Can a Florida part-time law enforcement officer also work simultaneously for a second Florida law enforcement agency without violating the constitutional ban on dual officeholding?

Plain-English summary

A part-time, per-diem police officer for the Indian River Shores Public Safety Department asked the Florida AG's office whether he could pick up a second simultaneous law-enforcement job with a different Florida agency. Senior Assistant AG Ellen B. Gwynn, responding on behalf of Attorney General Pam Bondi, wrote an informal letter answering the question by reference to existing law rather than issuing a formal opinion.

The letter explained the rule that Article II, Section 5(a) of the Florida Constitution prohibits one person from holding "more than one office under the government of the state and the counties and municipalities therein" at the same time. Whether a particular law-enforcement position counts as an "office" turns on whether the position carries sovereign powers delegated by law (such as warrantless arrest authority and the authority to carry firearms in the course of duty). The AG's office had long treated such positions as "offices" regardless of pay structure or full-time vs. part-time status.

A court-made exception softened the rule: under Vinales v. State and Rampil v. State, holding one paid law-enforcement office plus one unpaid/volunteer law-enforcement office does not violate Article II, Section 5(a). Holding two paid law-enforcement offices does. The letter declined to apply the rule to the specific facts because the requester had not provided the duties and obligations of either position; instead, it laid out the framework and recommended the requester consult his city attorney.

Currency note

This opinion was issued in 2016. 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

Article II, Section 5(a) of the Florida Constitution provides in 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[.]" The Florida Constitution does not define "office," and the term has been worked out almost entirely through Attorney General opinions and case law. At the time of this opinion, the consistent line drawn by both was that law-enforcement personnel exercising sovereign powers, the power to arrest without a warrant, the power to carry firearms in the course of duty, the power to enforce state law, fall on the "officer" side of the line, while purely administrative law-enforcement personnel without such powers generally did not. Pay structure (per diem, hourly, salaried) and time commitment (part-time, full-time) had not historically driven the analysis.

The volunteer exception came from Vinales v. State, 394 So. 2d 993 (Fla. 1981) and Rampil v. State, 422 So. 2d 867 (Fla. 2d DCA 1982). Those cases recognized that the constitutional concern (divided loyalty, conflict of interest, double compensation from the public fisc) was not present when one of the two positions carried no salary. Both AG Opinions 90-15 and 12-10 had since reaffirmed and applied this exception.

This 2016 letter is an informal opinion. Under section 16.01(3), Florida Statutes, the Florida AG is statutorily authorized to issue formal advisory opinions to specified public officers on their own duties. Where a private individual asks a question that does not fit the formal-opinion framework, the AG's office may respond with an informal letter, as it did here. Informal letters lack the same status as formal AG opinions and are best read as guidance from the office's staff.

Common questions

Q: At the time of this opinion, did a part-time police officer count as an "officer" for dual-officeholding purposes?
A: Generally yes, the letter said, provided the position carried sovereign powers like warrantless arrest authority and authority to carry firearms in the course of duty. Pay structure and time commitment did not drive the analysis.

Q: What was the volunteer exception?
A: When one of the two law-enforcement positions was unremunerated (no salary or other compensation), the courts held that the dual-officeholding ban did not apply. Vinales and Rampil established it.

Q: Did the letter answer the specific question the requester had asked?
A: No. The letter declined to apply the rule because the requester had not provided the duties and obligations of either position. It set out the framework and recommended consulting a city attorney.

Q: What status does an informal letter from the AG's office have?
A: It is advisory guidance, not a formal AG opinion under section 16.01(3). Courts may consider it persuasive in some cases, but it carries less weight than a formal opinion.

Q: Who at the AG's office signed this letter?
A: Senior Assistant Attorney General Ellen B. Gwynn, responding on behalf of Attorney General Pam Bondi.

Citations and references

Constitutional provisions:

• Art. II, § 5(a), Fla. Const.

