Can a Florida city require a council member to sit on its police and firefighter pension boards?

Plain-English summary

The City Attorney for Clermont asked whether the city's requirement that a city council member be appointed to the boards of trustees of the city's police officers' retirement plan and firefighters' pension plan conflicts with sections 175.061 and 185.05, Florida Statutes. Those statutes set how the pension boards are made up.

Senior Assistant Attorney General Gerry Hammond explained that the office would not issue a formal opinion. Chapters 175 and 185 are interpreted and applied by the Division of Retirement of the Department of Management Services, and the office does not comment on another agency's responsibilities unless that agency joins the request. The Department was contacted and declined to join, so no formal opinion would follow. The letter did offer general comments: sections 175.061 and 185.05 require that two board members be city residents appointed by the governing body, and sections 175.061(6) and 185.05(7) expressly bar a participating municipality from altering those provisions. While Clermont relied on municipal home rule, home rule under Article VIII, section 2(b) and section 166.021(1) lets a city act for municipal purposes "except when expressly prohibited by law," and these statutes contain exactly that kind of express prohibition. The letter also flagged a prior informal opinion warning that altering such provisions could jeopardize a municipality's share of state pension funds.

Currency note

This opinion was issued in 2009. 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

Q: Why didn't the Attorney General issue a formal opinion?
A: Because the question turns on Chapters 175 and 185, which the Division of Retirement administers. The office does not opine on another agency's statutes unless that agency joins the request, and the Department of Management Services declined to join. So only informal comments were offered.

Q: Can a city change how its police and firefighter pension boards are appointed?
A: The letter pointed to sections 175.061(6) and 185.05(7), which state that the provisions of those sections may not be altered by a participating municipality. Using the ordinary meaning of "alter" (to change or modify), the letter read these as barring a city from changing the statutory board-appointment scheme.

Q: Doesn't home rule let a city set up its own boards however it wants?
A: Not here. Home rule lets a municipality act for municipal purposes "except when expressly prohibited by law" (s. 166.021(1); Art. VIII, s. 2(b), Fla. Const.). The Florida Supreme Court has said statutes are relevant to mark the limits of that authority. Because Chapters 175 and 185 expressly forbid altering these provisions, home rule does not override them.

Q: What is the risk if a city alters the statutory provisions anyway?
A: The letter cited a prior informal opinion cautioning that any attempt to alter the terms of the special act or general law would be suspect and could place the municipality's participation in the state pension-fund grant in jeopardy.

Background and statutory framework

Sections 175.061 and 185.05, Florida Statutes, govern the boards of trustees for municipal firefighter and police pension trust funds. They require two of the trustees to be legal residents of the municipality, appointed by the governing body, and each includes a provision (s. 175.061(6) and s. 185.05(7)) stating that a municipality operating a chapter or local-law plan may not alter the section's provisions. Administration and interpretation of these chapters rests with the Division of Retirement, which is why the Attorney General would not formally opine without that agency's participation.

On the home-rule question, the letter relied on State v. City of Sunrise, where the Florida Supreme Court held that Article VIII, section 2(b) grants every municipality authority to conduct municipal government, with the limitation that the power be exercised for a valid municipal purpose and that statutes mark the limits of authority. Section 166.021(1) codifies the same grant, allowing municipal action "except when expressly prohibited by law." Reading the express non-alteration language of Chapters 175 and 185 against that framework, the letter concluded home rule does not authorize a city to change the statutory board provisions.

Citations and references

Constitution and statutes:

• s. 175.061 and s. 175.061(6), Fla. Stat. (firefighters' pension board; no alteration by municipality)
• s. 185.05 and s. 185.05(7), Fla. Stat. (police officers' retirement board; no alteration by municipality)
• s. 166.021(1), Fla. Stat. (municipal home rule powers)
• Art. VIII, s. 2(b), Fla. Const. (municipal powers for municipal purposes)

Cases:

• State v. City of Sunrise, 354 So. 2d 1206, 1209 (Fla. 1978)
• City of Miami Beach v. Forte Towers, Inc., 305 So. 2d 764 (Fla. 1974)

