendtodenytheelectoratetheopportunitytohaveafullcadreof candidates,representativeofallsectorsofthecommunity [**29]andofdifferingphilosophies.Thediscriminatory natureofthestatutegeneratescausetosuspectthatitisclasslegislationcontrarytoexpressconstitutional office-holdingqualificationprovisionsadoptedbythepeoplewhichaspresentlywrittendonotindicatetheyfrownon officeholders'candidaciesforotherofficesthanthosetheyhold. Regardlessofthewisdomofthereasonswhichpromptedtheinstantstatute,thetestofitsconstitutionalsurvivaldoes notlieinthewisdomofitsremedialintendmentbut,rather,restsexclusivelyintheconstitutionalpowerofthe Legislaturetoaffectthepremisesinthemannerimplementedbythisstatute. SupposetheLegislatureenactedastatutereading:"Noindividualmayqualifyasacandidateforpublicofficewhois eitheraphysician,banker,lawyer,bingogameorracetrackoperator,orinsuranceagent,withoutfirstsurrenderinghis rightandentitlementtopursueandpracticesaidprofessionormeansoflivelihood."Ofcourse,thisisonlya hypotheticalenactmentandtheLegislaturenodoubtwillneverfindanevil,orcauseoralarmsufficienttojustifysucha Page10 238So.2d401,*410;1970Fla.LEXIS2597,**25 backup p. 108 statute.However,I [*412]amjudiciallyconcerned,[**30]notwiththeneedorwisdomofsuchahypothetical enactment,butwiththeconstitutionalpoweroftheLegislaturetoenactsuchastatutebasedontheprecedentrationale ofthemajorityinthiscase.Intermsoflegislativeconstitutionalpowers,Iwonderifmymajoritybrethrenwouldbe receptivetotherationalethatsuchprovisionescapesapplicationoftheconstitutionalmaximthattheLegislaturemay notimposeorprescribequalificationsofeligibilityorineligibilitytoaconstitutionalpublicofficeinadditiontothose setoutintheConstitution. WhenthepeopleofthisstatethroughtheirConstitutionhavescrutinizedcitizensrespectingtheirpotentialstoservethe publicasofficeholders,anddecidedwhoofthemaredeemedqualifiedtoholdadesignatedpublicoffice,itisbeyond thepoweroftheLegislaturetosuperimposeitsownqualificatoryscheme. Themajorityintheinstantcaseattemptstooutflankaconfrontationwiththeconstitutionalmaximprecludingthe Legislaturefromimposingitsowndevisedqualificationrequirements.First,themajority,disregardingtheThomasand Wilsondecisions,weavesasubtledistinctionbetweentheterms,"eligible"and [**31]"qualified,"concludingthatthe dictionarymeaningofthelatterservesastheacidtestfordeterminingaviolationoftheabove-citedconstitutional maxim.Underthemajority'sannouncedreasoning,apublicofficeholderispersonallyqualifiedundertheState Constitutiontobeelectedtoanyotheroffice,butheiseligibletobeelectedtosuchotherofficeunderthetermsofthe statuteonlyifheresignshisstatusasapresentofficeholder.Bythesametoken,underthehypotheticalenactmentposed hereinbefore,Iassumethemajority'sreasoningwouldbe:"Aphysician,banker,orlawyerisqualifiedasapersonor citizenelectortoseekelectiontoastateoffice,butsaidpersoniseligibletobeelectedonlyifhesurrendershisstatusas aphysician,banker,orlawyer."IconfessIamunabletounderstandthissubtledistinctionofthemajority. Secondly,themajorityreasonsthatthepresentstatutedoesnotreallyindeliblyaffectthequalificationstatusofanoffice seekersinceinactualityitisthevoluntarychoiceofthewould-beoffice-seekerwhichactivatesthestatutory prohibition.Totestthesoundnessofthisreasoning,itisimperativetoexplorethe [**32]proverbial"othersideofthe coin." Takethebanker,physician,lawyer,examplesetoutabove.Undertheworkingsofthishypotheticalenactmentthe legislativeedictsays:"Thedecisiontoseekpublicofficeisavoluntaryone,butifyoudodesiretoseekoffice,you surrenderbyoperationoflawyourstatustofunctionasabanker,physician,orlawyer."TheLegislature'spowerto coerceaforfeitureofsuchastatusasaconditiontoseekingpublicofficeisparticularlyobnoxiousbecauseitoffends traditionalprinciplesandnotationsofthelimitedscopeofpowerheretoforethoughttobevestedinalegislativebodyin