Can a Florida city put its police chief on the police pension board by ordinance?

Plain-English summary

The City of Sanford had adopted an ordinance appointing its police chief to the city's police pension board as an ex officio duty of the chief's office. The Florida Department of Management Services (DMS) objected, citing the state statute that sets the board's composition and taking the position that a local ordinance cannot change it. The city's attorney asked the Attorney General's office to comment, and specifically whether putting the chief on the board would run into the constitutional ban on dual office-holding, and whether making the service "ex officio" would cure any problem.

Assistant Attorney General Lagran Saunders gave informal comments. First, because DMS is the agency that administers Chapter 185, Florida Statutes, the office deferred to DMS's reading that the board's composition may not be changed by ordinance. On the dual office-holding question, the office explained that under Attorney General Opinion 2000-38, a police chief counts as a "police officer" under section 185.02, so a chief who is elected to the board by fellow officers can serve under the ex officio exception to the dual office-holding prohibition in Article II, section 5(a) of the Florida Constitution. But the ex officio exception only applies when the enabling legislation itself designates a particular officer to serve. The police pension statute does not name the police chief as a required appointee of the city's legislative body; it only requires that the appointed members be legal residents of the city. So there was no ex officio designation that would put the chief on the board, other than through the elected-police-officer route.

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: Can a city change a police pension board's makeup by ordinance?
A: The office deferred to DMS, which administers Chapter 185 and had taken the position that the board's composition cannot be changed by local ordinance. The Attorney General's office gives an administering agency's interpretation great weight and declined to second-guess it here.

Q: Does putting the police chief on the board create a dual office-holding problem?
A: The opinion explained that a police chief who is elected to the board by fellow officers can serve under the ex officio exception, because an earlier opinion treated a chief as a "police officer" under section 185.02. The constitutional concern arises only if there is no valid ex officio designation.

Q: Does calling the service "ex officio" fix the issue?
A: Only if the enabling statute itself designates the officer. The office explained that the ex officio exception applies when the law creating a board names a public officer to serve on it. The police pension statute does not name the police chief as an appointee, so simply labeling the appointment "ex officio" by ordinance would not supply the missing designation.

Q: How could the police chief lawfully end up on the board?
A: Through the statute's own mechanism, by being elected to one of the two police-officer seats by a majority of the active police officers who are members of the plan, as section 185.05 provides.

Background and statutory framework

Chapter 185, Florida Statutes, governs municipal police pension plans, and section 185.05 fixes the composition of the board of trustees: five members, including two residents appointed by the city's legislative body and two police officers elected by the plan's active police-officer members. DMS has rulemaking authority under section 185.23(2) to implement the chapter, which is why the office deferred to its interpretation that the makeup cannot be altered by ordinance, citing the rule that an administering agency's construction is entitled to great weight (AmeriSteel Corporation v. Clark).

The dual office-holding analysis rests on Article II, section 5(a) of the Florida Constitution. Courts have held that the Legislature may impose additional or ex officio duties on a public officer without violating that prohibition, as in Bath Club, Inc. v. Dade County and State v. Florida State Turnpike Authority. The key, the opinion noted, is that the enabling legislation must designate the officer. Because the police pension statute does not designate the police chief, the only path onto the board for a chief is the elected-police-officer seat recognized in Attorney General Opinion 2000-38.

Citations and references

Statutes and constitutional provisions:

• s. 185.05, Fla. Stat. (board composition)
• s. 185.02, Fla. Stat. (definition of police officer)
• s. 185.23(2), Fla. Stat. (DMS rulemaking authority)
• Art. II, s. 5(a), Fla. Const. (dual office-holding prohibition)

Cases:

• AmeriSteel Corporation v. Clark, 691 So. 2d 473 (Fla. 1997), agency interpretation entitled to great weight
• Bath Club, Inc. v. Dade County, 394 So. 2d 110 (Fla. 1981), legislature may impose ex officio duties
• State v. Florida State Turnpike Authority, 80 So. 2d 337 (Fla. 1955)

Related opinions:

• Attorney General Opinion 2000-38 (police chief as "police officer"; ex officio service on pension board)
• Attorney General Opinion 2004-05 (dual office-holding and municipal pension boards)

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/police-pension-board-ex-officio-designation
• Original PDF: https://www.myfloridalegal.com/print/pdf/node/8207

Original opinion text

Mr. Lonnie N. Groot
Attorney for the City of Sanford
1001 Heathrow Park Lane
Suite 4001
Lake Mary, Florida 32746

Dear Mr. Groot:

You have asked this office to comment on the appointment of a city's police chief to the city's police pension board as an ex officio duty of the chief's office. You relate that the City of Sanford by ordinance made the appointment, but that the Florida Department of Management Services (DMS) objected to the appointment by ordinance, citing to the state statute providing for the composition of the police pension board. DMS has stated that the composition may not be changed by local ordinance. As DMS is the agency charged with implementing the provisions of Chapter 185, Florida Statutes, this office will defer to that agency's interpretation of the chapter's requirements.[1]

You question, however, whether the appointment of the police chief to the police pension board would violate the constitutional prohibition against dual office-holding and, if so, would the matter be resolved by making such service ex officio, should the police chief be appointed to the board.

