Can a Florida city commissioner also sit on a regional transportation authority board?

Plain-English summary

The City Attorneys for the City of Aventura asked whether a city commissioner could simultaneously serve on the governing board of the South Florida Regional Transportation Authority without running afoul of the dual office-holding ban in Article II, section 5(a) of the Florida Constitution. That provision says no person shall hold more than one office "under the government of the state and the counties and municipalities therein" at the same time.

The Attorney General said the two roles are compatible. The constitutional prohibition by its terms covers only state, county, and municipal offices. It says nothing about special district offices, and both the courts and the AG's office have long held that the ban does not reach officers of an independent special district. The opinion cited the Florida Supreme Court's Advisory Opinion to the Governor--Dual Office-Holding (1994), which held that a community college district trustee is outside the prohibition, and AGO 94-83, which reached the same result for an airport authority created as an independent special district.

The opinion was careful to note the line is not automatic. In earlier opinions (AGO 84-90 on the Volusia County Health Facilities Authority, AGO 91-79 on the Fort Walton Beach Area Bridge Authority), the AG found an authority was actually an instrumentality of a county, so its members were county officers, because the county created it, appointed and removed its members, controlled its budget, or could abolish it. Here, the South Florida Regional Transportation Authority is created by section 343.53(1) as "a body politic and corporate, an agency of the state," operates in a limited tri-county area (Broward, Miami-Dade, Palm Beach), has a board drawn from several governments, and is officially designated an independent special district by the Department of Economic Opportunity. The AG concluded its board membership is in the nature of a district office, not a state, county, or municipal one, so a city commissioner can hold both.

Currency note

This opinion was issued in 2013. 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 or designation mentioned here.

Common questions

Q: What does the Florida dual office-holding ban actually prohibit?
A: Article II, section 5(a) bars one person from holding more than one office under the state, a county, or a municipality at the same time. The opinion stressed that it lists only those three levels.

Q: Why didn't the ban apply to the transportation authority seat?
A: Because the authority is an independent special district, and special district offices are not among the state, county, or municipal offices the constitution covers. Courts and the AG have consistently held special district officers fall outside the prohibition.

Q: Is a special district board always exempt?
A: No. The opinion noted that if an authority is really an instrumentality of a county (the county creates it, appoints and removes members, controls its budget, or can abolish it), its members can be county officers and the ban applies. The label "special district" is not enough by itself; the nature and control of the entity matter.

Q: What made the South Florida Regional Transportation Authority a special district here?
A: It was created by statute as an agency of the state with a board appointed by several different governments, operates in a limited geographic area with limited powers, and is officially listed as an independent special district by the Department of Economic Opportunity.

Q: Is a city commissioner an "officer" for dual office-holding purposes?
A: Yes. The opinion said there is no question a city commissioner is a municipal officer. The compatibility came from the authority seat being a district office, not from the commissioner seat being exempt.

Background and statutory framework

Article II, section 5(a), Florida Constitution, contains the dual office-holding prohibition, limited to offices under the state, counties, and municipalities. The Florida Supreme Court has defined an "office" as a position carrying a delegation of sovereign power, drawing on cases like State ex rel. Holloway v. Sheats, 83 So. 508 (Fla. 1919). Whether a district authority's seat counts turns on the entity's nature and control.

The South Florida Regional Transportation Authority is established in section 343.53, Florida Statutes, as a body politic and corporate and an agency of the state, with its board composition set in section 343.53(2) and its powers in section 343.54. The opinion compared this structure to county-controlled bodies analyzed under Part III, Chapter 154, Florida Statutes, in AGO 84-90, and relied on Advisory Opinion to the Governor--Dual Office-Holding, 630 So. 2d 1055 (Fla. 1994), to place independent special district officers outside the constitutional ban.

Citations and references

Statutes:

• Art. II, § 5(a), Fla. Const. (dual office-holding)
• § 343.53, Fla. Stat. (South Florida Regional Transportation Authority)
• § 343.54, Fla. Stat. (authority powers)

Cases:

• State ex rel. Holloway v. Sheats, 83 So. 508, 509 (Fla. 1919)
• State ex rel. Clyatt v. Hocker, 22 So. 721 (Fla. 1897)
• Advisory Opinion to the Governor--Dual Office-Holding, 630 So. 2d 1055, 1058 (Fla. 1994)
• Orange County v. Gillespie, 239 So. 2d 132 (Fla. 4th DCA 1970), cert. denied, 239 So. 2d 825 (Fla. 1970)

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/dual-office-holding-regional-transp-auth
• Original PDF: https://www.myfloridalegal.com/print/pdf/node/1590

Original opinion text

Mr. David K. Wolpin

Ms. Laura K. Wendell

City Attorneys for the City of Aventura

2525 Ponce De Leon Boulevard, Suite 700

Cora Gables, Florida 33134

RE: SOUTH FLORIDA REGIONAL TRANSPORTATION AUTHORITY--MUNICIPALITIES--DUAL OFFICE-HOLDING--city commissioner may serve as member of governing board of special district transportation authority. s. 343.53, Fla. Stat.; Art. II, s. (5)(a), Fla. Const.

Dear Mr. Wolpin and Ms. Wendell:

On behalf of the City of Aventura, you ask substantially the following question:

May a city commissioner simultaneously serve as a member of the governing board of the South Florida Regional Transportation Authority without violating the dual office-holding prohibition in section 5(a), Article II of the Florida Constitution?

