Can a Florida city council fill a council vacancy by special election if the city charter says otherwise?

Plain-English summary

The Parker City Clerk asked, on behalf of the city council, whether the council could fill a council vacancy by special election under the city charter. The charter itself said vacancies "shall be filled by vote of the city council" until the next general election.

The Attorney General declined to answer the question head-on. Interpreting a city charter is a matter of local law, and the AG's authority runs only to questions of state law affecting a public official's duties. The office said requests turning on local charters are usually referred to the local government's own attorney, and it referred Parker's question the same way.

To be of some help, the office offered informal comments on the state-law backdrop. Section 166.031(6), Florida Statutes, requires every municipality to provide vacancy-filling procedures by ordinance or charter. And under the Municipal Home Rule Powers Act, a charter adopted or readopted after 1973 must follow section 166.031's procedures, while a pre-1973 charter that has not been readopted generally cannot change "the manner of their election" of officers without a referendum, under section 166.021(4). Whether Parker's 1967 charter had been readopted was something the office could not tell from the request.

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 Parker could fill the vacancy by special election?
A: No. The AG declined to interpret the city charter, explaining that charter interpretation is a local-law question outside the office's authority, and that such requests are usually referred to the local government's attorney.

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

Q: Can a city just amend an old charter to change how vacancies or elections work?
A: It depends on the charter's age. The office noted that for a charter adopted or readopted after the 1973 Municipal Home Rule Powers Act, charter amendments must follow section 166.031. For a pre-1973 charter not readopted, section 166.021(4) bars changing "the manner of their election" of officers without a referendum.

Q: Why did the city's 1967 charter date matter?
A: Parker was created by special act in 1967. Whether its charter had been readopted after 1973 determined which set of amendment rules applied. The office said it could not tell from the information provided, which is part of why it referred the question to local counsel.

Background and statutory framework

The Municipal Home Rule Powers Act, codified in Chapter 166, Florida Statutes, granted broad home-rule powers to municipalities and converted or repealed many older charter provisions. Section 166.031 sets the procedures for amending a municipal charter, generally requiring a vote of the electors. Section 166.031(6) specifically requires municipalities to establish vacancy-filling procedures.

Section 166.021(4) preserves a limit: nothing in Chapter 166 permits changes to certain charter subjects, including "the terms of elected officers and the manner of their election," without referendum approval. The office had taken the position in earlier opinions that this protection applies to pre-1973 charters that have not been readopted, which is why the readoption history of Parker's 1967 charter (created by Ch. 67-1887, Laws of Florida) was the pivotal unknown.

Citations and references

Statutes:

• § 166.031, Fla. Stat. (Charter amendments)
• § 166.021, Fla. Stat. (Home rule powers)
• Municipal Home Rule Powers Act (Ch. 166, Fla. Stat.)
• Ch. 67-1887, Laws of Florida (Parker city charter)

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/municipalities-filling-vacancies
• Original PDF: https://www.myfloridalegal.com/print/pdf/node/8151

Original opinion text

Ms. Adonna S. Mullen

Parker City Clerk

1001 West Park Street

Parker, Florida 32404

Dear Ms. Mullen:

You ask on behalf of the Parker City Council whether the city council may, under the city charter, fill a vacancy on the city council by special election.

Your inquiry involves the interpretation of the city charter. The authority of the Attorney General to issue opinions is limited to public officials on questions relating to their official duties under state law. As discussed in this office's statement concerning Attorney General Opinions, a copy of which is enclosed, opinions generally are not issued on questions requiring an interpretation only of local codes, ordinances or charters rather than the provisions of state law. Instead, such requests will usually be referred to the attorney for the local government in question.

In an effort to be of some assistance, however, I would note that section 166.031(6), Florida Statutes, provides:

"Each municipality shall, by ordinance or charter provision, provide procedures for filling a vacancy in office caused by death, resignation, or removal from office. Such ordinance or charter provision shall also provide procedures for filling a vacancy in candidacy caused by death, withdrawal, or removal from the ballot of a qualified candidate following the end of the qualifying period which leaves fewer than two candidates for an office."

Thus, the statute requires that a municipality provide by ordinance or charter provision the method for filling vacancies. According to the information you provided to this office, the municipal charter provides that "[v]acancies in any office of the city shall be filled by vote of the city council and such vacancies shall be held until the next general election of the city."[1] (e.s.)

While it appears that the City of Parker was created by special act of the Legislature in 1967,[2] it is not clear whether the city charter has been readopted since the effective date of the Municipal Home Rule Powers Act in 1973. It has been the position of this office, expressed in a number of Attorney General Opinions, that charters or charter provisions adopted or readopted subsequent to the adoption of the Municipal Home Rule Powers Act in 1973 must comply with the procedures set forth in section 166.031, Florida Statutes.[3] For pre-1973 charters which have not been readopted, this office concluded in Attorney General Opinion 75-158 that a town council could not amend its pre-1973 charter establishing the manner in which vacancies in the offices of mayor and town council member were filled without an approving referendum since such provisions relate to "the manner of their election" and thus fall within the exception contained in section 166.021(4), Florida Statutes.[4]

I hope that the above informal advisory comments may be of assistance. Thank you for contacting the Attorney General's Office.

Sincerely,

Joslyn Wilson

Assistant Attorney General

JW/tsh

Enclosure

[1] Section 3(8), Ch. 67-1887, Laws of Fla.

[2] See Ch. 67-1887, Laws of Florida.

[3] See Ops. Att'y Gen. Fla. 03-52 (2003), 03-36 (2003), 01-43 (2001), and 75-223 (1975). 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 see s. 166.031(1), Fla. Stat., providing that 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." But see s. 166.031(5), Fla. Stat., stating that "[a] municipality may, by unanimous vote of the governing body, abolish municipal departments provided for in the municipal charter and amend provisions or language out of the charter which has been judicially construed, either by judgment or by binding legal precedent from a decision of a court of last resort, to be contrary to either the State Constitution or Federal Constitution."

[4] While s. 166.021(4) and (5), Fla. Stat., seeking to implement the grant of home rule powers to municipalities by Ch. 166, Fla. Stat., modified, repealed, or converted into ordinances many provisions of municipal charters which constituted limitations on, or related exclusively to, the power or jurisdiction of municipalities in existence at the time of the adoption of the act, s. 166.021(4) provides that nothing in Ch. 166 is to be construed as permitting any changes in a special law or municipal charter which affect certain subject matters specifically mentioned therein, including "the terms of elected officers and the manner of their election" without referendum approval as provided in s. 166.031, Fla. Stat.