Can a Florida county commissioner take part in hiring county employees, or does the county administrator hold that power?

Subject

County Administration Law of 1974

Plain-English summary

The Escambia County Attorney asked several questions about a county commissioner's role in hiring an Equestrian Center manager: whether the County Administration Law of 1974 limits a commissioner's part in hiring or removing employees under the commission's jurisdiction, whether the commissioner's recommendation to staff unduly influenced the selection, and whether the board's broad powers let an individual commissioner take part in filling a vacancy. The Attorney General's office gave informal comments and declined the parts that turned on facts or local codes.

On the law, Part III of Chapter 125, the County Administration Law of 1974, gives a non-charter county that adopts it a county administrator who is the administrative head of county government. Among the administrator's enumerated powers, the administrator is to "[s]elect, employ, and supervise all personnel and fill all vacancies, positions, or employment under the jurisdiction of the board," though hiring department heads requires board confirmation. Escambia County had adopted Part III. So the responsibility for hiring personnel under the board's jurisdiction sits with the administrator, and, except for department heads, the act does not prescribe a role for the commission or individual commissioners in those hiring decisions. Whether a particular commissioner's recommendation amounted to undue influence or violated the administrator's procedures was a mixed question of law and fact the office said it could not resolve.

Currency note

This opinion was issued in 2011. 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

Part III of Chapter 125, Florida Statutes, is the County Administration Law of 1974 (short title in section 125.70). It offers a form of county administration that any non-charter county may adopt by ordinance (section 125.72). Its stated purpose (section 125.71) is to place the day-to-day details of running the county in a county administrator's hands so the board of county commissioners can focus on making policy. A county that adopts it must appoint a county administrator who is the administrative head of the county, responsible for administering the departments the board has authority to control (section 125.73(1); the opinion cited Alachua County v. Powers for the limit that the administrator runs only those departments the board can control).

Section 125.74(1) lists the administrator's powers and duties, including, in paragraph (k), the power to select, employ, and supervise all personnel and fill all vacancies and positions under the board's jurisdiction, with department-head hires subject to board confirmation. Section 125.74(2) makes clear these are administrative or ministerial powers only and do not delegate the board's governmental power under Article VIII, section 1(e) of the Florida Constitution; in any exercise of governmental power, the administrator only advises the board. Escambia County had adopted Part III. From this, the office concluded the act assigns hiring of personnel under the board's jurisdiction to the administrator and, apart from department-head confirmation, gives the commission and its individual members no prescribed role in those hires. The office pointed to Albritton v. Gandy, where an Escambia commissioner who told the acting administrator he preferred an employee no longer work for the county was held not to be exercising an official duty, since hiring and firing rested with the administrator under section 125.74. Whether the commissioner's recommendation here was undue influence was a mixed law-and-fact question the office did not answer.

Common questions

Who hires county employees under the County Administration Law of 1974?
The county administrator. In a non-charter county that adopted Part III of Chapter 125, the administrator selects, employs, and supervises personnel and fills vacancies under the board's jurisdiction. Department-head hires require board confirmation.

Does an individual commissioner have a role in hiring staff?
Except for confirming department heads, the act does not prescribe a role for the commission or individual commissioners in hiring employees under the board's jurisdiction. That responsibility belongs to the administrator.

Did the AG decide whether the commissioner unduly influenced the hire?
No. The office said whether a commissioner's recommendation amounted to undue influence or violated the administrator's procedures was a mixed question of law and fact it could not resolve, and that questions of local code interpretation go to the local government's attorney.

Can the board's broad powers override the administrator's hiring authority?
The opinion treated hiring of personnel under the board's jurisdiction as the administrator's statutory responsibility, with the administrator's enumerated powers being administrative in nature and the board's governmental power preserved. It did not read the board's general powers as giving individual commissioners a hiring role for non-department-head positions.

Citations and references

• Part III, Ch. 125, Fla. Stat. (County Administration Law of 1974); s. 125.70 (short title); s. 125.71 (purpose); s. 125.72 (adoption by ordinance)
• s. 125.73(1), Fla. Stat. (county administrator as administrative head)
• s. 125.74(1)(k), Fla. Stat. (select, employ, supervise personnel; department heads need board confirmation)
• s. 125.74(2), Fla. Stat. (administrative or ministerial powers only); s. 1(e), Art. VIII, Fla. Const.
• Alachua County v. Powers, 351 So. 2d 32 (Fla. 1977)
• Peters v. Hansen, 157 So. 2d 103 (Fla. 2d DCA 1963)
• Albritton v. Gandy, 531 So. 2d 381 (Fla. 1st DCA 1988)

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/county-administration-law-of-1974
• Original PDF: https://www.myfloridalegal.com/print/pdf/node/8149

Original opinion text

Ms. Alison Rogers

Escambia County Attorney

221 Palafox Place, Suite 430

Pensacola, Florida 32502

Dear Ms. Rogers:

On behalf of the Escambia County Commission, you ask several questions relating to the propriety of actions taken by a county commissioner regarding the hiring of an Equestrian Center manager.[1]

Specifically, you ask whether the County Administration Law of 1974 limits the extent and nature of a county commissioner's participation in the hiring or removal of an employee under the jurisdiction of the county commission. You also ask whether the commissioner's recommendation to county staff unduly influenced the selection process and whether the broad powers granted to the county commission permits the board or an individual commissioner to make recommendations for, and participate in, the hiring of an individual for a vacant position.

