Title: Annual Report of the Attorney General
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Permanent Link: http://ufdc.ufl.edu/WL00004947/00001
 Material Information
Title: Annual Report of the Attorney General
Physical Description: Book
Language: English
Publisher: Jan. 31, '96 Fla. League of Cities
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Jake Varn Collection - Annual Report of the Attorney General (JDV Box 39)
General Note: Box 29, Folder 10 ( 1996 Water - Miscellaneous - 1996 ), Item 9
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: WL00004947
Volume ID: VID00001
Source Institution: Levin College of Law, University of Florida
Holding Location: Levin College of Law, University of Florida
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JAN 31 '96 15:55 FLA LEAGUE OF CITIES 904 2223806


FLORIDA LEAGUE OF CITIES, INC.

201 West Park Avenuec P.O. Box 1757 Tallahass, FL 32302-1757 *(904) 222-9684 Suncom 278-5331


DATE:
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SUBJECT:


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SPECIAL INSTRUCTIONS:


Please call (904) 222-9684 if you have any questions or experience any problems in receiving this
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ANNUAL REPORT OF THE ATTORNEY GENERAL


operation and $50 for each succeeding day of operation. Unlike Ch. 18, City Code
of Orlando, Ordinance No. 840 explicitly pertained to a schedule of occupational
license fees, which were imposed upon the occupation of conducting carnivals and
circuses. Moreover, AGO 65-88 discussed s. 616.12, FS., 1966. Section 616.12 has
been amended since the rendition of that opinion. Subsection (2) of s. 616.12, the
provision in question in the instant inquiry was added by s. 11, ch. 83-289, Laws
of Florida. Therefore, to the extent of any conflict with the instant opinion, AGO
65-88-should be considered as modified.



AGO 865-June 19, 1986
DUAL OFFICEHOLDING
NOT APPLICABLE TO BOARD MEMBER OF SUBDISTRICT
OF WATER MANAGEMENT DISTRICT
Toa Thomas J. SchwarfA Attorney, South Florida Water Management District
Prepared by: Anne Curtis Terry, Assistant Attorney General
QUESTION:
Does s. 5(a Art. 1, State Const, prohibit a member of the governing
board of the Big Cypres Basin (a subdistrit of the South Florida
Water Management District) from simultaneously holding office as
mayor of a municipality in this state?
SUMMARY:
Until legislatively or judicially determined otherwise, s.6(a), Art.
I, State Cont., does not prohibit a member of the governing
board of the Big Cypress Basin from simultaneously holding ofiee
as a municipal mayor in this state, since the member is a "district
officer" and as such, is not covered by the terms of the constitution
prohibition against dual offoeholding; moreover, the common4aw
rule on incompatible positions is inapplicable in this Instance since
there is no apparent conflict between the duties and functions of
the two positions and neither position is subordinate to the other.
Your letter of inquiry also alludes to an issue concerning s. 99.012(2) and (5),
F.S., the Resign-to-Run Law. In view of the power of the Division of Elections of
the Department of State to render advisory opinions, see s. 106.28(2), F.S., it is the
policy of this office to refer all questions concerning the Elections Code, Title IX,
chs. 97-107, F.S., to the Division for its response. See AGO 80-16. However, this
office can respond to the dual officeholding question posed by your letter; for the
following reasons, it is my opinion that this question should be answered in the
negative.
As your letter states, the Big Cypress Basin [hereinafter "Basin"] is a subdistrict
of the South Florida Water Management District pursuant to s. 873.0693(9), F.S.
Members of the Basin's governing board are appointed by the Governor, subject
to confirmation by the Senate, and serve without compensation for their services.
See s. 873.0693(5) and (9), F.S. A member of the Basin's governing board has
declared his candidacy for mayor of a municipality and thus, you ask whether
that person can simultaneously hold the office of mayor without violating s. 5(a),
Art. I, State Coast. I am assuming that he is seeking that office in a Florida
municipality.
Section 5(a), Art. II. State Const. provides:


86-55




N 31 '96 15:56 FLA LEAGUE OF CITIES 904 2223806 -


86-55 ANNUAL REPORT OF THE ATTORNEY GENERAL


SECTION 6. Public officers.-
(a) No person holding any office of emolument under any foreign government,
or civil office of emolument under the United States or any other state,
shall hold any office of honor or of emolument under the government of.
this state. No person shall hold at the same time more than one office
under the government of the state and the counties and municipalities
therein, except that a notary public or military officer may hold another
office, and any of6Ice may be a member ofa constitution revision commission,
constitutional convention, or statutory body having only advisory powers.
(Emphasis supplied.)


