Can a part-time police officer in Florida also work as a child protective investigator?

Subject

Dual Office-Holding -- Child Protective Investigator

Plain-English summary

A Jacksonville woman who worked part time as a municipal police officer applied to also work as a child protective investigator for the Department of Children and Families. The department denied the dual-employment request, and she asked the AG whether holding both jobs would violate Florida's constitutional dual office-holding prohibition in Article II, section 5(a). The AG offered general observations but declined to second-guess the agency's administrative decision applying its own dual-employment policy.

On the constitutional question, two points drove the analysis. First, the office had long held that a police officer who receives pay, whether full or part time, holds an "office" for dual office-holding purposes. Second, the test for an "office" is whether the law delegates a portion of the sovereign power to the person, as opposed to a contractual job. The Florida Supreme Court's definition (from State ex rel. Holloway v. Sheats) ties "office" to tenure, duration, and the exercise of some portion of sovereign power conferred by law.

The AG looked at what a child protective investigator does. Section 39.01(62) defines a protective investigator as a department agent who investigates reports of abuse, abandonment, or neglect and may recommend a dependency petition. Critically, the job can include removing a child from the home and taking the child into protective custody, which is the state exercising its sovereign power as parens patriae, its authority to protect those who cannot protect themselves. Because that power is delegated by law rather than by contract, the AG concluded that a child protective investigator position "would appear to create an office" subject to the dual office-holding ban. The clear implication: a paid part-time police officer holding that investigator office at the same time would run into Article II, section 5(a). But the AG framed these as informal comments and left the agency's denial undisturbed.

Currency note

This opinion was issued in 2013. 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.

Common questions

Can a paid part-time police officer also be a child protective investigator?
The AG indicated both positions appear to be "offices" exercising sovereign power, so holding them at once would appear to violate Article II, section 5(a). The office gave general comments rather than a binding ruling.

Why is a child protective investigator an "office"?
Because the investigator can remove children from their homes and take them into protective custody, exercising the state's sovereign parens patriae power delegated by law, not by contract. That is what makes a position an office under the dual office-holding test.

Is a part-time police officer an "officer" too?
Yes. The AG reaffirmed that a police officer who receives remuneration, full or part time, holds an office for dual office-holding purposes.

Did the AG overturn the department's denial?
No. The AG expressly declined to comment on the Department of Children and Families' administrative decision applying its dual-employment policy, offering only general constitutional observations.

Background and statutory framework

Article II, section 5(a) of the Florida Constitution prohibits a person from simultaneously holding more than one office in state, county, and municipal government, and it applies to both elected and appointed offices. Whether a position is an "office" turns on the delegation of a portion of the sovereign power conferred by law, the standard stated in State ex rel. Holloway v. Sheats.

Section 39.01(62) defines a protective investigator, and section 39.301(14)(b) authorizes taking a child into protective custody when protection is needed and refused. The AG framed that authority as an exercise of the state's parens patriae power, citing Hermanson v. State for the state's responsibility to intervene to protect a child's life.

Citations

• section 5(a), Article II, State Constitution
• section 39.01(62), Florida Statutes
• section 39.301(14)(b), Florida Statutes
• State ex rel. Holloway v. Sheats, 83 So. 508, 509 (Fla. 1919)
• Hermanson v. State, 570 So. 2d 322 (Fla. 2d DCA 1990)

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/dual-office-holding-child-protective-investigator
• Original PDF: https://www.myfloridalegal.com/print/pdf/node/8107

Original opinion text

Ms. Debra Coppola

12668 Willow Springs Court

Jacksonville, Florida 32246

Dear Ms. Coppola:

Thank you for considering this office as a source for assistance in determining whether your employment as a part-time municipal police officer and as a child protective investigator would violate the dual office holding prohibition in section 5(a), Article II, State Constitution. The materials you have provided indicate that your application for dual employment as a child protective investigator and a part-time municipal police officer has been denied by the Department of Children and Family Services. While this office may offer general observations about the constitutional dual office holding prohibition, we will not comment upon the administrative decision of an agency in applying its policy governing dual employment.

