The 2023 FACO Summer Conference will be held virtually by live webinar on July 26, 2023, from 12:00 p.m. to 5:00 p.m. ET. FACO voting Members and their Staff enjoy unlimited FREE registrations. Registration for others is $100 for each registrant.
This year’s topics were specially crafted with your Constitutional Office in mind, provided by presenters experienced in advising Constitutional Officers, local governments, and other public entities. This year’s Conference will feature:
Registration for the 2023 Summer Conference is now open! The deadline to register is July 25, 2023. Please see our Events page for details and instructions on how to register.
In May 2022, the FACO Board accepted the nomination of Amy Mercado to serve on the FACO Board. Amy was elected to the office of Orange County Property Appraiser in November 2020. She is an effective, trustworthy, results-oriented business leader with vast experience including operations, budget management, team leadership, and public policy. In 2016, she was elected as a State Representative for Florida House District 48 and was subsequently re-elected in 2018, serving on a wide array of committees including as the ranking member on the important Ways & Means Committee.
Amy is a phenomenal addition to the FACO Board given her recent service in the Florida Legislature and her unique business background. FACO is excited to broaden its depth of knowledge and expertise among the membership and the Board as it continues to ensure the independence of constitutional officers is preserved.
In response to a contentious Florida Supreme Court decision that undermined the budgetary authority of Sheriffs statewide in conjunction with a case brought by Alachua County over the Alachua County Sheriff’s authority, after the First District Court of Appeal (Tallahassee) and an Alachua County Circuit Court had both ruled in favor of the Alachua County Sheriff, the Florida Legislature effectively nullified the Florida Supreme Court decision by restoring the authority of the Sheriff in state law.
This case began when Alachua County sued the Alachua County Sheriff’s Office, arguing the Sheriff did not have legal authority to transfer funds within the Sheriff’s Office approved budget without getting the change approved first by the County. The Alachua County Circuit Court, and later Florida’s First District Court of Appeal, disagreed with the County’s claim, and found in favor of the Alachua County Sheriff’s Office.
After years of litigation, the Florida Supreme Court issued an Opinion on January 27, 2022, which effectively stripped Florida Sheriffs from amending their budgets without first going to the Board of County Commissioners to get the amendment approved.
Within the same month of the Florida Supreme Court’s decision, an amendment was added to House Bill 3 during the 2022 Legislative Session that restored the budgeting authority that both lower courts had ruled the Sheriffs already had. That House Bill passed and has been signed into law.
On January 27, 2022, the Florida Supreme Court overturned the First District Court of Appeal (“DCA”), holding that a Sheriff must go through the budget amendment approval process outlined in section 129.06, Fla. Stat., in order to transfer funds between different object levels.
By way of background, the County’s suit rested on its interpretation of the budgeting process specified in section 129.06, Fla. Stat. The County contended that after a Sheriff’s budget is approved by a county, a Sheriff must seek approval from the county prior to transferring funds between object levels. As part of the budget process generally, a Sheriff must propose a budget to the county in which the Sheriff operates for the three functional categories, which include: (1) General Law Enforcement; (2) Corrections and Detention Alternative Facilities; and (3) Court Services, Excluding Service of Process. Then the budget must be further itemized within each of those functional categories at the object level, which includes six categories as prescribed by the Department of Financial Services, including Personnel Services, Operating Expenses, Capital Outlay, Debt Service, Grants and Aids, and Other Uses. These categories can then be broken down further, at a sub-object level.
As part of this process, the county has no authority over amendments to the budget request at the sub- object level. Rather, the county’s amendatory authority lies at the object level within each of the three functional categories. After the budget is approved, however, the entire Sheriff’s budget is considered one line item in the county’s budget. In its suit, the County argued that because a county has the authority to amend the budget at the object level during the budgeting process, this necessarily means that a Sheriff must also receive approval from a county if the Sheriff wants to transfer funds between object levels after the budget has been approved.