Subject

Firefighters' pension fund, city council member

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/firefighters-pension-fund-city-council-member
• Original PDF: https://www.myfloridalegal.com/print/pdf/node/8200

Original opinion text

Mr. Daniel F. Mantzaris

de Beaubien, Knight, Simmons,

Mantzaris & Neal, LLP

332 North Magnolia Avenue

Orlando, Florida 32801

Dear Mr. Mantzaris:

As City Attorney for the City of Clermont, you have asked whether the City of Clermont's requirement that a member of the city council be appointed to the board of trustees of the city's police officers' retirement plan and to the firefighters' pension plan may violate the provisions of sections 175.061 and 185.05, Florida Statutes. Attorney General McCollum has asked me to respond to your letter.

After reviewing the information you have submitted, it does not appear that this is a matter upon which this office will formally comment. Your inquiry relates to provisions of Chapters 175 and 185, Florida Statutes, and these statutes are to be interpreted and applied by the Division of Retirement of the Department of Management Services. This office will not comment on the responsibilities of another agency unless that agency joins in an opinion request. The Department of Management Services has been contacted and they have declined to join in your request for an opinion. Therefore, no Attorney General Opinion will be forthcoming on this matter. However, in an effort to assist you, I offer the following general comments.

Sections 175.061 and 185.05, Florida Statutes, provide for the appointment of the boards of trustees of the firefighters' pension trust fund and the municipal police officers' retirement trust fund. These statutory sections require that two members of the board shall be legal residents of the municipality and appointed by the governing body. Included as a provision of each of these statutes is a prohibition against the alteration of the provisions of the statutes by a municipality operating a chapter or local law plan under those chapters.[1]

Your memorandum of law relies on the concept of municipal home rule as authority for the City of Clermont to make these changes to the statutory requirements. Section 2(b), Article VIII of the Florida Constitution provides, in part that:

"Municipalities shall have governmental, corporate and proprietary powers to enable them to conduct municipal government, perform municipal functions and render municipal services, and may exercise any power for municipal purposes except as otherwise provided by law."

The Florida Supreme Court has stated that this constitutional provision "expressly grants to every municipality in this state authority to conduct municipal government, perform municipal functions, and render municipal services."[2] The Court stated, in State v. City of Sunrise, that the only limitation on the power of municipalities under this constitutional section is that such power must be exercised for a valid municipal purpose. As determined by the Court, "[l]egislative statutes are relevant only to determine limitations of authority" and municipalities need no further authorization from the Legislature to conduct municipal government.[3]

Pursuant to section 166.021(1), Florida Statutes, municipalities are granted "the governmental, corporate, and proprietary powers to enable them to conduct municipal government, perform municipal functions, and render municipal services, and may exercise any power for municipal purposes, except when expressly prohibited by law." (e.s.)

Sections 175.061(6) and 185.05(7), Florida Statutes, specifically state that the provisions of these sections may not be altered by a participating municipality. A common definition of the term "alter" is "to make different in some particular" or "to change; become different or modified."[4] Thus, using the common dictionary definition, a municipality cannot change or modify the specific provisions of section 175.061 or 185.05, Florida Statutes.

Further, this office has issued an informal opinion on a related issue in which we advised that "any attempt by a municipality to alter the terms of the special act or general law would be suspect and place in jeopardy the municipality's participation in the grant of state funds."[5] I am enclosing a copy of this Informal Attorney General Opinion for your review.

I trust that these informal comments will be helpful to you in discussing this matter with your client, the City of Clermont. Thank you for contacting this office for assistance.

Sincerely,

Gerry Hammond

Senior Assistant Attorney General

GH/tsh

Enclosure

[1] See s. 175.061(6) and 185.05(7), Florida Statutes.

[2] State v. City of Sunrise, 354 So. 2d 1206, 1209 (Fla. 1978).

[3] Supra at 1209. See also City of Miami Beach v. Forte Towers, Inc., 305 So. 2d 764 (Fla. 1974).

[4] See Webster's New Universal Unabridged Dictionary (2003) p. 60.

[5] See Inf. Op. to Robert D. Klausner dated November 5, 1991 (copy enclosed).