When does a Florida special district supervisor's seat become vacant for moving out of the district?

Subject

Vacancy in Office -- Residence

Plain-English summary

The district manager of the Lake St. Charles Community Development District asked the AG whether a seat on the district's board of supervisors had become vacant. The supervisor in question had listed her home inside the district for sale, and the property appraiser's website showed a mailing address outside the district boundaries. The AG said it could not give a definitive answer, because whether a person resides in the district is a mixed question of law and fact that depends on the specifics of each case and cannot be resolved by the AG's office. It offered general guidance instead.

On the substance: section 190.006 requires a district supervisor's seat (after the initial appointed terms) to be filled by a "qualified elector of the district," which section 190.003(17) defines as a U.S. citizen at least 18 who is a legal resident of Florida and of the district and is registered to vote there. Residency itself depends on two things, actual presence in a place and the intent to remain, and a fact-finder weighs evidence like a driver's license, voter registration, declarations of domicile, bank accounts, and tax returns, giving significant weight to the person's own declaration. The AG also stressed a thumb on the scale: doubts about eligibility to hold office are generally resolved in favor of eligibility, because the right to hold office is valuable and should not be curtailed absent plain law.

On vacancy: Article X, section 3 of the Florida Constitution and section 114.01(1)(g) provide that a vacancy occurs upon an officer's failure to maintain the residence required for the office. When that happens, the Governor files an executive order with the Secretary of State stating the facts and the date the vacancy occurred. The AG pointed to State ex rel. Askew v. Thomas, where the Florida Supreme Court held that an official who relocated outside her elected area had failed to maintain residency, leaving her office vacant: "if he leaves, he leaves his office." The AG advised the district to have its own legal counsel apply these statutes, opinions, and cases to the facts to decide whether the supervisor had actually moved her residence out of the district.

Currency note

This opinion was issued in 2013. 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

Does listing a home for sale create a vacancy on the district board?
Not by itself. The AG said residency is a fact-specific question it cannot resolve. A for-sale listing and an out-of-district mailing address are evidence, but residency depends on actual presence plus intent to remain.

What does it take to be a district supervisor?
Under section 190.006 and section 190.003(17), the person must be a qualified elector of the district: a U.S. citizen at least 18, a legal resident of Florida and of the district, registered to vote in the county where the district sits.

When does the seat actually become vacant?
Upon failure to maintain the required residence (Article X, section 3 and section 114.01(1)(g)). The Governor then files an executive order with the Secretary of State setting out the facts and the vacancy date.

Who decides whether the supervisor really moved?
A fact-finder, weighing the evidence. The AG advised the district to have its own counsel evaluate the facts, and noted courts resolve genuine doubts in favor of eligibility to hold office.

Background and statutory framework

For community development districts, section 190.006 sets the qualified-elector requirement for supervisors and section 190.003(17) defines "qualified elector." Article X, section 3 of the Florida Constitution and section 114.01(1)(g) both make failure to maintain the required residence a ground for a vacancy, with section 114.01 prescribing the Governor's executive-order procedure.

The residency analysis (actual presence plus intent) draws on domicile cases like Kiplinger v. Kiplinger, and the rule favoring eligibility on Ervin v. Collins. The controlling vacancy precedent is State ex rel. Askew v. Thomas, holding that an officer who moves out of the area from which she was elected vacates the office.

Citations

• Section 190.006, Florida Statutes
• Section 190.003(17), Florida Statutes
• section 114.01(1)(g), Florida Statutes
• Article X, section 3, Florida Constitution
• State ex rel. Askew v. Thomas, 293 So. 2d 40 (Fla. 1974)
• Ervin v. Collins, 85 So. 2d 852 (Fla. 1956)
• Kiplinger v. Kiplinger, 2 So. 2d 870 (Fla. 1941)

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/vacancy-in-office-residence
• Original PDF: https://www.myfloridalegal.com/print/pdf/node/8108

Original opinion text

Ms. Antoinette Leake

District Manager, Lake St. Charles

Community Development District

6801 Colonial Lake Drive

Riverview, Florida 33578

Dear Ms. Leake:

On behalf of the Board of Supervisors of the Lake St. Charles Community Development District, you have asked for assistance in determining the residency requirements of a district supervisor and whether a vacancy has occurred when the supervisor has listed her residence within the district for sale and the property appraiser’s website lists a mailing address for the supervisor outside the district boundaries. While this office is unable to provide a definitive answer to your question, the following general comments are provided to be of assistance.