The Sheriff argued that no such approval requirement is named in section 30.49, Fla. Stat., which governs a Sheriff’s budgeting process, and that under section 129.06, Fla. Stat., which applies to a county’s budgeting process, a Sheriff is not required to seek approval from the county prior to transferring funds between object levels. The Sheriff further argued that a Sheriff, as an independent constitutional officer, is elected directly by county electors, and is not intended to be beholden to the county in regards to its day-to-day operations. Any requirement that permits Sheriffs to be micromanaged in their daily operations by their respective counties would undermine constitutional officer independence.
Both the trial court and DCA agreed with the Sheriff, and interpreted sections 30.49 and 129.06, Fla. Stat., to read that a Sheriff does not have to seek approval prior to transferring funds at the object level. The DCA specifically supported this argument for three reasons:
First, section 30.53, Fla. Stat. (2018), explicitly preserves the Sheriff’s independence as a constitutional officer “concerning the purchase of supplies and equipment, selection of personnel, and the hiring, firing, and setting of salaries of such personnel[.]” The DCA interpreted this provision as a broad preservation of all powers necessary for the Sheriff to carry out the duties and responsibilities of his or her office, which necessarily must include authority over his or her budget and office’s expenditures.
Second, the DCA found there is no statutory requirement that the Sheriff seek Board approval prior to transferring funds between objects. The only prohibition upon such transfers is found in section 129.06(5), Fla. Stat., which provides that and county constitutional officer whose budget is approved by the board of county commissioners, who has not been reelected to office or is not seeking reelection, shall be prohibited from making any budget amendments, transferring funds between itemized appropriations , or expending in a single month more than one-twelfth of any itemized approved appropriation, following the date he or she is eliminated as a candidate or October 1, whichever comes later, without approval of the board of county commissioners.
Third, the DCA agreed with the circuit’s court’s reliance on Weitzenfeld v. Dierks, 312 So. 2d 194, 196 (Fla. 1975), which held that “the internal operation of the sheriff's office and the allocation of appropriated monies within the six items of the budget is a function which belongs uniquely to the sheriff as the chief law enforcement officer of the county. To hold otherwise would do irreparable harm to the integrity of a constitutionally created office as well as violate the precept established by F.S. Section 30.53 and, in practical effect, gain nothing for the county.”
The Florida Supreme Court, however, took a “textualist” approach in determining whether approval was required. Unlike the DCA, the Florida Supreme Court found that there was no explicit statutory requirement of Sheriffs to seek approval for transferring funds between object levels, but reading the statutes in harmony, determined the Sheriff must seek a budget amendment just like a board of county commissioners was required to in section 129.06, Fla. Stat.
The Florida Supreme Court seemed to afford more budgetary power to county commissions than what is actually prescribed in statute in this tug-of-war of constitutional powers between the county as the constitutional officer tasked with creating and funding a budget, and the Sheriff as the constitutional officer tasked with ensuring the public safety of the county. The Florida Supreme Court took the position that the county’s budgetary responsibility outweighed the importance of the independence of the sheriff and its ability to control its budget once a budget is created.
This case began when Alachua County sued the Alachua County Sheriff’s Office, arguing the Sheriff did not have legal authority to transfer funds within the Sheriff’s Office approved budget without getting the change approved first by the County. The Alachua County Circuit Court, and later Florida’s First District Court of Appeal, disagreed with the County’s claim, and found in favor of the Alachua County Sheriff’s Office.
The County then appealed to the Florida Supreme Court, which held oral argument in November 2020. A decision is still pending.
The County’s suit rests on its interpretation of the budgeting process specified in section 129.06, Florida Statutes. The County contends that after a sheriff’s budget is approved by a county, a sheriff must seek approval from the county prior to transferring funds between object levels.
