Title: Opinion File 78-67 thru 78-72
Full Citation
Permanent Link: http://ufdc.ufl.edu/WL00003537/00001
 Material Information
Title: Opinion File 78-67 thru 78-72
Physical Description: Book
Language: English
Spatial Coverage: North America -- United States of America -- Florida
Abstract: Buddy Blain's Collections - Opinion File 78-67 thru 78-72
General Note: Box 14, Folder 5 ( Opinions 1976 - 1977 - 1976 - 1977 ), Item 89
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
 Record Information
Bibliographic ID: WL00003537
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

Sr 6.7
' May 25, 1978 KEY WORDS: c.c- -6


RE: SWFWMD Governing Board Appointments

In order to maintain continuity; to keep as many current members
on the Board as possible;and, consistent with desires expressed
by various board members, the following steps could be taken after
the June Governing Board meeting:
la. Have Mr. Bexley announce that he has served on the Board
since August 1969 and does not desire to be reappointed when his
term expires July,l, 1978.

b. Have the governor appoint Lat Turner to replace Mr. Bexley.
Mr. Turner's term as a tenth member of the Board pursuant to special
statutory revision expires on July 1, 1978, and he could then
commence serving in the seat created pursuant to 373.073(1)(b)5.a.
(Mr. Turner, not being killing to voluntarily file a financial
disclosure, would simul aneously deliver to the governor a suitable
letter of resignation, dated, to be used at the appropriate time
when his successor has been found, appointed, and qualified. Two
prospective appointees are Buster Longino and Randolph Snell.)

2a. Have Tom Van der Veer announce that he has served on the
Board since February 1970, that his term expires July 1, 1978,
and that he does not desire to be reappointed.

b. Request that the governor appoint someone from Citrus
County to replace Mr. Van der Veer on the Board effective July,l, 1978.
(If the Citrus County resident resides in the western portion
of the countylhe would be appointed as a member residing in the
area north of the Anclote, west of the Oklawaha and excluding the
Withlacoochee whi h is set forth in 373.073(1)(b)5.a. Mr. McAteer
could then be pre umed to be the member residing within the
Withlacoochee Basin prescribed in 373.073(1)(b)5.a. If the Citrus
County appointee besides in the eastern part of the county he
would be designated as the Withlacoochee resident and Mr. McAteer
could be presumed to be the appointee residing in the area north
of the Anclote, west of the Oklawaha and excluding Withlacoochee.)

3. Request that the governor reappoint Mr. Ronald Lambert
who would be an at-large appointee as prescribed by 373.073(1)(b)5.g.,
(Mr. Lambert has agreed to voluntarily file his full financial dis-
closure papers.)
4. This then leaves Mr. Pender as the second member from the
Hillsborough Basin, and Mr. Ruppel as the second member from the
Pinellas Basin whose terms would have expired but who would
continue to serve in office until a successor qualifies. At such
time as the governor sees fit to appoint a successor he could do



May 24, 1978




RE: SWFWMD Expiration of Governing Board Members'
Terms of Office

My examination of Section 373.073(1)(a), Florida Statutes (1977),
as affected by Article II, Section 5(b), Florida Constitution
(1968), has led me to conclude that the nine members serving
for four-year terms will continue to serve at the end of their
terms until their successors have been appointed and qualified.

The Constitution reads in pertinent part:

Each state and county officer shall .continue
in office until his successor qualifies.

Fla. Const. Art. II, 5 (1968). I have found no construction
of thi provision, but similar provision under the 1885 Florida
Constitution prescribed "the duty as well as the substantial
right of an incumbent to continued in office at the expiration
of his term until his successor is duly qualified." 26 Fla. Jur.
Public Officers 74 (1959), Citing State ex rel. Landis v. Bird,
120 Fla. 780, 163 So. 248 (1935).

In applying this constitutional provision to SWFWMD Governing
Board members, the first question is whether the members come
under the category of "state or county officers". A fairly recent
opinion of the Attorney General assumes that Governing Board
members are state officers. 1974 Op. Att'y Gen. )74-50. In
construing the applicability of Section 5(a) cl Article II,
which prohibits dual officeholding, the opinion did not question
that a SWFWMD Governing Board member is a state officer subject
to the dual officeholding prohibition, :but proceeded to find
that the prohibition was not violated by a Governing Board member's
service as ex officio chairman of a subordinate water basin board.
The opinion indicates, however, that a SWFWMD Governing Board
member subject to the provisions of the Constitution relating to
state officers.