In Attorney General Opinion 2000-38, this office considered whether a police officer elected by his peers to serve as an ex officio member of the board of trustees of the city's police pension plan created pursuant to Chapter 185, Florida Statutes, could continue to serve as an ex officio member of the board after being appointed police chief. The opinion noted that section 185.05, Florida Statutes (2000), allows the election of a peer officer as follows:

"The membership of the board of trustees for chapter plans [and for local law plans for police officers only] shall consist of five members, two of whom, unless otherwise prohibited by law, shall be legal residents of the municipality, who shall be appointed by the legislative body of the municipality, and two of whom shall be police officers as defined in s.185.02 who shall be elected by a majority of the active police officers who are members of such plan. . . ."[2] (e.s.)

Finding that a police chief falls within the definition of a "police officer" for purposes of the act, this office concluded that the police officer elected by his fellow officers to serve on the pension board could continue to do so under the ex officio exception to the dual office-holding prohibition in Section 5(a), Article II of the Florida Constitution. While section 185.05, Florida Statutes, has been amended subsequently to the issuance of Attorney General Opinion 2000-38, the requirements for the election of two police officers to a pension plan serving only police officers remains the same.

The ex officio exception exists when the enabling legislation authorizing the creation of a board designates a public officer to serve as a member of the board and thereby imposes additional or ex officio duties upon that officer.[3] The courts have held that the Legislature may constitutionally impose additional or ex officio duties and responsibilities upon a public officer. Such legislative designation of public officers to perform ex officio the functions of another or second office does not violate the constitutional dual office-holding prohibition.[4] Generally, when the Legislature intends to place additional or ex officio duties upon an officeholder, that officer is mentioned or designated as serving on the governing body of the newly created governmental entity.[5]

In the situation you propose, however, the enabling legislation for a police pension board does not designate the police chief or a police officer as a required appointee of the legislative body of the city. Rather, the only requirement is that the appointee be a legal resident of the city. Thus, there is no ex officio designation in the enabling legislation that would apply to police chief, other than as the police officer elected by a majority of the active police officers who are members of the plan.

You may also wish to review Attorney General Opinion 2004-05 for further discussion of dual office-holding and municipal pension boards.

I trust that these informal comments will be of assistance to you.

Sincerely,

Lagran Saunders
Assistant Attorney General

ALS/tsrh

[1] See s. 185.23(2), Fla. Stat., recognizing DMS's authority to adopt rules to implement the provisions of the chapter. See also AmeriSteel Corporation v. Clark, 691 So. 2d 473 (Fla. 1997) (interpretation by agency charged with administration of a statute is entitled to great weight); Op. Att'y Gen. Fla. 74-71 (1974) (construction of a statute by the administrative agency charged with its enforcement and interpretation is entitled to great weight and a court generally will not depart therefrom except for the most cogent reasons and unless the construction is clearly erroneous), citing Daniel v. Florida State Turnpike Authority, 213 So. 2d 585 (Fla. 1968); Miller v. Brewer Co. of Florida, 122 So. 2d 565 (Fla. 1960).

[2] Section 185.05(1)(a), Fla. Stat. And see s. 185.05(1)(b)1., Fla. Stat., providing that the membership of boards of trustees of local law plans for police officers only shall be the same as in paragraph (a).

[3] See, e.g., s. 30.15(1)(i), Fla. Stat. (sheriff ex officio timber agent); s. 39.001(7)(b)1., Fla. Stat. (2000) (representatives of Department of Law Enforcement and Department of Education ex officio members of task force); s. 153.60, Fla. Stat. (county commissioners ex officio governing body of water and sewer district); and s. 161.25, Fla. Stat. (county commissioners ex officio beach and shore preservation authority).

[4] See Bath Club, Inc. v. Dade County, 394 So. 2d 110, 112 (Fla. 1981); State v. Florida State Turnpike Authority, 80 So. 2d 337 (Fla. 1955); State ex rel. Gibbs v. Gordon, 189 So. 437 (Fla. 1939); Amos v. Mathews, 126 So. 308 (Fla. 1930).

[5] Accord Op. Att'y Gen. Fla. 81-61 (1981) (concluding that members of the city council could not serve on a code enforcement board). Cf. Op. Att'y Gen. Fla. 80-12 (1980) and the discussion contained therein regarding s. 334.215, Fla. Stat.