As part of the budget process generally, a sheriff must propose a budget to the county in which the sheriff operates for the three functional categories, which include: (1) General Law Enforcement; (2) Corrections and Detention Alternative Facilities; and (3) Court Services, Excluding Service of Process. Then the budget must be further itemized within each of those functional categories at the object level, which includes six categories as prescribed by the Department of Financial Services, including Personnel Services, Operating Expenses, Capital Outlay, Debt Service, Grants and Aids, and Other Uses. These categories can then be broken down further, at a sub-object level.
As part of this process, the county has no authority over amendments to the budget request at the sub-object level. Rather, the county’s amendatory authority lies at the object level within each of the three functional categories.
After the budget is approved, however, the entire sheriff’s budget is considered one line item in the county’s budget.
In its suit, the County argues that because a county has the authority to amend the budget at the object level during the budgeting process, this necessarily means that a sheriff must also receive approval from a county if the sheriff wants to transfer funds between object levels after the budget has been approved.
The Sheriff argues that no such approval requirement is named in section 30.49, Florida Statues, which governs a sheriff’s budgeting process, and that under section 129.06, Florida Statutes, which applies to the county’s budgeting process, a sheriff is not required to seek approval from the county prior to transferring funds between object levels. The Sheriff further argues that a sheriff, as an independent constitutional officer, is elected directly by county electors, and is not intended to be beholden to the County in regards to its day-to-day operations in the manner the County suggests in this case. Any requirement that permits sheriffs to be micromanaged in their daily operations by their respective counties would undermine constitutional officer independence.
As the 2021 Florida Legislative Session nears its end, FACO is watching bills with potential impact on FACO members and their offices. The following bills have made this Session’s FACO top watch list:
Summary of Impact on County Constitutional Officers: This bill makes changes to the Code of Ethics for Public Officers and Employees (Code). The bill requires that local officers that must abstain from voting on a measure due to a conflict of interest disclose the conflict prior to participating in the measure. The bill also provides that contractual relationships held by a business entity are deemed to be held by the public officer or employee if a public officer of an agency holds a “material interest” in a business entity. Any contractual relationship that results in a recurring conflict between the public officer’s private interests and the performance of the officer’s public duties would be a violation of the Code. Under the bill’s annual ethics training requirements, each officer subject to the requirements must provide the training provider’s name on his or her annual financial disclosure form.
Chance of Passing: This bill passed in the House and was received in the Senate on April 20, 2021. It received unanimous support in its referenced committees in the House. It will be up to Senate leadership to determine if the Senate will hear the bill.
Remaining Committee Stops: None, now in the Senate.
Summary of Impact on County Constitutional Officers: This bill has gone through many changes over the course of the 2021 Session. The bill in its current state mainly addresses changes to collection of vote-by-mail ballots, in addition to new requirements for voter registration and stricter requirements (including civil penalties) for ballot drop-box locations. The parts of the bill that stand to affect constitutional officers include a new requirement that persons seeking to qualify for office as a candidate with no party affiliation shall state that they are not registered with a party, and have not been registered with a party in the last 365 days. Additionally, there are new requirements for locations that serve as early voting sites.
Chance of passing: This bill has a high chance of passing.
Remaining Committee Stops: None, this bill just passed out of the Rules Committee on 4/20/21, and was placed on the Special Order Calendar.
Summary of Impact on County Constitutional Officers: The bill closes the Florida Retirement System (FRS) pension plan to all new enrollees, thereby permitting enrollment only in the FRS investment plan for all new enrollees.
Chance of Passing: This bill has been passed by the Senate (24 yeas/16 nays). The House received the bill in Messages and has referred it to the State Affairs Committee and the Appropriations Committee. For now, there are only two State Affairs Committee meetings (4/15/21 and 4/19/21) and two Appropriations Committee meetings (4/16/21 and 4/22/21) left this Session. This bill was not put on the Agenda for 4/15, but FACO will continue to monitor it closely to see whether it will be placed in a remaining Agenda. Additionally, FACO will monitor any amendments proposing to import the content of this bill into another bill that may be more likely to pass.
