Who keeps the records when a county supervisor of elections runs a city's election under contract?

Plain-English summary

The Miami-Dade County Supervisor of Elections asked who is the proper custodian of records for municipal elections that his office conducts by contract on behalf of 35 municipalities, where the city clerk acts as the local supervisor and a municipal board certifies the result. He had no question about retaining federal, state, and county election records; the issue was whether the municipal-election records should go back to each city once the election is over. Assistant Attorney General Lagran Saunders explained that the office could not resolve the question and offered general comments.

The reason it could not be resolved: who is the custodian turns on whether the county supervisor was delegated the function of conducting the election, which depends on the terms of the contract between the supervisor and each municipality, a mixed question of fact and law outside the office's authority. As general guidance, the office noted that under Chapter 119, the custodian of public records is the officer charged with maintaining them, and that where the county supervisor merely conducts the election while the city clerk serves as supervisor of elections and the city certifies the result, the records appear to be municipal records that the municipality should maintain. The office found no Election Code provision requiring a county supervisor to keep municipal-election records returned to the city, but cautioned that a city's charter or ordinances (for example, designating the county supervisor as the city's elections officer) may affect who is the custodian.

Currency note

This opinion was issued in 2010. 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 decide who keeps the municipal election records?
A: No. The office said the custodian question depends on whether the county supervisor was delegated the function of conducting the election, which turns on the contract terms, a mixed question of fact and law the office has no authority to resolve.

Q: Who is the "custodian" of public records under Florida law?
A: Under section 119.021 and Chapter 119, the custodian is the elected or appointed state, county, or municipal officer charged with maintaining the office that has the records, or that officer's designee.

Q: In the office's general view, whose records are these?
A: Where the county supervisor merely conducts the election and the city clerk serves as supervisor of elections while the city certifies the result, the records appear to be municipal records the municipality should maintain. The office found no Election Code provision requiring the county supervisor to keep them.

Q: Could a city's own rules change that answer?
A: Yes. The opinion noted that a municipality's charter or ordinances may affect the supervisor's role as custodian, for example a city code making the county supervisor the city's elections officer with the duty to conduct and keep records of city elections.

Background and statutory framework

Florida's Public Records Law (Chapter 119) opens records made or received in connection with official business by any "agency" (defined broadly in section 119.011(2), and "public records" in section 119.011(12); see Shevin v. Byron, Harless, Schaffer, Reid and Associates). Section 119.021 sets custodial requirements and defines the "custodian of public records" as the officer charged with maintaining the office that has the records, or a designee.

On election administration, section 100.3605 provides that the Florida Election Code governs a municipal election only in the absence of an applicable special act, charter, or ordinance, and bars charter or ordinance provisions that conflict with code provisions expressly applicable to municipalities. Section 101.002(1) lets county commissioners, with the supervisor's concurrence, conform precinct boundaries to municipal boundaries, allowing the supervisor's registration materials to be used in municipal elections. Reading these together, the office concluded the Election Code does not require a county supervisor to keep municipal-election records returned to a city, so they appear to be municipal records, subject to the terms of each city's charter, ordinances, and its contract with the supervisor.

Citations and references

Statutes:

• Chapter 119, Fla. Stat. (Public Records Law), including § 119.011(2) (agency), § 119.011(12) (public records), and § 119.021 (custodial requirements)
• § 100.3605, Fla. Stat. (Florida Election Code and municipal elections)
• § 101.002(1), Fla. Stat. (voting precinct boundaries)

Cases:

• Shevin v. Byron, Harless, Schaffer, Reid and Associates, Inc., 379 So. 2d 633 (Fla. 1980), scope of the public records definition

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/supervisor-of-elections-municipal-election-records
• Original PDF: https://www.myfloridalegal.com/print/pdf/node/1717

Original opinion text

The Honorable Lester Sola

Miami-Dade County Supervisor of Elections

2700 Northwest 87th Avenue

Miami, Florida 33172

Dear Mr. Sola:

You have asked for assistance in determining the appropriate custodian of records of municipal elections conducted by your office on behalf of 35 municipalities located within Miami-Dade County. You state that your office is contracted by the municipalities to schedule and conduct the elections, as well as tabulate results. The local supervisor is the municipal clerk and the local elections are certified by municipal boards. You have no question regarding your responsibility to retain records of all federal, state, and county elections conducted by your office, but question whether the records for municipal elections should be returned to the respective municipality once the election process is completed and the municipality would maintain such records.

You have asked the Florida Records Storage Center for guidance and been advised that its rules do not address your concerns and directed to contact the Division of Elections (DE). That agency (DE), while noting that the ability to transfer the records to another agency depends upon a determination of who was the actual custodian of such records, advised that you seek guidance from this office. The DE noted that if you were merely performing the legwork of the election, i.e., operating the machines, signing in voters, etc., with the election being conducted under the "auspices" of the municipality, then it could be that the municipality is the custodian of the records.

