Title: Opinion File 74-40 thru 74-46
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Permanent Link: http://ufdc.ufl.edu/WL00003383/00001
 Material Information
Title: Opinion File 74-40 thru 74-46
Physical Description: Book
Language: English
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Buddy Blain's Collections - Opinion File 74-40 thru 74-46
General Note: Box 14, Folder 4 ( Opinion File 1974 - 1975 - 1974-1975 ), Item 11
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
 Record Information
Bibliographic ID: WL00003383
Volume ID: VID00001
Source Institution: Levin College of Law, University of Florida
Holding Location: Levin College of Law, University of Florida
Rights Management: All rights reserved by the source institution and holding location.

Full Text



11'-.(+ E~'HN, SMITH, CU TAUB
ATTOl)NEYN AND (C'OUNSELOI(U AT LAW

1600 MAD)If(SN ,NTIl.lrT. BOX 1803
T*rMPA. FLORIDA .33001
(813) 228.7841


January 31, 1974





Mr. D. R. Feaster
Executive Director
Southwest Florida Water
Management District
P. O. Box 457
Brooksville, Florida 33512

RE: SWFWMD Governing Board Membership

Dear Don:


fAse.as 1iBan~I, GUNOIY GIBBONS, 1.00-1970


LBSTKR M. BLAIN PHILIP R. LAZZAMA
LARRY B. CHRISTENSEN JAMES M. MCEWBN
JOSEPH B. COFrBR BRADFORD MILLER
THOMAS E. CONE, JR. WILLIAM R. PLATT
A. FLETCHER DYOIIES J. PHILLIP SHORT
J. MICIAEL FORD ABMIN H, SMITH. JR.
ARTHUR S. GIBBONS RICHIABRD N. STEIN
MYRON O. GIBBONS THBODORE 0. TAUD
SAM M. GIBBONS WM. rEA.LE TUCKER
JOHN A. GUTTON, JB. JACQUELINE B. WHATLEY
ROBERT V. WILLIAMS


IN BI',LY R"AR TO.


Here is a copy of a recent advisory opinion from the Attornew
General in which he concludes that the present membership of the
Governing Board is constitutional.

This opinion was requested by Representative Curtis Kiser,
copies of this letter are attached.

This is what is referred to as an unnumbered opinion. The
only distinction between a numbered and an unnumbered opinion
is in the publication in the bound Biennial Report of the Attorney
General.


LMB/gh

Enclosure


cc: Mr.
Mr.
Mr.
Mr.
Mr.
Mr.
Mr.
Mr.
Mr.
^W r.


Derrill S. McAteer
S. C. Bexley, Jr.
John A. Anderson
Herman Beville
Thomas M. Van der Veer
Joe E. Hill
N. Brooks Johns
J. R. Graw
Robert E. Vaughn
Myron Gibbons


V~;;;;;);;~-

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S' \ OSTATo' OF FL(ORLA
.J DPARMNT OF LGAL A I.RS
OV- ,\ 7riFIcE' o1r i'I ALT'O1 I2\' GHMsNrKA1.
OF Tuin', GAPIrroL
TALLAHTAyaSIM, FLORIDA oauo-i
ROBERT L. SHEVIN LL AS LOIA 330*
ATTORNEY GENERAL
January. 2 8, 1974







Representative Curtis S. Kiser
House of Representatives
The Capitol
Tallahassee, Florida 32304

Re: Basis for Membership of Southwest Florida
Water Management District

Dear Representative Kiser:

You have asked my opinion on the several questions
Regarding the Southwest Florida Water Management District.

