Judges: Jim Smith Attorney General
Filed Date: 6/19/1986
Status: Precedential
Modified Date: 7/5/2016
Mr. Thomas J. Schwartz Attorney South Florida Water Management District 3301 Gun Club Road Post Office Box V West Palm Beach, Florida 33402-4238
Dear Mr. Schwartz:
This is in response to your request, in your capacity as attorney for the governing board of the South Florida Water Management District, for an opinion on substantially the following question:
DOES s. 5(a), ART. II, STATE CONST., PROHIBIT A MEMBER OF THE GOVERNING BOARD OF THE BIG CYPRESS BASIN (A SUBDISTRICT OF THE SOUTH FLORIDA WATER MANAGEMENT DISTRICT) FROM SIMULTANEOUSLY HOLDING OFFICE AS MAYOR OF A MUNICIPALITY IN THIS STATE?
Your letter of inquiry also alludes to an issue concerning s.
As your letter states, the Big Cypress Basin [hereinafter "Basin"] is a subdistrict of the South Florida Water Management District pursuant to s.
Section 5(a), Art. II, State Const. provides:
SECTION 5. 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 officer may be a member of a constitution revision commission, constitutional convention, or statutory body having only advisory powers. (e.s.)
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 constitutional prohibition against dual officeholding.
See also, AGO's 80-16; 78-74; 75-153; 75-60; 73-47; 71-324; 69-49. But compare, AGO 74-50 which, although decided on other grounds, appears to imply that s. 5(a), Art. II, applies to water management district 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.
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,
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.
In summary, until legislatively or judicially determined otherwise, it is my opinion that s. 5(a), Art. II, State Const., does not prohibit a member of the governing board of the Big Cypress Basin from simultaneously holding office 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 constitutional prohibition against dual officeholding; moreover, the common-law 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.
Sincerely,
Jim Smith Attorney General
Prepared by:
Anne Curtis Terry Assistant Attorney General