Johnson v. Johansen, DD--370

• Decision Date: 02 November 1976
• Docket Number: No. DD--370,DD--370
• Citation: 338 So.2d 1300
• Parties: Earl M. JOHNSON, Petitioner, v. Preben JOHANSEN et al., Respondents.
• Court: Florida District Court of Appeals

Page 1300

338 So.2d 1300

Earl M. JOHNSON, Petitioner, v. Preben JOHANSEN et al., Respondents.

No. DD--370.

District Court of Appeal of Florida, First District.

Nov. 2, 1976.

William J. Sheppard of Sheppard, Fletcher, Hand & Adams, Reese Marshall, David U. Tumin, Ernest D. Jackson, Sr. of Jackson & Micks, Jacksonville, for petitioner.

Dawson A. McQuaig, Gen. Counsel and William Lee Allen, Asst. Counsel, Jacksonville, for respondents.

SMITH, Judge.

By petition for common law writ of certiorari, petitioner Johnson, councilman and president of the council of the City of Jacksonville, seeks review of an order of the Duval County circuit court denying a temporary injunction against proceedings by the respondent council members for removal of Johnson as council president. Petitioner also seeks a writ, pursuant to article V, § 4(b)(3), Florida Constitution, to stay those proceedings pending our determination of the matter. We expedited and heard the case and, after deliberation, denied the stay and announced our intention to deny certiorari. This opinion elaborates on the views expressed after the hearing.

All legislative powers of the consolidated government of Jacksonville and Duval County are vested in the council by the charter law, chapter 67--1320, § 5.06, Fla.Laws. The council by majority vote selected councilman Johnson as its president July 13, 1976. On September 28, 1976, the council passed an ordinance setting forth grounds and procedures for removal of council officers. A majority of the council then invoked those procedures by formal demand for Johnson's removal as president for alleged conduct unbecoming an officer of the council, disorderly intoxication and disorderly conduct amounting to a breach of the peace. The conduct referred to in the specifications was allegedly committed in August 1976, before passage of the ordinance.

Jacksonville's charter provides, in a section pertaining to Meetings of the council:

'The council shall, at the first meeting in each year, select one of its members as the president of the council and one of its members as president pro tempore. The president of the council Shall preside at all meetings of the council during the year in which he is elected, and in his absence the president pro tempore shall preside.' Ch. 67--1320, § 5.07, Fla.Laws (emphasis added).

The charter contains no explicit provision for the removal of the council president during his term. ¹ Conceiving that as council president he is an officer not only of the council but also of the city or county, Johnson's position is that he may not be removed from the presidency in midterm except by means specified in the charter, of which there are none, ² or by the Governor and Senate pursuant to the Florida Constitution. Article IV, § 7(a) and (b) of the Constitution provides for the removal of county officers as follows:

'(a) By executive order stating the grounds and filed with the secretary of state, the governor may suspend from office . . . any county officer, for malfeasance, misfeasance, neglect of duty, drunkenness, incompetence, permanent inability to perform his official duties, or commission of a felony . . ..

'(b) The senate may . . . remove from office or reinstate the suspended official . . ..'

Article IV, § 7(c) provides for the removal of 'any elected municipal officer' as follows:

'(c) By order of the governor any elected municipal officer indicted for crime may be suspended from office until acquitted . . . unless these powers are vested elsewhere by law or the municipal charter.'

The critical issue here is not whether Johnson as a duly elected member of the council is a city or county officer. Plainly, Jacksonville council members are county officers for purposes of removal under the Constitution's article IV, § 7(a) and (b), for they exercise in Duval County the powers and duties exercised by county commissioners elsewhere. Article VIII, § 1(e), Florida Constitution; § 112.49, F.S.; In re Advisory Opinion, supra n. 2. A member of the council may therefore be removed as such only by the Governor and Senate, by recall by the voters, or by the special procedures adopted in Jacksonville for violation of its Code of Ethics, supra n. 1. Here there is no effort by the council, nor any claim of right, to remove Johnson as councilman. The council seeks only to remove councilman Johnson as its president.