Remaining Committee Stops: House State Affairs Committee, House Appropriations Committee.
Summary of Impact on County Constitutional Officers: Currently, general law provides for the recall of members of a governing body of a municipality or charter county through a recall process initiated by petition of the electors of the district. See § 100.361, Fla. Stat. This joint resolution, however, proposes an amendment to the State Constitution to allow the Florida Legislature to provide by general law for the recall of county constitutional officers and county commissioners.
Chance of Passing: To pass, this bill would need to be approved by the Public Integrity & Elections (PIE) Committee, as well as the State Affairs Committee, before it could get to the House floor for a vote. The last PIE meeting was 4/12/21, and also there is no Senate companion bill. This bill therefore has a low chance of making it out of its referenced committees, but FACO will monitor any amendments proposing to import the content of this bill into another bill that may be more likely to pass. Additionally, this is a joint resolution proposing an amendment to the State Constitution, which must be passed by three-fifths of the membership of each legislative chamber. Upon passage, the proposal would thereafter require a 60% voter approval for the proposed constitutional amendment to become law.
Remaining Committee Stops: House Public Integrity & Elections Committee, House State Affairs Committee.
The state's Ninth Judicial Circuit Court this week ordered that the 2016 Orange County charter amendments related to constitutional officers be stricken from the Orange County Charter, ending a series of legal cases that date back to 2014.
Wednesday's ruling stems from two charter amendments that were placed on the 2016 ballot by Orange County’s Charter Review Commission. The amendments, which passed, sought to abolish the independent offices of Clerk of Court, Property Appraiser, Sheriff, Supervisor of Elections, and Tax Collector and reconstitute them as charter offices subject to term limits and non-partisan elections.
The ruling concludes a years-long litigation between the county and its independently elected constitutional officers which also saw a nearly identical 2014 charter amendment ruled unconstitutional by the Florida Supreme Court earlier this year.
Following a Supreme Court ruling earlier this year that struck down nonpartisan elections for Orange County's constitutional officers, Miami-Dade officials will have to conduct the 2020 race for Clerk of Court on a partisan basis. That’s according to an August 7 memo from Miami-Dade’s County Attorney.
"Until state law is amended to permit the county constitutional office of Clerk of Courts to be elected on a non-partisan basis, Miami-Dade County should conduct the election for Clerk of Courts on a partisan basis," wrote County Attorney Abigail Price-Williams.
After a flurry of activity following the passage of Amendment 10, the parties in the Volusia County challenge to the amendment went to hearing earlier this year on cross-motions for summary judgment (MSJs) in Leon County Circuit Court.
The Intervenors in support of constitutional officers, including several statewide constitutional officer associations, argued that Volusia County was wrong in its interpretation of Amendment 10 as unlawfully retroactive or permitting a grandfather clause for charter counties with abolished or alternatively- elected constitutional officers. Volusia County argued it was right about both issues and should not be subject to Amendment 10.
At the end of the hearing, the Court denied Volusia County’s MSJ and granted Intervenors’ MSJ, upholding Amendment 10’s application to Volusia County.
The Takeaway
FACO attorney Gigi Rollini breaks down the major weakness in Volusia’s argument:
"If the interpretation aligned with what Volusia County was arguing, then Amendment 10 would have essentially resulted in no change for several charter counties," Rollini said. "This would be inconsistent with the ballot summary, which says it applies to all counties. If it did not apply to all counties, then the ballot summary – which was approved by the Supreme Court before the election – would have been misleading. The Florida Supreme Court soundly rejected that Amendment 10 was misleading in allowing Amendment 10 on the ballot."
What’s Next?
Volusia County appealed the trial court’s decision against it to Florida’s First District Court of Appeal, which has not yet decided the case but did reject Volusia County’s request to send the case to the Florida Supreme Court for faster decision. While awaiting the outcome of its appellate challenge, Volusia County officials are preparing to restructure their government to comply with Amendment 10. According to the Daytona Beach News-Journal, the county has assembled a task force to study the transition to independently elected constitutional offices.
