Can a Florida town council fill its own vacancies by appointment under the town charter?

Plain-English summary

The Worthington Springs Town Attorney asked, on behalf of the town council, whether the remaining council members could fill vacancies on the council under a provision in the town charter. The Attorney General's office declined to answer formally, because opinions generally are not issued on questions that require only interpreting a local charter rather than state law, and it was not even clear from the request whether charter interpretation or state law was the issue. The office also noted it generally requires a memorandum of law from the requesting agency's attorney.

In informal comments, the office pointed to the state-law backdrop. Section 166.031(6), Florida Statutes, requires each municipality to provide, by ordinance or charter, procedures for filling a vacancy in office caused by death, resignation, or removal. And in a prior opinion, AGO 87-27, the office had concluded that Article VIII, section 2(b) of the Florida Constitution does not prevent a municipal legislative body from filling its own vacancies by majority vote of the remaining members, as long as the municipal charter sets out that authority.

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.

Common questions

Q: Did the Attorney General say whether the council could fill its vacancies?
A: Not formally. The office declined to interpret the town charter, explaining that AG opinions generally are not issued on questions that require interpreting a local charter rather than state law, and that it was unclear whether the request even concerned state law.

Q: What does state law require about filling municipal vacancies?
A: Section 166.031(6), Florida Statutes, requires every municipality to provide, by ordinance or charter, the procedures for filling a vacancy caused by death, resignation, or removal. The specific method is set locally.

Q: Can a council appoint replacements rather than holding an election?
A: It can if the charter allows it. The office cited AGO 87-27 for the view that the Florida Constitution does not bar a council from filling its own vacancies by majority vote of the remaining members, provided the charter authorizes that.

Q: Why did the AG want a memorandum of law?
A: The office generally requires the requesting agency's attorney to submit a memorandum stating the precise legal question and a legal analysis with citations. That helps ensure the request raises a state-law question the office can properly address rather than a purely local one.

Background and statutory framework

Section 166.031, Florida Statutes, governs municipal charters, and subsection (6) requires municipalities to establish vacancy-filling procedures by ordinance or charter. Article VIII, section 2(b) of the Florida Constitution is the constitutional source of municipal home-rule power that the opinion invoked.

The office's practice of declining purely local questions reflects the statutory limit on its role: it advises public officials on their duties under state law and refers charter-interpretation questions to local counsel. Its informal pointer to AGO 87-27 told the town where prior guidance had landed (council appointment is permissible if the charter provides for it) without the office itself construing Worthington Springs' particular charter.

Citations and references

Statutes and constitutional provisions:

• § 166.031, Fla. Stat. (Charter amendments; vacancy procedures)
• Art. VIII, § 2(b), Fla. Const. (municipal home rule)

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/municipal-charter-filling-vacancies
• Original PDF: https://www.myfloridalegal.com/print/pdf/node/8153

Original opinion text

Mr. Layne Prebor

Worthington Springs Town Attorney

Post Office Box 517

Gainesville, Florida 32601

Dear Mr. Prebor:

On behalf of the Worthington Springs Town Council, you ask whether the remaining town council members may fill the vacancies on the town council in light of a provision in the town charter.

As discussed in this office's statement concerning Attorney General Opinions, available online at: http://myfloridalegal.com/opinions, opinions generally are not issued on questions requiring an interpretation only of local codes, ordinances or charters rather than the provisions of state law, nor will an opinion be issued on questions requiring a determination of the constitutionality of an existing statute or ordinance. It is not clear from your letter whether you are requesting the interpretation of the municipal charter or state law. This office generally requires a memorandum of law to accompany a request for an Attorney General Opinion. The memorandum of law, prepared by the requesting agency's attorney, should set forth the precise legal question(s) to be addressed and should contain a legal analysis, including citations to appropriate legal authority as well the attorney's conclusion, regarding the question(s) presented.

In an effort to be of some assistance, I would generally note that section 166.031(6), Florida Statutes, provides in pertinent part that "[e]ach municipality shall, by ordinance or charter provision, provide procedures for filling a vacancy in office caused by death, resignation, or removal from office. . . ." (e.s.) This office in Attorney General Opinion 87-27 stated that Article VIII, section 2(b), Florida Constitution, does not prohibit municipal legislative bodies from filling vacancies thereon by appointment made by a majority vote of the remaining members, provided such authority is set forth in the municipal charter. I am enclosing a copy of the opinion for your review.

I hope that the enclosed opinion may be of some assistance. Thank you for contacting the Attorney General's Office.

Sincerely,

Joslyn Wilson

Assistant Attorney General

JW/tsh

Enclosure