Can a Florida city manager also serve as a reserve police officer in another county or city without breaking the dual office-holding ban?

Plain-English summary

Florida's Constitution bars one person from holding more than one government office at the same time. Article II, section 5(a) lists narrow exceptions (notaries, military officers, advisory bodies), but it otherwise prevents stacking state, county, and municipal offices in a single person. The Bunnell City Attorney asked the Attorney General's Office whether the city manager could also serve as a reserve law enforcement officer somewhere else, in another county or municipality, without running into this prohibition.

In an informal advisory letter (signed by an Assistant Attorney General, not a numbered formal opinion), the office indicated the answer appeared to be no. It treated the city manager position, as the city's chief administrative officer under the charter, as an "office," and noted that prior opinions treat a certified reserve police officer as an "office" too. The dual office-holding ban is not limited to offices within the same governmental unit, so the fact that the reserve post would be in a different jurisdiction did not save it. The letter acknowledged a narrow judicial exception that lets a law enforcement officer take on additional law enforcement duties without violating the ban, but only when both positions relate to criminal investigation or prosecution and the officer receives no extra pay. A city manager job is administrative, not a second criminal-justice role, so the exception did not fit, and the office concluded a similar bar would appear to apply.

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.

This was an informal advisory letter, which is less authoritative than a numbered formal AG opinion, and the dual office-holding case law has continued to develop since 2012. Anyone facing this question should confirm current authority and consider requesting a formal opinion. Whether a particular position is an "office" depends on its specific powers and the charter or ordinance creating it.

Common questions

Q: What makes a position an "office" rather than just a job?
A: Florida courts look at the nature of the position's powers and duties. An "office" involves a portion of the sovereign power, with tenure and duties defined by law (State ex rel. Holloway v. Sheats, 83 So. 508 (Fla. 1919)). A city manager, as chief administrative officer, and a certified reserve police officer have both been treated as offices.

Q: Does it matter that the two positions are in different cities or counties?
A: No. The letter noted that the dual office-holding ban is not limited to offices within the same governmental unit. A municipal officer is barred from also holding another municipal office or a state or county office.

Q: Isn't there an exception for law enforcement officers holding two posts?
A: A narrow one. Courts have allowed an officer to take on additional law enforcement duties without extra pay (Vinales v. State, 394 So. 2d 993 (Fla. 1981); Rampil v. State, 422 So. 2d 867 (Fla. 2d DCA 1982)). The office has limited that exception to situations where both positions relate to criminal investigation or prosecution, which does not describe a city manager.

Q: Is an informal advisory letter the same as a formal AG opinion?
A: No. It is guidance offered by the office and is less formal and less authoritative than a numbered opinion. The letter itself framed its conclusions as advisory comments to assist the city.

Background and statutory framework

Article II, section 5(a) of the Florida Constitution provides that "[n]o person shall hold at the same time more than one office under the government of the state and the counties and municipalities therein," subject to listed exceptions for notaries, military officers, and members of certain advisory bodies. The Constitution does not define "office," so the courts and the Attorney General's Office look to the powers and duties of the position (State ex rel. Holloway v. Sheats, 83 So. 508 (Fla. 1919)).

The judicially recognized law enforcement exception comes from cases like Vinales v. State, 394 So. 2d 993 (Fla. 1981), where municipal police officers were appointed as state attorney investigators on a temporary basis with no additional pay, and Rampil v. State, 422 So. 2d 867 (Fla. 2d DCA 1982), where a municipal police officer also served as a deputy sheriff without remuneration. The office's later opinions limited that exception to positions both tied to criminal investigation or prosecution, which is why the office had concluded, for example, that a police chief could not simultaneously serve as acting city manager.

Citations and references

Constitution:

• Art. II, s. 5(a), Fla. Const. (dual office-holding prohibition and its exceptions)

Cases:

• State ex rel. Holloway v. Sheats, 83 So. 508 (Fla. 1919), defines "office" by its sovereign powers and duties
• Vinales v. State, 394 So. 2d 993 (Fla. 1981), temporary, unpaid additional law enforcement duties did not violate the ban
• Rampil v. State, 422 So. 2d 867 (Fla. 2d DCA 1982), unpaid deputy sheriff service alongside a police office allowed

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/dual-office-holding-reserve-law-enforcement-officer
• Original PDF: https://www.myfloridalegal.com/print/pdf/node/8137

Original opinion text

Mr. Sidney M. Nowell

Bunnell City Attorney

Post Office Box 819

Bunnell, Florida 32110-0819

Dear Mr. Nowell:

On behalf of the Bunnell City Commission, you ask whether the current city manager may also serve as a reserve officer in another county or municipality without violating the dual office-holding prohibitions of Article II, section 5(a), Florida Constitution. That section provides:

"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."

