Can a Florida police officer also be a city commissioner for another city?

Subject

Dual Office-Holding

Plain-English summary

A police officer for the City of Umatilla asked whether he could also serve as a city commissioner for a different city. He pointed out that the Florida Constitution's dual office-holding ban does not spell out any penalty for violating it. The AG confirmed that the conduct is still prohibited and walked through what can happen anyway.

Section 5(a), Article II of the Florida Constitution says no person shall hold more than one office at the same time under the state, counties, and municipalities, with limited exceptions (notaries, military officers, and members of certain advisory bodies). A police officer is an officer, and a city commissioner is an officer, so holding both at once violates the prohibition. The AG acknowledged that the office's own Dual Office-Holding pamphlet notes there are no constitutional sanctions for a violation.

Even without a built-in penalty, the AG pointed to consequences. In Gryzik v. State, the Florida Supreme Court found a dual office-holding violation but treated the person as continuing to serve "de facto" in the first office, and identified quo warranto as the proper remedy to test someone's right to hold an office, which can lead to removal. The AG also noted that continued double service raises questions about the validity of official actions the officer takes, and that section 876.05 requires public employees and officers to swear to support the Florida Constitution, which a knowing violation would undercut.

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 Florida ban holding two government offices at once?
Yes. Section 5(a), Article II of the Florida Constitution prohibits a person from holding more than one office under the state, its counties, and municipalities at the same time, with narrow exceptions such as notaries public, military officers, and members of certain advisory bodies.

Is a police officer an "officer" for this rule?
The AG treated both the police officer position and the city commissioner seat as offices, so simultaneously holding both would violate the prohibition.

If the constitution lists no penalty, why does it matter?
Because courts supply consequences. The AG cited Gryzik v. State, where the Florida Supreme Court found a violation, treated the person as serving de facto in the first office, and identified quo warranto as the remedy to challenge the right to hold an office, which can result in removal. Double service can also cast doubt on the validity of the officer's actions.

Does an oath of office factor in?
The AG noted section 876.05 requires public employees and officers to swear to support the Florida Constitution, observing that a person supporting the constitution would not knowingly violate its provisions.

Background and statutory framework

The dual office-holding prohibition lives in section 5(a), Article II of the Florida Constitution. It bars holding more than one office at the same time under the state and its local governments, listing specific exceptions. The provision itself prescribes no penalty, a point the requester raised and the AG acknowledged.

The AG filled that gap with case law and a related statute. Gryzik v. State supplies the de facto officer concept and identifies quo warranto, a legal action testing a person's right to hold public office, as the appropriate remedy, with potential removal. Section 876.05 requires the loyalty oath quoted in the opinion from public employees and officers, which the AG invoked to underscore that knowingly holding two offices conflicts with the sworn duty to support the constitution.

Citations

• Section 5(a), Article II, Florida Constitution
• Section 876.05, Florida Statutes
• Gryzik v. State, 380 So. 2d 1102 (Fla. 1980)

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/dual-office-holding
• Original PDF: https://www.myfloridalegal.com/print/pdf/node/8085

Original opinion text

Mr. David A. Seeley

Umatilla Police Department

Post Office Box 2286

Umatilla, Florida 32784

Dear Mr. Seeley:

As a police officer for the City of Umatilla, you have asked whether you may also serve as a city commissioner for another city. You are aware of the dual office-holding prohibition in section 5(a), Article II of the Florida Constitution, but raise the point that the Constitution does not address sanctions for violation of its provisions. Pursuant to the prohibition, however, a police officer for one city may not serve as a city commissioner for another city without violating the dual office-holding prohibition in section 5(a), Article II, Florida Constitution. While there are no constitutionally specified sanctions for a dual office-holding violation, the following general observations should be considered before undertaking another office.

Section 5(a), Article II, Florida Constitution, provides:

"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." (e.s.)

Thus, clearly a police officer for one municipality simultaneously holding the seat of a city commissioner for another municipality would violate the dual office-holding prohibition. As reflected by the Dual Office-holding Pamphlet distributed by this office, the constitutional prohibition against dual office-holding contains no sanctions for violation of its terms. While section 5(a), Article II, Florida Constitution, does not sanction or otherwise impose penalties upon an individual who defies its terms, there is a clear prohibition against holding two offices simultaneously and courts of this state have recognized consequences which may occur when an officer attempts to simultaneously serve in another office.

In Gryzik v. State[1], the Supreme Court found that an agricultural inspector who also served as a part-time deputy was violating the dual office-holding prohibition, but refused to suppress evidence which was found during a traffic stop based upon an argument that the agricultural inspector had no authority. The court noted that in Florida an officer continues to serve de facto in the first office and found that the protecting the public interest and welfare was paramount to enforcing the dual office-holding prohibition. The Court further found that a Quo Warranto action is the appropriate and adequate remedy to determine the right of an individual to hold public office.[2] Thus, it would appear that continued service in one office while accepting and serving a second would be subject to judicial review and potential removal from office.

As reflected by the court case, continued service in an office while accepting and serving in a second office raises questions as to the validity of any official action taken by an officer. Moreover, section 876.05, Florida Statutes, requires all persons who are employees on the payroll of the state or any of its subdivisions, counties, cities, or school districts to take the following oath:

"I, _, a citizen of the State of Florida and of the United States of America, and being employed by or an officer of ___ and a recipient of public funds as such employee or officer, do hereby solemnly swear or affirm that I will support the Constitution of the United States and of the State of Florida." (e.s.)

It is assumed that when one supports the Constitution of the State of Florida, such person does not knowingly violate the provisions contained therein.

I trust these informal comments will be helpful.

Sincerely,

Lagran Saunders

Assistant Attorney General

ALS/tsh

[1] 380 So. 2d 1102, 1104 (Fla. 1980).

[2] Id. at 1105.