Judges: Bill McCollum, Attorney General
Filed Date: 9/24/2007
Status: Precedential
Modified Date: 7/5/2016
Dear Mr. Stewart:
At the direction of the City Commission of the City of Fort Lauderdale, you have requested my opinion on substantially the following questions:
1. Is the City Commission of the City of Fort Lauderdale authorized, pursuant to its municipal home rule powers, to adopt an ordinance regulating the solicitation or acceptance of charitable donations by members of the city commission?
2. Is the City Commission of the City of Fort Lauderdale authorized to adopt an ordinance requiring that lobbyists report solicitations received and donations made to members of the city commission?
As your questions are related they will be answered together.
As you are aware, this office has no authority to review proposed legislation for legal sufficiency nor are we authorized to comment on local charter provisions or ordinances.1 Thus, no comment is made on the particular terms of the legislation the City of Fort Lauderdale is considering. However, this office can generally address the extent of municipal home rule as it relates to the adoption of local ethics code provisions and will note general issues of concern for your consideration.
Section
"Municipalities shall have governmental, corporate and proprietary powers to enable them to conduct municipal government, perform municipal functions and render municipal services, and may exercise any power for municipal purposes except as otherwise provided by law."
The Florida Supreme Court has stated that this constitutional provision "expressly grants to every municipality in this state authority to conduct municipal government, perform municipal functions, and render municipal services."2 The Court stated, in State v. Cityof Sunrise, that the only limitation on the power of municipalities under this constitutional section is that such power must be exercised for a valid municipal purpose. As determined by the Court, "[l]egislative statutes are relevant only to determine limitations of authority" and municipalities need no further authorization from the Legislature to conduct municipal government.3
Pursuant to section
"(3) The Legislature recognizes that pursuant to the grant of power set forth in s. 2(b), Art. VIII of the State Constitution, the legislative body of each municipality has the power to enact legislation concerning any subject matter upon which the state Legislature may act, except:
(a) The subjects of annexation, merger, and exercise of extraterritorial power, which require general or special law pursuant to s. 2(c), Art. VIII of the State Constitution;
(b) Any subject expressly prohibited by the constitution;
(c) Any subject expressly preempted to state or county government by the constitution or by general law; and
(d) Any subject preempted to a county pursuant to a county charter adopted under the authority of ss. 1(g), 3, and 6(e), Art. VIII of the State Constitution."
The interaction between local and state legislation was specifically discussed by the Florida Supreme Court in City of Miami Beach v. RocioCorporation:
"The principle that a municipal ordinance is inferior to state law remains undisturbed. Although legislation may be concurrent, enacted by both state and local governments in areas not preempted by the state, concurrent legislation enacted by municipalities may not conflict with state law. If conflict arises, state law prevails. An ordinance which supplements a statute's restriction of rights may coexist with that statute, whereas an ordinance which countermands rights provided by statute must fail."4
The City of Fort Lauderdale, therefore, may legislate on any matter upon which the Legislature may act, so long as its ordinance does not forbid what the Legislature has expressly licensed or authorized, or permit what the Legislature has expressly forbidden.5
The Legislature has enacted a number of statutes dealing with the subjects of solicitation and acceptance of charitable contributions by state officers and employees and with lobbyist reporting. Section
Thus, the Legislature has adopted state statutory language addressing the acceptance of charitable contributions by public officers and employees. This legislation, an omnibus campaign finance reform measure, was enacted in 2006 and, as is recognized by the legislative history for the statute, "[t]he bill presents a number of issues of first impression for the courts under the free speech clauses and the freedom of association clauses of the federal and state constitutions."10
Part III, Chapter
"No public officer, employee of an agency, local government attorney, or candidate for nomination or election shall solicit or accept anything of value to the recipient, including a gift, loan, reward, promise of future employment, favor, or service, based upon any understanding that the vote, official action, or judgment of the public officer, employee, local government attorney, or candidate would be influenced thereby."11
The ethics code requires the reporting and prohibits the receipt of gifts by designated public officers and employees.12 As provided in section
"[a] reporting individual or procurement employee or any other person on his or her behalf is prohibited from knowingly accepting, directly or indirectly, a gift from a political committee or committee of continuous existence, as defined in s.
The statute requires that certain individuals must file statements with the Commission on Ethics containing a list of gifts which come within the scope of the statute.14 The provisions of the Code of Ethics are applicable to municipal officers.15
State law requires reports of donations made to or solicitations received from public officers and employees in section
The Florida Commission on Ethics has recognized that a municipality may enact a municipal code of ethics more stringent than, or with provisions differing from, part III, Chapter
The issue of conflict between local ordinances and state law was addressed in Jordan Chapel Freewill Baptist Church v. DadeCounty.21 The court in Jordan Chape stated that:
"Legislative provisions are inconsistent if, in order to comply with one provision, a violation of the other is required. . . . [T]he sole test of conflict for purposes of preemption is theimpossibility of co-existence of the two laws. Courts are therefore concerned with whether compliance with a County ordinancerequires a violation of a state statute or renders compliance with a state statute impossible."22 (emphasis in original)
Accordingly, while a county or municipal ethics code may contain provisions apart from those in part III, Chapter 112, Florida Statues, compliance with the local code cannot result in a violation of the state ethics code or make compliance with the state ethics code impossible.23
In sum, it is my opinion that a municipality may adopt an ethics code more stringent than, or with provisions differing from, the provisions of part III, Chapter
Sincerely,
Bill McCollum Attorney General
BM/tgh
"(d) `Reporting individual' means any individual, including a candidate upon qualifying, who is required by law, pursuant to s. 8, Art. II of the State Constitution or s.
(e) `Procurement employee' means any employee of an officer, department, board, commission, or council of the executive branch or judicial branch of state government who participates through decision, approval, disapproval, recommendation, preparation of any part of a purchase request, influencing the content of any specification or procurement standard, rendering of advice, investigation, or auditing or in any other advisory capacity in the procurement of contractual services or commodities as defined in s.
Rinzler v. Carson , 262 So. 2d 661 ( 1972 )
City of Miami Beach v. Forte Towers, Inc. , 305 So. 2d 764 ( 1974 )
FYI Adventures, Inc. v. City of Ocala , 698 So. 2d 583 ( 1997 )
State v. City of Sunrise , 354 So. 2d 1206 ( 1978 )
JORDAN CHAPEL FREEWILL BAPTIST CH. v. Dade County , 334 So. 2d 661 ( 1976 )
City of Kissimmee v. FLORIDA RETAIL FEDN. , 915 So. 2d 205 ( 2005 )
City of Miami Beach v. Rocio Corp. , 404 So. 2d 1066 ( 1981 )