Can one person be both a value adjustment board special magistrate and a city hearing officer in Florida?

Plain-English summary

Value adjustment boards use "special magistrates," lawyers or appraisers appointed for a year, to hear property tax appeals. The legal counsel for the Hillsborough County Value Adjustment Board asked Attorney General Pam Bondi whether one person could serve as a special magistrate for that board and also as a hearing officer for a city in another county, as long as the two jobs' hearings happened in different months and never at the same time.

The AG said no. Article II, section 5(a) of the Florida Constitution bars anyone from holding "at the same time more than one office" under the state and its counties and municipalities (with narrow exceptions for notaries, military officers, and members of advisory bodies). The key idea is that you hold an office for your whole term, not just during the moments you are exercising its powers. A special magistrate possesses the authority to conduct hearings throughout the appointment year, whether or not a hearing is actually underway, and the same is true of a municipal hearing officer. So holding both positions during overlapping terms is simultaneous office-holding, even if the hearing calendars do not overlap. The AG distinguished a narrow exception Florida courts allow for law enforcement officers temporarily assigned to another agency without pay, explaining that it applies only to additional police duties performed without remuneration, not to exercising quasi-judicial power for a second government body. The opinion also noted that section 194.035(1) separately bars employees and elected or appointed officials of a county, taxing jurisdiction, or the state from serving as special magistrates, a broader restriction than the dual office-holding ban itself.

Currency note

This opinion was issued in 2012. 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.

The constitutional dual office-holding ban in Article II, section 5(a) is durable, but its application to a given pair of positions is fact-specific and the case law develops over time. Section 194.035 may also have been amended. Confirm current law before relying on this analysis.

Common questions

Q: Can the same person be a special magistrate and a city hearing officer?
A: Not at the same time, under this opinion. Both are "offices" for purposes of Article II, section 5(a), and a person who holds both during overlapping terms violates the constitutional dual office-holding prohibition.

Q: Does it matter that the hearings happen in different months?
A: No. The AG explained that you hold an office throughout your term, not just while conducting hearings. The authority is "attendant to holding the office," so staggering the actual hearing dates does not cure the conflict.

Q: What counts as an "office" for the dual office-holding ban?
A: Under State ex rel. Holloway v. Sheats, an office involves a delegation of part of the sovereign power. A special magistrate exercising quasi-judicial power over tax appeals holds such an office, as does a municipal hearing officer.

Q: Isn't there an exception for serving two roles?
A: A limited one, but it did not apply here. Florida courts allow a law enforcement officer to take on additional police duties for another agency temporarily and without pay. The AG said that exception is confined to police functions performed without remuneration, not to quasi-judicial service for another government body.

Background and statutory framework

Article II, section 5(a) of the Florida Constitution prohibits holding more than one office under the state, counties, and municipalities at the same time, with limited exceptions. The Florida Supreme Court in State ex rel. Holloway v. Sheats, 83 So. 508 (Fla. 1919), defined an "office" as involving a delegation of sovereign power. The AG applied that to conclude both a value adjustment board special magistrate and a municipal hearing officer hold offices for the full term, regardless of when hearings occur.

The recognized exception comes from Vinales v. State, 394 So. 2d 993 (Fla. 1981), and Rampil v. State, 422 So. 2d 867 (Fla. 2d DCA 1982), which allowed police officers to take on temporary, unpaid law enforcement duties for another agency. The AG held that exception inapplicable to quasi-judicial service. Separately, section 194.035(1), Florida Statutes, bars officials and employees of a county, taxing jurisdiction, or the state from serving as special magistrates at all.

Citations and references

Constitution and statutes:

• Art. II, s. 5(a), Fla. Const. (dual office-holding prohibition)
• s. 194.035(1), Fla. Stat. (who may not serve as a value adjustment board special magistrate)

Cases:

• State ex rel. Holloway v. Sheats, 83 So. 508 (Fla. 1919), defining "office" as a delegation of sovereign power
• Vinales v. State, 394 So. 2d 993 (Fla. 1981), narrow exception for temporary unpaid police duties
• Rampil v. State, 422 So. 2d 867 (Fla. 2d DCA 1982), following the Vinales exception

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/dual-office-holding-special-magistrate-
• Original PDF: https://www.myfloridalegal.com/print/pdf/node/1617

Original opinion text

Ms. Rinky S. Parwani

Legal Counsel

Hillsborough County Value

Adjustment Board

9905 Alambra Avenue

Tampa, Florida 33619

RE: DUAL OFFICE-HOLDING – SPECIAL MAGISTRATES – VALUE ADJUSTMENT BOARDS – HEARING OFFICERS – MUNICIPALITIES – value adjustment board special magistrate appointed for calendar year may not hold other office. s. 5(a), Art. II, Fla. Const.

Dear Ms. Parwani:

On behalf of the Hillsborough County Value Adjustment Board, you ask substantially the following question:

May a special magistrate appointed for a calendar year for the county value adjustment board serve as a city’s hearing officer without violating the constitutional dual office-holding prohibition in section 5(a), Article II, Florida Constitution, if the hearings for each governmental agency are conducted in different months of the year and not simultaneously?

