Can a Florida city fill appointive-board vacancies by ordinance without a charter referendum?

Plain-English summary

The City of Winter Park's charter lets the mayor annually appoint members of city boards, subject to commission approval, but says nothing about how to fill vacancies that open up mid-term. The city wanted to adopt an ordinance allowing "alternate" board members to automatically advance into a vacant seat, and asked whether doing so by ordinance would effectively amend the charter, which would trigger the referendum requirement in section 166.021(4), Florida Statutes.

Attorney General Bill McCollum concluded it would not. Section 166.021(4) requires referendum approval to change charter provisions on "matters prescribed by the charter relating to appointive boards." But the Winter Park charter prescribes nothing about filling vacancies; it only gives the mayor the annual-appointment power. The proposed ordinance addressed only interim service during an unexpired term and left the mayor's annual appointment power untouched. So it did not amend any charter provision relating to appointive boards and did not require a referendum. The opinion added a caution: if the city ever did want to change the charter itself, it could only do so by referendum under section 166.031, because charters adopted or readopted after the 1973 Municipal Home Rule Powers Act may be amended only that way, and the Winter Park charter was adopted by referendum in 1983.

Currency note

This opinion was issued in 2009. 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: Did the city need a referendum to change how board vacancies are filled?
A: No. The opinion concluded that because the charter was silent on filling vacancies and the proposed ordinance did not touch the mayor's annual appointment power, the ordinance did not amend a charter provision relating to appointive boards, so section 166.021(4)'s referendum requirement was not triggered.

Q: What does section 166.021(4) actually require a referendum for?
A: Among other things, for charter changes affecting matters prescribed by the charter relating to appointive boards, the terms of elected officers, the manner of their election, and the distribution of powers among elected officers. The vacancy ordinance fell outside those categories.

Q: When does a Florida city have to amend its charter by referendum?
A: For charters adopted or readopted after the 1973 Municipal Home Rule Powers Act, amendments may be made only as provided in section 166.031, which requires submitting the proposed amendment to the voters. The opinion noted Winter Park's charter was adopted by referendum in 1983.

Q: Could the city instead just amend the charter to add a vacancy rule?
A: It could, but only by referendum under section 166.031. The opinion explained that the legislative directive on how a charter is amended operates as a prohibition against amending it any other way.

Background and statutory framework

Article VIII of the Florida Constitution and the Municipal Home Rule Powers Act, Chapter 166, Florida Statutes, give cities broad self-governing power, subject to specific limits. Section 166.021(4) lists charter matters that cannot be changed without a referendum, including matters the charter prescribes about appointive boards. The line the opinion drew is between regulating something the charter is silent about (which the city may do by ordinance) and changing something the charter prescribes (which needs a referendum). Because Winter Park's charter prescribed only the mayor's annual appointment power and not vacancy-filling, the ordinance stayed on the ordinance side of that line.

Section 166.031 supplies the amendment procedure for charters adopted after 1973, requiring a referendum, and the opinion relied on the canon from Alsop v. Pierce and Thayer v. State that a prescribed statutory method is, in effect, a prohibition against doing the thing any other way. That is why a true charter amendment, as opposed to the vacancy ordinance, would have to go to the voters.

Citations and references

Statutes:

• s. 166.021(4), Fla. Stat. (referendum for charter changes affecting appointive boards)
• s. 166.031, Fla. Stat. (amending municipal charters)
• s. 166.031(1), Fla. Stat. (referendum on proposed amendment)

Cases:

• Alsop v. Pierce, 19 So. 2d 799 (Fla. 1944), prescribed method excludes other methods
• Thayer v. State, 335 So. 2d 815 (Fla. 1976)

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/municipal-charter-amendment-to-terms-of-office
• Original PDF: https://www.myfloridalegal.com/print/pdf/node/1742

Original opinion text

Mr. James Edward Cheek, III
City Attorney
City of Winter Park
Post Office Box 880
Winter Park, Florida 32790

RE: MUNICIPALITIES – CHARTERS – VACANCIES – BOARDS –TERMS OF OFFICE – REFERENDUM – procedure for amending charter provisions relating to terms of office for appointive boards or commissions. ss. 166.021 and 166.031, Fla. Stat.

Dear Mr. Cheek:

On behalf of the City Commission of the City of Winter Park, you have asked for my opinion on substantially the following question:

Whether, pursuant to section 166.021, Florida Statutes, a municipality is precluded from adopting an ordinance providing a method for filling vacancies on appointive municipal boards if the municipal charter includes a provision authorizing the mayor to annually appoint members of these boards.

In sum:

Local legislation providing for filling vacancies on appointive municipal boards would not appear to violate the prohibition contained in section 166.021(4), Florida Statutes, precluding charter amendments dealing with "matters prescribed by the charter relating to appointive boards" as the municipal charter in this case contains no provision for filling vacancies on such boards.

