Can a Florida railroad 'special officer' also serve as an unpaid reserve deputy sheriff without violating the dual office-holding ban?

Plain-English summary

Florida's Constitution bars one person from holding two government offices at the same time. The question here was whether a "special officer for a carrier," the kind of railroad police officer appointed under Chapter 354, counts as a government office that the ban reaches, and if so, whether that person could still volunteer as an unpaid reserve deputy sheriff. The lawyer for Clifford Webster, a 17-year Brevard County deputy who had moved to the Florida East Coast Railway Police Department, asked Attorney General Pam Bondi.

The AG worked through it in two steps. First, a special officer for a carrier is an "office" for dual office-holding purposes: such officers are commissioned by the Governor, serve a term, must meet law enforcement qualifications, have the power to make arrests on the carrier's property under the same conditions as deputy sheriffs, and may carry firearms. Those sovereign powers, not pay or certification status, are what make a position an office. Second, though, the Florida Supreme Court recognized a narrow exception in Vinales v. State (followed in Rampil v. State): when a law enforcement officer takes on additional law enforcement duties on a temporary basis and for no extra pay, the person is not treated as holding two offices. Because Webster's reserve role would be law enforcement work performed without remuneration, the AG concluded it fit that exception, so he could serve as both a railroad special officer and an unpaid reserve deputy sheriff without violating Article II, section 5(a).

Currency note

This opinion was issued in 2012. 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.

Chapter 354 and the dual office-holding case law have continued to develop since 2012. The Vinales/Rampil exception is narrow and fact-specific (it turns on the no-pay, law-enforcement-to-law-enforcement nature of the second role). Confirm current authority before relying on this analysis.

Common questions

Q: Is a railroad special officer a government "officer" in Florida?
A: For dual office-holding purposes, yes. The AG concluded these officers exercise sovereign power: they are commissioned by the Governor, serve a term, can make arrests, and may carry firearms, which is what defines an office, regardless of who pays them.

Q: Why didn't holding both positions violate the ban?
A: Because of the Vinales/Rampil exception. The AG read that exception to allow a law enforcement officer to perform additional law enforcement duties for no extra pay without being treated as holding two offices. The unpaid reserve deputy role fit that pattern.

Q: Would the answer change if the reserve position were paid?
A: The exception the AG relied on depends on the additional duties being unpaid. Pay for the second role would take it outside that exception, which is why the opinion stressed the reserve service was without remuneration.

Q: Does the exception cover any second government job?
A: No. The AG noted the exception applies only when both positions relate to criminal investigation or prosecution, not to a seat on an unrelated board or an administrative post. Prior opinions held it did not let a police chief also serve as acting city manager.

Background and statutory framework

Chapter 354 provides for special officers employed by railroads and other common carriers to protect the carrier's employees, passengers, freight, equipment, and property. Section 354.01 has the Governor appoint them and requires law enforcement qualifications, and section 354.02 gives them arrest powers on the carrier's property "under the same conditions under which deputy sheriffs may by law make arrests" and authority to carry weapons. The carrier pays them; they draw no salary from the state or a county.

Article II, section 5(a) of the Florida Constitution prohibits holding more than one state, county, or municipal office at once, subject to narrow exceptions. The courts define "office" by the exercise of sovereign power (State ex rel. Holloway v. Sheats, 83 So. 508 (Fla. 1919)), and have long treated law enforcement officers as officers because of their arrest and firearm powers (Curry v. Hammond, 16 So. 2d 523 (Fla. 1944); Maudsley v. City of North Lauderdale, 300 So. 2d 304 (Fla. 4th DCA 1974)). The limited exception comes from Vinales v. State, 394 So. 2d 993 (Fla. 1981), and Rampil v. State, 422 So. 2d 867 (Fla. 2d DCA 1982), both involving unpaid additional law enforcement duties.

Citations and references

Constitution and statutes:

• Art. II, s. 5(a), Fla. Const. (dual office-holding prohibition)
• Ch. 354, Fla. Stat. (special officers for carriers)
• s. 354.01, Fla. Stat. (gubernatorial appointment; qualifications)
• s. 354.02, Fla. Stat. (arrest powers and authority to carry weapons)

Cases:

• State ex rel. Holloway v. Sheats, 83 So. 508 (Fla. 1919), defines "office" by sovereign power
• Curry v. Hammond, 16 So. 2d 523 (Fla. 1944), police officer is an "officer"
• Maudsley v. City of North Lauderdale, 300 So. 2d 304 (Fla. 4th DCA 1974), arrest and firearm powers define the office
• Vinales v. State, 394 So. 2d 993 (Fla. 1981), unpaid additional law enforcement duties exception
• Rampil v. State, 422 So. 2d 867 (Fla. 2d DCA 1982), applying the Vinales exception to an unpaid deputy sheriff role

