Can one attorney serve as a code enforcement special magistrate for multiple Florida jurisdictions through an interlocal agreement or sequential contracts without violating the dual office-holding rule?

Plain-English summary

A Seminole County code enforcement special magistrate asked the AG three questions. The AG answered two and declined to opine on the first.

Question 1 (declined): Could a single attorney serve as a code enforcement special magistrate for multiple Florida jurisdictions through an interlocal agreement? The AG declined because answering would require commenting on the legal authority of local governments to enter the agreement, which requires a request from the relevant governing body itself. The AG flagged that § 163.01(14) of the Interlocal Cooperation Act expressly does not authorize the delegation of "constitutional or statutory duties of state, county, or city officers."

Question 2 (addressed): Could one individual sequentially contract to serve as a special magistrate for multiple jurisdictions, with each contract effective only when actively handling a particular case so contracts never overlap? The AG concluded this arrangement would not fit within the sovereign-power test for office-holding under Article II, § 5(a). The Florida Supreme Court in State ex rel. Holloway v. Sheats (1919) defined an "office" as embracing "the idea of tenure, duration, and duties in exercising some portion of the sovereign power, conferred or defined by law and not by contract." Sequential contracts trying to chop up the office into time slots would be "contrary to a delegation of a portion of sovereign power which is conferred or defined by law" and not by contract.

Question 3 (addressed): Does § 162.07 require a special magistrate to render an oral decision at the conclusion of a code enforcement hearing? No. The plain text of § 162.07(4) requires the magistrate to "issue findings of fact, based on evidence of record and conclusions of law," and to "issue an order affording the proper relief." The statute is silent on whether the order must be oral or in a particular timeframe. Because § 162.07(4) allows orders to be recorded in the public records, the statute appears to contemplate written orders. The AG cannot read in an oral-pronouncement requirement that the Legislature did not include.

The follow-up to question 3 was the genesis of the later AGO 2017-01 (March 9, 2017) on special magistrate code enforcement hearings, which clarified that while no oral pronouncement is statutorily required, outcomes should be presented at a public hearing of the special magistrate.

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.

Common questions

Q: Why is "office" different from "employment" or "contract"?
A: An "office" carries a portion of sovereign power, conferred and defined by law. An employment or contract is created by agreement and does not carry sovereign authority. The dual office-holding prohibition in Article II, § 5(a) reaches offices, not employments or contractual engagements.

Q: Why didn't sequential, non-overlapping contracts solve the problem?
A: Because the sovereign power exercised as a special magistrate is conferred by law (§ 162.03(2)), not by contract. Trying to time-slice the office through contracts does not change the underlying law-defined nature of the role. The opinion treats the multi-jurisdiction arrangement as office-holding for each jurisdiction.

Q: Can two municipalities use one special magistrate through an interlocal agreement?
A: The opinion declined to opine without a request from the local governing bodies. Section 163.01(14) cautions against any interlocal arrangement that delegates constitutional or statutory duties of state, county, or city officers, so the answer would depend on the structure of the agreement.

Q: Did this opinion say special magistrates must read their orders out loud?
A: No. It said § 162.07 does not require an oral pronouncement. AGO 2017-01 (the followup) added that outcomes should still be presented at a public hearing.

Q: What about a mediator or hearing officer? Are those offices?
A: Florida case law turns on whether the role exercises sovereign power. A mediator who facilitates settlement without authority to bind parties is not an officeholder. A hearing officer with authority to issue binding decisions, impose fines, or grant variances is.

Background and statutory framework

Article II, § 5(a) of the Florida Constitution prohibits any person from holding "at the same time more than one office under the government of the state and the counties and municipalities therein," with limited exceptions for notaries, military officers, and members of certain advisory bodies. The constitutional rule traces back to a desire to prevent power consolidation in any one individual.

The Florida Supreme Court's century-old test (Sheats 1919, Hocker 1897) draws the line between office and employment by sovereign-power exercise. The test has held up in modern AG opinions on planning and zoning boards, code enforcement boards, historic preservation boards, and similar local bodies.

Special magistrates under Chapter 162 occupy that office territory. Section 162.03(2) gives them "the same status as an enforcement board" with authority to hold hearings, take evidence, find facts, conclude law, and impose fines. That is sovereign power. The Interlocal Cooperation Act in § 163.01 contemplates joint exercise of shared powers but expressly excludes delegation of constitutional or statutory duties of state, county, or city officers, which would include code enforcement adjudication.

Citations and references

Constitution / Statutes:
- Art. II, § 5(a), Fla. Const.
- § 162.03, Fla. Stat. (Code enforcement boards; special magistrates)
- § 162.07, Fla. Stat. (Conduct of hearing)
- § 163.01, Fla. Stat. (Florida Interlocal Cooperation Act of 1969)

Cases:
- State ex rel. Holloway v. Sheats, 83 So. 508 (Fla. 1919)
- State ex rel. Clyatt v. Hocker, 22 So. 721 (Fla. 1897)
- Chaffee v. Miami Transfer Company, Inc., 288 So. 2d 209 (Fla. 1974)

Prior AG opinions:
- Op. Att'y Gen. Fla. 13-25 (2013) (interlocal building code inspector arrangement)
- Op. Att'y Gen. Fla. 06-26 (2006), 81-10 (1981) (AG cannot read into clear statutes)

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/dual-officeholding-special-magistrates
• Original PDF: https://www.myfloridalegal.com/print/pdf/node/8047

