Can a Florida part-time law enforcement officer also work simultaneously for a second Florida law enforcement agency without violating the constitutional ban on dual officeholding?

Plain-English summary

A part-time, per-diem police officer for the Indian River Shores Public Safety Department asked the Florida AG's office whether he could pick up a second simultaneous law-enforcement job with a different Florida agency. Assistant Attorney General Ellen B. Gwynn, responding at Attorney General Pam Bondi's request, wrote an informal letter discussing the governing rules.

The letter explained the rule that Article II, Section 5(a) of the Florida Constitution prohibits one person from holding "more than one office under the government of the state and the counties and municipalities therein" at the same time. Whether a particular law-enforcement position counts as an "office" turns on whether the position carries sovereign powers delegated by law (such as warrantless arrest authority and the authority to carry firearms in the course of duty). The AG's office said pay structure and full-time or part-time status did not drive its prior determinations.

The letter described a limited exception: when one of two law enforcement positions is performed without remuneration, there is no dual office-holding violation; if an officer is paid for both positions, it says this would be prohibited dual office-holding. Those statements concern positions that qualify as offices. A footnote adds that an administrative law enforcement position without certification, arrest authority, or other sovereign powers probably is not an office. The letter declined to apply the framework to the requester's jobs because he had not provided their duties and obligations.

Currency note

This opinion was issued in 2016. 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.

Background and statutory framework

Article II, Section 5(a) of the 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[.]" The Florida Constitution does not define "office," and the term has been worked out almost entirely through Attorney General opinions and case law. At the time of this opinion, the consistent line drawn by both was that law-enforcement personnel exercising sovereign powers, the power to arrest without a warrant, the power to carry firearms in the course of duty, the power to enforce state law, fall on the "officer" side of the line, while purely administrative law-enforcement personnel without such powers generally did not. Pay structure (per diem, hourly, salaried) and time commitment (part-time, full-time) had not historically driven the analysis.

The letter cites Vinales v. State, 394 So. 2d 993 (Fla. 1981), and Rampil v. State, 422 So. 2d 867 (Fla. 2d DCA 1982), for the limited volunteer exception. It also cites AG Opinions 90-15 and 12-10 in discussing the distinction between paid and unpaid positions.

This 2016 letter calls itself an "informal advisory discussion." It gives the requester a general framework and recommends contacting his city attorney.

Common questions

Q: At the time of this opinion, did a part-time police officer count as an "officer" for dual-officeholding purposes?
A: Generally yes, the letter said, provided the position carried sovereign powers like warrantless arrest authority and authority to carry firearms in the course of duty. Pay structure and time commitment did not drive the analysis.

Q: What was the volunteer exception?
A: When one of the two law-enforcement positions was unremunerated (no salary or other compensation), the courts held that the dual-officeholding ban did not apply. Vinales and Rampil established it.

Q: Did the letter answer the specific question the requester had asked?
A: No. The letter declined to apply the rule because the requester had not provided the duties and obligations of either position. It set out the framework and recommended consulting a city attorney.

Q: Who at the AG's office signed this letter?
A: Assistant Attorney General Ellen B. Gwynn, responding at Attorney General Pam Bondi's request.

Citations and references

Constitutional provisions:

• Art. II, § 5(a), Fla. Const.

Cases:

• Vinales v. State, 394 So. 2d 993 (Fla. 1981) (Florida Supreme Court, volunteer exception)
• Rampil v. State, 422 So. 2d 867 (Fla. 2d DCA 1982) (Florida 2d DCA, applying volunteer exception)

Prior AG opinions referenced:

• Op. Att'y Gen. Fla. 77-63 (1977)
• Op. Att'y Gen. Fla. 84-25 (1984)
• Op. Att'y Gen. Fla. 89-10 (1989)
• Op. Att'y Gen. Fla. 90-15 (1990)
• Op. Att'y Gen. Fla. 2012-10
• Informal opinion to Sidney M. Nowell, dated April 11, 2012

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/dual-officeholding
• Official print view: https://www.myfloridalegal.com/print/pdf/node/8052

Original opinion text

Mr. John C. Carter III

1105 33rd Avenue Southwest

Vero Beach, Florida 32968

Dear Mr. Carter:

The Office of the Attorney General has received your inquiry as to whether you would be permitted to hold two different law enforcement positions in light of Article II, section 5(a) of the Florida Constitution. Attorney General Pam Bondi asked me to respond to your question.

Article II, section 5(a) 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[.]" You say you are employed as a law enforcement officer by the Indian River Shores Public Safety Department in a part-time capacity and are paid per diem, and that you would like to obtain a comparable position with a different law enforcement agency within Florida and work simultaneously for both.

You have not provided this office with a description of the duties and obligations of either your current position or the position you are seeking. Accordingly, I will only be able to provide you with a general discussion of this area of the law, as well as several cases and Attorney General Opinions that I believe will help you resolve your question.

Article II, section 5(a), Florida Constitution, prohibits a person from serving in more than one state, county, or municipal "office" simultaneously. Accordingly, the question is whether your current position and your hoped-for position qualify as "offices" under this provision. There is no constitutional or statutory definition of the term, "office." Generally, this office has considered law enforcement officers to be "officers" when such officers are clothed with sovereign powers delegated by law rather than by contract, such as the authority to arrest without a warrant and to carry firearms in the course of duty.[1] How the officer is paid or whether the position is part-time or full-time have not played a role in our prior determinations.[2] Therefore, if both of the positions you are asking about authorize you to hold these powers, they would likely be considered offices subject to the constitutional provision prohibiting dual office-holding.[3]

There is a limited exception to this prohibition, however, that has been established by the courts of Florida and followed by the Attorney General.[4] When one of the two law enforcement positions is performed without remuneration, meaning on a volunteer basis, there is no violation of the dual office-holding prohibition. If an officer is paid for both positions, this would constitute prohibited dual office-holding.[5]

I hope this informal advisory discussion and the opinions enclosed are helpful to you. I recommend that you contact your City Attorney for further guidance in this matter.

Sincerely,

Ellen B. Gwynn

Assistant Attorney General

EBG/tsh

Enclosures: Rampil v. State, 422 So. 2d 867 (Fla. 2d DCA 1982); Ops. Att'y Gen. Fla. 2012-10 and 1990-15.

________________

[1] See Ops. Att'y Gen. Fla. 77-63 (1977); 12-10 (2012); 89-10 (1989).

[2] See Ops. Att'y Gen. Fla. 77-63 (1977); 90-15 (1990); 84-25 (1984).

[3] An administrative law enforcement position with no law enforcement certification requirement, arrest authority, or other sovereign powers would probably not be considered an "office." See Op. Att'y Gen. Fla. 89-10 (1989).

[4] See Vinales v. State, 394 So. 2d 993 (Fla. 1981); Rampil v. State, 422 So. 2d 867 (Fla. 2d DCA 1982).

[5] See Ops. Att'y Gen. Fla. 90-15 (1990); 12-10 (2012); Inf. Op. to Sidney M. Nowell, dated April 11, 2012.