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/dual-office-holding-railroad-special-officer
• Original PDF: https://www.myfloridalegal.com/print/pdf/node/1624

Original opinion text

Mr. George Gingo

Gingo & Orth

2215 Garden Street

Suite B

Titusville, Florida 32796

RE: DUAL OFFICE-HOLDING – SPECIAL OFFICERS FOR CARRIERS – RAILROADS – RESERVE OFFICERS – LAW ENFORCEMENT OFFICERS – special officer for railroad simultaneously serving as reserve officer without pay for local law enforcement agency. Art. II, s. 5(a), Fla. Const.; Ch. 354, Fla. Stat.

Dear Mr. Gingo:

On behalf of your client, Mr. Clifford Webster, you have asked for my opinion on substantially the following question:

Whether a special officer for a carrier under Chapter 354, Florida Statutes, may serve simultaneously as an unpaid reserve deputy sheriff without violating the Florida constitutional prohibition against dual office-holding?

In sum:

A special officer for a carrier under Chapter 354, Florida Statutes, may serve simultaneously as an unpaid reserve deputy sheriff without violating the Florida constitutional prohibition against dual office-holding expressed in Article II, section 5(a), Florida Constitution.

According to your letter, Mr. Webster has been a Brevard County deputy sheriff for the past 17 years and recently left the sheriff's office to take a position as a special officer for the Florida East Coast Railway Police Department. As described in section 354.01, Florida Statutes, Mr. Webster is a special officer for a carrier appointed by the Governor. Mr. Webster is considering volunteering his time with a local law enforcement agency as a reserve officer without remuneration, but is concerned that the Florida constitutional prohibition against dual office-holding could preclude his service in both positions. You have asked for my assistance in determining whether Mr. Webster may lawfully serve simultaneously in both capacities.

Chapter 354, Florida Statutes, provides for the appointment of special officers employed by railroads and other common carriers for the protection of the carrier's employees, passengers, freight, equipment, and properties.[1] Appointments of special officers for carriers are made by the Governor, and applicants are required to meet specified law enforcement qualifications.[2] While special officers are required to meet the standards of a certified law enforcement officer in order to be commissioned, certification is not granted to these officers.[3] Section 354.02, Florida Statutes, provides for the powers of such special officers:

"Each special officer shall have and exercise throughout every county in which the common carrier for which he or she was appointed, shall do business, operate, or own property, the power to make arrests for violation of law on the property of such common carrier, and to arrest persons, whether on or off such carrier's property, violating any law on such carrier's property, under the same conditions under which deputy sheriffs may by law make arrests, and shall have authority to carry weapons for the reasonable purpose of their offices."

These officers are required to provide a surety bond to the Governor for the faithful performance of their duties.[4] The statutes prescribe a term of office for special officers and they may be removed by the Governor at any time.[5] Compensation for special officers is paid by the carrier and they receive no fees or salary from the state or any county.[6] Your question requires a determination of whether this position constitutes an "office" for purposes of Florida's dual office-holding prohibition.

Article II, section 5(a) of the Florida Constitution, provides in pertinent part:

"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 serving in more than one "office" under the governments of the state, counties, or municipalities. This office has concluded that the constitutional prohibition applies to both elected and appointed offices.[7] While the Constitution does not define the term "office," the courts have stated that the term "implies a delegation of a portion of the sovereign power . . . [and] 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."[8]

This office and the courts have long recognized that law enforcement officers are "officers" subject to the constitutional dual office-holding prohibition.[9] The Florida Supreme Court has said:

"It can hardly be questioned that a patrolman on a city police force is clothed with sovereign power of the city while discharging his duty. . . . True, he is an employee of the city but he is also an officer. It is the character of duty performed that must determine his status."[10]

It is the powers that a law enforcement officer may exercise, particularly the authority to arrest without a warrant and to carry firearms in carrying out his duties, not the salary or certification requirements, that characterize the law enforcement officer as an "officer."[11] Based on these considerations, this office has stated that a certified reserve police officer is an "officer" for purposes of section 5(a), Article II, Florida Constitution.[12]

However, the Supreme Court of Florida has recognized a limited exception to the constitutional dual office-holding prohibition in Vinales v. State,[13] which concerned the appointment of municipal police officers as state attorney investigators pursuant to statute. Since the police officers' appointment was temporary and no additional remuneration was paid for performing the additional criminal investigative duties, the Court held that the officers were not simultaneously holding two offices and thus the constitutional dual office-holding prohibition did not apply. The Second District Court of Appeal in Rampil v. State,[14] following the Vinales exception, concluded that it was not a violation of Article II, section 5(a), Florida Constitution, for a city police officer to act in the capacity of deputy sheriff since that officer received no remuneration for such duties.

