Polk Law Blog

A lot has happened in a very short amount of time on the legal issues involving the Polk County charter provisions that limit commissioners to two terms and that reduce their salary to about half what state law requires.

In my initial post, which was quoted in a Ledger editorial, I disagreed with the conclusion of the County Attorney, who opined that both the term limit and salary provision were unconstitutional. After additional consideration, I stand behind that conclusion, subject to the complexities noted below. I think that the term limit provision would be held unconstitutional under clear Florida Supreme Court precedent, and that the pay provision of the charter would be upheld as Constitutional, although with less certainty.

I will depart slightly from my earlier analysis and state that the matter is not one that is clearly resolved. It is quite possible that a court may see this a little differently than I do.

The earlier analysis

My initial analysis was sparked by this statement from The Ledger:

“The Florida Supreme Court in 2002 invalidated voter- approved term limits in county charters in Pinellas and Duval counties, concluding that the voter-imposed term limits improperly disqualifies candidates from running for office and violates the Florida Constitution.

Craig said the decisions also cover salary limits.” (source)

The last line is wrong. The decisions being discussed are Cook v. City of Jacksonville, 823 So. 2d 86 (Fla. 2002) and a later case out of Broward County. As I described in my prior post, these cases only apply to term limits. They are not controlling on the issue of salaries, which are set and handled by a statute that expressly excludes charter counties.

I was curious as to how County Attorney Michael Craig felt that Cook applied here, or if he was misquoted. I still do not know whether he really said that or whether the subtlety of what he did say was lost in the reporting. (Note: The reporter, the estimable Tom Palmer, has done a great job on this story — my comment is more my usual pet peeve about how it is really hard to convey the logical subtlety of a legal issue in a newspaper report.)

At the county commission meeting this week, Mr. Craig spoke on the record in a little more detail, saying that his opinion is supported by “a Florida Supreme Court case with respect to the term limit, an older Supreme Court case relative to the pay, and two different Attorney Generals expressing concern about the unconstitutionality of the pay issue.” He stated that he was “actually surprised that the legal issue is so basic.” (Video of 4/12/11 meeting, part 1, fast forward to about 2:57:25). It is to these assertions that my attention is now directed.

I am not persuaded that there are adequate grounds for the County Attorney’s level of confidence in his position. In fact, I still think it is more likely to go the other way on the pay issue. As usual, an explanation follows, complete with citations and quotations of the relevant authorities.

I will leave behind the issue of term limits because I think it is pretty clear that those are unconstitutional. Instead, I will focus on the pay matter. As is my custom, this will be presented in question and answer format.

I will leave it as an exercise for the reader to determine if the issue of pay is as “basic” as Mr. Craig suggests.

I read the analysis in your original post and I think I understand it. The statute that sets the salaries of county commissioners clearly says it does not apply to charter counties. Therefore, how could this charter provision possibly be invalid?

Here’s the problem. Nestled in the Florida Constitution is this:

“The powers, duties, compensation and method of payment of state and county officers shall be fixed by law. Fla. Const. Art II, Sec. 5(c).” (emphasis added)

As best I can figure, the difficulty that Mr. Craig perceives arises out of this provision of the Constitution. The issue is a question of what “laws” are. Arguably, “laws” are acts passed by the Legislature, not county charters. Therefore, the argument would go, in permitting county charters to set salaries, the Legislature has improperly delegated its lawmaking authority down to the county level. Arguably, the county has no authority to set salaries of county commissioners on its own.

Is that all there is to it?

No. We have to figure out whether the word “law” really does refer only to a statute, or whether the “law” can include a county charter in this context.

Has the Florida Supreme Court ever explicitly answered the question of whether the word “law” in Fla. Const. Art II, Sec. 5(c) includes county charters?

No.

Has an appeals court in Florida ever directly decided this issue?

No.

Has a circuit court in Florida ever directly decided this issue?

I don’t think so.

So what is Michael Craig talking about when he says he has an older Supreme Court case and some Attorney Generals expressing concern about the constitutionality of this?

That’s what I’ve spent the last few very late evenings thinking about while you watched re-runs of CSI: Topeka, Law and Order: Second Assistant Traffic Unit, and Survivor: Avon Park Bombing Range. I think it makes the most sense to start with the Attorney General Opinions.

What is an Attorney General Opinion (“AGO”)?

The Florida Attorney General is authorized to issue formal, published, written legal opinions called “Attorney General Opinions” or “AGO’s”. If Florida government officials need some guidance about an ambiguous law, they can always ask their own agency’s lawyers for advice. However, if it is an important or unclear issue, they may ask for an AGO. Basically, they write letters to the Attorney General with their questions. The Attorney General answers them.

AGO’s are nothing more than the Attorney General’s opinion. They do not have the force of law, thus, one cannot cite to them like one cites to cases. However, they are often very persuasive and can be relied on to help persuade a judge to see it your way. They are a good thing to have in your back pocket when the law is otherwise unclear. A court is not bound to follow an AGO, but courts definitely give the arguments expressed in them very serious consideration.