Attorney General Opinions are intended to address questions of law, not questions of fact or mixed questions of law and fact. Moreover, as discussed in this office's statement concerning Attorney General Opinions, opinions generally are not issued on questions requiring an interpretation only of local codes, ordinances or charters rather than the provisions of state law, but are generally referred to the attorney for the local government in question.

In light of the above, the following informal comments are offered in an effort to be of assistance. Part III, Chapter 125, Florida Statutes, the "County Administration Law of 1974"[2] provides a form of county administration for those non-charter counties adopting its terms.[3] Under the law, a non-charter county which has elected to adopt Part III of Chapter 125 "shall appoint a county administrator, who shall be the administrative head of the county and shall be responsible for the administration of all departments of the county government which the board of county commissioners has authority to control pursuant to this act, the general laws of Florida, or other applicable legislation."[4] The purpose of the County Administrator Law is to

"authorize a form of county administration that best assures an adequate and efficient provision of services to the citizens in this state, that provides for coordinated administration of county departments to better protect the health, welfare, safety, and quality of life of the residents in each of the more urbanized counties, and that places in the hands of a county administrator the multitude of details which must necessarily arise from the operation of a county as a unit of local government and, thus, enables the board of county commissioners to perform freely, without unnecessary interruption, its fundamental intended purpose of making policies within the framework of law applicable to county government in this state. It is the further legislative intent to provide a formula and structure for the economic and efficient conduct of county affairs by making the county administrator established by this act responsible for handling of all things necessary to accomplish and bring to fruition the policies established by the board of county commissioners."[5]

It appears that Escambia County has adopted the provisions of Part III, Chapter 125, Florida Statutes.[6]

Section 125.74(1), Florida Statutes, enumerates specific powers and duties which the county administrator possesses.[7] The county administrator, when appointed, is given the power and duty, among others, to "[s]elect, employ, and supervise all personnel and fill all vacancies, positions, or employment under the jurisdiction of the board" although the employment of all department heads requires confirmation by the board of county commissioners.[8] (e.s.)

Thus, for non-charter counties which have adopted its terms, Part III, Chapter 125, Florida Statutes, imposes the responsibility of hiring personnel under the jurisdiction of the board of county commissioners on the county administrator.[9] With the exception of the hiring of department heads which require the confirmation of the county commission, however, the act does not prescribe a role for the county commission, or individual members of the commission, in the hiring of such individuals.[10] Whether the actions of a county commissioner in making a recommendation constitutes undue influence or violates the procedures adopted by the administrator in carrying out his or her statutory functions involves mixed questions of law and fact that this office cannot resolve.

I trust that the above informal comments may be of some assistance to the county in resolving these issues.

Sincerely,

Joslyn Wilson

Assistant Attorney General

JW/tsh

[1] From the documents attached to your letter, it appears that the individual was offered, and accepted an "at will" unclassified position as Equestrian Center Marketing & Promotions Coordinator.

[2] See s. 125.70, Fla. Stat.

[3] See s. 125.72, Fla. Stat., stating "[t]he provisions of this part may apply to any county in this state which has not adopted a charter form of county government upon passage of a county ordinance by the governing body of such county expressly adopting this part." (e.s.)

[4] Section 125.73(1), Fla. Stat. And see Alachua County v. Powers, 351 So. 2d 32 (Fla. 1977), holding that the county administrator is responsible for the administration of only those departments of the county which the board has the authority to control.

[5] Section 125.71, Fla. Stat.

[6] See s. 2-81, Escambia County Code.

[7] Such enumeration of powers, however, does not constitute a limitation on an administrator's administrative powers provided those powers and duties which are administrative or ministerial in nature. See s. 125.74(2), Fla. Stat., stating that it is the Legislature's intent to:

"grant to the county administrator only those powers and duties which are administrative or ministerial in nature and not to delegate any governmental power imbued in the board of county commissioners as the governing body of the county pursuant to s. 1(e), Art. VIII of the State Constitution. To that end, the above specifically enumerated powers are to be construed as administrative in nature, and in any exercise of governmental power the administrator shall only be performing the duty of advising the board of county commissioners in its role as the policy-setting governing body of the county."

[8] Section 125.74(1)(k), Fla. Stat. And see s. 2-84(9), Escambia County Code.

[9] Cf. Peters v. Hansen, 157 So. 2d 103 (Fla. 2d DCA 1963) (where a public officer is charged by law with a specific duty, and the means by which the duty is to be accomplished are not specially provided for, the public officer has the implied power to use such means as are reasonably necessary to the successful performance of the required duty); In re Advisory Opinion to the Governor, 60 So. 2d 285 (Fla. 1952).

[10] See generally Albritton v. Gandy, 531 So. 2d 381 (Fla. 1st DCA 1988), in which a former county employee brought an action against an Escambia County commissioner for tortuously interfering with her employment with the county. The commissioner had advised the acting county administrator that he would prefer that the employee no longer work for the county. The court concluded that as the county administrator was responsible for the hiring and firing of such personnel under s. 125.74, Fla. Stat., the county commissioner in making such comments was not exercising an official duty and thus was not protected by absolute immunity. Moreover, as the administrator, not the county commissioner, was responsible for hiring and firing county employees, the commissioner was not a party to the employment relationship and thus an action for tortuous interference could be filed against the commissioner. Id. at 387-388.