Can a Florida city appoint one of its own commissioners to serve on a special district's board of directors?

Plain-English summary

The Valparaiso city attorney asked, on behalf of the mayor, whether the city could appoint a city commissioner (someone other than the mayor) to sit on the board of the Okaloosa Gas District, an independent special district created by special act. The district's charter says each member municipality's representative is appointed by that municipality's governing body and "may, but need not be" the mayor.

The Attorney General's office declined to issue a formal answer, for two procedural reasons. The appointment power belongs to the city commission as a body, and the office's policy is that questions about a public board's powers should come from a majority of that board, not from one official. So in the absence of a request from a majority of the Valparaiso commission, the office could not opine on the commission's duties.

The office did offer general guidance, partly because a circuit court had already weighed in. In Reid v. City of Valparaiso, a circuit court enjoined a city ordinance that required the city's gas-board representative to be an elected commissioner, relying on a common-law rule that disqualifies officials with appointing power from filling the positions they appoint. The Attorney General's office cannot comment on the validity of a court ruling, but it noted that the Florida Supreme Court, in State ex rel. Clayton v. Board of Regents (1994), held that no such common-law principle exists in Florida (though Florida's constitutional provisions on public officials are in some respects even more restrictive). Based on Clayton, the office has taken the position that no common-law principle bars a governmental body from appointing one of its own members to a position it appoints. The office also noted that the constitutional dual office-holding ban in Article II, section 5(a) applies only to state, county, and municipal offices and does not reach independent special district offices.

Currency note

This opinion was issued in 2011. 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.

What the opinion concluded (2011)

The office declined to render a formal opinion because the appointment authority rested with the city commission as a collegial body and no majority of the commission had requested the opinion. It identified, from the district charter (codified as section 2, Chapter 2000-443, Laws of Florida), that the governing body of each member municipality, not the mayor, appoints the municipality's representative and that the representative need not be the mayor.

In offering general guidance, the office addressed the common-law "appointing power" question that the circuit court had raised in Reid v. City of Valparaiso. It explained that it could not comment on the validity of a court ruling, but noted that the Florida Supreme Court in State ex rel. Clayton v. Board of Regents concluded no such common-law principle existed in Florida, while observing that Florida's constitutional provisions governing public officials are in some respects more restrictive than the common-law doctrines of other jurisdictions. Consistent with Clayton, the office said no common-law principle precludes a member of a governmental body from appointing one of its own members to a position over which the body has appointment power. Separately, on dual office-holding, the office noted that Article II, section 5(a) of the Florida Constitution applies only to state, county, and municipal offices and not to independent special district offices, citing In re Advisory Opinion to the Governor. This was an informal advisory letter.

Common questions

Q: Can a city commission put one of its own commissioners on a special district board?
A: The office did not rule for Valparaiso, but its general guidance, based on State ex rel. Clayton v. Board of Regents, is that no Florida common-law principle bars a body from appointing one of its own members to a position it appoints.

Q: Doesn't a common-law rule prohibit appointing your own members?
A: Some jurisdictions developed such a rule, and a circuit court invoked it in Reid v. City of Valparaiso. But the Florida Supreme Court held in Clayton that no such common-law principle exists in Florida.

Q: Does the dual office-holding ban stop a commissioner from also sitting on the gas district board?
A: The office noted that Article II, section 5(a) applies only to state, county, and municipal offices and does not reach independent special district offices, so the ban would not bar holding a district seat.

Q: Why didn't the Attorney General just answer the question?
A: Because the appointment power belongs to the commission as a body, and the office's policy is that a question about a board's powers must come from a majority of that board. No majority of the Valparaiso commission had asked.

Background and statutory framework

The Okaloosa Gas District is an independent special district created by special act, its charter codified in Chapter 2000-443, Laws of Florida. The charter assigns the appointment of each member municipality's board representative to that municipality's governing body and allows, but does not require, the representative to be the mayor. Two doctrines framed the inquiry. The common-law "appointing power" rule (that a body cannot appoint its own members to positions it controls) was rejected for Florida in State ex rel. Clayton v. Board of Regents, where the Florida Supreme Court explained that Florida instead addresses dual office-holding, financial conflicts, and abuse of public trust through specific constitutional provisions. The constitutional dual office-holding ban, Article II, section 5(a), by its terms covers only state, county, and municipal offices, which is why the office, citing In re Advisory Opinion to the Governor, treated special district offices as outside its reach.

Citations and references

Statutes and constitutional provisions:

• Chapter 2000-443, Laws of Florida (Okaloosa Gas District charter)
• Article II, section 5(a), Florida Constitution (dual office-holding prohibition)

Cases:

• State ex rel. Clayton v. Board of Regents, 635 So. 2d 937 (Fla. 1994), no Florida common-law bar on a body appointing its own members
• In re Advisory Opinion to the Governor, 630 So. 2d 1055 (Fla. 1994), special district office is not a state, county, or municipal office under Article II, section 5(a)
• Reid v. City of Valparaiso (Fla. 1st Jud. Cir. Okaloosa Co. 2010), circuit court injunction discussed but not adopted by the office

Prior Attorney General opinions referenced: 03-20, 96-59, 96-84, 00-17, 04-07, 08-56, 11-05, and others on special district offices.