So what Mr. Craig is saying is that there are some AGO’s out there that support his position. I set out to find them.

Are there any AGO’s where the Attorney General express doubts about whether the word “law” includes county charters?

Yes. There are quite a few AGO’s that deal with pay issues for county officials in related but slightly different situations. I was able to locate four that address the meaning of the word “law” from the pay provision of the Florida Constitution.

First of all, there’s AGO 1971-142. In this opinion, someone asked the Attorney General the following question:

Does a board of county commissioners have authority under Ch. 71-14, Laws of Florida, to reduce the salary that the members of the commission are entitled to receive under § 145.031, F. S.?

The answer supports Mr. Craig’s position:

“And, finally and conclusively, Art. II, § 5(c), State Const., provides that the “. . . powers, duties, compensation and method of payment of state and county officers shall be fixed by law.” (Emphasis supplied.) This provision quite clearly precludes a county from fixing the compensation of its officers by home rule ordinance.” (Note: I have been unable to locate this document on the internet.)

Does this conclusively resolve the question?

No. First of all, as I’ve said, AGO’s are not binding on the courts, merely persuasive.

Secondly, this AGO concerns a Board of Commissioners having the authority to set the pay of county officers by ordinance. It does not concern a situation like we have in Polk County, like is contemplated in the pay statute, where the charter, itself sets the compensation. While this AGO opines that a county ordinance is not a “law” within the meaning of the Florida Constitution, a county charter may very well be a “law” within the meaning of the problematic provision of the Florida Constitution.

As an aside, note that the Polk County charter also provides for the ability of the Commissioners to alter the compensation by unanimous vote, but they can raise it no more than a certain amount. If the reasoning set forth in AGO 1971-142 is persuasive to the court, this particular portion of the provision may, I suppose, be held unconstitutional, which may, I suppose, reduce the amount they are paid even further, back to $33,500, the original amount when the charter was amended. It would be an amusing irony if the pay raises they have voted themselves disappeared as a result of a failed attempt to do away with the limit entirely.

There is also a question as to whether the various provisions of the charter amendment can be broken apart in this way. One angle Mr. Craig or whoever brings this suit may be considering is that these provisions may not be severable; an attack on the part of the amendment that gives the Commissioners the ability to give themselves small raises might result in the Court also striking down the initial cap of $33,500 as inextricably linked to it. I have not researched or addressed this issue, but may do so if it comes up.

What other AGO’s are out there?

This next one cuts the other way. In 1973, someone asked almost the same question:

“Does a board of county commissioners have authority under Ch. 71-14, Laws of Florida, to reduce the salary that the members of the commission are entitled to receive under § 145.031, F. S.?”

The Attorney General gave the same answer as before, “No,” but in answering that way, the Attorney General took the opposite position on the meaning of the word “law” and explicitly acknowledged that the charter might be a “law”:

“This statute… necessarily implies that the charter act may fix the salary schedule of the newly created county officers…

…in light of the traditional practice of fixing the compensation of county officials by law–in this context, by home rule charter…” Fla. AGO 1973-356 (no version available online, emphasis added).

This opinion, I think, lends credence to the opposite of what I assume Mr. Craig would allege —  it might be OK for a county charter to set the salaries of county officials within the charter itself, because a charter might be a “law” within the meaning of this particular provision of the Constitution.

Any other AGO’s?

Yes. The pay issue came up again in Fla. AGO 1977-88, but the Attorney General did not say anything about what “law” meant.  In Fla. AGO 1981-07, basically the exact same question was asked yet again — can the salaries of county officials be set by county ordinance? Once again, the Attorney General said, “no.” Like in the opinion above, although not really at issue in the question, the Attorney General saw fit to opine about whether a county charter itself could function as a “law” within the meaning of the problematic Constitutional provision.

This time, the Attorney General went back to the 1971 interpretation, opining that a law must be something passed by the Legislature:

“The only constitutional provision addressing the compensation and method of payment of ‘county officers’ is s. 5(c), Art. II, State Const., which requires their compensation to be fixed by ‘law,’ i.e., a law (special or general) enacted by the State Legislature. See, e.g., Advisory Opinion to Governor, 22 So.2d 398, 400 (Fla. 1945); and Merriman v. Hutchinson, 116 So. 271, syllabus (1) (Fla. 1928)” Fla. AGO 1981-07

At least once more, in Fla. AGO 1991-068, the meaning of the word “law” was addressed in the context of the pay provision of the Florida Constitution. This time, the question was whether the Board of County Commissioners could be paid more money than set forth in the statute. The answer, again, was no, with the same two cases cited as above.

Since these last two opinions cited some cases for us,  we can go see what the courts actually say about that issue.

So what do those opinions say?

