Who fills a vacancy on the Florida Keys Mosquito Control District board, the Governor or the Commissioner of Agriculture?

Plain-English summary

The death of a commissioner left a vacancy on the board of the Florida Keys Mosquito Control District, and two laws seemed to point in different directions on who fills it. One general statute, section 388.111, says the Commissioner of Agriculture appoints replacements to mosquito-control boards. But the special act that charters the Florida Keys district, Chapter 2002-346, says the Governor makes the appointment.

Attorney General Pam Bondi concluded that the special act controlled. Two rules of statutory construction pointed the same way: a specific statute about a particular district beats a general statute covering all such districts, and the more recent enactment beats the older one. Because the 2002 special act was both the more specific and the later law, the Governor (not the Commissioner of Agriculture) had the authority to fill the vacancy.

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.

Background and statutory framework

Florida's mosquito control districts are generally governed by Chapter 388, Florida Statutes (sections 388.021 through 388.4111). Within that chapter, section 388.111 set a default rule for board vacancies: "[i]n the event of a vacancy due to any cause in any board of commissioners, the same shall be filled by appointment by the Commissioner of Agriculture for the unexpired term." For an ordinary district created and operating under Chapter 388, that is the controlling rule.

The Florida Keys Mosquito Control District was different because it was created by a special act of the Legislature. Chapter 2002-346 consolidated the district's earlier special acts into a single charter and, at section 3(3), provided that vacancies "shall also be filled by appointment by the Governor."

The opinion resolved the apparent conflict using two long-settled canons. First, a specific statute governing a particular subject controls over a general statute on the same subject (McKendry v. State, 641 So. 2d 45 (Fla. 1994); Rowe v. Pinellas Sports Authority, 461 So. 2d 72 (Fla. 1984)). Second, the last expression of the Legislature on a subject prevails over earlier enactments (Florida Association of Counties, Inc. v. Department of Administration, Division of Retirement, 580 So. 2d 641 (Fla. 1st DCA 1991), approved, 595 So. 2d 42 (Fla. 1992)). The 2002 special act was both more specific to the Keys district and later in time than the 1959 origin and 1992 amendment of section 388.111, so it governed.

The opinion also noted, in a footnote, that section 388.111 itself originally directed the Governor to fill these vacancies when it was enacted in 1959, and was amended in 1992 to shift that duty to the Commissioner of Agriculture for districts under Chapter 388.

Common questions

Q: Why didn't the Commissioner of Agriculture get to make the appointment here?
A: Section 388.111 is a general statute that applies to mosquito-control boards across the state. The Florida Keys district has its own special-act charter (Chapter 2002-346) that names the Governor. Under Florida's rules of statutory construction, the specific, later special act overrode the general statute for this one district.

Q: Does this mean the Governor fills vacancies on every Florida mosquito control district?
A: No. The opinion turned on the Florida Keys district's special-act charter. Districts created and operating under the general provisions of Chapter 388 fell under section 388.111, which assigned that task to the Commissioner of Agriculture at the time of the opinion.

Q: What is a "special act" and why does it carry such weight?
A: A special act is legislation aimed at a particular local entity rather than the state as a whole. When a special act and a general statute conflict, Florida courts have long held the special act prevails for the entity it governs.

Citations and references

Statutes and session laws:

• s. 388.111, Fla. Stat. (default rule: Commissioner of Agriculture fills mosquito-board vacancies)
• ss. 388.021-388.4111, Fla. Stat. (mosquito control districts generally)
• s. 3(3), Ch. 2002-346, Laws of Fla. (Florida Keys district charter: Governor fills vacancies)

Cases:

• McKendry v. State, 641 So. 2d 45 (Fla. 1994), specific statute controls over general
• Rowe v. Pinellas Sports Authority, 461 So. 2d 72 (Fla. 1984), special act prevails over conflicting general law
• Florida Association of Counties, Inc. v. Department of Administration, Division of Retirement, 580 So. 2d 641 (Fla. 1st DCA 1991), approved, 595 So. 2d 42 (Fla. 1992), latter expression prevails

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/mosquito-control-district-filling-vacancy
• Original PDF: https://www.myfloridalegal.com/print/pdf/node/1660

Original opinion text

Ms. Lorena Holley

General Counsel

Florida Department of Agriculture

and Consumer Services

407 South Calhoun Street

Tallahassee, Florida 32399-0800

RE: MOSQUITO CONTROL DISTRICTS – OFFICES – VACANCIES – appointment to fill vacancy on Florida Keys Mosquito Control District board of commissioners to be made by the Governor. s. 388.111, Fla. Stat., and s. 3(3), Ch. 2002-346, Laws of Fla.