While the Constitution contains no definition for the terms "office" or "officer" for purposes of the dual office-holding prohibition, Florida courts and this office have advised that it is the nature of the powers and duties of a particular position that determines whether it is an "office" within the scope of the dual office-holding prohibition or an "employment" outside the scope of the provision.[1]

You state that the city charter "designates the Office of the City Manager as the Chief Administrative Officer" of the city, thus qualifying the position as an "office" under Article II, section (5)(a), Florida Constitution.[2] You also note that this office has stated that a "certified reserve police officer" constitutes an office for purposes of the constitutional dual office-holding prohibition.[3]

You, therefore, ask whether an exception exists when the two offices are not within the same governmental entity, specifically whether a certified reserve officer whose jurisdiction is outside of the municipality may also serve as a city manager.

The constitutional dual office-holding provision addresses the accumulation of offices by a single individual and was fashioned to ensure that the same person would not simultaneously hold multiple state, county, and municipal offices. As you note, this office has stated that the prohibition applies to both elected and appointed offices.[4] In addition, this office has concluded that it is not necessary that the two offices be within the same governmental unit.[5] Thus, a municipal officer is precluded from simultaneously holding not only another municipal office, but also a state or county office. For example, in Attorney General Opinion 90-15, this office stated that a part-time police officer may not also serve as a full-time police officer in another municipality when he receives remuneration for both positions, without violating the dual office- holding prohibition contained in Article II, section 5(a), Florida Constitution.[6]

While a limited exception to the dual office-holding prohibition for law enforcement functions has been recognized by the courts,[7] this office has stated that the exception is limited to those situations in which a law enforcement officer is performing additional law enforcement functions for no additional remuneration. In considering this exception, this office in Attorney General Opinion 06-27 stated that the exception "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 concluded that the exception did not permit a police chief to simultaneously serve as acting city manager.[8] A similar conclusion would appear warranted in the instant inquiry as to whether a reserve officer may simultaneously serve as a city manager.

I trust that the above informal advisory comments may be of assistance to the city in resolving this issue. Thank you for contacting the Attorney General's Office.

Sincerely,

Joslyn Wilson

Assistant Attorney General

JW/tsh

[1] See State ex rel. Holloway v. Sheats, 83 So. 508 (Fla. 1919) (term "office" embraces the idea of tenure, duration, and duties in exercising a portion of the sovereign power, conferred or defined by law); Op. Att'y Gen. Fla. 99-34 (1999) (membership on the Florida State Fair Authority constitutes an office for purposes of Art. II, s. 5(a), Fla. Const.).

[2] See s. 4.01 of the Bunnell City Charter. Based upon a review of the particular powers of a position and the language of the statute, charter or ordinance creating the position, this office has considered the position of city manager, as the chief administrative officer of the city, to constitute an office for purposes of Art. II, s. 5(a), Fla. Const. See, e.g., Ops. Att'y Gen. Fla. 80-97 (1980), 86-11 (1986), and 07-43 (2007).

[3] See Op. Att'y Gen. Fla. 77-63 (1977). And see Ops. Att'y Gen. Fla. 86-105 (1986) (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"), and 84-25 (1984) (sworn part-time municipal police officer an "office" and is an "officer" for purposes of Art. II, s. 5[a], Fla. Const.). 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.

[4] See, e.g., Ops. Att'y Gen. Fla. 69-2 (1969), 80-97 (1980), and 94-66 (1994).

[5] See, e.g., Ops. Att'y Gen. Fla. 90-15 (1990), 06-46 (2006), 08-06 (2008), and 11-05 (2011).

[6] And see Op. Att'y Gen. Fla. 06-46 (2006) (simultaneous service on city commission and Florida Transportation Disadvantaged Commission prohibited by constitutional dual office-holding prohibition).

[7] See Vinales v. State, 394 So. 2d 993 (Fla. 1981) (Art. II, s. 5[a], Fla. Const., does not prohibit the appointment of municipal police officers as state attorney investigators since the appointment was temporary and no additional remuneration was paid to the police officers for performing additional criminal investigative duties); and Rampil v. State, 422 So. 2d 867 (Fla. 2d DCA 1982) (municipal police officer may also serve as a deputy sheriff without violating dual office-holding prohibition even though dual appointment was not temporary, as the police officer received no remuneration for his duties as deputy sheriff).

[8] See, e.g., Ops. Att'y Gen. Fla. 84-25 (1984) (member of municipal board of adjustment may not serve as part-time law enforcement officer without remuneration), and 86-84 (1986) (city council member may not simultaneously serve as certified auxiliary law enforcement officer).