Judges: Robert A. Butterworth Attorney General
Filed Date: 1/15/1988
Status: Precedential
Modified Date: 7/5/2016
The Honorable Enid D. Earle Supervisor of Elections Post Office Drawer 2545 Fort Myers, Florida 33902
Dear. Mrs. Earle:
You have asked my opinion on the following questions:
1. When a constitutional officer has submitted a letter to the Governor resigning the office prior to the end of the term for which he or she was elected, can that resignation be rescinded at any time before the effective date of the resignation?
2. Does the Governor have the option to accept or refuse the letter rescinding the resignation?
Based upon the following analysis, it is my opinion that a county constitutional officer may, under certain conditions, rescind his resignation before the effective date of such resignation.
The Supreme Court of Florida, in In re Advisory Opinion to the Governor,
The Governor then appointed another individual to fill the office of clerk, such appointment to take effect on January 1, 1935. The Governor transmitted such appointment to the Secretary of State for the purpose of having a commission issued to the office of clerk and returned to the Governor for signature. The commission, however, was never signed by the Governor.
On December 24, 1934, the clerk wrote the Governor, purporting to withdraw his resignation. In considering whether the clerk could withdraw his resignation, the Court stated:
[I]f under lawful circumstances the incumbent files a written withdrawal of his resignation before the Governor grants a commission to a successor appointee and before the effective date of the resignation, such bona fide withdrawal operates ordinarily to prevent the office from becoming vacant to be filled by the granting of a commission by the Governor. This is so since the office does not "become vacant" until the date the resignation becomes effective; and a vacancy can be filled only by granting a commission to an appointee; and until a commission is granted to a successor appointee, or until the effective date of the resignation, the Governor may not have cause to refuse a withdrawal of the resignation. . . .1
Pursuant to s. 1, Art. IV, State Const., the Governor shall commission all officers of the state and counties.2
In a more recent decision of the Supreme Court, Spector v. Glisson,
Further, in In re Advisory Opinion of the Governor Request of September 6, 1974,
We recognize that a vacancy does not occur until the date upon which the office actually becomes vacant. In re Advisory Opinion to the Governor, . . .
In the absence of judicial clarification of this issue, I cannot state that the decision of the Supreme Court in In re Advisory Opinion to the Governor,
Sincerely,
Robert A. Butterworth Attorney General
RAB/tjw
[T]he Florida Supreme Court expressed the view that an elected county officer who had transmitted his written resignation for acceptance by the governor could rescind such resignation by written withdrawal at any time before the effective date of the resignation. There appear to be some exceptions to the above rule. For example, in those instances in which an individual has resigned pursuant to the resign-to-run law, s.
99.012 , F.S., such officer may not withdraw his resignation. See, In re Advisory Opinion to the Governor,239 So.2d 247 (Fla. 1970).
A number of courts have stated that a contingent or a prospective resignation by a public officer can be withdrawn at any time before it is accepted, and after it is accepted, it may be withdrawn, with the consent of the authority accepting, where no rights have intervened. . . . However, where acceptance of a resignation has been regarded as an immaterial factor, it has been held that a prospective resignation by a public officer may be withdrawn by him at any time before the date when his resignation is to take effect, despite the fact that it has already been accepted by the person or group authorized to fill the vacancy.