Can a Florida city switch to four-year terms and extend sitting officials' terms in one charter referendum?

Plain-English summary

The City of Springfield held annual elections with staggered two-year terms and found the yearly elections costly. It wanted to switch to four-year staggered terms with biennial elections, and to do it through a single referendum at its April 2010 election. Passing the measure would extend the sitting mayor's and two commissioners' terms by one year, moving their next election from 2011 to 2012. The city attorney asked whether the city could make both changes, the term lengthening and the one-year extension, by the same referendum.

Attorney General Bill McCollum concluded it could. Under Article VIII, section 2(a) of the Florida Constitution and the Municipal Home Rule Powers Act, charters adopted or readopted after 1973 may be amended only as provided in section 166.031, Florida Statutes, which requires a referendum. Section 166.021(4) specifically requires referendum approval for charter changes that affect "the terms of elected officers and the manner of their election." There is an exception, added by Chapter 95-178 in 1995 and reflected in section 100.3605(2), that lets a city change election dates and qualifying periods by ordinance, including term adjustments necessitated by those date changes. But the opinion stressed that Springfield's plan was not merely a change of election dates; it changed the length of the terms from two years to four. That falls under the general referendum requirement, not the date-change exception, so the city had to use a referendum, and it could accomplish both the term change and the one-year extension in that same vote.

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: Can a city change officials' terms from two years to four years without a referendum?
A: No. The opinion concluded that changing the length of elected officers' terms affects "the terms of elected officers and the manner of their election" under section 166.021(4), which requires a referendum. The exception for changing only election dates does not cover it.

Q: Can the same referendum also extend sitting officials' terms by a year?
A: Yes. The opinion concluded the City of Springfield could, by the same referendum, both change the term length and extend the sitting mayor's and two commissioners' terms by one additional year to accomplish the transition.

Q: When can a city change election timing by ordinance instead?
A: Section 100.3605(2), added in 1995, lets a city change the dates for qualifying and for electing its governing body by ordinance, and make term adjustments necessitated by those date changes, without a referendum. That route applies to date changes, not to changing how long terms last.

Q: Why does changing term length require a referendum?
A: Because section 166.021(4) requires referendum approval for charter changes affecting the terms of elected officers, and the date-change exception is limited to selecting election dates and qualifying periods. Lengthening terms from two to four years is a change to the terms themselves.

Background and statutory framework

Article VIII, section 2(a) of the Florida Constitution provides that municipal charters may be amended pursuant to general or special law. The Municipal Home Rule Powers Act, Chapter 166, Florida Statutes, implements that grant. Section 166.031 sets the amendment procedure and requires a referendum, and the office has consistently held that charters adopted or readopted after the act's 1973 adoption may be amended only that way, as in earlier opinions involving Tamarac, Lake Wales, and others.

Section 166.021(4) carves out the categories that always need a referendum, including changes affecting the terms of elected officers and the manner of their election, but it exempts the selection of election dates and qualifying periods and term adjustments necessitated by such date changes. Section 100.3605(2), added with section 166.021(4)'s exception by Chapter 95-178 in 1995, lets cities change election and qualifying dates by ordinance. The opinion read the legislative history of that 1995 law as allowing date changes and necessitated term adjustments without a referendum, but found Springfield's plan went further by changing the actual length of terms, which kept it within the general referendum requirement.

Citations and references

Statutes and constitutional provisions:

• s. 166.021(4), Fla. Stat. (referendum for changes to terms of elected officers)
• s. 166.031, Fla. Stat. (amending municipal charters)
• s. 100.3605, Fla. Stat. (changing municipal election dates by ordinance)
• Art. VIII, s. 2(a), Fla. Const. (amendment of municipal charters)

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/municipal-charter-amendment-referendum-requirement
• Original PDF: https://www.myfloridalegal.com/print/pdf/node/1738

Original opinion text

Mr. Kevin D. Obos
Springfield City Attorney
Harrison, Sale, McCloy, Duncan & Jackson
Post Office Drawer 1579
Panama City, Florida 32402-1579

RE: MUNICIPALITIES – ELECTIONS – CHARTERS – REFERENDA – TERMS OF OFFICE – OFFICERS – referendum requirement for charter amendment changing two-year terms to four-year terms. ss. 100.3605, 166.021, and 166.031, Fla. Stat.

Dear Mr. Obos:

On behalf of the City of Springfield, you have asked for my opinion on substantially the following question:

In proposing to amend its charter by referendum from an annual municipal general election requirement with staggered two-year terms to a new election cycle with elections to occur every other year with staggered four-year terms, may the City of Springfield, by that same referendum, extend the terms of the currently elected mayor and two of the commissioners by one additional year?