It would appear that ultimately the determination of whether you or the municipality is the custodian of the election records depends upon whether you have been delegated the function of conducting the election, and such a determination would depend upon the terms of the contract between you and the municipality. This office has no authority to resolve mixed questions of fact and law. In order to be of assistance, however, the following general comments are offered.

Florida's Public Records Law, Chapter 119, Florida Statutes, makes records made or received in connection with the transaction of official business by any "agency" open for public inspection, unless a statute exempts such records or makes the records confidential.[1] "Agency" is defined to include:

"[A]ny state, county, district, authority, or municipal officer, department, division, board, bureau, commission, or other separate unit of government created or established by law . . . and any other public or private agency, person, partnership, corporation, or business entity acting on behalf of any public agency."[2] (e.s.)

Section 119.021, Florida Statutes, sets forth the custodial requirements for the maintenance, preservation, and retention of public records. For purposes of Chapter 119, Florida Statutes, "[c]ustodian of public records" is defined as "the elected or appointed state, county, or municipal officer charged with the responsibility of maintaining the office having public records, or his or her designee." Thus, Chapter 119, Florida Statutes, dictates the responsibilities of the custodian of public records.

In this instance, you state that you have been contracted by the municipalities to conduct their municipal elections, but that the clerk for each municipality performs the role of supervisor of elections and that each municipality certifies the election. Under these circumstances, it is assumed that you provide the records generated by the election to the clerk in order for him or her to carry out the duties of a supervisor of elections and for the use of the appropriate board to certify the election. You have not provided, nor have I found, any statutory provision or court case indicating a requirement that a county supervisor of elections conducting municipal elections under these circumstances would be required to maintain such records otherwise maintained by the municipality. It would appear that the records would be municipal records that should be maintained by the municipality for which the election was handled.

Section 100.3605, Florida Statues, states:

"(1) The Florida Election Code, chapters 97-106, shall govern the conduct of a municipality's election in the absence of an applicable special act, charter, or ordinance provision. No charter or ordinance provision shall be adopted which conflicts with or exempts a municipality from any provision in the Florida Election Code that expressly applies to municipalities.

(2) The governing body of a municipality may, by ordinance, change the dates for qualifying and for the election of members of the governing body of the municipality and provide for the orderly transition of office resulting from such date changes."[3]

Section 101.002(1), Florida Statutes, authorizes the board of county commissioners of each county, with the concurrence of the supervisor of elections, to arrange the boundaries of voting precincts in each municipality within the county to conform to the boundaries of the municipality, subject to agreement of the municipality. This allows the use of the registration materials held by the supervisor of elections to be used by the municipal elections board or other appropriate elections official in conducting the municipal election.

Thus, the Florida Election Code recognizes that a city's charter or ordinance may direct the conduct of a municipal election, so long as such provisions do not conflict with or exempt a city from any provision in the code expressly applicable to a municipality. As noted, there appears to be no code provision that requires a county Supervisor of Elections to maintain records of a municipal election conducted by the supervisor on behalf of the municipality, when such records are returned to the municipality for custodial purposes. However, the terms of each municipality's charter or ordinances may affect the role of the Supervisor of Elections as custodian of municipal election records.[4]

I trust that these informal comments will be of assistance to you in resolving this matter.

Sincerely,

Lagran Saunders

Assistant Attorney General

ALS/tsh

[1] See s. 119.011(12), Fla. Stat., defining "Public records;" and Shevin v. Byron, Harless, Schaffer, Reid and Associates, Inc., 379 So. 2d 633 (Fla. 1980).

[2] Section 119.011(2), Fla. Stat.

[3] See DE 03-01, The Hon. David C. Leahy, January 23, 2003 (Florida Election Code generally applies to the conduct of municipal elections only in the absence of an applicable special act, charter or ordinance provision).

[4] See,e.g., s. 8.01, City of Tampa Code of Ordinances, providing:

"The supervisor of elections of Hillsborough County shall be elections officer of the City of Tampa and shall conduct, hold, and regulate all municipal elections of every kind, nature, or character whatsoever held in the city, including regular, general, special, bond, referendum, recall, charter and all other municipal elections. The elections officer shall not be required to be a resident or elector of the city."

And see s. 8.20, City of Tampa Code of Ordinances, stating that "the elections officer shall give any person desiring a copy of election returns or any other records in the custody of said officer a certified copy thereof or such part thereof as may be desired, upon payment of the customary fee for copying and certifying papers in the office of the clerk of the circuit court, which said fees shall be paid into the general fund of the city treasury." Cf. s. 49, City of Miami Charter, creating the office of the city clerk and imposing, among others, the duty to "[c]onduct, supervise and certify all city elections;" and s. 10-7, City of Homestead Code of Ordinances, designating the city clerk as the supervisor of elections for the city and assigning all appurtenant duties thereto; authorizing the city clerk to obtain any necessary assistance from the Miami-Dade County Supervisor of Elections office or successor agency.