In sum:

A city commissioner may simultaneously serve as a member of the governing board of the South Florida Regional Transportation Authority without violating the dual office-holding prohibition in section (5)(a), Article II of the Florida Constitution, because the authority is a special district.

Article II, section 5(a), Florida Constitution, provides in part that "[n]o person shall hold at the same time more than one office under the government of the state and the counties and municipalities therein . . . ." While the constitutional provision does not define the term "office" or "officer," the Supreme Court of Florida has stated that an "office" implies a delegation of a portion of the sovereign power to, and the possession of it by, the person filling the office.[1]

The constitutional dual office-holding prohibition, however, refers only to state, county, and municipal offices. There is no reference in the constitutional prohibition to special district offices, such that both the courts and this office have therefore concluded that the dual office-holding prohibition does not apply to the officers of an independent special district. In Advisory Opinion to the Governor--Dual Office-Holding,[2] the Supreme Court of Florida reiterated that special district officers are not included within the dual office-holding prohibition, concluding that a member of a community college district board of trustees is not included within the dual office-holding prohibition. This office in Attorney General Opinion 94-83 stated that membership on the Panama City-Bay County Airport Authority, created as an independent special district, did not constitute an office for purposes of Article II, section 5(a), Florida Constitution. The authority 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 authority.

This office has cautioned that care must be taken in determining the nature and character of a district or authority to determine whether the governmental entity is an agency of the state, county, or municipality such that its officers may be considered state, county, or municipal officers for purposes of dual office-holding. For example, in Attorney General Opinion 84-90, this office considered whether a member of the Volusia County Health Facilities 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 passage of an ordinance or a resolution. The governing body of the county appointed the authority members, was empowered to remove the members, and was authorized to abolish the authority at any time. This office, therefore, concluded that the authority was an instrumentality of the county and its officers were county officers. Thus, the constitutional prohibition against dual office-holding prohibited a mayor from also serving on the governing body of the county health facilities authority.

Similarly, in Attorney General Opinion 91-79, this office concluded that the Fort Walton Beach Area Bridge Authority, created as a dependent special district within the county, was an instrumentality of the county for dual office-holding purposes. Under the act creating the district, the county commission was charged with approving the authority's annual budget and for filling vacancies on the authority.[3]

There is no question that a city commissioner is an officer of the city for purposes of the dual office-holding prohibition. However, to the extent the South Florida Regional Transportation Authority (authority) is a special district, a member of its governing board is not subject to the constitutional dual office-holding prohibition.

The authority is created as "a body politic and corporate, an agency of the state" in section 343.53(1), Florida Statutes. Pursuant to its enabling legislation, the authority has the right to own, operate, maintain, and manage a transit system in the tri-county area of Broward, Miami-Dade, and Palm Beach counties.[4] Its governing board is appointed as follows: each of its member counties selects one of its county commissioners; the secretary of the Department of Transportation selects one of the district secretaries (or his or her designee) from the districts within the authority’s service area "who shall serve ex officio as a voting member[;]" and the Governor appoints three members who are residents and qualified electors in the service area, but not residents of the same county.[5] The authority is authorized to "plan, develop, own, purchase, lease, or otherwise acquire, demolish, construct, improve, relocate, equip, repair, maintain, operate, and manage a transit system and transit facilities." Moreover, the Legislature states its intent that the authority "shall have overall authority to coordinate, develop, and operate a regional transportation system within the area served."[6]

While the enabling legislation describes the authority as an "agency of the state," the authority is designated as an independent special district by the Department of Economic Opportunity,[7] operates within a limited geographical area, and is specifically authorized to perform a limited governmental activity to fulfill its purpose. The nature and purpose of the authority would appear more closely aligned with that of a special district carrying out its limited powers. Membership on the authority’s governing board, therefore, is more in the nature of a district office which is not subject to the constitutional prohibition against dual office-holding.

Accordingly, it is my opinion that a city commissioner may serve as a member of the governing board of the South Florida Regional Transportation Authority without violating the dual office-holding prohibition in section 5(a), Article II of the Florida Constitution, since the authority is a special district.

Sincerely,

Pam Bondi

Attorney General

PB/tals

[1] 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).

[2] 630 So. 2d 1055, 1058 (Fla. 1994).

[3] Cf. Op. Att'y Gen. Fla. 90-91 (1990), concluding that the Hillsborough County Hospital Authority, created by special act with all powers of a body corporate, whose members are appointed by the Hillsborough County Commission which possesses the power to fill vacancies on the authority, remove members for misfeasance, malfeasance or willful neglect of duty, and approve the authority's budget, was a county agency. And see Op. Att’y Gen. Fla. 01-28 (2001), in which this office determined that regional planning council member was a public officer subject to the dual office-holding prohibition, based on Orange County v. Gillespie, 239 So. 2d 132 (Fla. 4th DCA 1970), cert. denied, 239 So. 2d 825 (Fla. 1970) (planning council member was subject to Florida's Resign-to-Run Law which at that time only applied to state, county or municipal offices, as councils act on behalf of the state in implementing state policies regarding growth management). The AGO notes, however, that regional planning councils were not (and are still not) listed as special districts by the Department of Community Affairs (now Department of Economic Opportunity). Questions regarding the resign-to-run law should be addressed to the Division of Elections, Florida Department of State.

[4] Section 343.54(1)(a), Fla. Stat.

[5] Section 343.53(2), Fla. Stat.

[6] Section 343.54(1)(b), Fla. Stat.

[7] See http://dca.deo.myflorida.com/fhcd/sdip/OfficialListdeo/report.cfm.