When a Florida district raises its tax rate by supermajority, is the vote counted against all seats or only the members currently serving?

Plain-English summary

The Juvenile Welfare Board of Pinellas County is an independent special district with eleven seats fixed by its enabling law. One appointed seat had gone empty after a resignation, leaving ten members actually serving, with no word on when the Governor would fill the vacancy. The board's lawyer asked the Attorney General's office a counting question that mattered for taxes: when state law requires a supermajority "of the membership of the governing body" to set a higher millage rate, does "membership" mean all eleven seats or just the ten members currently sitting?

The answer makes the math harder for a board with a vacancy. The office concluded that "membership of the governing body" in section 200.065(5)(a) refers to the total membership established in the district's enabling legislation, eleven, not the current head count of ten. That means an empty seat effectively counts as a "no" for purposes of reaching a two-thirds, three-fourths, or unanimous threshold.

The office grounded that reading in three places. First, the legislative history of the 2008 amendment that added the "membership" language: the staff analysis said the prior wording was unclear about whether the rule counted members present or the whole body, and the amendment "clarifies that supermajority votes are based on the membership of the governing body." Second, Article X, section 12 of the Florida Constitution, which says "of the membership" means "of all members thereof" absent other qualification. Third, the Florida Legislature's own rules, which compute supermajorities against a fixed total membership regardless of vacancies or absences.

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 concluded that the phrase "vote of the membership of the governing body" in section 200.065(5)(a)(1) and (2), Florida Statutes, refers to the board's total membership as established in its enabling legislation, not the number of members currently sitting. For the Juvenile Welfare Board, that meant the calculation used the full eleven-seat membership even though only ten members were then serving.

The office explained that section 200.065 sets the maximum millage a nonschool taxing authority may levy and lets the body exceed that maximum only by greater-than-majority votes: 110 percent of the rolled-back rate by a two-thirds vote, and higher rates by a unanimous vote, a three-fourths vote where the body has nine or more members, or referendum. Because all of those thresholds run against "the membership of the governing body," the size of that denominator controls. The office traced the "membership" language to section 11, Chapter 2008-173, Laws of Florida, which the staff analysis described as clarifying that supermajority votes are based on the membership of the governing body, and reinforced the reading with Article X, section 12(e) of the Florida Constitution and the practice reflected in the Florida Senate and House rules.

This was an informal advisory opinion. The letter states its conclusions are those of the writer and do not constitute a formal opinion of the Attorney General.

Common questions

Q: Does an empty seat make a supermajority harder to reach?
A: Yes, under this reading. Because the threshold is measured against the board's full membership, not the members currently serving, a vacant seat cannot vote yes and so counts against reaching a two-thirds, three-fourths, or unanimous supermajority.

Q: What does "membership of the governing body" mean for a millage vote?
A: The opinion read it as the total membership set in the district's enabling law. For the eleven-seat Juvenile Welfare Board, the denominator was eleven even while ten members were serving.

Q: Where does that interpretation come from?
A: From the 2008 amendment's legislative history (which said it clarified that supermajorities are based on the membership of the governing body), Article X, section 12(e) of the Florida Constitution ("of the membership" means "of all members thereof"), and the Legislature's own supermajority rules, which use a fixed total.

Q: Is an informal AG opinion binding on the board?
A: No. It is advisory. The letter says its conclusions do not constitute a formal opinion of the Attorney General. Any AG opinion is persuasive authority, not binding law.

Background and statutory framework

Section 200.065, Florida Statutes, governs how nonschool local taxing authorities, including independent special districts, fix their millage. Beginning in fiscal year 2009-2010 the statute caps the maximum rate at a rolled-back rate adjusted for per-capita Florida personal income, and allows a higher rate only through the supermajority paths in subsection (5)(a). The Juvenile Welfare Board of Pinellas County was created by Chapter 2003-320, Laws of Florida, which fixes its eleven-member composition (several ex officio members plus six gubernatorial appointees). The interpretive question turned on the word "membership," which the 2008 amendment (section 11, Chapter 2008-173) inserted to settle whether the vote counts those present or the entire body. The office read it, consistent with Article X, section 12 of the Florida Constitution, to mean all seats.

