Can the same attorney serve as a code-enforcement special magistrate for more than one Florida city at the same time?

Plain-English summary

An attorney who served as a code-enforcement hearing officer for the City of Palm Coast asked the Attorney General's office to reconsider its prior opinions on Florida's dual office-holding ban. His concern was practical: if serving as a special magistrate counts as holding an "office," then the constitutional ban on holding two offices at once would stop him from doing that work for several local governments at the same time, which he argued unreasonably restrained his ability to practice law.

The office declined to change its position. Section 5(a), Article II of the Florida Constitution says no person may hold more than one office under the state and its counties and municipalities at the same time, with narrow exceptions for notaries, military officers, and advisory bodies. The office had already concluded, in Attorney General Opinion 2010-19, that a special magistrate for a value adjustment board and a member of a code enforcement board each hold an "office" for this purpose. Reading those prior determinations together, the office reaffirmed that one person cannot serve as a special magistrate for one public agency while serving as a special magistrate for another.

The office also addressed the lawyer's "restraint on practicing law" argument directly. It said it found no case treating the dual office-holding ban as a restraint on an attorney's ability to practice law, and it was not aware of any such determination by The Florida Bar. It rejected the framing that serving as a special master or special magistrate for code-enforcement cases is essentially employment rather than office-holding.

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.

What the opinion concluded (2011)

The office reaffirmed that the dual office-holding prohibition in section 5(a), Article II of the Florida Constitution applies to special magistrates and code-enforcement hearing officers. It treated each such position as an "office," relying on Attorney General Opinion 2010-19 and the earlier Opinion 05-29, which had concluded that a special magistrate for a value adjustment board holds an office within the scope of the provision and that service on a code enforcement board likewise counts as an office.

Applied to the requester's facts, that meant an individual serving as a special magistrate for one public agency could not simultaneously serve as a special magistrate for another without violating the prohibition. The office declined to carve out an exception based on the argument that the ban interferes with an attorney's law practice, noting the absence of any case or Florida Bar determination supporting that view. It also rejected the characterization of special-magistrate service as employment, pointing out that the office had consistently treated it as office-holding.

Like the planning-commission letter issued the same period, this was an informal advisory letter signed by an assistant attorney general, not a formal Attorney General opinion.

Common questions

Q: Does serving as a special magistrate count as holding a public "office" in Florida?
A: Per this opinion and the ones it relied on, yes. The office treated a special magistrate for a value adjustment board and a code-enforcement board member as each holding an "office" within the meaning of section 5(a), Article II of the Florida Constitution.

Q: Can one attorney be a special magistrate for two different cities at once?
A: The opinion's answer was no. Serving as a special magistrate for one public agency precluded simultaneously serving as a special magistrate for another under the dual office-holding ban.

Q: Does the ban improperly restrict an attorney's right to practice law?
A: The office said it found no case treating the prohibition as a restraint on practicing law and was not aware of any such determination by The Florida Bar. It declined to adopt that argument.

Q: What are the exceptions to the dual office-holding ban?
A: The constitutional text lists narrow ones: a notary public or military officer may hold another office, and any officer may serve on a constitution revision commission, taxation and budget reform commission, constitutional convention, or a statutory body with only advisory powers.

Background and statutory framework

Article II, section 5(a) of the Florida Constitution contains two restrictions. It bars holding an office of emolument under a foreign government or another U.S. state while holding a Florida office, and it bars holding more than one office at the same time under Florida's state, county, and municipal governments. The second clause is the dual office-holding ban at issue here. Whether a particular position is an "office" (rather than mere employment) is the recurring question, and the Attorney General's office has built a line of opinions classifying quasi-judicial roles like value-adjustment-board special magistrates and code-enforcement board members as offices. The cited Rodriguez decision supports the quasi-judicial character of value-adjustment special masters; the Vinales and Rampil decisions are noted as instances where temporary, unremunerated law-enforcement cross-appointments did not violate the prohibition.

