Can a Florida school district pass a new 2-year millage referendum without voiding a 4-year millage voters already approved?

Plain-English summary

The School Board of Monroe County asked Attorney General Pam Bondi a narrow question about school property taxes. In January 2012, county voters had approved a half-mill tax increase for four years under section 1011.73(2), Florida Statutes. The board wanted to know whether it could go back to voters and ask for additional millage under a different subsection, section 1011.73(1), without wiping out the increase they had just approved.

The AG concluded that it could. The two subsections set up two separate routes to voter-approved school millage, and nothing in the law makes them mutually exclusive. So a 2-year levy approved under subsection (1) would stack on top of, rather than replace, a 4-year levy already approved under subsection (2). The Florida Department of Education agreed the two provisions operate independently. The opinion added the obvious caveat that it took no position on whether putting such a question to voters was a good idea.

Currency note

This opinion was issued in 2012. 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.

At the time of the opinion, the analysis turned on three provisions: Article VII, section 9(b) of the Florida Constitution, which caps school ad valorem taxes at 10 mills but excludes levies authorized for two years or less; section 1011.73(1), which let a district seek voter approval for millage of up to two years; and section 1011.73(2), which let a district seek voter approval for millage of up to four years counted against the 10-mill cap. For school-finance officials reading this today, the takeaway is historical: as the statutes stood in 2012, the AG saw no bar to running both kinds of referenda in parallel.

Common questions

Q: What was the difference between the two millage statutes in this opinion?
A: As the law stood in 2012, section 1011.73(2) let a district ask voters for a millage that could be levied for up to four years and counted against the constitutional 10-mill cap. Section 1011.73(1) let a district ask voters for a millage of up to two years, which the constitution excludes from the 10-mill cap because it covers levies "not longer than two years" approved by the electors.

Q: Did approving one type of millage cancel the other?
A: No. The AG found nothing in either subsection that limited the millage proposed under the other, so the two could exist at the same time. The opinion treated the second subsection as adding millage rather than replacing it.

Q: How often could a school district hold these elections?
A: Each subsection said no more than one such election could be held during any 12-month period. Because Monroe County had already held a subsection (2) election in January 2012, the opinion noted the plain language barred another subsection (2) election for 12 months, which is why the board looked at subsection (1) instead.

Q: Did the AG say whether the district should put this on the ballot?
A: No. The opinion expressly took no view on the merits of a school district's decision to put the matter before voters. That was a policy call for the board.

Background and statutory framework

Florida school districts draw their taxing power from Article VII, section 9 of the state constitution. Section 9(b) limits ad valorem taxes for school purposes to 10 mills but carves out two exceptions: taxes to pay bonds, and taxes "levied for periods not longer than two years when authorized by vote of the electors." Section 1011.73, Florida Statutes, supplied the mechanics for calling these district millage elections.

The opinion leaned on a standard tool of statutory construction: when two statutes address a common subject, they are read in pari materia, and a court should harmonize them so each keeps its force. Applying that rule, the AG concluded the Legislature had built two distinct, independently operating paths to voter-approved school millage. The supporting citations were Ideal Farms Drainage Dist. v. Certain Lands, 19 So. 2d 234 (Fla. 1944), and State ex rel. Ashby v. Haddock, 140 So. 2d 631 (Fla. 1st DCA 1962).

Citations and references

Statutes and constitution:

• § 1011.73(1), Fla. Stat. (district millage election, up to 2 years)
• § 1011.73(2), Fla. Stat. (district millage election, up to 4 years)
• § 1011.71(9), Fla. Stat. (additional operational millage within the 10-mill limit)
• Art. VII, § 9(b), Fla. Const. (10-mill cap; exception for levies of 2 years or less)

Cases:

• Ideal Farms Drainage Dist. v. Certain Lands, 19 So. 2d 234 (Fla. 1944), statutes on a common subject are construed in pari materia
• State ex rel. Ashby v. Haddock, 140 So. 2d 631 (Fla. 1st DCA 1962), harmonizing related statutory provisions

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/school-districts-additional-millage
• Original PDF: https://www.myfloridalegal.com/print/pdf/node/1602

Original opinion text

Mr. Dirk M. Smits

Attorney for the School Board of Monroe County

Islamorada Professional Center

81990 Overseas Highway, 3rd Floor

Islamorada, Florida 33036

RE: SCHOOL DISTRICTS--TAXATION--MILLAGE--AD VALOREM TAXATION--authority of school district to impose additional ad valorem tax millage. ss. 1011.71 and 1011.73, Fla. Stat.

Dear Mr. Smits:

On behalf of the School Board of Monroe County, you ask the following question:

May voters approve additional funding pursuant to section 1011.73(1), Florida Statutes, for two years, without voiding a previously approved increase under section 1011.73(2), Florida Statutes?

In sum:

Voters may approve additional school district tax millage pursuant to section 1011.73(1), Florida Statutes, for two years, without voiding a previously approved increase in tax millage under section 1011.73(2), Florida Statutes.