Citations and references

Statutes and constitutional provisions:

• section 200.065(5)(a)(1) and (2), Florida Statutes (supermajority millage votes)
• section 11, Chapter 2008-173, Laws of Florida (2008 clarifying amendment)
• Chapter 2003-320, Laws of Florida (Juvenile Welfare Board enabling act)
• Article X, section 12, Florida Constitution ("of the membership" means "of all members thereof")

Prior Attorney General opinions referenced: 94-37.

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/juvenile-welfare-board-voting
• Original PDF: https://www.myfloridalegal.com/print/pdf/node/8162

Original opinion text

Ms. Colleen Flynn

Johnson, Pope, Bokor,

Ruppel & Burns, LLP

Post Office Box 1368

Clearwater, Florida 33757-1368

Dear Ms. Flynn:

On behalf of the Juvenile Welfare Board of Pinellas County, you have requested assistance in determining whether the requirement in section 260.065(5)(a)(1) and (2), Florida Statutes, for a vote of a percentage of the membership of the governing body of the juvenile welfare board refers to the total membership of the board or the current membership of the board. Attorney General Bondi has asked me to respond to your inquiry.

According to your letter, the Juvenile Welfare Board of Pinellas County (JWB) is an independent special district created by Chapter 2003-320, Laws of Florida. As provided in Chapter 2003-320, Laws of Florida, the board consists of 11 members:

"One (1) member shall be the county superintendent of public instruction, and the second member shall be a judge in the juvenile division of the Sixth Circuit Court, who each shall hold office on the board during the term of office in the official capacity stated. The third and fourth members shall be the state attorney and the public defender for the county, and the fifth member shall be an appointed member of the Board of County Commissioners of Pinellas County, Florida, who each shall hold office on the board during the term of office in the official capacity stated. The other six (6) members shall be appointed by the Governor of the State of Florida and confirmed by the Senate. All appointments of members of the board required to be made by the Governor shall be for the term of four (4) years each. If any of the members of the board required to be appointed by the Governor under the provisions of this section shall resign, die, or be removed from office, the vacancy thereby created shall, as soon as practicable, be filled by appointment by the Governor, and such appointment to fill a vacancy shall be for the unexpired term of the person who resigns, dies, or is removed from office."

You advise that one member of the board, an appointed position, is vacant due to a resignation effective earlier this year. No appointment has been made to fill that vacancy and, although there are 11 seats on the board, there are currently only 10 members sitting. The JWB has no information on when the Governor will make an appointment to fill the vacant position. Thus, you have asked whether a statutory reference to "the membership of the governing body" for purposes of establishing millage rates would require calculations using the current membership of the board, that is, 10 members, or is a reference to the total number of board members as provided in the enabling legislation, that is, 11 members.

Section 200.065, Florida Statutes, provides a method of fixing millage for purposes of taxation. Subsection (5)(a) of the statute requires that, beginning in the 2009-2010 fiscal year, the maximum millage rate that an independent special district may levy is

"a rolled-back rate based on the amount of taxes which would have been levied in the prior year if the maximum millage rate had been applied, adjusted for change in per capita Florida personal income, unless a higher rate is adopted, in which case the maximum is the adopted rate. . . . A higher rate may be adopted only under the following conditions:

1. A rate of not more than 110 percent of the rolled-back rate based on the previous year's maximum millage rate, adjusted for change in per capita Florida personal income, may be adopted if approved by a two-thirds vote of the membership of the governing body of the county, municipality, or independent district; or

2. A rate in excess of 110 percent may be adopted if approved by a unanimous vote of the membership of the governing body of the county, municipality, or independent district or by a three-fourths vote of the membership of the governing body if the governing body has nine or more members, or if the rate is approved by a referendum."

In each of these sections, the adoption of a higher rate is dependent upon a vote "of the membership of the governing body."