A relatively old case indicates that a board member authorized
to expend public funds in the exercise of statutory duties and

F 1_

Memo to LMB6 9
May 24, 1978
Page 2

serving a fixed term of office after appointment by the Governor
is a state officer. See 1 So. 2d 636 (Fla. 1941). The appoint-
ment by the Governor of SWFWMD Governing Board members distinguished
them from the special district officers found to be neither state
nor city officers in Town of Palm Beach v. City of West Palm Beach,
55 So. 2d 566.

Assuming that SWFWMD Governing Board members are state officers,
provision of Article II, Section 5(b) would apply. Deletion of
similar holdover language from Chapter 373 should not change this
result. Section 373.073(1), Florida Statutes (1973), read as

Each member's term of office shall be for four years or
until their successor shall have been appointed and qualified .

373.073(1), Fla. Stat. (1977) (emphasis added). The underscored
language subsequently was deleted, leaving the possible impression
that expiration of members' terms would create vacancies. The
Florida Supreme Court, however, rejected the agreement that
statutory language is necessary to allow holdover. Gray v. Bryant,
125 So. 2d 846 (Fla. 1960). In Gray, former Governor Farris Bryant
agreed that an earlier case did not apply to the Gray facts
because the earlier case had dealt with a statute containing
language similar to that underscored above, language not before
the Gray court. The court found that the predecessor provision
of the 1885 constitution would have required the same result as
the statutory holdover language without the presence of the
specific provision in the statute. Id. at 860.

Moreover, the mere expiration of the term of office triggers none
of the occurrences listed in Section 114.01, Florida Statutes (1977),
which deem an office to be vacant. The Supreme Court in Gray
cited language of an earlier Supreme Court case as follows:
This Court settled this question in the case of State ex rel.
,. Landis v. Bird, 163 So. 248, supra, when it decided (1) that
"There is no provision of law that an office 'shall become
vacant' or 'shall be deemed vacant' because of an expiration
of an official term when the successor to the incumbent has
not been elected or appointed by the mode provided by law
for filling the office *.", 163 So. at page 264 ..

125 So. 2d at 859. Thus, during the period in which an SWFWMD
Board member were to hold over after the expiration of his term,
under the constitutional authority entitling him to do so until
the qualification of his successor, there would be no vacancy


Memo to LMB
May 24, 1978
Page Three

in office which could be filled by an interim appointment. The
office would be vacant as to the new term, however, "in the sense
that any office is vacant that is not occupied by a person chosen
to fill it for that term." 26 Fla. Jur. Public Officers (1959).

Certainly the conclusion of this memorandum would not apply
to the additional tenth member, whose office will terminate
in July. 373.074(2), Fla. Stat. (1977).


May 7, 1978


RE: SWFWMD Expiration of Governing Board members'
terms of office.

section 373.073(1)(a), Florida Statutes, provides that
the term of office of members of the Board shall be four
The 1972 Water Resources Act provided that each member's
terms of office shall be for four years, or until their
successors shall have been appointed and qualified.
Sec. 13, Part 1, Ch. 72-299, Laws of Florida. The 1972
act further provided that terms of office of certain Board
members of SWFWMD would expire in July, 1978.
This was subsequently amended several times, to the effect
that terms of four of the current members will expire in
July, 1980. The terms of five of the current members will
expire in July, 1978.
An additional member was designated pursuant to the
j transitional provision contained in Sec. 373.074(2), F.S.
This member must reside within the Manasota Basin and shall
serve "until July, 1978".
Sec. 373.073 also provides that any Board member serving
on December 31, 1976, who continuesto reside in the district
to which he was appointed, subsequent to the changes in
boundaries, shall continue to serve until his term of office
I conclude from this that Governing Board members' terms
expire either in July, 1978, or in July, 1980, creating
vacancies rather than "continuing until their successors
shall have been appointed and qualified" as previously


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