Citations and references

Constitutional provision:

• Section 5(a), Article II, Florida Constitution (dual office-holding prohibition)

Cases:

• Rodriguez v. Tax Adjustment Experts of Florida, Inc., 551 So. 2d 537 (Fla. 3d DCA 1989), value-adjustment-board special masters are quasi-judicial officers
• Vinales v. State, 394 So. 2d 993 (Fla. 1981), temporary unpaid investigator cross-appointment did not violate the ban
• Rampil v. State, 422 So. 2d 867 (Fla. 2d DCA 1982), city officer acting as deputy sheriff without added pay

Prior Attorney General opinions referenced: 2010-19, 05-29.

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/dual-office-holding-special-magistrates
• Original PDF: https://www.myfloridalegal.com/print/pdf/node/8163

Original opinion text

Mr. Lonnie N. Groot

1001 Heathrow Park Lane

Suite 4001

Lake Mary, Florida 32746

Dear Mr. Groot:

Thank you for contacting this office for a reassessment of previous opinions relating to the application of the dual office-holding prohibition in section 5(a), Article II of the Florida Constitution. You have requested assistance from this office in your capacity as a hearing officer for the City of Palm Coast and question the viability of the prohibition as it relates to its impact on your ability to act as a hearing officer to multiple local governments.

As acknowledged in your letter, the constitutional dual office-holding prohibition limits an individual's ability to serve in two offices simultaneously under the government of the state, counties, or municipalities. Section 5(a), Article II of the Florida 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."

In Attorney General Opinion 2010-19, this office was asked whether service as a code enforcement hearing officer for one city would preclude service as a special magistrate for another. Recognizing previous determinations that service as a special magistrate for a value adjustment board constitutes an office within the scope of Article II, section 5(a), Florida Constitution, and that service on a code enforcement board also constitutes an office for purposes of the prohibition on dual office-holding, it was concluded that an individual serving as a hearing officer could not simultaneously serve as a special magistrate without violating the dual office-holding prohibition.[1]

The factual scenarios you have presented in your letter are not dissimilar to the ones that were considered in Attorney General Opinion 2010-19, such that you are aware that this office's position is that an individual serving as a special magistrate for one public agency may not simultaneously serve as a special magistrate for another.[2] You set forth, however, that the application of the dual office-holding prohibition to simultaneous service as a special magistrate in several jurisdictions unreasonably restrains your ability to practice law.

I have found no cases interpreting the dual office-holding prohibition in section 5(a), Article II of the Florida Constitution as a restraint on the ability of an attorney to practice law, nor am I aware that such a determination has been made by The Florida Bar. While you indicate that you feel that the engagement of an attorney to serve as a special master or special magistrate to handle code enforcement cases is in the nature of an employment, this office, as indicated above, has consistently held otherwise.

I trust that these informal comments will clarify the position that this office has taken in application of the dual office-holding prohibition in section 5(a), Article II of the Florida Constitution.

Sincerely,

Lagran Saunders

Assistant Attorney General

ALS/tsh

[1] See Op. Att'y Gen. Fla. 05-29 (2005) (service as special magistrate for value adjustment board constitutes an office within the scope of Art. II, s. 5(a), Fla. Const., and service on code enforcement board constitutes an office for purposes of dual office-holding prohibition). See also Rodriguez v. Tax Adjustment Experts of Florida, Inc., 551 So. 2d 537 (Fla. 3d DCA 1989) (special masters for value adjustment boards are quasi-judicial officers).

[2] But see Vinales v. State, 394 So. 2d 993 (Fla. 1981) (municipal police officers temporarily and without remuneration appointed as state attorney investigators did not violate dual office-holding prohibition); Rampil v. State, 422 So. 2d 867 (Fla. 2d DCA 1982) (city police officer providing additional law enforcement duties without additional remuneration may act as deputy sheriff).