Applying the second sentence of paragraph (a) above, the pertinent issue is
whether both the positions described in the instant inquiry constitute offices'
under (1) "the government of the state," or (2) "the counties" or (3) "municipalities"
in this state. While the office of mayor is an office under the government, of a
municipality, see AGO's 76-92 and 84-90, and thus an office within the purview of
s. 5(a), Art. II, State Const., the position of member of the Basin's governing
board, as a "district office," is not covered by the prohibition in s. 5(a). Rather, the
rule relied upon in AGO 84-72 and numerous other Attorney General Opinion's
controls: District officers, as officers of special districts, that is, entities created by
law to perform a special governmental function, are not covered by the contitutional
prohibition against dual officeholding. See also AGO's 80-16, 78-74, 75-153, 75-0,
7347, 71-324 and 6949. But compare AGO 74-50 which, although decided on other
grounds, appears to imply that s. 5(a), Art. I, applies to water management dis-
trict governing board and to subordinate water basin board; to the extent that
the views expressed in AGO 74-50 are inconsistent herewith they are hereby
receded from.
As noted above, the office of member of the Basin's governing board is an office
of a "subdistrict" pursuant to s. 873.0693(9), FS. See also s. 373.069(1Xe), F.S.,
creating the South Florida Water Management District of which the Basin is a
part. While there is general statutory authority for the Department of Environmental
Regulation to exercise general supervision over all water management districts,
see e. 373.026(7), F.S.; see also s. 373.114, F.S. (Land and Water Adjudicatory
Commission's authority over water management districts) and AGO 77-95; the
Basin was created by the Legislature to be part of a water management "district"
and to fulfill the purpose of a special district. See AGO 84-21 (a state office is an
agency and component of state government whose jurisdiction extends to every
part of the state; a district is a defined portion or subdivision of the state for
special and limited governmental purposes and the district and its officers, unless
legislatively declared to be or designated as agencies of the state, are separate
and apart from and are not state agencies);, AGO 85-103. See also as. 165.031(5),
200.001(8Xc) and 218.31(5), F.S., defining "special district" as a unit of special
government created pursuant to general or special law for purpose of performing
prescribed specialized functions within limited boundaries. Moreover, the Basin's
fiscal character is that of a special taxing district. See s. 373.0697, F.S.; AGO's
77-17 and 77-93. And see a. 20.261, F.S., which, in creating the Department of
Environmental Regulation and in establishing its structure does not provide for
water management districts as a part of the department. Such districts therefore
do not appear to be part of the executive branch of state government; rather, they
and their subdistricts are special districts, entities created by the Legislature to
provide specific services in a limited area. Attorney General Opinions 84-21 and
80-16. Forbes Pioneer Boat Line v. Board of Qommissioners of Everglades Drainage
District, 82 So. 346 (Fla. 1919); cf Town of Palm Beach v. City of West Palm
Beach, 55 So.2d 566 (Fla. 1951) (Constitution did not contemplate that district
officers were to be treated as state or county officers for election or appointment
purposes).






ANNUAL REPORT OF THE ATTORNEY GENERAL 86-56


Therefore, it is my opinion that a.member of the Basin's governing board, as a
"district officer." is not covered by the ban on dual officeholding contained in the
second sentence or clause of s 5(a), Art. II, State Const. This interpretation is in
accord with the rule that the right to hold office should not be curtailed except as
expressly provided by constitutional or statutory law. Treiman v. Malmquist, 342
So.2d 972 (Fla. 1977); AGO 71-324. The rule that provisions which impose
disqualifications from candidacy for elective office are to be strictly construed
applies with equal force to provisions prohibiting dual officeholding such prohibitory
provisions should not be extended by implication beyond those offices expressly
mentioned, and should be construed, where ambiguity exists, in favor of eligibility.
Attorney General Opinion 71-324; Ervin v. Collins, 85 So2d 852 (Fla. 1956);
Vieira v. Slaughter, 318 So.2d 490 (1 D.C.A. Fla., 1975), cert denied, 341 So.2d
293 (Fla. 1976); 63A Am.Jur.2d Public Officers and Employees s. 39.
Moreover, I do not perceive the common-law rule on incompatible offices to be
operative in this instance. The purpose of that doctrine is to prevent a public
officer from holding incompatible offices at the same time and is in effect in this
state notwithstanding the existence of a constitutional prohibition on the same
subject See s. 2.01, F.S.; AGO's 84-72, 80-16 and 73-359; Gryzik v. State, 380
So.2d 1102 (1 D.C.A. Fla-, 1980). I am not aware of, nor have you brought to my
attention, any conflict between the duties and functions of the two offices described
above and neither is subordinate to the other in any way'of which I am aware. Cf
AGO's 84-72, 75-60 and 70-46. Additionally, my review of s. 373.0693, F.S., did
not reveal anything to prohibit a member of a Basin board from also serving as
mayor of a municipality. However, the member should review pertinent statutes,
and the ordinances and charter of the municipality in question, to verify that
they contain no such prohibition.



AGO 86 -June 19, 1986
POLICE STANDARDS AND TRAINING COMMISSION
SCOPE AND EFFECT OF JUDICIAL EXPUNCTION OF CRIMINAL
HISTORY RECORDS ON OFFICERS' QUALIFICATIONS FOR
EMPLOYMENT OR APPOINTMENT
To: Walter C. Heinrich, Chairman, Criminal Justice Standards and Training
Commission
Prepared by: Craig Willis, Assistant Attorney General
QUESTION:
What is the legal effect of an expunction order on the qualifications
of a law enforcement officer or an applicant to be a certified law
enforcement officer under a. 943.13, F.S.?
SUMMARY:
An applicant for employment with a criminal justice agency
who has had his criminal history records expunged pursuant to
the provisions of s. 943.058(2a)-(d), F.S., except for records retained
under seal by the courts or the Department of Law Enforcement,
may not lawfully deny or fail to acknowledge the events covered
by the criminal history records and would be disqualified under
s. 943.13(4), FS., for employment as a law enforcement officer if the
conviction was for a felony or a misdemeanor involving perjury or
a false statement. When the circuit court, exercising its




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