Can a Florida city raise mayor and council salaries by ordinance when a pre-1973 charter set them?

Plain-English summary

The City Clerk of North Miami wrote that the salaries of the mayor and council members had been increased by ordinance, even though the city charter set those salaries. The charter provision dated to 1969 and was not amended to remove the salary language until 2008, when voters approved the change. He asked what remedial action could be taken. Assistant Attorney General Joslyn Wilson explained that the office could not answer the questions actually asked, and gave general background instead.

The reason for declining: questions about the validity of the council's action and what to do about it are matters of the council's own duties, so a formal opinion would have to be requested by a majority of the council with a supporting legal memo, and the office does not address speculative questions or matters of policy. On the background, the letter explained the effect of the Municipal Home Rule Powers Act. Because the charter provision was adopted in 1969 and apparently not readopted after the Act took effect in 1973, section 166.021(4) and (5) would apply. Under those provisions, a pre-1973 charter limitation that does not touch certain protected areas (the terms and election of officers, the distribution of powers among officers, the form of government, appointive boards, or employee rights) was either nullified or converted into an ordinance that the city can modify or repeal like any other ordinance. A change to the mayor's or council's salary does not appear to fall within those protected areas, so the salary provision would be treated as an ordinance, not a charter limit requiring a referendum under section 166.031.

Currency note

This opinion was issued in 2008. 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

Section 166.021(4) directs that the home rule statute be read to give municipalities broad powers and to remove limitations not expressly prohibited, but it carves out areas that may be changed only by referendum under section 166.031: extraterritorial powers, the creation or existence of a municipality, the terms of elected officers and the manner of their election, the distribution of powers among elected officers, matters relating to appointive boards, any change in the form of government, and municipal employee rights. The same subsection nullifies and repeals any other limitation in a municipal charter enacted before July 1, 1973.

Section 166.021(5) provides that existing special acts pertaining exclusively to a particular municipality become ordinances of that municipality on the Act's effective date, subject to modification or repeal like other ordinances, except as subsection (4) provides. Applying this, the office reasoned that a charter adopted in 1969 and not readopted after 1973 would have its non-protected provisions converted to ordinances. Because a salary level for the mayor or council does not appear to affect the terms or election of officers, the distribution of powers, or the form of government, that provision would be an ordinance the council could amend, not a charter term locked behind a referendum. The office pointed to its searchable opinion database and suggested consulting the city attorney.

Common questions

Q: Can a Florida city change mayor or council salaries set in an old charter?
A: The opinion's general view was yes, where the charter predates the 1973 Home Rule Powers Act and was not readopted. Such a salary provision was converted into an ordinance the council can modify or repeal.

Q: Why wouldn't a referendum be required?
A: Section 166.021(4) only requires a referendum for changes to protected areas like the terms of officers, distribution of powers, or the form of government. A salary level does not appear to fall within those.

Q: Did the AG say the city's salary increase was valid?
A: No. The office declined to rule on the validity of the council's action or to prescribe a remedy, explaining those are questions for the council to raise formally through its attorney.

Q: What governs a charter readopted after 1973?
A: A charter adopted or readopted after the 1973 Act may be amended only as provided in section 166.031, which generally requires referendum approval.

Citations and references

Statutes:

• s. 166.021(4), (5), Fla. Stat. (Municipal Home Rule Powers Act; treatment of pre-1973 charter provisions)
• s. 166.031, Fla. Stat. (charter amendment by referendum)

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/increase-in-city-officials-salaries-pre-1973-charter
• Original PDF: https://www.myfloridalegal.com/print/pdf/node/8237

Original opinion text

Mr. Frank Wolland

Clerk, City of North Miami

776 Northeast 125th Street

Post Office Box 619085

North Miami, Florida 33261-9085

Dear Mr. Wolland:

You state that the salary of the city mayor and council members was increased by city ordinance. The city charter, however, specified the salary of such officers and was not amended until 2008 to remove such charter provision when such amendments were approved by the electorate. You ask what remedial action may be taken.

The authority of the Attorney General to issue opinions is limited to public officials on questions relating to their own official duties under state law. Questions as the validity of actions taken by the city council and what remedial actions should be taken would be matter relating to the duties of the city council and thus must be requested by a majority of the members of the council and accompanied by a memorandum of law prepared by the city attorney. Moreover, opinions of this office are limited to the interpretation of the provisions of state law; this office will respond to a specific legal question as to whether proposed actions is permissible under state law. This office, however, will not address questions of a speculative nature or questions of executive, legislative or administrative policy. I am enclosing a statement concerning Attorney General Opinions prepared by this office discussing when and to whom this office will issue opinions.

In an effort to be assistance, however, I would note that you state that the charter provision was adopted in 1969 and has not been subsequently amended. If the city charter has not been readopted since the effective date of the Home Rule Powers Act in 1973, section 166.021(4) and (5), Florida Statutes, would appear to be applicable. Those sections provide:

"(4) The provisions of this section shall be so construed as to secure for municipalities the broad exercise of home rule powers granted by the constitution. It is the further intent of the Legislature to extend to municipalities the exercise of powers for municipal governmental, corporate, or proprietary purposes not expressly prohibited by the constitution, general or special law, or county charter and to remove any limitations, judicially imposed or otherwise, on the exercise of home rule powers other than those so expressly prohibited. However, nothing in this act shall be construed to permit any changes in a special law or municipal charter which affect the exercise of extraterritorial powers or which affect an area which includes lands within and without a municipality or any changes in a special law or municipal charter which affect the creation or existence of a municipality, the terms of elected officers and the manner of their election except for the selection of election dates and qualifying periods for candidates and for changes in terms of office necessitated by such changes in election dates, the distribution of powers among elected officers, matters prescribed by the charter relating to appointive boards, any change in the form of government, or any rights of municipal employees, without approval by referendum of the electors as provided in s. 166.031. Any other limitation of power upon any municipality contained in any municipal charter enacted or adopted prior to July 1, 1973, is hereby nullified and repealed.

(5) All existing special acts pertaining exclusively to the power or jurisdiction of a particular municipality except as otherwise provided in subsection (4) shall become an ordinance of that municipality on the effective date of this act, subject to modification or repeal as other ordinances." (e.s.)

Thus, municipal charter provisions adopted prior to 1973 which do not affect the above enumerated areas were either repealed or were converted into ordinances and are subject to modification or repeal as are other ordinances. Charters adopted or readopted subsequent to the adoption of the Municipal Home Rule Powers Act in 1973, however, may only be amended as provided in section 166.031, Florida Statutes. A change in the salary of the mayor or city council members would not appear to the terms of elected officers and the manner of their election or the distribution of powers among elected officers. As noted in section 166.021(4) and (5), Florida Statutes, with the exception of those enumerated areas, such provisions were repealed or became an ordinance of the municipality subject to modification or repeal as other ordinances.

This office has issued several opinions regarding the amendment of both pre-1973 and post-1973 charters. You may access this office's searchable database of opinions issued since 1974 at:http://myfloridalegal.com/opinions. You may also wish to discuss this matter further with the city attorney.

I trust you will understand that the duties of this office are prescribed by law. Thank you for contacting the Attorney General's Office.

Sincerely,

Joslyn Wilson

Assistant Attorney General

JW/t