Advisory Opinion to Governor, In re

• Decision Date: 25 February 1975
• Citation: 313 So.2d 717
• Parties: In re ADVISORY OPINION TO the GOVERNOR, Request of
• Court: Florida Supreme Court

Page 717

313 So.2d 717

In re ADVISORY OPINION TO the GOVERNOR, Request of February 25, 1975 (Sarasota County Tax Collector).

No. 46974.

Supreme Court of Florida.

March 20, 1975.

Arthur C. Canaday, Tallahassee, for Governor Reubin O'D. Askew.

Richard E. Nelson of Nelson, Stinnett, Surfus, Payne, Hesse & Cyril, Sarasota, and John R. Lawson, Jr. of Holland & Knight, Tampa, for Board of County Commissioners of Sarasota County.

Honorable Reubin O'D. Askew

Governor, State of Florida

The Capitol

Tallahassee, Florida 32304

Dear Governor Askew:

We have the honor to acknowledge your communication of February 25, 1975, requesting our advice pursuant to Section 1(c), Article IV, Florida Constitution, 1968 Revision, and Rule 2.1(h), Florida Appellate Rules, relating to certain executive powers and duties.

Omitting the formal parts, your letter reads as follows:

'Due to the sudden passing of the Tax Collector in Sarasota County, a question has arisen as to the authority for the filling of the vacancy in this office. Article IV, Section 1(f) of the Florida Constitution, states as follows:

'(f) When not otherwise provided for in this constitution, the governor shall fill by appointment any vacancy in state or county office for the remainder of the term of an appointive office, and for the remainder of the term of an elective office if less than twenty-eight months, otherwise until the first Tuesday after the first Monday following the next general election.

'Sarasota County, however, has a Home Rule Charter in effect and it is the position of the Board of County Commissioners that this Charter, pursuant to Article VIII, Section 1(d), of the Florida Constitution, validly authorizes the filling of the vacancy in the Tax Collector's office by the Board of County Commissioners. The only applicable section of the County Charter dealing with vacancies in county office delineates the authority of the Charter Review Board and includes the following sentence:

"The Review Board shall also fill vacancies as they occur in all elected county offices, providing the remaining term is fourteen months or less, otherwise a special election will be held to fill the vacancy.'

'It is the feeling of this office that the issue can be divided into two separate questions. The threshold and more farreaching question concerns construction of the Governor's appointing authority under the Constitution. Article IV, Section 1(f), clearly lodges the mandatory duty to fill vacancies in all state and county offices in the Governor and draws into question the above provision of the County Charter. The Board of County Commissioners, on the other hand, takes the position that Article VIII, Section 1(d) of the Constitution breathes validity into the charter provision. Article VIII provides that the county offices named therein shall be elected, except when a county charter provides that the officer 'may be chosen in another manner.'

'It is clear that Article VIII allows a county by charter to provide that county offices may be appointed, for instance, rather than elected for the four year term named therein. (The Sarasota County Charter, however, opted to continue the elective status of these offices. See Article II, Section 2.2, Sarasota County Home Rule Charter.) The key question is whether, in giving charter counties an opportunity to provide for appointive rather than elective terms of office, Article VIII is addressing itself also to the very different question of filling vacancies in unexpired terms covered by Article IV, Section 1(f) of the Constitution.

'The Sarasota County Charter clearly separates the two functions of (1) the normal selection process by election or appointment of county officers to succeed each other at the end of the normal four-year term and (2) the filling of unexpired terms by the fortuitous occurrence of a vacancy in office through death of the incumbent or other unforeseen circumstances. The Charter takes totally different approaches to the carrying out of these two functions. It is my contention the Florida Constitution makes the same distinction in its approach to these functions.

'Should this Court hold that the Sarasota Charter provisions with regard to the filling of vacancies are constitutionally valid, a second issue arises as to whether the Governor has a role in the contingency presented here since this Charter seems to be silent as to the particular facts raised by the Tax Collector's death. There are more than fourteen months and less than twenty-eight months remaining in the unexpired term of the office. While the Charter provides for a special election in such circumstances, it is silent on the question of filling the vacancy during the weeks and perhaps months preceding the special election.

'In consonance with their position in this matter, the Board of County Commissioners of Sarasota County last week appointed Mrs. Jane Folds to the vacancy in the office of Tax Collector. The Governor's Office advised the county that it was our intention to appoint a successor and indicated the person to be appointed. The Board maintained its position, stating that any appointee of the Governor other than Mrs. Folds would be unacceptable. The Board was agreeable, however, to having the Governor appoint its nominee, Mrs. Folds, in order to bring the matter to the Supreme Court. Mrs. Folds has been appointed and commissioned by the Governor's Office for purposes of keeping this vital county office open and operating during the period the question is considered by the Supreme Court. Mrs. Folds has agreed to step down if the Charter provisions are found unconstitutional by the Court.

'In view of the above urgent circumstances, I therefore submit the following question for your early consideration:

DOES ARTICLE IV, SECTION 1(F) OF THE FLORIDA CONSTITUTION AUTHORIZE THE GOVERNOR TO FILL BY APPOINTMENT A VACANCY IN A COUNTY OFFICE AUTHORIZED UNDER A HOME RULE CHARTER PROVIDING FOR THE FILLING OF SUCH A VACANCY, OR DOES THE CHARTER PROVISION COME WITHIN THE GRANT OF AUTHORITY OF ARTICLE VIII, SECTION 1(D) OR ANY OTHER PROVISION OF THE FLORIDA CONSTITUTION THEREFORE VALIDATING ITS PROVISIONS AS TO VACANCIES? IF IT IS VALID, WHO IS THE APPOINTING AUTHORITY IN THIS CASE, WITH PARTICULAR REFERENCE TO THE PERIOD PRIOR TO THE SCHEDULING OF A SPECIAL ELECTION PURSUANT TO THE CHARTER?'

Upon receipt of your request for advisory opinion relative to your executive powers and duties, this Court entered an interlocutory order finding that the questions propounded were answerable and requesting that briefs be filed by interested parties.

We...