Original opinion text

November 15, 2016

Mr. Lonnie N. Groot
Stenstrom, McIntosh, Cobert & Whigham
1001 Heathrow Park Lane, Suite 4001
Lake Mary, Florida 32746

Dear Mr. Groot:

As a hearing officer/special magistrate for Seminole County, you have asked whether an attorney may adjudicate code enforcement cases as a special magistrate for multiple jurisdictions by way of an interlocal agreement without violating the dual office-holding prohibition in section 5(a), Article II, State Constitution. You also inquire whether an individual may enter into multiple contracts to act as a special magistrate for multiple jurisdictions where the magistrate's jurisdiction is effective only for the period he or she is actively involved with a case and there is no overlapping of the service for each jurisdiction. Finally, you ask whether section 162.07, Florida Statutes, requires a special magistrate to render an oral decision at the conclusion of a hearing in which he or she has issued findings of fact and conclusions of law.

Regrettably, the answer to your first question necessarily involves comment upon the ability of local governments to enter into an interlocal agreement to carry out their individual code enforcement authority. This office would not be able to comment upon the authority of an individual governmental unit absent a request from a majority of the members of the governing body of said local government. While section 163.01, Florida Statutes, authorizes the joint exercise of any power, privilege, or authority which public agencies share in common, there are restrictions on the exercise of extra-territorial powers which must be followed.[1] Moreover, the plain language of the Interlocal Cooperation Act states "[t]his section is intended to authorize the entry into contracts for the performance of service functions of public agencies, but shall not be deemed to authorize the delegation of the constitutional or statutory duties of state, county, or city officers."[2]

Without entering into a detailed discussion of the use of mutually exclusive intermittent contracts under which an individual would act as a special magistrate for one jurisdiction and upon conclusion of the case would end his or her contractual obligation as a special magistrate for one jurisdiction before beginning service as a special magistrate for another jurisdiction, it would appear that such an arrangement would not fit within the spirit or actual definition of carrying out the duties of an office. While the term "office" has not been defined in the Florida Constitution or by statute for purposes of the dual office-holding prohibition, the Supreme Court of Florida has stated:

"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, while an 'employment' does not comprehend a delegation of any part of the sovereign authority. The term 'office' 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. An employment does not authorize the exercise in one's own right of any sovereign power or any prescribed independent authority of a governmental nature; and this constitutes, perhaps, the most decisive difference between an employment and an office . . . ."[3] (e.s.)

Thus, the use of individual contracts, albeit exclusive to designated time periods which would not overlap, would be contrary to a delegation of a portion of sovereign power which is conferred or defined by law.

In addressing your question regarding whether section 162.07, Florida Statutes, requires the immediate rendering of an oral determination, it is recognized that section 162.03(2), Florida Statutes, authorizes a county or municipality to adopt an alternative code enforcement system giving code enforcement boards or special magistrates designated by the local governing body the authority to hold hearings and assess fines for code violations. The subsection also provides that a special magistrate "shall have the same status as an enforcement board under this chapter." Thus, while a special magistrate is not a member of the code enforcement board, there has been a delegation of the code enforcement authority to conduct hearings and the special magistrate is subject to the same requirements for conducting hearings as are imposed on a code enforcement board.

Section 162.07, Florida Statutes, prescribes the manner in which hearings will be conducted:

"(1) Upon request of the code inspector, or at such other times as may be necessary, the chair of an enforcement board may call a hearing of an enforcement board… Minutes shall be kept of all hearings by each enforcement board, and all hearings and proceedings shall be open to the public.…

(4) At the conclusion of the hearing, the enforcement board shall issue findings of fact, based on evidence of record and conclusions of law, and shall issue an order affording the proper relief consistent with powers granted herein… The order may include a notice that it must be complied with by a specified date and that a fine may be imposed… A certified copy of such order may be recorded in the public records of the county and shall constitute notice to any subsequent purchasers, successors in interest, or assigns if the violation concerns real property…" (e.s.)

The plain language of the statute contemplates that there may be multiple cases placed on the agenda for a day of hearings by a code enforcement board or, in this instance, a special magistrate acting on behalf of the code enforcement board. While the language of the statute indicates that at the conclusion of the hearing, the enforcement board is to issue findings of fact, based upon the evidence presented and conclusions of law, and to issue an order affording relief, there is no specific requirement that an oral pronouncement be made, nor is there a specified timeframe within which the order must be rendered. It is noteworthy that the statute allows a certified copy of such order to be recorded with the county as notice to subsequent purchasers of real estate. This would be an indication that the section contemplates a written order.

Absent a requirement that an oral determination be delivered at the end of a hearing, it is beyond the authority of this office to read such a requirement into section 162.07, Florida Statutes.[4]

I trust these informal comments will be of assistance in clarifying the manner in which an office is conferred and the limitations on one individual exercising the powers of two or more offices, no matter how a contractual agreement is constructed.

Sincerely,

Lagran Saunders
Senior Assistant Attorney General

ALS/tsh

[1] See s. 4, Art. VIII, State Const.

[2] Section 163.01(14), Fla. Stat. Cf. Op. Att'y Gen. Fla. 13-25 (2013).

[3] 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).

[4] Cf. Chaffee v. Miami Transfer Company, Inc., 288 So. 2d 209 (Fla. 1974), and Ops. Att'y Gen. Fla. 06-26 (2006) and 81-10 (1981).