Judges: Bill McCollum, Attorney General
Filed Date: 10/14/2008
Status: Precedential
Modified Date: 7/5/2016
Dear Mr. Schultz:
On behalf of the Miami-Dade County Value Adjustment Board, you have asked for my opinion on substantially the following questions:
1. For purposes of section
2. Assuming that a person satisfies the ownership requirement discussed in Question One, are there any other qualifying requirements?
3. When must a person satisfy the business ownership requirement of section
4. Would a person serving as a citizen member of the Value Adjustment Board be precluded from service by their relationship with senior staff employees of the board?
The Miami-Dade County Value Adjustment Board is a quasi-judicial governmental body created pursuant to section
During the 2008 legislative session, section
"
With this amendment, the Legislature reduced the number of representatives from the school board to one and added two non-governmental members to the value adjustment board.
The Legislature has not qualified the phrase "own a business" by providing any direction as to the nature or extent of the ownership interest a person must possess before being appointed to the value adjustment board and neither this office nor the courts are authorized to amplify legislative requirements with their own notions of what might be appropriate.1 If additional requirements are to be imposed, they should be inserted by the Legislature.2
In the absence of statutory definition, words of common usage are construed in their plain and ordinary sense and, if necessary, the plain and ordinary meaning of the word can be ascertained by reference to a dictionary.3 The word "own" is defined as "[t]o rightfully have or possess as property; to have legal title to[;]"4 "to have or hold as property: possess[;]"5 "[s]omething that belongs to one."6 A "business" has been defined as "a commercial enterprise carried on for profit; a particular occupation or employment habitually engaged in for livelihood or gain[;] . . . [c]ommercial enterprises[.]"7 Also, a business has been defined as "an occupation, profession, or trade[;] . . . a person, partnership, or corporation engaged in commerce, manufacturing, or a service; profit-seeking enterprise or concern."8
Thus, to satisfy the requirements of section
However, while the statute does not elaborate on what may constitute "own[ing] a business" within the school district, previously issued Attorney General Opinions and judicial opinions may, by comparison, provide guidance. Attorney General Opinion 99-49 considered whether an officer or director of a not-for-profit corporation would qualify as a person "engaged in business" within the scope of section
The terms of section
In addition to the ownership requirement discussed above, you have asked whether there may be other qualification requirements of these board members.
While the amendment uses the term "citizen members," a review of the legislative history suggests that the Legislature was not imposing a citizenship requirement on value adjustment board members, but distinguishing between governmental and non-governmental representatives. The final bill analysis for CS/HB 909 states that "[t]he bill changes the composition of the value adjustment board from elected officials to private citizens."13 Thus, it would appear that the Legislature did not intend to impose a citizenship requirement on service on the value adjustment board.14
Further, section
In sum, it is my opinion that a citizen member of a value adjustment board who must "own a business occupying commercial space located within the school district" is required to own a commercial enterprise, occupation, profession, or trade conducted from a commercial space located within the school district. This member of the board would not appear to be subject to a citizenship requirement and cannot be "a member or an employee of any taxing authority, and may not be a person who represents property owners in any administrative or judicial review of property taxes."
The general rule in Florida is that where a constitutional or statutory provision establishing the qualifications for a public office expressly or by necessary implication specifies the time when the required eligibility must exist, the candidate must possess the necessary qualifications at that time.15 If no provision of the Constitution or the statutes specifies the time when the conditions of eligibility must exist, they must exist at the time of the election or appointment of the candidate.16
The requirement that a citizen member owns a business occupying commercial space located within the school district is a condition of service and must be met during the entire course of service. The Florida Supreme Court has stated that eligibility to public office is of a continuing nature. The fact that the candidate may have been qualified at the time of election or appointment is not sufficient to entitle the individual to continue to hold office, if during the continuance of the incumbency the person ceases to be qualified and "quo warranto will lie to oust him therefrom."17
Therefore, it is my opinion that a person appointed as a member of a value adjustment board who serves as the member who "own[s] a business occupying commercial space located within the school district" must meet the ownership requirement of the statute at the time of his or her appointment to the board.
"A public official may not appoint, employ, promote, or advance, or advocate for appointment, employment, promotion, or advancement, in or to a position in the agency in which the official is serving or over which the official exercises jurisdiction or control any individual who is a relative of the public official. An individual may not be appointed, employed, promoted, or advanced in or to a position in an agency if such appointment, employment, promotion, or advancement has been advocated by a public official, serving in or exercising jurisdiction or control over the agency, who is a relative of the individual or if such appointment, employment, promotion, or advancement is made by a collegial body of which a relative of the individual is a member. However, this subsection shall not apply to appointments to boards other than those with land-planning or zoning responsibilities in those municipalities with less than 35,000 population. This subsection does not apply to persons serving in a volunteer capacity who provide emergency medical, firefighting, or police services. Such persons may receive, without losing their volunteer status, reimbursements for the costs of any training they get relating to the provision of volunteer emergency medical, firefighting, or police services and payment for any incidental expenses relating to those services that they provide."18
Section
I would also note that local governments may adopt ethics legislation and you may wish to satisfy yourself that nothing in the Miami-Dade County Charter or ordinances would impact these provisions in section
Regarding any concerns relating to the common law principles of incompatibility, the Supreme Court of Florida in State ex rel. Claytonv. Board of Regents, 21 considered whether common law principles precluded a governmental body from appointing one of its own members to a position over which it has appointment power. The Court concluded that "conduct involving public officers, such as dual office holding, financial benefit from office, and abuse of public trust, are issues directly addressed by State Constitution, and thus are not governed by common law."
Sincerely,
Bill McCollum Attorney General
BM/tgh
"Eligibility to public office is of a continuing nature and must exist at the commencement of the term of office and during the occupancy of the office. The fact that the candidate may have been qualified at the time of his election is not sufficient to entitle him to hold the office, if at the time of the commencement of the term or during the continuance of the incumbency he ceases to be qualified."
Compare 67 C.J.S. Officers s. 74c., stating:
"A vacancy in office for any of the causes enumerated in the constitution or a statute is usually regarded as occurring at the time of the happening of the event which is the cause of the vacancy, in which case no judicial determination is necessary. However, this rule is not applicable to all grounds for the occurrence of a vacancy, and if officers are eligible at the time they take office, their subsequent ineligibility, although it may afford ground for removal, does not vacate the offices ipso facto so as to warrant, without further action, the election of their successors."
State v. Grassi , 532 So. 2d 1055 ( 1988 )
Rollins v. Pizzarelli , 761 So. 2d 294 ( 2000 )
Green v. State , 604 So. 2d 471 ( 1992 )
Chaffee v. Miami Transfer Company, Inc. , 288 So. 2d 209 ( 1974 )
State Ex Rel. Clayton v. Board of Regents , 635 So. 2d 937 ( 1994 )
Ervin v. Collins , 85 So. 2d 852 ( 1956 )
State, Ex Rel. v. Ward , 117 Fla. 585 ( 1934 )
Tillson v. State, Ex Rel. , 127 Fla. 215 ( 1937 )
State v. Gay , 158 Fla. 465 ( 1947 )