Can a Florida mayor and city commissioner sit on a municipal charter school's governing board without violating the dual office-holding ban?

Subject

Charter Schools -- Dual Office-holding

Plain-English summary

The City of West Palm Beach planned to open a municipal charter school under section 1002.33 and wanted its mayor and one city commissioner to sit on the school's governing board. The interim city attorney asked the AG whether that would run afoul of Florida's constitutional ban on holding more than one office at a time if the ordinance described the service as "ex officio." Because the ordinance had not been drafted and the AG had no details about the board's powers and duties, the response was limited to a general discussion.

Article II, section 5(a) of the Florida Constitution bars a person from holding more than one office under the state, a county, or a municipality at the same time, with a few exceptions. Both elected and appointed positions can count as "offices." But the AG explained a long-settled exception: when the Legislature (or, in proper cases, a local enabling act) designates an existing officer to perform the duties of another body ex officio, that is not holding two offices, as long as the new duties are consistent with the duties already held. The AG quoted the Florida Supreme Court's decision in Bath Club Inc. v. Dade County, which said added duties that do not conflict with pre-existing ones are treated as an extension of the original office, not a second office.

Applying that framework generally, the AG said the dual office-holding prohibition would not appear to block the mayor and a city commissioner from serving on the charter school board if the ordinance characterizes the service as ex officio and the two sets of duties are not incompatible or inconsistent. The AG stressed these were the writer's informal comments, not a formal opinion, and that a real answer would depend on the specifics of the not-yet-drafted ordinance.

Currency note

This opinion was issued in 2014. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Does serving on a charter school board count as a second "office"?
Potentially. The AG noted that both elected and appointed positions can be "offices" under Article II, section 5(a). But it did not have to decide that, because the ex officio analysis resolved the general question.

What is the "ex officio" exception?
When enabling legislation assigns an existing officer additional duties to perform "by virtue of office," Florida courts treat those duties as an extension of the original office rather than a separate second office, so long as the duties are not inconsistent. The AG relied on Bath Club Inc. v. Dade County for this.

So could the mayor and a commissioner serve on the board?
The AG said it appeared they could, if the ordinance designates the service as ex officio and the board's duties are not incompatible with their existing duties. It did not give a definitive yes because the ordinance had not been written.

Why wouldn't the AG give a firm answer?
The city had not yet drafted the ordinance and had not described the board's powers and duties. Without that, the AG limited itself to a general discussion of the ex officio rule and labeled the letter an informal advisory.

Background and statutory framework

The dual office-holding prohibition is in Article II, section 5(a) of the Florida Constitution. Its purpose, as the courts have described it, is to avoid conflicts of interest from one person holding offices with inconsistent duties. The ex officio doctrine is the long-recognized safety valve: the Legislature can add duties to an existing office without creating an unconstitutional second office, provided the duties do not conflict.

The AG illustrated the doctrine with its own prior opinions and with statutes that designate officers to serve ex officio on other bodies, such as the sheriff as ex officio timber agent under s. 30.15(1)(I) and county commissioners as the ex officio governing body of water and sewer districts under s. 153.60 and beach and shore preservation authorities under s. 161.25. It also cited section 20.19 (Community Alliances) as an example where representatives of enumerated government entities serve ex officio. The controlling case authority is Bath Club Inc. v. Dade County, with supporting citations to State ex rel. Holloway v. Sheats (defining "office"), State v. Florida State Turnpike Authority, and City of Riviera Beach v. Palm Beach County Solid Waste Authority.

Citations

• section 1002.33, Florida Statutes
• Article II, section 5(a), Florida Constitution
• section 20.19, Florida Statutes
• s. 30.15(1)(I), Fla. Stat.
• s. 153.60, Fla. Stat.
• s. 161.25, Fla. Stat.
• Bath Club Inc. v. Dade County, 394 So. 2d 110, 112 (Fla. 1981)
• State ex rel. Holloway v. Sheats, 83 So. 508, 509 (Fla. 1919)
• State v. Florida State Turnpike Authority, 80 So. 2d 337, 338 (Fla. 1955)
• City of Riviera Beach v. Palm Beach County Solid Waste Authority, 502 So. 2d 1335 (Fla. 4th DCA 1987)

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/charter-schools-dual-office-holding
• Original PDF: https://www.myfloridalegal.com/print/pdf/node/8090

Original opinion text

Ms. Kimberly Rothenburg

Interim City Attorney

City of West Palm Beach

Post Office Box 3366

West Palm Beach, Florida 33402

Dear Ms. Rothenburg:

As Interim City Attorney for the City of West Palm Beach, you have asked whether a City Commissioner and the Mayor of the City of West Palm Beach can serve as ex officio members of the governing body of a municipal charter school created pursuant to section 1002.33, Florida Statutes, while simultaneously serving as members of the City Commission without violating the Florida's constitutional dual office-holding prohibition. Attorney General Bondi has asked me to respond to your letter.