The City of Winter Park charter provides that the mayor of the city "shall annually appoint members of the city boards subject to the approval of the commission."[1] Nothing in this charter provision or elsewhere in the charter addresses the issue of filling vacancies on these city boards. Ordinances of the city provide that the members of city boards are to be appointed by the mayor subject to the approval of the city commission at the first commission meeting in May of each year. With regard to vacancies, the city's code of ordinances provides:

"The mayor subject to the approval of the city commission shall promptly fill all vacancies occurring on boards and commissions. A vacancy shall be filled for the unexpired term of the member whose term becomes vacant."[2]

Thus, by ordinance, the current system authorizes the mayor to fill vacancies for the length of any remaining unexpired term.

You have advised that the city commission is currently considering an ordinance which would allow "alternate" members of many city boards and commissions to automatically advance to open board positions on the board on which they serve in the case of a vacancy on that board. You have asked whether such an ordinance may violate the provisions of section 166.021(4), Florida Statutes, by effectively amending the city charter through the process of adopting an ordinance.

Section 166.021(4), Florida Statutes, recognizes the constitutional grant of home rule powers to municipalities, with the noted exception that no changes may be made to a special law or municipal charter:

"which affect the exercise of extraterritorial powers or which affect an area which includes lands within and without a municipality or any changes in a special law or municipal charter which affect the creation or existence of a municipality, the terms of elected officers and the manner of their election except for the selection of election dates and qualifying periods for candidates and for changes in terms of office necessitated by such changes in election dates, the distribution of powers among elected officers, matters prescribed by the charter relating to appointive boards, any change in the form of government, or any rights of municipal employees, without approval by referendum of the electors as provided in s. 166.031. Any other limitation of power upon any municipality contained in any municipal charter enacted or adopted prior to July 1, 1973, is hereby nullified and repealed." (e.s.)

The clear language of the statute requires referendum approval as provided in section 166.031, Florida Statutes, for any change to a city's charter affecting matters prescribed by the charter relating to appointive boards. There is no suggestion in your letter that the proposed ordinance has any effect on the mayor's annual appointment of members of city boards or commissions. Rather, the terms of the proposed ordinance would address vacancies that occur during a term of office of a sitting board member and would provide for interim service during the remainder of any term. The mayor's annual appointment power as provided in the charter would continue unaffected. Because the provisions of the proposed ordinance would not affect the charter provision authorizing the mayor to make annual appointments to city boards, it does not appear that the proposed ordinance would act as a charter amendment in possible violation of section 166.021, Florida Statutes, or section 166.031, Florida Statutes.

In the event that the City of Winter Park does seek to amend its charter to reflect these proposed changes for filling vacancies on municipal boards or commissions, section 166.031(1), Florida Statutes, states:

"The governing body of a municipality may, by ordinance, or the electors of a municipality may, by petition signed by 10 percent of the registered electors as of the last preceding municipal general election, submit to the electors of said municipality a proposed amendment to its charter, which amendment may be to any part or to all of said charter except that part describing the boundaries of such municipality. The governing body of the municipality shall place the proposed amendment contained in the ordinance or petition to a vote of the electors at the next general election held within the municipality or at a special election called for such purpose."

This office has consistently concluded that charters or charter provisions adopted or readopted subsequent to the adoption of the Municipal Home Rule Powers Act in 1973 may only be amended as provided in section 166.031, Florida Statutes.[3] The legislative directive in section 166.031 as to how a municipal charter is to be amended is, in effect, a prohibition against its being done in any other way.[4] The charter for the City of Winter Park was adopted by referendum in 1983. Thus, the procedure for amending municipal charters in section 166.031 prevails and would require referendum approval for any changes to the city's charter, except those specifically enumerated in sections 166.021 and 166.031, Florida Statutes.

Sincerely,

Bill McCollum
Attorney General

BM/tgh

[1] See s. 2.06, Art. II, Charter of the City of Winter Park.

[2] Division 1, section 2-49, Code of Ordinances, City of Winter Park

[3] See Ops. Att'y Gen. Fla. 2003-52 and 2003-36. See also Op. Att'y Gen. Fla. 88-30 (1988) (charter amendment provisions in s. 166.031, Fla. Stat., prevail over conflicting provisions in a municipal charter) and Op. Att'y Gen. Fla. 79-80 (1979) (city commission may not unilaterally amend its charter as it is bound by the provisions in s. 166.031, Fla. Stat.). Cf. s. 166.031(3), Fla. Stat., authorizing the amendment of a municipal charter pursuant to s. 166.031, Fla. Stat., notwithstanding any charter provisions to the contrary.

[4] See Alsop v. Pierce, 19 So. 2d 799, 805-806 (Fla. 1944), and Thayer v. State, 335 So. 2d 815, 817 (Fla. 1976) (legislative directive as to how a thing shall be done is, in effect, a prohibition against its being done in any other manner).