addingqualificationstopublicofficeholding.However,whentheLegislaturesaystoanofficeholder"Yourdecisionto seekanotherpublicoffice,thetermofwhichcoincideswithyourpresentoffice,isavoluntaryone;butinordertobe eligibletoseeksuchanofficeyoumustresignyourpresentoffice,"wemaynotbeimmediatelyoffendedbytheployof powerevidencedinsuchanenactmentbecauseoftheanaesthetizingeffectofthepublicpolicyclaimedtobe implemented(usingthepowerandinfluenceofincumbencyinoneofficetopromoteone'scandidacy [**33]for anotheroffice);aningredientlackingintheformerexample.Thesameabuseofpowerisinvolvednevertheless.The Legislaturehasnomorerighttodeclareacontingentforfeitureofpublicofficeinthelattercasethanitdoestodeclarea contingentforfeitureoftherighttopursuethelivelihoodsofbanking,medicine,orlaw.Indeed,inthecaseofthe people'selectedpublicservant,themeansandmodeofdivestitureareexclusivelydesignatedinthe [*413] ConstitutionandbeyondthepoweroftheLegislaturetoalter.Seediscussionsupra. Beyondtheissuesofthiscasethereloomsasaspectrethetroublingquestionwhetherstateactionintheformof constitutionalprohibitioncandenyequalityrespectingtherightofanycitizenelector,whetherapublicofficerornot,to seekandholdofficeunlessthereisastrongandcompellingpublicinteresttobeservedbysuchdenialaction. Thus,inconclusionoftheHolleymatter,thereissimplynorouteavailabletosplitthehornsoftheconstitutional dilemmageneratedbytheinstantstatute.Thisisasitshouldbe,sincetheillusorydictionaryescapedepictedbythe majorityprecedentcanonlyleadto [**34]anexcessivevestingofpowerintheLegislaturetoprescribeadded qualificationsordisqualificationsonacitizen'srighttoseekandholdpublicoffice,andtherightofthepeopleto Page11 238So.2d401,*411;1970Fla.LEXIS2597,**29 backup p. 109 exclusivelyprescribeintheirConstitutiontheonlylimitationsoneligibilitytoholdpublicoffice. Inadditiontotheabovecomments,IfinditnecessarytoaddresstheFederalquestionwhichthemajoritytodaytreatsin Stateexrel.Davisv.Adams.Theseremarksareincludedhereinbecauseoftheinterrelationofthesubjectmatterand controllingprinciples,andintheinterestofexpeditingthismatter. IntheDaviscasethemajorityhasconstruedChapter70-80,LawsofFlorida1970,toencompassthesituationwherea stateofficeholderseekstoqualifyforelectiontoafederaloffice.Thisconstructionposturessquarelytheissueof whethersaidstatuteisunconstitutionalasamatterofFederallawbecauseitattemptstoprescribequalificatory requirementsincidenttoseekingaFederalelectiveofficeinadditiontothosequalificationsenumeratedintheUnited StatesConstitution.Particularly,relatorDavischallengestheconstitutionalityoftheinstantstatutesofarasit prescribes [**35]additionalqualificationsincidenttotherighttoqualifyforelectiontoofficeasamemberofthe HouseofRepresentativesoftheUnitedStates. InthecontextofrelatorDavis'situation,Chapter70-80requiredDavistoresignhisstateofficeasaconditionto becomingeligibletoqualifyasacandidatefortheofficeofUnitedStatesRepresentative.Withoutsatisfyingthis condition,thereissimplynowayDaviscanbecomeacandidatefortheFederaloffice.Thestatutedoesnotsay,atleast undertheconstructionadoptedbytheauthorities,responsibleforcertifyingDavis'candidacy,thatifMr.Davisseeks anddoesqualifyfortheFederaloffice,hetherebyabandonsandsurrendershisstateoffice.Rather,thestatuteas appliedoperatesasaconditionprecedenttoDavis'righttoqualifyforelectiontoofficeasamemberoftheUnited StatesHouseofRepresentatives.Viewedinthislight,Isimplycannotvisualizehowtheinstantstatuteescapesa collisionwiththeuniversalandtimewornrule 1 thatastatelegislature,indeedtheFederalCongress,maynotprescribe additionstothequalificatoryrequirementsofelectiontotheofficeofUnitedStatesRepresentative [**36]assetforth intheFederalConstitution.SeeStateexrel.Eatonv.Schmahl,140Minn.219,167N.W.481(1918);Stateexrel. Chandlerv.Howell,104Wash.99,175P.569(1918);Stocktonv.McFarland,56Ariz.138,106P.2d328(1940); Ekwallv.Stadelman,146Or.439,30P.2d1037(1934);Stateexrel.Pickrellv.Senner,92Ariz.243,[*414]375P.2d 