Dear Ms. Holley:

You ask substantially the following question:

Does section 388.111, Florida Statutes, or section 3(3), Chapter 2002-346, Laws of Florida, control the manner in which a vacancy is filled on the board of commissioners for the Florida Keys Mosquito Control District?

In sum:

Section 3(3), Chapter 2002-346, Laws of Florida, as the more recent and specific legislative directive, controls the manner in which a vacancy is filled and calls for the Governor to appoint an individual to fill a vacancy on the board of commissioners for the Florida Keys Mosquito District.

You state that the recent death of a commissioner for the Florida Keys Mosquito Control District, creating a vacancy on the board, has highlighted an apparent conflict between section 388.111, Florida Statutes, under which the Commissioner of Agriculture fills a vacancy on the board of a mosquito control district, and section 3(3), Chapter 2002-346, Laws of Florida, providing that the Governor appoints an individual to fill a vacancy on the board of the Florida Keys Mosquito Control District.[1]

Chapter 388, Florida Statutes, generally addresses the creation and operation of mosquito control districts in this state.[2] Section 388.111, Florida Statutes, states that "[i]n the event of a vacancy due to any cause in any board of commissioners, the same shall be filled by appointment by the Commissioner of Agriculture for the unexpired term." Thus, for those mosquito control districts created and operating under the provisions of Chapter 388, Florida Statutes, the controlling statute directs that the Commissioner of Agriculture fills by appointment any vacancy on the board of commissioners of the district.

The Florida Keys Mosquito District was created by special act.[3] A board of five elected commissioners governs the district.[4] Upon election to the board, a commissioner is required to make and execute to the Governor a surety bond, conditioned on the faithful execution of his or her office.[5] Relative to vacancies on the board, the special act provides that "[v]acancies created by the resignation, death, or removal from said board of commissioners shall also be filled by appointment by the Governor."[6]

It is a general rule of statutory construction that a specific statute governing a certain subject will control over a general statute relating to the same subject matter.[7] Moreover, the last expression of the Legislature takes precedence over earlier enactments on the same subject.[8] As the more specific and later in time, the provisions in section 3(3), Chapter 2002-346, Laws of Florida, would apply to the appointment of individuals to fill vacancies on the Florida Keys Mosquito Control District.[9]

Accordingly, it is my opinion that the Governor has the authority to appoint individuals to fill vacancies which may occur on the board of commissioners for the Florida Keys Mosquito Control District, under section 3(3), Chapter 2002-346, Laws of Florida.

Sincerely,

Pam Bondi

Attorney General

PB/tals

[1] A response to your inquiry necessarily requires comment upon the authority of the Governor. The Governor's Office has advised that it has no objection to this office commenting on the issue.

[2] See ss. 388.021-388.4111, Fla. Stat.

[3] See Ch. 2002-346, Laws of Fla., codifying all previous special acts relating to the Monroe County Mosquito Control District and stating the Legislature’s intent to "provide a single, comprehensive special act charter for the district, including all current legislative authority granted to the district by its several legislative enactments and any additional authority granted by this act."

[4] Section 3(1), Ch. 2002-346, Laws of Fla.

[5] See s. 3(3), Ch. 2002-346, Laws of Fla. Use of the term "also" relates to the previous sentence in subsection (3) directing that should a newly elected commissioner fail to make and file the required surety bond with 60 days of his or her election or appointment, a vacancy occurs which shall be filled by the Governor.

[6] Id.

[7] See McKendry v. State, 641 So. 2d 45 (Fla. 1994) (specific statute covering a particular subject area will control over a statute covering the same and other subjects in more general terms); Rowe v. Pinellas Sports Authority, 461 So. 2d 72 (Fla. 1984) (when a special act and a general law conflict, the special act will

prevail).

[8] See Florida Association of Counties, Inc. v. Department of Administration, Division of Retirement, 580 So. 2d 641 (Fla. 1st DCA 1991), approved, 595 So. 2d 42 (Fla. 1992) (general rule is that in cases of conflicting statutory provisions, latter expression will prevail over former).

[9] Section 388.111, Florida Statutes, was created by s. 2, Ch. 59-195, Laws of Fla. (1959), and provided that "[i]n the event of a vacancy due to any cause in any board of commissioners, the same shall be filled by appointment by the governor for the unexpired term." Section 388.111, Fla. Stat., was amended by s. 3, Ch. 92-203, Laws of Fla., to direct the Commissioner of Agriculture to make the appointment to fill vacancies on the boards of mosquito control districts.