You state that on January 31, 2012, the voters of Monroe County approved a .5 mill tax increase pursuant to section 1011.73(2), Florida Statutes, for four years. The school board questions whether another referendum for additional tax revenues may be held pursuant to section 1011.73(1), Florida Statutes, without voiding the millage adopted pursuant to section 1011.73(2), Florida Statutes.

Section 9(a), Article VII, Florida Constitution, authorizes school districts to levy ad valorem taxes, and if authorized by general law to levy other taxes, for their respective purposes. Section 9(b) of Article VII limits the levy of ad valorem taxes for school purposes to 10 mills, but specifically excludes "taxes levied for the payment of bonds and taxes levied for periods not longer than two years when authorized by vote of the electors who are the owners of freeholds therein not wholly exempt from taxation" from the millage limitation. (e.s.) School boards are authorized by section 1011.73, Florida Statutes, to call for district millage elections. Subsection (2) of the statute provides:

"The district school board, pursuant to resolution adopted at a regular meeting, shall direct the county commissioners to call an election at which the electors within the school district may approve an ad valorem tax millage as authorized under s. 1011.71(9). Such election may be held at any time, except that not more than one such election shall be held during any 12-month period. Any millage so authorized shall be levied for a period not in excess of 4 years or until changed by another millage election, whichever is earlier. If any such election is invalidated by a court of competent jurisdiction, such invalidated election shall be considered not to have been held." (e.s.)

Section 1011.71(9), Florida Statutes, provides:

"In addition to the maximum millage levied under this section and the General Appropriations Act, a school district may levy, by local referendum or in a general election, additional millage for school operational purposes up to an amount that, when combined with nonvoted millage levied under this section, does not exceed the 10-mill limit established in s. 9(b), Art. VII of the State Constitution. Any such levy shall be for a maximum of 4 years and shall be counted as part of the 10-mill limit established in s. 9(b), Art. VII of the State Constitution. Millage elections conducted under the authority granted pursuant to this section are subject to s. 1011.73. Funds generated by such additional millage do not become a part of the calculation of the Florida Education Finance Program total potential funds in 2001-2002 or any subsequent year and must not be incorporated in the calculation of any hold-harmless or other component of the Florida Education Finance Program formula in any year. If an increase in required local effort, when added to existing millage levied under the 10-mill limit, would result in a combined millage in excess of the 10-mill limit, any millage levied pursuant to this subsection shall be considered to be required local effort to the extent that the district millage would otherwise exceed the 10-mill limit." (e.s.)

As you have indicated, Monroe County has approved an increase in ad valorem tax millage pursuant to section 1011.73(2), Florida Statutes, in January of this year. The plain language of the statute, therefore, precludes another such election to alter the millage under the section for 12 months. Hence, the board wishes to investigate the possibility of imposing additional millage pursuant to section 1011.73(1), Florida Statutes. That section provides:

"The district school board, pursuant to resolution adopted at a regular meeting, shall direct the county commissioners to call an election at which the electors within the school districts may approve an ad valorem tax millage as authorized in s. 9, Art. VII of the State Constitution. Such election may be held at any time, except that not more than one such election shall be held during any 12-month period. Any millage so authorized shall be levied for a period not in excess of 2 years or until changed by another millage election, whichever is the earlier. In the event any such election is invalidated by a court of competent jurisdiction, such invalidated election shall be considered not to have been held."

This section recognizes the school district’s authority under section 9(b), Article VII of the Florida Constitution to have additional millage for up to two years approved by referendum which is not subject to the 10-mill cap.[1]

Thus, it would appear that the Legislature has provided two distinct methods by which a school district may obtain ad valorem tax millage with voter approval. There is nothing in the statute which would indicate that the two subsections are mutually exclusive. In discussions with the Florida Department of Education, this office has been advised that the department is in agreement that subsections (1) and (2) of section 1011.73, Florida Statutes, operate independently.

It is a general rule of statutory construction that when two statutes relate to common things or have a common or related purpose, they are said to be pari materia, and where possible, the construction should be adopted that best harmonizes and reconciles the statutory provisions so as to preserve the force and effect of each.[2] It would appear, therefore, that section 1011.73(2), Florida Statutes, provides a means to impose tax millage in addition to the millage authorized under section 1011.73(1), Florida Statutes, rather than imposing a tax millage in its stead. Nothing within section 1011.73(1) or section 1011.73(2), Florida Statutes, references a limitation upon the millage proposed in the other.

In light of the above discussion, it is my opinion that the voters of a county may approve additional ad valorem tax millage pursuant to section 1011.73(1), Florida Statutes, without voiding a tax millage that has already been approved under section 1011.73(2), Florida Statutes. Obviously, this opinion expresses no view on the merits of a school district’s decision to put such a matter before the voters.

Sincerely,

Pam Bondi

Attorney General

PAB/tals

[1] See s. 9(b), Art. VII, Fla. Const., excepting from the 10-mill cap taxes levied for periods not longer than two years when authorized by vote of the electors.

[2] See Ideal Farms Drainage Dist. v. Certain Lands, 19 So. 2d 234 (Fla. 1944); State ex rel. Ashby v. Haddock, 140 So. 2d 631 (Fla. 1st DCA 1962).