The exception articulated in Vilales and Rampil has been applied only when both offices have related to criminal investigation or prosecution and not to the exercise of governmental power or performance of official duties on a disparate board or position. Thus, this office, in considering the Vinales and Rampil exception, has stated that the exception is limited and does not apply to a member of a municipal board of adjustment serving as a part-time law enforcement officer or to a police officer who serves as a law enforcement officer.[15] Likewise, in Attorney General Opinion 2006-27, this office concluded that the exception to dual office-holding recognized by the courts in Vinales and Rampil does not permit the police chief to serve as acting city manager without resigning his or her office.

Based upon the powers extended to special officers for carriers, I conclude that these officers would come within the scope of the term "officers" for purposes of Florida's constitutional prohibition against dual office-holding, i.e., they are commissioned by the Governor, serve terms of office, have powers of arrest, and carry firearms. However, based on the exception recognized in the Vinales case for law enforcement officers performing additional law enforcement duties without remuneration, it is my opinion that Mr. Webster may simultaneously serve as a special officer and volunteer his time with a local law enforcement agency as an unpaid reserve officer without violating Article II, section 5(a) of the Florida Constitution.[16]

In sum, it is my opinion that a special officer for a carrier under Chapter 354, Florida Statutes, may serve simultaneously as an unpaid reserve deputy sheriff without violating the Florida constitutional prohibition against dual office-holding expressed in Article II, section 5(a), Florida Constitution.

Sincerely,

Pam Bondi

Attorney General

PB/tgh

[1] Section 354.01, Fla. Stat.

[2] Id.

[3] As to training requirements, see s. 943.13(1) - (10), Fla. Stat. And see Sunset Review of Railroads, Chs. 351, 354, and s. 361.025, Fla. Stat., prepared by the Staff of the Florida House of Representatives Committee on Regulatory Reform, November 1991.

[4] Section 354.03, Fla. Stat.

[5] See s. 354.05, Fla. Stat., which provides that a special officer's commission shall continue so long as he or she is employed in that capacity by the railroad or other common carrier.

[6] Section 354.04, Fla. Stat.

[7] See, e.g., Op. Att'y Gen. Fla. 80-97 (1980).

[8] State ex rel. Holloway v. Sheats, 83 So. 508, 509 (Fla. 1919). And see State ex rel. Clyatt v. Hocker, 22 So. 721 (Fla. 1897).

[9] See, e.g., Curry v. Hammond, 16 So. 2d 523, 524 (Fla. 1944); Maudsley v. City of North Lauderdale, 300 So. 2d 304 (Fla. 4th DCA 1974); Ops. Att'y Gen. Fla. 57-165 (1957), 58-26 (1958), 69-2 (1969), 71-167 (1971), 72-348 (1972), 76-92 (1976), 77-89 (1977), 86-11 (1986), and 89-10 (1989).

[10] Curry v. Hammond, id.

[11] Maudsley v. City of North Lauderdale, 300 So. 2d 304 (Fla. 4th DCA 1974). See State ex rel. Gibbs v. Martens, 193 So. 835, 837 (Fla. 1940), in which the Court held that a probation officer was an "officer" since he had the right to arrest without a warrant for "no light is more sacred or more jealously guarded than the one that liberty shall not be infringed except by due process of law." And see Ops. Att'y Gen. Fla. 89-10 (1989), stating that the absence of a requirement that police officers file financial disclosure forms required of "public officials" does not alter their status as "officers" for purposes of dual office-holding.

[12] See Op. Att'y Gen. Fla. 77-63 (1977). And see Op. Att'y Gen. Fla. 86-105 (1986) concluding that auxiliary police officers who did not have authority to make arrests but who were certified, carried firearms and assisted regular police officers in carrying out their duties were "officers." Compare Op. Att'y Gen. Fla. 89-10 (1989) concluding that an administrative law enforcement position, having no law enforcement certification requirements or arrest powers and not authorized to independently exercise the sovereign powers of the state, is an employment and not an office for purposes of dual office-holding.

[13] 394 So. 2d 993 (Fla. 1981).

[14] 422 So. 2d 867 (Fla. 2d DCA 1982).

[15] See Op. Att'y Gen. Fla. 84-25 (1984). And see Op. Att'y Gen. Fla. 86-84 (1986) (Vinales and Rampil exceptions do not apply to a city council member simultaneously serving as a certified auxiliary law enforcement officer).

[16] This office has stated that a part-time auxiliary or certified reserve police officer is an "officer" for purposes of s. 5(a), Art. II, Fla. Const. See, e.g., Ops. Att'y Gen. Fla. 86-105 (1986) and 77-63 (1977).