Volusia County does not currently have a Tax Collector's office, and while the offices of Sheriff, Property Appraise, Clerk and Supervisor of Elections are elected positions, they are subordinate to the county under the current charter.
In another win for constitutional officer independence, on April 18, 2019, the Florida Supreme Court decided the legal battle over constitutional officer independence in Rick Singh, et al. v. Orange County in favor of Florida's constitutional officers.
The case stemmed from a charter amendment placed on the 2014 general election ballot by the Orange County Commission to impact how each of Orange County's constitutional officers would be elected. The amendment, which passed, attempted to subject Orange County constitutional officers to term limits and mandate that they be elected in non-partisan elections under a county-created non-partisan election process.
After lengthy briefing and oral argument, the Florida Supreme Court struck down the non-partisan elections provision in Orange County's charter. Florida's highest court held that Article VI, section 1 of the Florida Constitution requires elections to be "regulated by law," meaning a statute enacted by the statewide Legislature, not a county through a charter amendment. Because Florida law requires elections of Florida's constitutional officers to be done on a partisan basis, and because only the Florida Legislature can pass a law governing such elections, Orange County had no legal authority to "legislate" something different in its charter.
This case protects Florida's constitutional officers on a statewide basis, and ensures that all of Florida's voters will have the right to elect their constitutional officers in accordance with Florida law. Importantly, it also ensures that voters will be given all of the information about each candidate for constitutional office that Florida law requires, even those running in a charter county.
The Florida Supreme Court's decision became final on May 15, 2019, and was immediately effective across Florida.
On March 20, 2019, the Leon County Circuit Court rejected Volusia County's second challenge to Amendment 10 to Florida's Constitution, which voters soundly approved in the November 2018 election. This amendment to the Florida Constitution guarantees that voters will determine for themselves who will serve as their sheriff, clerk of court, property appraiser, tax collector and supervisor of elections (Florida's "county constitutional officers"), and ensures that constitutional offices report directly to the people they serve.
While Volusia County has since taken appeal to Florida's First District Court of Appeal in Tallahassee, Florida, that court rejected the County's requests to send the case directly to the Florida Supreme Court.
Given the timing for Amendment 10 compliance, it is unlikely to be decided prior to wholesale adoption and implementation of the measure.
Volusia County previously challenged Amendment 10's placement on the 2018 election ballot, which challenge was also rejected by the Florida Supreme Court.
On November 6, 2018, voters soundly approved an amendment to the Florida Constitution to guarantee that voters will determine for themselves who will serve as their sheriff, clerk of court, property appraiser, tax collector and supervisor of elections (Florida's "county constitutional officers"). This measure ensures constitutional offices report directly to the people they serve.
This constitutional amendment (Amendment 10, also referred to as the "Protection Amendment") ensures that all constitutional officers in each county are elected, starting with Florida's 2020 elections. The amendment also prohibits a county, including through its charter, from appointing these positions instead of electing them; abolishing the constitutional officer positions altogether; or changing their duties or terms from those established by law.
To amend the Florida Constitution, the amendment must receive approval of 60% of voters in a statewide election. This constitutional amendment was soundly approved with 63.2% of the vote – several points more than what was required to pass.
Amendment 10 immediately became part of Florida's Constitution upon its passage.
The legal battle over constitutional officer independence is now in the Florida Supreme Court. The Court agreed to accept jurisdiction of the case, Orange County v. Demings, et al., which stems from a charter amendment placed on the 2014 general election ballot. The amendment, which passed, subjects Orange County Constitutional Officers to term limits and mandates that they be elected in non-partisan elections under a county-created non-partisan election process.