Initially, I would note that a determination of whether an individual resides within the district is a mixed question of law and fact which cannot be resolved by this office. Such a determination involves an evaluation of the facts of each particular case.[1] Determination of an individual’s residence may involve evaluation of several factors, such as an actual presence in a place and the intention to remain in that place.[2] As evidence of such intent, the fact-finder will consider such things as a driver’s license, automobile registration, voter registration, declarations of domicile, location of a bank account, rental receipts, home mortgage, tax returns, and employment documents. Courts have recognized that significant weight will be given to an individual’s declaration.[3] Moreover, the courts have recognized that if there are doubts or ambiguities regarding eligibility of a candidate, such doubts should generally be resolved in favor of eligibility.[4] It is a generally established principle that the right to hold office is a valuable one which should not be curtailed in the absence of plain provisions of law.[5] If ambiguity exists in construing provisions limiting the right to hold office, those provisions should be construed in favor of an officer’s eligibility.[6]

Section 190.006, Florida Statutes, sets forth instances after the initial appointment of the district’s board of supervisors, that the position of the initial member whose term has expired must be filled by a "qualified elector of the district[.]"[7] "Qualified elector" is defined as "any person at least 18 years of age who is a citizen of the United States, a legal resident of Florida and of the district, and who registers to vote with the supervisor of elections in the county in which the district land is located."[8] (e.s.)

Article X, section 3, Florida Constitution, provides that a vacancy in office occurs upon, inter alia, "failure to maintain the residence required when elected or appointed[.]" Section 114.01(1)(g), Florida Statutes, similarly provides that a vacancy in office occurs "[u]pon the officer's failure to maintain the residence required of him or her by law." As noted above, section 190.006, Florida Statutes, sets forth those instances in which a supervisor must be a resident of the district. Subsection (2) of section 114.01, Florida Statutes, provides that with respect to a vacancy created pursuant to section 114.01(1)(g), the Governor shall file an executive order with the Secretary of State setting forth the facts giving rise to the vacancy, the title of the office, the name of the incumbent, and the date on which the vacancy in office occurred. The statute provides that the office shall be considered vacant as of the date specified in the executive order or, in the absence of such a date, as of the date the order is filed with the Secretary of State.

In State ex rel. Askew v. Thomas,[9] the Supreme Court of Florida determined that a school board member who chose to relocate her residence outside the area from which she was elected had failed to maintain the residency required for her office, leaving her office vacant. The Court found the constitutional and statutory requirement of maintaining residency applicable during any of the term in which the office was held. In simplifying the implications of an officer moving out of the district from which he or she was elected, the Court stated "if he leaves, he leaves his office and a vacancy occurs in that residence area to be filled."[10]

It may be advisable to have your legal counsel review the matter you have brought to this office’s attention and evaluate the application of the above-referenced statutes, opinions and case law in determining whether the supervisor has left her residence within the district and established residency outside the district, such that there is a vacancy on the board of supervisors.

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

Sincerely,

Lagran Saunders

Assistant Attorney General

ALS/tsh

[1] See Op. Att’y Gen. Fla. 73-193 (1973).

[2] See, e.g., Kiplinger v. Kiplinger, 2 So. 2d 870 (Fla. 1941); Fowler v. Fowler, 22 So. 2d 817 (Fla. 1945); Cruickshank v. Cruickshank, 420 So. 2d 914 (Fla. 1st DCA 1982); Gillman v. Gillman, 413 So. 2d 412 (Fla. 4th DCA 1982).

[3] See, e.g., Ogden v. Ogden, 33 So. 2d 870, 873 (Fla. 1947) ("best proof of one's domicile is where he says it is"), overruled in part on other grounds, Pawley v. Pawley, 46 So. 2d 464 (Fla. 1950); Frank v. Frank, 75 So. 2d 282, 286 (Fla. 1954); Coons v. Coons, 765 So. 2d 167, 172 (Fla. 1st DCA 2000).

[4] See Ervin v. Collins, 85 So. 2d 852 (Fla. 1956) (where there are doubts or ambiguities as to eligibility, they should be resolved in favor of a free expression of the people; it is the sovereign right of the people to select their own officers and the rule is against imposing disqualifications to run recognizing the sovereign right of the people to select their officers); Smith v. Crawford, 645 So. 2d 513, 520 (Fla. 1st DCA 1994) ("the law requires judges to resolve doubts about qualification of a political candidate in favor of the candidate").

[5] See Ops. Att’y Gen. Fla. 12-22 (2012) and 71-324 (1971). And see Treiman v. Malmquist, 342 So. 2d 972 (Fla. 1977); Ervin v. Collins, 85 So. 2d 852 (Fla. 1956) (statutes and constitutions imposing restrictions upon the right of a person to hold office should receive a liberal construction in favor of the right of the people to exercise freedom of choice in the selection of officers); Vieira v. Slaughter, 318 So. 2d 490 (Fla. 1st DCA 1975), cert. denied, 341 So. 2d 293 (Fla. 1976).

[6] Ervin, supra at 856.

[7] Section 190.006(3)(a)2., Fla. Stat.

[8] Section 190.003(17), Fla. Stat.

[9] 293 So. 2d 40 (Fla. 1974).

[10] Id. at 43.