FLORIDA ATTORNEY GENERAL ISSUES IMPORTANT OPINION ON DUAL OFFICE
The Florida Attorney General was recently asked the
1. May a person serve on a municipal firefighters
pension board administering a local plan under Chapter 175, Florida
Statutes, while simultaneously
serving on a municipal police pension board administering a local
plan under Chapter 185, Florida Statutes?
2. May a person serve on a municipal general employees pension plan
while simultaneously serving on the municipal firefighters pension
board or police pension board?
3. May a city council member serve on one or more of the above described
boards as part of his or her ex officio duties?
Article II, Section 5(a), Florida Constitution, provides
that no person shall hold at the same time more than one office under
of the state and the counties and municipalities therein, except any
officer who may be a member of a statutory body having only advisory
powers. The Attorney General has previously stated that membership
on a board of trustees empowered to administer a pension fund constitutes
an office for purposes of the constitutional provision. However, the
courts and the Attorney General have recognized that imposition of
ex officio duties on a municipal officer under a city code or charter
to serve on the board of trustees of the police officers and fire fighters
pension trust fund would not violate the constitutional prohibition
on dual office holding. Although the city code in question requires
two firefighters to serve on the board of trustees of the firefighters
retirement fund and two police officers to serve on the board of trustees
of the police officers retirement fund, nothing in the code imposes
upon a member of the board of trustees of one of those boards the additional
duties of serving on the other board. Thus, an individual’s simultaneous
service on the municipal firefighters pension board and the municipal
police officers pension board would violate Article II, Section 5(a),
Florida Constitution. Similarly, service by the same person on the
municipal general employees pension plan while also serving on either
the firefighters pension board or the police officers pension board
would appear to violate the constitutional prohibition against dual
office holding. Again, the city code does not impose such additional
duties on a member of the general employees pension plan. Insofar as
city council members are concerned, the city code does impose ex officio
duties on such member to serve on the general employees pension board.
Thus, a council member may so serve. But, the city code does not impose
ex officio duties on a member of the council to serve on either the
firefighters pension board or the police officers pension board. Thus,
a member of the city council cannot simultaneously serve on either
the firefighters pension board or the police officers pension board.
AGO 2004-05 (February 13, 2004).
AUTHORIZED TO PAY STATUTORY PENSION TO FORMER CITY COUNCIL MEMBER
DESPITE HIS DEFEAT:
The Florida Attorney General has issued an opinion on Section 112.048,
Florida Statutes, a subject of rare inquiry (see
for May, 1996, Page 1). Basically, the statute provides a pension for
an elected city official who has held office for 20 consecutive years,
payable upon voluntary resignation or retirement, when no other plan
is available for elected local officials. Having served continuously
on the city council for 22 years, a member left office after running
for reelection and losing. Ten years later, claiming to have just discovered
the statute, he applied for retroactive benefits from date of last
service. Because the council member was defeated, the Attorney General
first had to decide whether one who is defeated at the polls can be
considered to have “retired.” (Clearly, he did not “voluntarily
resign.”) In a rather generous interpretation, the Attorney General
interpreted “retire,” as used in the statute, as any separation
or withdrawal from public service of an elected municipal officer.
Score one for the former council member. The Attorney General then
turned to the question of retroactivity -- in this case, more than
a decade. Seizing upon the statutory language that the pension becomes
payable “on the officer’s own requisition,” the Attorney
General found that the pension benefits may not be paid retroactively.
Score one for the city. AGO 2004-06 (February 13, 2004).
FLORIDA FIRE CONTROL DISTRICT AUTHORIZED TO PAY FOR ALL OR PORTION
OF BOARD MEMBERS’ GROUP HEALTH INSURANCE PROGRAM PARTICIPATION:
The Golden Gate Fire Control and Rescue District, an independent special district,
was established to maintain a fire department and rescue service. The district
is governed by an elected three member board of commissioners who are district
residents. Operation and projects of the district may be financed by the collection
of impact fees, ad valorem taxes, non ad valorem taxes, service charge and issuance
of bonds. Commissioners are authorized to receive a salary or honorarium for
their services, but the amount of that payment is limited to $500.00. Travel
and per diem of commissioners may also be reimbursed. Although the charter for
the district does not mention insurance, the district is authorized to pay from
funds of the district for group health insurance for members of the board of
commissioners of the district in addition to the salary or honorarium authorized.
Further, nothing would preclude the use of a commissioner’s salary for
the purpose of making payments for insurance provided by the district. AGO 2004-08
(February 13, 2004).
ON-DUTY LAW ENFORCEMENT OFFICER HAS AUTHORITY TO ENFORCE PRIVATE
LAND OWNER’S WRITTEN AUTHORIZATION TO COMMUNICATE ORDER TO
In order to commit a trespass, an offender must defy an order to leave
property that has been personally communicated to him by the owner of the premises
or some other authorized person. In AGO 90-08, the Florida Attorney General addressed
whether on-duty police officers could be pre-authorized to act as the agents
of a private land owner for the purpose of communicating to an alleged trespasser
an order to leave private property. The Attorney General then found no statutory
provision that specifically authorized local law enforcement officers to be so
designated. Moreover, he concluded that the predesignation of on-duty law enforcement
officers to act as agents of private land owners to communicate an order to leave
private property would serve primarily a private purpose, in violation of the
Florida Constitution. During the 2000 legislative session, however, the Florida
Trespass Statute was amended to include, as an authorized person, any law enforcement
officer whose department has received written authorization from the owner or
lessee. Thus, the prior Attorney General Opinion has no further vitality, and
an on-duty law enforcement officer has the authority to enforce a private land
owner’s written authorization to communicate on behalf of the land owner
an order to an allege trespasser to leave the private property in case of threat
to public safety or welfare. AGO 2004-04 (February 13, 2004).
PLANSPONSOR.COM CONTINUES SERIES ON “MISBEHAVING IN PUBLIC”:
In the second of a two-part series (see C&C Newsletter for February
18, 2004, Item 2), plansponsor.com turns to the seven trouble signs that your
public pension fund may be vulnerable to unethical dealings by board members,
vendors or staff. A survey of those who have served in such capacities reveals
their warning signs:
1. Staff is too small to evaluate properly the plan’s range
of investments and lacks the technology needed to do the job.
2. Staff is too poorly paid to attract and keep quality personnel.
3. Consultants who do not consult (Do all of your plan’s consultants
provide substantive advice on investments? Or, do they, in reality,
act as mere “placement agents” for money managers?).
4. Elected officials serve as ex officio members of the pension board.
5. Education for board members is inadequate or is provided mainly
by vendors who supply investment services to the plan.
6. The pension system includes no internal or external audit function.
7. Board members are not being cited for accepting contributions
and gifts from vendors.
Take a look in the mirror. What do you see?
IF YOU’RE RICH, DO NOT SPEED IN FINLAND:
We read in Reuters that one of Finland’s richest men has been fined
a record $217,000.00 for speeding. Jussi Salonoja, 27, heir to his family’s
sausage business, was caught driving 50 mph in a 25 mph zone. Finnish traffic
laws do not put up with such baloney: traffic fines vary according to the offender’s
income -- in this case, about $9 Million for 2002. However, the final penalty
could still change when the case is heard in court. Recently, a Nokia executive’s
$150,000.00 speeding fine was slashed by 95% due to a drop in his income. Gee,
that’s still $7,500.00!).