Cases:

• Vinales v. State, 394 So. 2d 993 (Fla. 1981) (Florida Supreme Court, volunteer exception)
• Rampil v. State, 422 So. 2d 867 (Fla. 2d DCA 1982) (Florida 2d DCA, applying volunteer exception)

Prior AG opinions referenced:

• Op. Att'y Gen. Fla. 77-63 (1977)
• Op. Att'y Gen. Fla. 84-25 (1984)
• Op. Att'y Gen. Fla. 89-10 (1989)
• Op. Att'y Gen. Fla. 90-15 (1990)
• Op. Att'y Gen. Fla. 2012-10
• Informal opinion to Sidney M. Nowell, dated April 11, 2012

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/dual-officeholding
• Original PDF: https://www.myfloridalegal.com/print/pdf/node/8052

Original opinion text

Mr. John C. Carter III

1105 33rd Avenue Southwest

Vero Beach, Florida 32968

Dear Mr. Carter:

The Office of the Attorney General has received your inquiry as to whether you would be permitted to hold two different law enforcement positions in light of Article II, section 5(a) of the Florida Constitution. Attorney General Pam Bondi asked me to respond to your question.

Article II, section 5(a) provides, in 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[.]" You say you are employed as a law enforcement officer by the Indian River Shores Public Safety Department in a part-time capacity and are paid per diem, and that you would like to obtain a comparable position with a different law enforcement agency within Florida and work simultaneously for both.

You have not provided this office with a description of the duties and obligations of either your current position or the position you are seeking. Accordingly, I will only be able to provide you with a general discussion of this area of the law, as well as several cases and Attorney General Opinions that I believe will help you resolve your question.

Article II, section 5(a), Florida Constitution, prohibits a person from serving in more than one state, county, or municipal "office" simultaneously. Accordingly, the question is whether your current position and your hoped-for position qualify as "offices" under this provision. There is no constitutional or statutory definition of the term, "office." Generally, this office has considered law enforcement officers to be "officers" when such officers are clothed with sovereign powers delegated by law rather than by contract, such as the authority to arrest without a warrant and to carry firearms in the course of duty.[1] How the officer is paid or whether the position is part-time or full-time have not played a role in our prior determinations.[2] Therefore, if both of the positions you are asking about authorize you to hold these powers, they would likely be considered offices subject to the constitutional provision prohibiting dual office-holding.[3]

There is a limited exception to this prohibition, however, that has been established by the courts of Florida and followed by the Attorney General.[4] When one of the two law enforcement positions is performed without remuneration, meaning on a volunteer basis, there is no violation of the dual office-holding prohibition. If an officer is paid for both positions, this would constitute prohibited dual office-holding.[5]

I hope this informal advisory discussion and the opinions enclosed are helpful to you. I recommend that you contact your City Attorney for further guidance in this matter.

Sincerely,

Ellen B. Gwynn

Assistant Attorney General

EBG/tsh

Enclosures: Rampil v. State, 422 So. 2d 867 (Fla. 2d DCA 1982); Ops. Att'y Gen. Fla. 2012-10 and 1990-15.

[1] See Ops. Att'y Gen. Fla. 77-63 (1977); 12-10 (2012); 89-10 (1989).

[2] See Ops. Att'y Gen. Fla. 77-63 (1977); 90-15 (1990); 84-25 (1984).

[3] An administrative law enforcement position with no law enforcement certification requirement, arrest authority, or other sovereign powers would probably not be considered an "office." See Op. Att'y Gen. Fla. 89-10 (1989).

[4] See Vinales v. State, 394 So. 2d 993 (Fla. 1981); Rampil v. State, 422 So. 2d 867 (Fla. 2d DCA 1982).

[5] See Ops. Att'y Gen. Fla. 90-15 (1990); 12-10 (2012); Inf. Op. to Sidney M. Nowell, dated April 11, 2012.