Advisory Opinion to Governer, a case from 1945, says explicitly that a “law” is a statute passed by the Legislature, albeit in the context of a different provision of the Constitution:

“Section 4 of Article IX reads: “No money shall be drawn from the treasury except in pursuance of appropriations made by law.” The word law means a statute adopted by both Houses of the Legislature.” 22 So.2d 398, 400 (not on internet).

There is at least one key problem relying on this case. It was decided well before the home rule provisions of the Florida Constitution were added in 1968. When the Court issued this opinion, there was no such thing as a county charter. The Court could easily conclude that the section of the Constitution talking about salaries should now be interpreted in light of and consistent with the 1968 amendments that authorized home rule so as to avoid inconsistencies within the Constitution itself.

Merriman v. Hutchinson implies the same thing, is even older, and therefore suffers from the same problem.

Is this conclusive?

I do not think so.

The viewpoint expressed in these two cases and these three AGO’s creates some bizarre results. Under the home rule provisions of the Florida Constitution, county voters would be entirely within their rights to create new offices within their charter entitled “county uber-president,” “county CFO and chief wine taster,” and “county streetsweeper,” and delegate to these officials all duties of managing the county. But under this interpretation of the meaning of the word “law,” these officials could only be paid if the Florida Legislature passed a statute setting their pay. They’d starve to death while waiting for Tallahassee to find the time to do that.

Ask yourself – does this make any sense? Do you think a rational judge is going to conclude that this is what the electorate had in mind when the Constitution was amended to add home rule provisions? I think it is likely that a court would interpret the home rule provisions as consistent with the pay provision, so that home rule counties can alter the duties and the pay of their officials, as long as they do it in the charter, not by ordinance.

I also think this interpretation is consistent with other applicable cases, including the two listed below.  Neither of these cases directly discussed the issue of what “by law” means, but both of them are examples where Florida courts allowed charter provisions to remain in effect even though the Florida Constitution states that the subject matter of the provisions is to be governed “by law.”

• In Sarasota Alliance for Fair Elections, Inc. v. Browning, 28 So. 3d 880 (Fla. 2010), the Florida Supreme Court upheld charter provisions that regulated elections procedures. The Florida Constitution says that “Registration and elections shall… be regulated by law.” Fla. Const. Art. VI, Sec. 1 (emphasis added).
• In Pinellas County v. City of Largo, 964 So. 2d 847 (Fla. 2nd DCA 2007), the Second District Court of Appeals upheld charter provisions that described the method of annexation required of a municipality. The Florida Constitution says that “Municipal annexation of unincorporated territory, merger of municipalities, and exercise of extra-territorial powers by municipalities shall be as provided by general or special law.” Fla. Const. Art. VIII Sec. 2 (emphasis added).

I suspect there are other situations where courts have upheld charter amendments even when the Constitution says that their subjects are to be governed “by law,” but I doubt the litigants in those cases raise the issue what what “by law” means. So it is something that remains an open question, I think.

The Florida Constitution dictates that certain things are to be regulated “by law” in a very large number of provisions. My search reveals that the phrase “by law” is used 154 times. To hold that a county charter is not a “law” would be to hold that there are a vast number of things that county charters simply have no ability to regulate. It is true that a charter cannot supersede state statutes, but where it does not, as here, I see no compelling reason why a court would not permit counties to have broad home rule powers through their charters, exactly like the Constitution intends.

What about the Supreme Court case that Mr. Craig mentioned?

I don’t know what case he is referring to. It may be one of the ones I have mentioned. It may be some other Florida Supreme Court case that deals with some sort of pay issue that he is trying to say is analogous. What I am pretty confident about is that there is no Florida Supreme Court case that explicitly holds that county voters do not have the authority to set the pay of county officials in the  county charter itself.

One other case that might come up is State ex rel. Buford v. Spencer, 81 Fla. 211 (Fla. 1921). This Florida Supreme Court case says the same thing as the AGO’s listed above — a county cannot set salaries of officials by ordinance. It is silent as to whether they can do it by charter, because charters did not exist at the time.  It was also founded in a provision the Constitution that does not exist anymore.

Wait, one more thing. Why wouldn’t the same logic used in Cook to strike term limits also apply to the salary cap?

Because the Florida Constitution does not have a provision that says that term limits will be determined by law. Instead, the Florida Constitution says which offices have term limits, thereby implying that all other offices do not have term limits (at least that’s what Cook says it implies). No additional authority is delegated to set term limits by “law” like there is for salaries, so there is no opportunity for any other document, whether it is a county charter or a statute, to impose term limits. At least that is the rationale behind Cook. One could argue that Cook was incorrectly decided, but you’d be asking the Florida Supreme Court to reverse itself.

Are you sure about all this?

Not 100%. This is an issue that is not conclusively resolved, and a court could go another way. This is how I think they’ll go, based on what I have been able look at to date. Everyone is entitled to their own opinion. I welcome the thoughtful views of others, especially if you have criticisms of this analysis.

Also, for the record, my position on the legal issues has nothing to do with my thoughts on whether term limits or salary caps are “good” or “bad.” That’s another issue entirely.