Does abolishing appointed city officers change a Florida city's 'form of government' so a referendum is required?

Plain-English summary

The Fort Walton Beach City Attorney had received an earlier informal opinion about proposed changes to the city charter and wrote back with more detail, asking whether the additional information changed the office's conclusion. The planned change was to abolish two appointive officers (a director of finance and a recorder) and the departments they headed. The question was whether that change would alter the city's "form of government" so that a referendum would be required. Assistant Attorney General Joslyn Wilson explained that, on the information provided, it probably would not.

The analysis came from a 1977 opinion (AGO 77-135) interpreting section 166.021(4). Under that reading, "form of government" means one of the basic organizational forms, and the referendum requirement is triggered only when a city moves from one basic form to another, such as from a strong-mayor form to a city-manager form. A single change might not do that, but several changes made at once could together shift powers enough to amount to a change in form. Abolishing two appointed positions would not necessarily change the basic form of government. The office stopped short of a firm yes, because it did not know how the abolished officers' functions would be reassigned, or whether either officer served on an appointive board, which could implicate the separate "appointive board" language in section 166.021(4). As long as the change did not reallocate the basic policymaking and administrative functions of city government, the form-of-government provision would not appear to be implicated.

Currency note

This opinion was issued in 2008. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

Section 166.021(4) lists changes to a pre-July 1, 1973 charter provision that require referendum approval, including any change in the form of government and matters relating to appointive boards. The 1977 opinion quoted in the letter defines "form of government" narrowly: it refers to a basic organizational form, and the referendum requirement is not invoked unless the city changes from one basic form to another. The opinion cautioned that any contemplated change to a provision in existence on July 1, 1973 should be examined for its effect on the basic form, and that a bundle of individually minor changes made together could effect a transfer of powers substantial enough to count as a change in form.

Applying that, abolishing two appointive officers and their departments did not necessarily change the basic form of government. The office flagged two open factual points: how the functions previously performed by those officers (who were appointed by the city council, not the city manager) would be handled going forward, and whether either officer sat on an appointive board, which could trigger the appointive-board language. Absent a change in the allocation of the basic policymaking and administrative functions, section 166.021(4)'s form-of-government provision would not appear to be implicated, and the change would not require a referendum on that basis.

Common questions

Q: Does dropping appointed officers from a Florida charter require a referendum?
A: Not necessarily. The opinion said abolishing two appointed positions would not by itself change the basic form of government, which is the trigger for a referendum under section 166.021(4).

Q: What counts as a change in "form of government"?
A: Per the 1977 opinion, a move from one basic organizational form to another, like strong-mayor to city-manager. A referendum is not required unless that kind of shift occurs.

Q: Can several small charter changes add up to a referendum requirement?
A: Yes. The opinion warned that a number of changes made at the same time could together transfer powers substantially enough to change the form of government and require a referendum.

Q: Why couldn't the AG give a definite answer?
A: The office did not know how the abolished officers' functions would be reassigned or whether they served on appointive boards, both of which could affect whether section 166.021(4) is implicated.

Citations and references

Statutes:

• s. 166.021(4), Fla. Stat. (referendum required for changes to a city's form of government and appointive-board matters)

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/city-charter-form-of-government
• Original PDF: https://www.myfloridalegal.com/print/pdf/node/8236

Original opinion text

Ms. Toni L. Craig

Fort Walton Beach City Attorney

908 Pineview Boulevard

Fort Walton Beach, Florida 32547

Dear Ms. Craig:

The Office of Attorney General Bill McCollum has received your letter of December 9, 2008, including the changes to be made to the city charter and asking whether such information would change the conclusion made in this office's informal opinion issued December 9, 2008.

The informal opinion quotes Attorney General Opinion 77-135 which stated that the term "form of government," as used in section 166.021(4), Florida Statutes,

"was intended to refer to one of the basic organizational forms as exemplified in the above quotation and that the referendum requirement regarding changes in the form of government is not invoked unless there is a change from one basic form to another (e.g., from strong mayor form to city manager form). Thus, any contemplated change in a charter provision which was in existence on July 1, 1973, should be examined in the context of its effect on the basic form of government under which the municipality operates and should be considered in light of other changes which might be made at the same time. (Even though none of a number of changes--when considered alone--would constitute an actual change in the basic form of organization and overall distribution of powers, a number of such changes, when made at the same time and considered together, could effect a transfer of powers so substantial as to have the effect of changing the municipality's 'form of government,' thereby requiring a referendum.)."

The abolishment of two appointive officers and the departments such officers headed would not necessarily appear to constitute a change in the basic form of government of the city. However, it is not clear from the information provided to this office how the functions previously handled by such officers, who were appointed by the city council, not the city manager, and departments would now be handled. Nor is this office been advised as to whether under the charter either the director of finance or the recorder served on any appointive boards so as to implicate the provisions of section 166.021(4), Florida Statutes, relating to "matters prescribed by the charter relating to appointive board." To the extent, however, that the abolishment of the positions and departments does not contemplate a change in the allocation of the basic policymaking and administrative functions of municipal government, the provisions of section 166.021(4), Florida Statutes, relating to changes in the "form of government" would not appear to be implicated.

I hope that the above informal comments may be of assistance to you in resolving this matter.

Sincerely,

Joslyn Wilson

Assistant Attorney General

JW/t