1. Is the present membership of the Southwest
Florida Water Management District constitutional?

In my opinion, the Southwest Water Management District
is presently constitutional. This is because, according to
Chapter 72-299, Laws of Florida, the representatives to the
Water Management District are appointed rather than elected.
Since all of the people of the Southwest Water Management
District have an equal voice in electing the appointing of-
ficer, who is the Governor, subject to confirmation by the
Senate, there is no problem of equal representation. Each
voter in the district has an equal voice in electing the
Governor and members of the Senate. The duties of the Water
Management District are such that they may lawfully be
delegated by the legislature to such a governing board. The
taxpayers do have representation on the board though it is
derived through the Governor and Senate. The fact that
presently one third of the population of the Water Management
District is located in Pinellas County, and the Governor has
appointed only one member of the governing board from Pinellas
County, does not make the composition of the board unconstitu-
tional. Of course, this does not prohibit your persuading
the Governor or the Senate that Pinellas should have a greater





' t


RIpruesntativo Curtis S. Kiser
Page Two



voice on the governing board. It could perhaps be success-
fully argued that three of the nine members of the governing
board should come from that area of the District containing
one third of the people governed by the board. Perhaps there
are other considerations which the Governor or Senate would
deem more appropriate than population. I would not attempt
to list the considerations which might go into the Governor's
choice. However, I feel sure he would be interested in
hearing your recommendations upon the appropriate composition
of the board.

The same reasoning would apply to your thought that there
might be taxation without representation. The taxpayers in
fact are represented, and equally, as matters stand presently.
Their representation is through the Governor and Senate. The
time for the taxpayers to express their voice as to who is
or should be appointed and their knowledge, competency or
interest in the district is at the time of appointment. Again,
I am sure the Governor and Senate would be very interested in
any taxpayer's recommendation as to the governing board's
composition.

The governing board is responsible for and to all the
people within the jurisdiction of the district. The-Tact they
happen to be from one county or town or community should be of
no moment in making their decisions.

If it appears that the appointees are not properly serving
the district, citizens are provided a remedy. Section 14 of
the Water Resources Act of 1972, Chapter 72-299, Laws of Florida,
provides as follows:

"The governor of this state shall have authority
to remove from office any officer of said district
in the manner and for cause defined by the laws
of this state applicable to situations which may
arise in said district." Part I, Section 14.

Other methods of allowing public participation are contained,
though not clearly spelled out, in the Act. The power of the board
to plan, investigate, and study seemsto fully allow adequate par-
ticipation.

The Act contemplates that local funds would support local needs
and that general appropriations provide the administrative functions








R\rucDi.ntative Curtis S. Kisur
1Pagc Three



which would generally benefit the people of the State.

"[W]ater resources programs of particular
benefit to limited segments of the popu-
lation should be financed by those most
directly benefited." Chapter 72-299,
Part V, Section 1, Laws of Florida.

2. Would the creation of a new Water Management District
have to be governed by a board based on population?

In my opinion regardless of the added powers, any new Water
Management District could be governed substantially as it is
today. That is,

"(1) The governing board of each water management
district shall be composed of nine (9) members who
shall reside within the district...
(2) Members of the governing board shall be ap-
pointed by the governor, subject to confirmation
by the Senate...." Chapter 72-299, Part 1,
Section 15.

Short of an amendment to the statute, the members will
continue to be appointed in this manner, even if the district
boundaries change or the powers of the board are substantially
increased. Section 17 of Part I provides for delegation of
further powers from the Department of Natural Resources to the
governing board of the District "at the department's discretion."

Of course nothing requires that the statute remain unchanged.
It would be appropriate to require, by amendment to the Land
Management Act, that members of the governing board be elected. If
it was decided to amend the statute to require election of the
governing board by the people of the District rather than continue
the present system of appointment, certainly the Equal Protection
Clause of the United States Constitution would apply. The election
would have to be on the basis of "one man, one vote," regardless
of the changes anticipated in the powers of the board.

The former distinction between local governing units and their
officers according to legislative and administrative duties in
order to exempt officials involving the latter category was reject-
ed by the United States Supreme Court as imposing an "unmanageable
principle" on the judiciary. Hadley v. Junior College District of
Metropolitan Kansas City, 397 U.S. 50 (1970).


k '










A pr-c:Lentative Curtis S. iiscr
IPacj Four



There, the Court stated the general rule to be

[W]henever a state or local government
decides to select persons by popular
election to perform governmental functions,
the Equal Protection Clause of the
Fourteenth Amendment requires that each
qualified voter must be given an equal
opportunity to participate in that election,
and when members of an elected body are
chosen from separate districts, each
district must be established on a basis
that will insure, as far as practicable,
that equal numbers of voters can vote
for proportionately equal numbers of of-
ficials. 397 U.S. at 56.