In sum:

A special magistrate appointed for a calendar year for the county value adjustment board may not also serve as a city’s hearing officer, irrespective of whether the officer is simultaneously conducting hearings during the term of office, without violating the dual office-holding prohibition in section 5(a), Article II, Florida Constitution.

You pose the situation where a value adjustment board special magistrate who is appointed by Hillsborough County for a calendar year would be appointed as a hearing officer for a city in a different county and the hearings for each governmental entity would be conducted in different months and, therefore, not simultaneously. In this scenario, the special magistrate for the value adjustment board would have completed all hearings for petitions for the contract year, then begin hearings for the city.[1]

Initially, I would note that section 194.035(1), Florida Statutes, states that special magistrates may not be elected or appointed officials or employees of the county and further precludes employees and elected or appointed officials of a taxing jurisdiction or of the state from serving as special magistrates. This contemplates a broader prohibition than mere dual office-holding in that employees of a county, taxing jurisdiction, or the state may not serve as special magistrates for the value adjustment board. Your question, however, appears to pose a more particular distinction for a special magistrate who has completed the hearings for the value adjustment board for the year, but still holds the position of special magistrate.

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

"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 constitutional provision prohibits a person from simultaneously holding more than one "office" under the government of the state and the counties and municipalities. The terms "office" or "officer" are not defined and no distinction is made between part-time or full-time officers, nor is any exception made therefor.[2] The Florida Supreme Court in State ex rel. Holloway v. Sheats,[3] stated that 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[.]"[4]

In the instant situation, the authority to conduct hearings as a special magistrate for the value adjustment board is inherent to the position and is held by the individual regardless of whether the special magistrate is in the process of conducting a hearing. Such authority does not cease to exist when the special magistrate concludes a hearing or conducts hearings on a part-time basis, but rather is attendant to holding the office and remains at the officer’s disposal for the term of the office.[5] The powers and duties of a special master, therefore, are not confined by the time period during which he or she is conducting hearings. Rather, a special magistrate is an officer at all times during his or her term of office.[6] The same would hold true for an individual appointed as a municipal hearing officer.

While Florida courts have recognized a limited exception to the dual office-holding prohibition for law enforcement officers who are temporarily assigned to perform law enforcement duties without remuneration for another law enforcement agency,[7] the 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 for another governmental board or entity exercising and performing quasi-judicial powers and duties. Moreover, the exemption only applies when the officer performs the additional duties without remuneration.

Accordingly, it is my opinion that a value adjustment board special magistrate who has been appointed for a calendar year may not also serve as a hearing officer for a municipality in another county, despite the fact that the individual in his or her capacity in each office would not be conducting hearings for both offices during the same time period.

Sincerely,

Pam Bondi

Attorney General

PB/tals

[1] This office has determined that a special magistrate for a value adjustment board is an officer for purposes of the dual office-holding prohibition. See Op. Att'y Gen. Fla. 96-91 (1996) (special master appointed pursuant to s. 194.035, Fla. Stat., is an officer). It is assumed for purposes of this discussion that the hearing officer for the city is an officer subject to the prohibition. Cf. Inf. Op. to Ms. Susan H. Bingham, dated April 12, 1999, in which it was advised that simultaneous service as a traffic court hearing officer and a municipal administrative hearing master would violate the dual office-holding prohibition.

[2] Compare s. 5(a), Art. II, supra, excepting from its terms notaries public, military officers, members of a constitutional revision commission, constitutional convention, or statutory body having only advisory powers.

[3] 83 So. 508 (Fla. 1919).

[4] Id. at 509.

[5] Cf. Ops. Att'y Gen. Fla. 77-63 (1977) (non-salaried, part-time, certified auxiliary or reserve police officer is an "officer" within the purview of the constitutional dual office-holding prohibition); 86-105 (1986) (citizen trained and certified as an auxiliary law enforcement officer pursuant to Ch. 943, Fla. Stat., authorized to carry a firearm and assist regular police officers, is an "officer" for purposes of dual office-holding).

[6] A contract or agreement for the hearing officer for the city has not been provided, but it is assumed for purposes of this opinion that the hearing officer is appointed for a term and, as discussed in the text regarding a special magistrate, is exercising his or her duties as an officer and would possess such authority throughout the term of the office.

[7] Compare Vinales v. State, 394 So. 2d 993 (Fla. 1981) (section 5[a], Art. II, did not apply to appointment of municipal police officers as state attorney investigators, since appointment is temporary and with no additional remuneration), and Rampil v. State, 422 So. 2d 867 (Fla. 2d DCA 1982) (following Vinales exception, concluding that city police officer, in conducting a wiretap, could act in capacity as deputy sheriff, since officer received no remuneration for such duties). See also Op. Att'y Gen. Fla. 12-10 (2012) (special officer for a carrier under Ch. 354, Fla. Stat., may serve simultaneously as an unpaid reserve deputy sheriff without violating the Florida constitutional prohibition against dual office-holding in s. 5[a], Art. II, Fla. Const.).