You acknowledge and this office has previously determined that a police officer, whether full-time or part-time, who receives remuneration would be an officer for purposes of the prohibition.[1] The materials you have provided indicate that the Department of Children and Families has taken the position that a child protective investigator with the authority to remove children from their homes exercises a portion of the sovereign power of the state and, therefore, is an office for purposes of the constitutional prohibition against dual office holding.

Section 5(a), Article II, State Constitution, provides:

"No person holding any office of emolument under any foreign government, or civil office of emolument under the United States or any other state, shall hold any office of honor or of emolument under the government of this state. No person shall hold at the same time more than one office under the government of the state and the counties and municipalities therein, except that a notary public or military officer may hold another office, and any officer may be a member of a constitution revision commission, taxation and budget reform commission, constitutional convention, or statutory body having only advisory powers."

This constitutional provision prohibits a person from simultaneously holding more than one "office" under the government of the state, counties and municipalities. The prohibition applies to both elected and appointed offices.[2] While the term "office" is not defined by the Florida Constitution for purposes of the dual office holding prohibition, The Supreme Court of Florida has stated:

"The term 'office' implies a delegation of a portion of the sovereign power to, and the possession of it by, the person filling the office . . . . The term 'office' embraces the idea of tenure, duration, and duties in exercising some portion of the sovereign power, conferred or defined by law and not by contract."[3]

Thus, in order to have an office, for purposes of the dual office holding prohibition, there would have to be a delegation of a portion of the sovereign power by law "and not by contract." You have provided a copy of the job description for a child protective investigator, which indicates that such a position may "[r]emove children from their homes in cases of severe of [sic] egregious abuse."[4] Section 39.01(62), Florida Statutes, defines "[p]rotective investigator" as:

"an authorized agent of the department who receives and investigates reports of child abuse, abandonment, or neglect; who, as a result of the investigation, may recommend that a dependency petition be filed for the child; and who performs other duties necessary to carry out the required actions of the protective investigation function."

A review of the statutes governing protective investigations shows that in the event a child protective investigator, acting as the agent for DCF, determines that a child requires immediate or long-term protection and such services are refused by the parents or legal custodians of the child, the child may be taken into protective custody.[5]

The state, exercising its sovereign power as parens patriae,[6] has the responsibility to intervene between parent and child when there is demonstrated physical harm occurring to the child that puts a reasonable person on notice that medical intervention is necessary for the sake of the child's life.[7] A delegation of this sovereign power to act as parens patriae would appear to create an office subject to the dual office holding prohibition in section 5(a), Article II, State Constitution.

I trust these informal comments will be of assistance to you in resolving your question.

Sincerely,

Lagran Saunders

Assistant Attorney General

ALS/t

[1] See also Op. Att’y Gen. Fla. 90-15 (1990) (part-time police officer may not also serve as a full-time police officer in another jurisdiction when he or she receives remuneration for both positions without violating dual office holding prohibition).

[2] See Ops. Att'y Gen. Fla. 69-2 (1969) and 80-97 (1980).

[3] See State ex rel. Holloway v. Sheats, 83 So. 508, 509 (Fla. 1919).

[4] People First, Occupation Profile for Child Protective Investigator, Position Number 60050920-51148240, Closing Date 10/15/2013.

[5] See s. 39.301(14)(b), Fla. Stat. See also Rule 65C-29.003(5)(a)1., Fla. Admin. C., governing child protective investigations where an investigator is to develop a safety plan which may include taking the child into custody.

[6] Black’s Law Dictionary (8th Ed. 2004), p. 1144, parens patriae: "The state regarded as a sovereign; the state in its capacity as provider of protection to those unable to care for themselves."

[7] Hermanson v. State, 570 So. 2d 322 (Fla. 2d DCA 1990).