Dual Office Holding/Resign to Run

Dual Office Holding

Article 2, Section 5(a), of the Florida Constitution states,

“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, taxation and budget reform commission, constitutional convention, or statutory body having only advisory powers.”

In recent past, at least two commissioners have been faced with the issues presented by “dual office holding.” One chose to leave the Commission, accepting the subsequent position, and one chose to decline the subsequent appointment.

A review of the literature developed under this article of the Constitution suggests that the issue commonly raised when a person holding public office gets appointed to or elected to a second position is whether one of the positions has only “advisory” powers. If that is the case, the dual office holding is not prohibited.

Clearly, the position of commissioner of the Florida Commission on Human Relations is not a position holding only “advisory” powers. See the discussion of Op. Att’y Gen. Fla. 076-241, found in Op. Att’y Gen. Fla. 077-74, in which it was noted that the statutory powers of the Florida Commission on Human Relations included “the authority to recruit, initiate, investigate, hold hearings on, and pass upon complaints alleging discrimination and to adopt, promulgate, amend, and rescind rules and regulations…” leading to the conclusion that “the commission could not be characterized as a purely advisory body…” (Op. Att’y Gen. Fla. 076-241 stated that the above Constitutional provision would prohibit an individual from serving simultaneously in the Florida Legislature and on the Florida Commission on Human Relations).

For a commissioner appointed to yet another position, the question would become, “Is the subsequent position a position having only 'advisory' powers?” This is an issue subject to interpretation, and a review of Op. Att’y Gen. Fla. 99-16 provides some insight into the types of factors considered in determining whether a position has only “advisory” powers. In that Attorney General Opinion, the State Planning Board is contrasted with a state park advisory council. It notes that members of the State Planning Board were appointed by the Governor, served a fixed term of office, performed duties imposed upon them by statute and were authorized to expend public funds appropriated for that purpose in the discharge of their duties, exercising their own discretion in that regard. Thus, this Board was not merely “advisory.” Members of a state park advisory council, however, who served at the pleasure of the Division of Recreation and Parks without compensation, in purely an advisory capacity and who had no authority to expend public funds or exercise the sovereign power of the state, were serving in an “advisory” capacity.

Resign-to-Run Law

If a commissioner is contemplating a run for public office, it is suggested that the commissioner notify the executive director, who, along with the commissioner’s legal counsel, will seek an opinion from the Division of Elections on whether the commissioner would need to “resign-to-run.”

Section 99.012, Florida Statutes, states,

“No person may qualify as a candidate for more than one public office, whether state, district, county or municipal, if the terms or any part thereof run concurrently with each other.”

“No officer may qualify as a candidate for another public office, whether state, district, county or municipal, if the terms or any part thereof run concurrently with each other, without resigning from the office he or she presently holds.”

“Officer” means a person, whether elected or appointed, who has the authority to exercise the sovereign power of the state pertaining to an office recognized under the Florida Constitution or laws of the state. With respect to a municipality, the term ‘officer’ means a person, whether elected or appointed, who has the authority to exercise municipal power as provided by the Florida Constitution, state laws or municipal charter.

Section 99.012(6)(b) indicates that the Resign-to-Run law does not apply to “persons serving without salary as members of an appointive board or authority.”

The Florida Civil Rights Act of 1992 (section 760.03(6) Florida Statutes) provides that each commissioner shall be compensated at the rate of $50 per day for each day of actual attendance to commission duties and shall be entitled to receive per diem and expenses as provided by law.

Applying the language of the opinions of the Division of Elections (see below), the Florida Civil Rights Act essentially provides commissioners a “salary” (the statutorily required rate of $50 per day). There is an expectation and statutory right that commissioners will receive this amount upon attending to Commission duties, and it is “compensation paid regularly for services.” Therefore, given this, commissioners must resign from the Commission in order to run for public office.

For additional reading, see Opinions of the Division of Elections (below):

In a situation in which a member of the City of Fort Lauderdale Downtown Development Authority (DTDA), who was paid $1.00 per year for services on the Board pursuant to the Laws of Florida, unless the City Commission otherwise designated a salary from the funds of the city, wanted to run for the Broward County School Board, the Division of Elections concluded that the person did not need to resign from the DTDA to run for the School Board. The Division of Elections stated that the special act providing for the $1 per year compensation reserved to the city the power to appropriate and pay a salary, and that therefore the $1 per year was nothing more than an honorarium. The Division of Elections Opinion issued in this matter went on to state, “The Division of Elections has stated that an honorarium is not considered to be salary within the meaning of the Resign to Run Law. An honorarium is a payment or reward usually given as compensation for services on which custom or propriety forbids any fixed business price or payment to be set or for which no payment can be enforced by law. On the other hand a salary, in the ordinary meaning of the term, is fixed compensation paid regularly for services. In the present case, it does not appear that the members of the Board received a fixed salary nor is there any expectation or right to receive a salary.” Op. Div. Elect. 84-5, February 2, 1984.

In another opinion, the Division of Elections concluded that a member of a municipal Code Enforcement Board, who received expenses and an honorarium, but who was not paid a salary or compensation, did not have to resign from the Board to run for the office of city commission. The Division of Elections stated, “Receipt of expenses such as mileage, per diem or travel are not considered to be salary so as to bring a member of an appointed board or authority within the provisions of the resign-to-run law. In the present case the honorarium is not fixed nor is there any expectation or right to receive it as a member of the [Code Enforcement Board].” Op. Div. Elect. 83-05, March 3, 1983.