728(1962),andcasescitedtherein.2 1JamesMadisonexplainedtheoperationandpurposeofthisrulewhentheFederalConstitutionwasunderconsiderationforadoption: "Thequalificationsofelectorsandelectedarefundamentalarticlesinarepublicangovernment,andoughttobefixedby theConstitution.Ifthelegislaturecouldregulatethoseofeither,itcanbydegreessubverttheConstitution."5Elliot's Debates404. Later,AlexanderHamiltonobserved: "Thequalificationsofpersonswhomaychooseorbechosen,ashadbeenremarkeduponanotheroccasion,aredefined andfixedintheConstitutionandareunalterablebythelegislature."TheFederalist,LX. 2InStatev.Senner,theArizonaSupremeCourtobserved: "[2]ThiscourtfoundinWhitneyv.Bolin[85Ariz.44,330P.2d1003],supra,thatA.R.S.§38-296asappliedtoa SuperiorCourtJudgeseekingtheofficeofSupremeCourtJustice,whichisastateconstitutionallycreatedoffice, amountedtoanadditionalqualificationtothoseestablishedbythestateconstitution.Furthermore,subsectionAofthe statutesays'Noincumbent***shallbeeligiblefornominationorelection***.'SubsectionCprovidedthatupon resignationfromtheofficethepersonshallnotbeprohibited'fromqualifyingasacandidateforanotheroffice.'Wefind thislanguagetobeaclearandunambiguousaffirmationofqualificationrequirementsforcandidatestopublicoffice.To qualifyforanofficeotherthantheoneheldthecandidatemustresignfromhispresentposition.Itisnolessclearin meaningthenaprovisionwhichsaysthatbeforeamancanrunforanofficehemustattaintheageoftwenty-fiveyears. "TheSupremeCourtofDelaware,facedwithastatutoryprovisionthatnojudicialofficer,duringhistermnorwithinsix monthsafteritstermination,maybeacandidateforanelectiveoffice,founditaddedtotheelectiveofficetowhichthe judicialofficerhadaspiredafurtherandadditionalqualificationtothatspecifiedintheConstitution,i.e.,thatsucha candidatemaynotbeajudicialofficeratthetimeheaspirestotheconstitutionallycreatedposition.Buckinghamv.State, Page12 238So.2d401,*413;1970Fla.LEXIS2597,**34 backup p. 110 42Del.405,35A.2d903." [**37]IntheDaviscase,thestatuteoperatesasaconditionprecedentprohibitionorqualificationofthestatusofa personwhodesirestoqualifyforelectiontoaFederaloffice.Butevenifthestatutewereconstruedtooperateasa conditionsubsequentdivestitureofDavis'presentstatusasastateofficeholder,upontheexerciseofhisrighttoqualify forelectiontoaFederalofficetheconstitutionalityofthepresentstatutewouldnotbepreserved,althoughtheFederal questionwouldbeabated.InmyforegoingdiscussionoftheHolleysituation,Iattemptedtopointoutthatthe Legislaturecannotaddtothemeansormodebywhichaconstitutionalstateofficeholdercanbedivestedofthetitleto thatoffice.ThissubjectisspecificallycircumscribedbyourStateConstitutionandissimplybeyondthepowerofthe Legislaturetoalter.Cf.Powellv.McCormack,395U.S.486,89S.Ct.1944,23L.Ed.2d491. Thus,underthechallengeofrelatorDavis,thepresentstatuteisunconstitutionalasamatterofFederallawtotheextent itattemptstoprescribequalificationstatusofpersonsseekingtoqualifyforelectiontoaFederaloffice,the qualificationsofwhichare [**38]enumeratedintheU.S.Constitution.However,sinceChapter70-80,Lawsof Florida1970,hasnoseveranceprovision,andsincesuchasavingsintendmentcannotreasonablybeimpliedfromthe purposesoughttobeeffectedbythisenactment,theinvalidityoftheactasitpertainstorelatorDavis'Federal challenge,shouldoperatetoinvalidatetheactintotoinandapartfromtheoutcomeoftheStateconstitutionalquestions examinedinHolley. IagreewithMr.JusticeThornalthattheissuesherearewhollyunaffectedbyanycontractualorvestedrightsofan officeholderwhoseekstobeacandidateforanotheroffice.Weareconcernedsolelywithacitizen'srightunderthe ConstitutiontoseektoholdpublicofficepursuanttothequalificationandeligibilityrequirementsoftheConstitution withouttheaddedburdenofanyfurtherlimitations,conditions,orqualificationsthatmaybeprescribedbystatute. Page13 238So.2d401,*414;1970Fla.LEXIS2597,**36 backup p. 111