While section 200.065, Florida Statutes, does not define the phrase "membership of the governing body" for purposes of the statute, the legislative history for the 2008 amendment of section 200.065 indicates that the Legislature considered the language of the voting requirement as expressed in the 2007 legislation to be unclear.[1] Prior to the changes enacted in section 11, Chapter 2008-173, Laws of Florida, these sections provided for a "vote of the governing body."[2] The staff analysis reflects the Legislature's concern with the language of Chapter 2007-321, Laws of Florida, which created the excess rate voting provisions:

"Clarity on voting rules . . .

Sections 200.065 and 200.185, F.S., set maximum millage rates that may be levied by nonschool local taxing authorities. These rates may be exceeded by greater-than-majority votes of the governing bodies — a 2/3 vote allows 110 percent of the maximum rate, and a higher rate may be imposed by a unanimous vote. The language in the statute is not clear whether the voting rule applies to just the members present at the meeting where the vote is taken or to the entire membership of the voting body."[3] (e.s.)

In describing the "Effect of Proposed Changes" made by CS/SB 1588, the staff analysis indicates that "[the bill] clarifies that supermajority votes are based on the membership of the governing body[.]"[4] Thus, the amendment of section 200.065(5)(a) by section 11, Chapter 2008-173, Laws of Florida, was an attempt by the Legislature to clarify that this voting requirement was intended to require calculations based on the entire membership of the governing body.[5]

The Florida Constitution currently provides a definition for language similar to that used in section 200.065(5)(a)(1) and (2), Florida Statutes. Article X, section 12, Florida Constitution, provides that, in the absence of other qualifications in a constitutional provision, use of the phrase "of the membership" means "of all members thereof."[6] Likewise, the Rules of the Florida Senate refer, for certain actions, to a "two-thirds (2/3) vote of the membership of 40," or a "three-fourths (3/4) vote of the membership of 40," clearly indicating that it is a vote of the entire membership of that body irrespective of vacancies or absences at the time of the vote.[7] Rules of the House distinguish determinations made "by a majority of the House" from those made "by vote of those members present and voting."[8] Thus, the use by the Legislature of the phrase "of the membership" in section 200.065(5)(a), Florida Statutes, would appear to reflect an intent to require a vote based on the entire membership of the juvenile welfare board regardless of whether vacancies may exist on the board at the time of any vote.

Thus, it appears that the reference in section 200.065(5)(a)(1) and (2), Florida Statutes, to a "vote of the membership of the governing body" of the district is a reference to the total membership of the board as established in the district's enabling legislation, rather than a reference to the current membership of the board.

This informal advisory opinion was prepared for you by the Department of Legal Affairs in an effort to be of assistance to you in advising your clients. The conclusions expressed herein are those of the writer and do not constitute a formal opinion of the Attorney General.

Sincerely,

Gerry Hammond

Senior Assistant Attorney General

GH/tsh

[1] See Bill Analysis and Fiscal Impact Statement on CS/SB 1588, The Florida Senate, dated April 2, 2008.

[2] See s. 11, Ch. 2008-173, Laws of Fla.

[3] Supra n.1 at p. 2, s. II, "Present Situation."

[4] Id. at p. 8, s. 11.

[5] See Title, Ch. 2008-173, Laws of Fla., stating that it is an act "amending s. 200.065, F.S.; clarifying the calculation of maximum millage . . . .; and see, e.g., State v. Webb, 398 So. 2d 820 (Fla. 1981)(legislative intent is the polestar by which the courts must be guided); Op. Att'y Gen. Fla. 94-37 (1994) (paramount rule of statutory construction is to ascertain the intent of the Legislature).

[6] See Art. X, s. 12(e), Fla. Const.

[7] See Rules and Manual of the Senate of the State of Florida 2010-2012, pp. 146, 147, and 148, "Vote Required."

[8] Compare Rules 13.6 and 13.7 with Rule 17.3, The Rules of the Florida House of Representatives (with tracked changes), adopted November 16, 2010.