In December 2017, the Fifth District Court of Appeal upheld a circuit court's ruling, striking the non-partisan elections provision and holding that Article VI, section 1 of the Florida Constitution requires elections to be "regulated by law"—meaning a statute enacted by the Legislature, not a county through a charter amendment.
The oral arguments date has not yet been set.
The Constitutional Revision Commission's (CRC) Style & Drafting Committee approved ballot summary language for Proposal 13 (P. 13), which would mandate that all county constitutional officers—whether they be charter or non-charter—be elected by the voters of their county.
The approved summary language for P. 13 reads: "Ensures election of sheriffs, property appraisers, supervisors of elections, tax collectors, and clerks of court in all counties; removes ability of charter counties to abolish, change the term, transfer the duties, or eliminate the election of the office.
The Style & Drafting Committee also grouped P. 13 with three other proposals, which now head back to the full CRC for final consideration. The group, titled Government Structure and Operation, includes:
P. 9 - Department of Veterans' Affairs
P. 26 - Office of Domestic Security and Counter-terrorism
P. 13 - Election of County Officers
P. 103 - Sessions of the Legislature
The Government Structure and Operation group, including P. 13, will now go to the full CRC for final consideration of placement on the November ballot.
The full CRC will meet next on Monday, April 16. Learn more and watch the proceedings here .
In a win for county constitutional officer independence, Florida's Fifth District Court of Appeal confirmed that the Orange County Board of County Commissioners does not have the legal authority to require or regulate non-partisan elections for Orange County's constitutional officers.
The case, Orange County v. Demings, et al., stems from a charter amendment the Orange County BoCC placed on the 2014 general election ballot. The amendment, which passed, provides for county constitutional officers to be elected in non-partisan elections and subject to term limits of four consecutive 4-year terms.
After the 2014 election, the circuit court struck down the non-partisan elections provision, concluding that the authority to regulate the method and timing of elections for county constitutional officers was preempted to the State. Orange County appealed that decision, which sent the case to the Fifth District Court of Appeal. The Fifth District upheld the circuit court's striking of the non-partisan elections provision, holding that Article VI, section 1 of the Florida Constitution requires elections to be "regulated by law"—meaning a statute enacted by the Legislature, not a county through a charter amendment.
The appellate court's decision has been issued, but will not be final until the time expires to file a motion for rehearing. The deadline for Orange County to seek rehearing is December 26, 2017.
The Constitutional Revision Commission's (CRC) Ethics and Elections Committee approved a measure (Proposal # P-13) that would mandate that all county constitutional officers – Clerk of the Circuit Court, Property Appraiser, Sheriff, Supervisor of Elections and Tax Collector – be elected by the voters of their own county. The proposal would also prohibit counties, whether charter or non-charter, from abolishing, transferring the duties of, or establishing any other means for selecting constitutional officers.
Currently eight charter counties have either changed the manner of selection of, abolished, restructured or transferred the duties of at least one of its constitutional officers. Those counties are Brevard, Broward, Clay, Duval, Miami-Dade, Orange, Osceola, and Volusia.
The proposal will now go before the full CRC for consideration.
What happens if the proposal is adopted by the CRC?
If adopted, the proposed amendment will be submitted to voters to decide on the November 6, 2018 general election ballot. If the amendment is approved by 60% of voters, all county constitutional officers, from the 2020 general election forward, will be elected by voters. The counties of Brevard, Broward, Clay, Duval, Miami-Dade, Orange, Osceola, and Volusia will be required to revise their charter accordingly.
In Florida Ass'n for Constitutional Officers v. Orange County, Florida, currently pending in Florida's Ninth Judicial Circuit Court, the Association has defeated the County's Motion to Dismiss its suit challenging county charter amendments approved by voters in the 2016 election. Those 2016 charter amendments, which were recommended by the county's Charter Review Commission, seek to abolish the independent county constitutional officers and turn them into charter officers, in order to subject them to the non-partisan elections.
© 2020 Politics. All Rights Reserved