Your letter relates that the City of West Palm Beach plans to open a municipal charter school pursuant to section 1002.33, Florida Statutes. The City intends to establish the school by ordinance which will include a governing board for the school to include one city commissioner and the mayor or a designee. You ask whether Article II, section 5(a), Florida Constitution, Florida's constitutional dual office-holding prohibition, would preclude simultaneous service on the charter school board by the mayor and a city commissioner if this simultaneous service is characterized as "ex officio" in the ordinance creating the school and establishing the board.

I understand from your letter that this ordinance has not been drafted and this office has received no details of the powers and duties of the charter school governing board. In the absence of such information, my comments must be limited to a general discussion of the ex officio designation as it relates to Article II, section 5(a), Florida Constitution.

The Florida constitutional dual office-holding prohibition is set forth in Article II, section 5(a), Florida Constitution, and provides in relevant 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."

The Constitution prohibits a person from simultaneously serving in more than one "office" under the state, county, or municipal governments. Both appointed and elected offices come within the scope of the constitutional prohibition.[1] While the term "office" is not defined in the Constitution, 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]

However, assuming a particular officeholder is subject to the dual office-holding prohibition, it is a long settled rule in this state that a legislative designation of that officer to perform ex officio the function of another or additional office is not a holding of two offices simultaneously in violation of the Constitution, provided the duties imposed are consistent with those being exercised.[3] As the Supreme Court of Florida stated in Bath Club Inc. v. Dade County,[4]

"Article II, section 5(a) was manifestly fashioned to ensure that multiple state, county, and municipal offices will not be held by the same person. Underlying this objective is the concern that a conflict of interest will arise by dual officeholding whenever the respective duties of office are inconsistent. Where additional duties are assigned to constitutional officers and there is no inconsistency between these new and pre-existing duties, however, the dual officeholding prohibition does not preclude such an assignment. In such cases, newly assigned duties are viewed merely as an addition to existing responsibilities."

As the Court recognized, the Legislature may assign additional powers and duties, not inconsistent with pre-existing duties, to a public official such that there is an ex officio extension of the office. The ex officio exception exists when the enabling legislation authorizing the creation of the board in question designates a public officer to serve as a member of the board and thereby imposes additional or ex officio duties upon that officer.[5]

This office, in Attorney General Opinion 00-72, stated that a legislative designation that a representative from county government, the school district, the sheriff's office, the circuit court, and the county children's board serve on a Community Alliance established in section 20.19, Florida Statutes, constituted an ex officio designation of officers from the enumerated governmental entities. Thus, the opinion concluded that public officers of the entities statutorily enumerated could serve on Community Alliances in an ex officio capacity without violating the dual office-holding prohibition in section 5(a), Article II, Florida Constitution.[6] Similarly, in Attorney General Opinion 03-20, it was determined that a member of the Nassau County School Board could also serve in an ex officio capacity on the county planning and zoning board with the authority to vote on matters relating to comprehensive plan amendments and rezoning. A statute required that a representative of the school district be appointed by the school board to the local planning agency.

Thus, it would appear that Article II, section 5(a), Florida Constitution, Florida's constitutional dual office-holding prohibition, would not preclude simultaneous service on the charter school board by the mayor and a city commissioner if this simultaneous service is characterized as "ex officio" in the ordinance creating the school and establishing the board so long as the two offices are not incompatible or inconsistent.

This informal advisory opinion was prepared by the Department of Legal Affairs in an effort to be of assistance to you. The opinions expressed herein are those of the writer and do not constitute a formal opinion of the Attorney General.

Sincerely,

Gerry Hammond

Senior Assistant Attorney General

GH/tsh

[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). See also 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). And see Op. Att'y Gen. Fla. 80-97 (1980) (membership of elected municipal officer on metropolitan planning organization as prescribed by statute does not violate Art. II, s. 5[a], Fla. Const.).

[4] 394 So. 2d 110, 112 (Fla. 1981).

[5] See, e.g., s. 30.15(1)(I), Fla. Stat. (sheriff ex officio timber agent); s. 39.001(7)(b)1., Fla. Stat. (representatives of Department of Law Enforcement and Department of Education ex officio members of task force); s. 153.60, Fla. Stat. (county commissioners ex officio governing body of water and sewer district); and s. 161.25, Fla. Stat. (county commissioners ex officio beach and shore preservation authority). And see Op. Att'y Gen. Fla. 81-72 (1981) (city council, as the legislative body for the municipality, may by ordinance impose the additional or ex officio duties of the office of city manager on the city clerk).

[6] And see Inf. Op. to Ms. Joni Goodman, dated May 4, 2001.