An 'officer' has been defined as 'one who has a public duty, charge or trust, conferred by public authority, for public purposes, which is not transient, occasional, or incidental, but durable, permanent, and continuous . . ..' 3 E. McQuillin, Municipal Corporations § 12.29, at 169 (3d ed. rev. 1973); State ex rel. Davis v. Botts, 101 Fla. 361, 134 So. 219 (1931); State ex rel. Clyatt v. Hocker, 39 Fla. 477, 484, 22 So. 721, 722--23 (1897). The council presidency would seem by that definition to be, at least for some purposes, an office of the city or county. But 'office' and 'officer' are slippery words with uncertain implications. ³ If the council presidency is a city or county office within the application of the removal provisions in article IV, § 7, no reason is apparent why the presidency should not also be considered an 'office' within the meaning of article II, § 5(a) of the same Constitution, which forbids that any person hold 'more than one office under the government of the state and the counties and municipalities . . ..' Thus, Johnson's argument generates an immediate contradiction: by charter only a council member may be president of the council, but by Constitution that person may not hold both offices simultaneously. It might be argued also that, if the council president is in any sense an 'elective . . . county officer,' he must be elected by the people, Jacksonville's charter to the contrary notwithstanding, on the first Tuesday after the first Monday in November of each even-numbered year. Article VI, § 5, Florida Constitution.

We believe Johnson's argument concerning 'offices' and 'officers,' though resourcefully conceived, grasps the wrong end of the stick. The more appropriate considerations are the nature of the council presidency, the constituency to whom the president is responsible and any constitutional or statutory restrictions on council autonomy.

The council president is first and foremost the presiding officer of a legislative body. While the president has other duties in contingencies--notably to become mayor if that office is vacant ⁴--the president's permanent and continuous duty is to preside over deliberations of a parliamentary body. In this respect, the president's relationship to the council is necessarily more intimate and responsible than any other 'officer' who performs public duties independently, though by council appointment. Thus distinguished are such decisions as Burklin v. Willis, 97 So.2d 129 (Fla.App.1st, 1957), and State ex rel. Gibbs v. Bloodworth, 134 Fla. 369, 184 So. 1 (1938), which held that the vice mayor and municipal judge of Port Orange and the city clerk of Miami, respectively, could not be removed by the city council and city commission of those cities, though each body was the appointing authority, except by a two-thirds vote and for cause specified in a statute then existing, § 165.18, F.S.1957, and § 2948, C.G.L. 1927. We have said that '(u)nder the common law an officer could be removed only for cause and after notice and an opportunity to be heard.' Burklin, 97 So.2d at 131. But the common law otherwise provided for the removal by legislative bodies of their presiding officers. L. Cushing, Law and Practice of Legislative Assemblies §§ 297, 299 (9th ed. 1874):

'It is essential . . . to the satisfactory discharge of the duties of a presiding officer, that he should possess the confidence of the body over which he presides, in the highest practicable degree. It is apparently for the purpose of securing this necessary confidence, that the presiding officer is required to be chosen by the assembly itself, and by an absolute majority of votes; (and) that he is removable by the assembly at its pleasure . . ..

'. . .

'. . . The presiding officer, being freely elected by the members by reason of the confidence which they have in him, is removable by them, at their pleasure, in the same manner, whenever he becomes permanently unable, by reason of sickness, or otherwise, to discharge the duties of his place, and does not resign his office; or whenever he has, in any manner, or for any cause, forfeited or lost the confidence upon the strength of which he was elected.'

Jefferson wrote his Manual of Parliamentary Practice early in the Republic. That work, which was 'regarded by English parliamentarians as the best statement of what the law of Parliament was at the time Jefferson wrote it,' maintained that a Speaker chosen by the House of Representatives 'may be removed at the will of the House . . ..' L. Deschler, Constitution, Jefferson's Manual and Rules of the House of Representatives § 284 at 105, § 315 at 127 (1943). Decisions honoring that relationship between a legislative body and its chosen presiding officer, and according therefore to a city council or other legislative body the right to remove its president or speaker at pleasure, include State ex rel. Childs v. Kiichli, supra n. 3, In re Speakership of the House of Representatives, 15 Colo. 520, 25 P. 707 (1891); Watson v. Common Council of City of Marysville, 140 P.2d 874 (Cal.App.3d, 1943); and Gowey v. Siggelkow, 85 Idaho 574, 382 P.2d 764 (1963). See also 4 McQuillin, Municipal Corporations § 13.19, at 500 (3d ed. rev. 1968):

'Where the body has the power to choose its own presiding officer from its own members, the office is held at will and authority of a majority of the members, and hence the body has the inherent power to remove such officer at any time, unless prohibited by some express constitutional or statutory provision.'

The Florida Constitution does...