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/incompatibility-gas-district-board-appointments
• Original PDF: https://www.myfloridalegal.com/print/pdf/node/8165

Original opinion text

Mr. Douglas M. Wyckoff

Valparaiso City Attorney

116 Live Oak Avenue East

Defuniak Springs, Florida 32435

Dear Mr. Wyckoff:

On behalf of the Mayor of the City of Valparaiso, you ask whether the city has the authority to appoint a city commissioner, other than the mayor, to serve on the Board of Directors of the Okaloosa Gas District, an independent special district created by special act.[1]

Section 8 of the Okaloosa Gas District's charter, as codified by section 2, Chapter 2000-443, Laws of Florida, establishes the membership of the district's board of directors:

"The District shall have a Board of Directors, consisting of one member of each member municipality and one member appointed by the Board of County Commissioners of Okaloosa County, to represent the interest of the unincorporated areas and the interest of the nonmember cities. The member for each member municipality shall be appointed by the governing body of such member municipality . . . . The representative of each municipality may, but need not be, the mayor or chief executive officer of such municipality . . . . "

Thus, it is the responsibility of the governing body, not the mayor, to appoint the representative of the municipality to the gas district's board of directors. As stated in this office's statement of policy, a copy of which is enclosed, questions relating to the powers and duties of a public board or commission (or other collegial public body) should be requested by a majority of the members of that body. In the absence of a request from a majority of the members of the Valparaiso City Commission, this office cannot comment upon of the duties of the commission.

In addition, I note that the circuit court in Reid v. City of Valparaiso[2] considered the authority of the city commission to appoint a commissioner other than the mayor to the district board. In addressing a city ordinance that required that the city's representative on the gas board be an elected city commissioner,[3] the court, in granting the request for injunctive relief, stated in its general conclusions of law:

"Ordinance No. 599 is also contrary to the common-law rule of public policy which disqualifies all officers who have appointing power from filling the offices or positions for which they appoint."[4]

In holding that the appointment of a city commissioner to the Gas District Board was void, the court stated that the ordinance was illegal and against common-law and public policy.[5] Thus, the court, in striking down the ordinance, considered the common law rule disqualifying a governmental body from appointing one of its own members to a position over which it has appointment power unless such appointment is authorized by law to be applicable to the Valparaiso City Commission's appointments to the district board.

This office cannot, through an opinion, comment upon the validity of a ruling of the court. In an effort to be of some assistance, however, and inasmuch as the court referenced several Attorney General Opinions, I would generally note that in 1994 the Florida Supreme Court in State ex rel. Clayton v. Board of Regents,[6] considered whether this common law principle prohibited the Florida Board of Regents from appointing one of its own members as university president, a position over which it had appointment power. The Court concluded that no such common law principle existed in Florida, stating:

"We find there was no common law principle in existence in England on July 4, 1776, that governs the issue in this case. Further, conduct involving public officers, such as dual office-holding, financial benefit from office, and abuse of public trust, are issues directly addressed by the Florida Constitution. See art. II, §§ 5, 8. In addition, our Constitution requires that public officials must conduct public business in the open and that public records must be made available to all members of the public. Art. I, § 24, Fla. Const. As noted by Clayton, other jurisdictions may indeed have developed through judicial decisions a common law principle prohibiting a governmental body from appointing one of its own members to a position over which it has appointment power. While such a common law principle does not exist in Florida, however, we note that, when taken as a whole, the constitutional provisions governing public officials in Florida are even more restrictive as to the manner in which public officials may hold office and conduct public business than the judicially enacted common law doctrines in other jurisdictions."[7]

In light of the Florida Supreme Court's decision in State ex rel. Clayton v. Board of Regents, this office has stated that no common law principle precludes a member of a governmental body from appointing one of its own members to a position over which it has appointment power.[8]

Regarding the issue of dual office-holding, I would generally note that the courts of this state and this office have recognized that Article II, section 5(a), Florida Constitution, the constitutional prohibition against dual office-holding, refers only to state, county, and municipal offices[9] and thus is not applicable to independent special district offices.[10]

I trust you will understand that the duties of this office are prescribed by law. I hope, however, that the above informal comments may be of assistance.

Sincerely,

Joslyn Wilson

Assistant Attorney General

JW/tsh

Enclosure: Statement of Policy

[1] Chapter 2000-443, Laws of Fla.

[2] Order Granting Petitioner's Request for Temporary Injunctive Relief, Case No. 2010 CC 001550 (Fla. 1st Jud. Cir. Okaloosa Co.), filed July 26, 2010.

[3] Ordinance No. 599, amending Art. VII, Div. 2, s. 2-194, Valparaiso City Code.

[4] Order, supra at General Conclusions of Law, C., p. 9. The court referenced several Attorney General Opinions issued during the 1980s for this proposition.

[5] Id. at D., p. 10.

[6] 635 So. 2d 937 (Fla. 1994).

[7] Id.

[8] See Op. Att'y Gen. Fla. 03-20 (2003). See also Ops. Att'y Gen. Fla. 96-59 (1996), 96-84 (1996), 00-17 (2000), 04-07 (2004), 08-56 (2008), and 11-05 (2011). And see s. IX of this office's Dual Office-holding Pamphlet (available online at: http://myfloridalegal.com/webfiles.nsf/WF/MRAY-6S3PP7/$file/dual.pdf) which addresses whether common law principles prohibit a public agency from appointing one of its members to a position over which it has appointment power.

[9] Article II, section 5(a), Florida Constitution, provides in part that except as provided therein "[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 . . . ."

[10] See In re Advisory Opinion to the Governor, 630 So. 2d 1055, 1058 (Fla. 1994) (community college district board of trustees member is an officer of a special district and is not a state, municipal, or county officer within the meaning of Art. II, s. 5(a), Fla. Const.). And see Ops. Att'y Gen. Fla. 71-324 (1971) (hospital district's governing body); 85-24 (1985) (community redevelopment district established by general law); 94-83 (1994) (airport and industrial district); 99-49 (1999) (community redevelopment agency); 01-14 (2001) (water control district); 00-17 (2000); 02-49 (2002) and 02-83 (2002) (water control district); and 08-06 (2008) (mosquito control district).