The crucial decision then would seem to lie with the legislature.
If the legislature thinks the task assigned the Water Management
District important enough to require the governing board to be
elected, the Equal Protection Clause must be complied with.

Assuming the decision to elect the governing board is made
by the legislature, several avenues would be open for complying
with the Equal Protection Clause. The Supreme Court has previously
upheld on several occasions an election plan that required candi-
dates be residents of certain districts that did not contain equal
numbers of people. Dusch v. Davis, 387 U.S. 112 (1967). Since
all officials in that case were elected at large, the right of each
voter was given equal treatment. Hadley, supra, 397 U.S. at 58.
Fortson v. Dorsey, 379 U.S. 433 (1965). And, while a state may
limit the right to vote in certain instances to a particular
group or class of people, Hadley, a state may not "fence out" any
sector of the population because of the way it may vote. Gordon
v. Lance, 403 U.S. 1 (1971). In fact the high court in 1969 de-
clared unconstitutional a plan which restricted the right to vote
in a revenue bond election to property owning taxpayers. Cipriano
v. City of Houma, 395 U.S. 701. Even requiring an extraordinary
majority may be permitted if no group is "fenced out."

"[T]here is nothing in the language of
the Constitution, our history or our
cases that requires that a majority
always prevail on every issue." Gordon;
Fortson v. Morris, 385 U.S. 231 (1966).

The Court in fact has encouraged experimentation to a limited
degree so long as no identifiable group is discriminated against.










),.oi' a.iativu CurtiL S. Kisor
SPage Five



It would be impossible for me to speculate on the full range
of possibilities which the legislature might conceive and
ir..ractical for me to divine how the United States Supreme
Court might view each of these speculations.

Please be advised, however, that my understanding of ti.c
eases in this area indicates that, where, as in the presen- ucr
X;a-agent District the State chooses to select members of an
official body bhy appointment rather than election, "that choice
does not itself offend the Constitution," and "the fact tha
each official does not 'represent' the same number of people
does not deny those people equal protection of the laws."
.adley, 397 U.S. at 58, citing Sailors v. Board of Education,
3,7 U. S. 105 t1967); cf. Fortson v. Morris, supra.

hope that this review of Water Management Districts :
presently constrtuted and as they might be constituted will give
you some guidance and assistance as you approach this very
important subject. Please contact me again if I can assist
S cerelv



ROBERT L. SHEVIN
Attorney General






/ K






/* 0 1' .' z






FLORIDA HlOUSE OF REPRESENTATIVES
TA 1,LA II A SSE E

S. CURTIS KISER COMMITTEES:
REPRESENTATIVE, 54TH DISTRICT COMMUNITY AFFAIRS
1968 BAYSHORE BOULEVARD FINANCE & TAXATION
DUNEDIN, FLORIDA 33528 GOVERNMENTAL-OPERATIONS
THE CAPITOL
TALLAHASSEE, FLORIDA 32304


January 21, 1974
RECEIVED


Honorable Robert Shevin JAN 2 1 4"74
Attorney General ATORNEy GENERAL'S
State of Florida
The Capitol OFFICE
Tallahassee, Florida 32304

Dear General:

I would like to request an Attorney General's
r Opinion on the following two points:
1. Is the present e-rship o Southwest Florida
Water Management District institutional wh n its membership
is not based on population ahd .yet itj uss ad valorem taxes
as a means to fund its activities? For example, Pinellas
County has in excess of thirty-three and one third percent
(33 1/3%) of the total population within the Southwest
Florida Water Management District and has only one (1)
member out of a total of nine (9).

2. In creating a new water authority for the pro-
duction of water in the Tampa Bay vicinity, does the
membership on this new water authority have to be based
on population if it exists on ad valorem taxation?
I
-- -. It would be _greatly appreciated if I might have
our Opinion byJanuary 2-,'19747-, Your assistance in
th risi Lte ia-L-sppec iat'-ed.

Sincerely,



S. Curtis Kiser
Representative

SCK/mr


f-~ ?~i.


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