In sum:

The City of Springfield may, by the same referendum, amend its charter to change the terms of elected officers from two years to four years and extend the terms of the currently elected mayor and two of the commissioners by one additional year.

The City of Springfield (the city) currently holds elections for municipal officers who serve two-year terms. These elections are held annually and you advise that this is costly for the city. The city proposes to extend the terms of its officers to four years and to hold elections biennially. Your letter states that the most efficient manner for the city to change its election cycle and extend terms of elected officials is to do so by referendum in its April 2010 election. The passage of the proposed referendum would result in the two city commissioners to be elected in 2010 serving four-year terms. The proposed referendum would extend the terms of the currently seated mayor and two other commissioners by one additional year and change their next election date from 2011 to 2012.

You acknowledge that this office has done several Attorney General Opinions relating to referenda requirements for purposes of changing election dates that also result in the "hold over" of current commissioners, but note that none of these opinions address a change in election cycle (not the election date) coupled with an extension of term of office for elected officials.

The Florida Constitution, in Article VIII, section 2(a), provides that municipal charters may be amended pursuant to general or special law. The Florida Legislature, with the adoption of the Municipal Home Rule Powers Act, Chapter 166, Florida Statutes, granted municipalities broad home rule powers. Section 166.031, Florida Statutes, implementing the constitutional provision provides procedures for amending municipal charters, including a requirement that a proposed amendment shall be subject to approval by referendum of the voters.

It has been the position of this office, expressed in a number of Attorney General Opinions, that charters or charter provisions adopted or readopted subsequent to the adoption of the Municipal Home Rule Powers Act in 1973 must comply with the procedures set forth in section 166.031, Florida Statutes.[1] The statute sets forth the procedures to be followed in amending municipal charters, including a requirement that a proposed amendment shall be subject to approval by referendum of the voters.[2]

This office, in Attorney General Opinion 75-223, specifically advised the City of Tamarac that its charter, readopted after 1973, could not be amended except as provided in section 166.031. Likewise, in Attorney General Opinion 79-80, this office stated that the Lake Wales City Commission could not unilaterally amend its municipal charter, but could only propose an amendment that would be submitted to the municipal electors for their approval at a referendum held for that purpose. More recently, this office, in Attorney General Opinion 01-15, stated that a city commission may amend its city charter, adopted in 1977, to remove a requirement that the city manager reside within the city only if such an amendment was approved by a referendum of the qualified electors of the municipality.

However, section 166.021(4), Florida Statutes, states in part:

"[N]othing 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 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 . . . without approval by referendum of the electors as provided in s. 166.031." (e.s.)

Further, section 100.3605(2), Florida Statutes, provides that the governing body of a municipality may, by ordinance, "change the dates for qualifying and for the election of members of the governing body of the municipality and provide for the orderly transition of office resulting from such date changes."[3] Both the language in section 166.021(4), Florida Statutes, and section 100.3605(2), Florida Statutes, were added by Chapter 95-178, Laws of Florida.

In considering the 1995 legislation, this office has stated that an examination of the legislative history reflects an intent that municipalities would be authorized to amend their charters to change the election dates and qualifying periods for candidates, including any changes in terms of office necessitated by the amendment, without a referendum.[4]

However, the purpose of the charter amendment for the City of Springfield is not a change in election dates, for example from a spring election to one conducted at the general election in the fall, but to change the terms of office for elected officers from a two-year to a four-year term and to modify the election cycle to reflect staggered terms for those elected officers. Thus, the change contemplated by the city would fall within the general requirement in section 166.021(4), Florida Statutes, that changes in a municipal charter which affect "the terms of elected officers and the manner of their election" must be undertaken pursuant to a referendum. The exception for selecting election dates and accommodating changes in terms of office "necessitated by such changes in election dates" would not appear to apply to the changes proposed by the City of Springfield.

In sum, it is my opinion that the City of Springfield may, by the same referendum, amend its charter to change the terms of elected officers from two years to four years and extend the terms of the currently elected mayor and two of the commissioners by one additional year. Charter amendments designed to effectuate changes in the term of office of municipal officers such as changing from a two-year to a four-year term do not fall within the scope of the exception contained in sections 166.021(4) and 100.3605(2), Florida Statutes, and must be accomplished by referendum.

Sincerely,

Bill McCollum
Attorney General

BM/tgh

[1] See Ops. Att'y Gen. Fla. 03-52 (2003), 03-36 (2003), 01-43 (2001), and 75-223 (1975). See also Op. Att'y Gen. Fla. 88-30 (1988) (charter amendment provisions in s. 166.031, Fla. Stat., prevail over conflicting provisions in a municipal charter) and Op. Att'y Gen. Fla. 97-53 (1997) (city commission may not delegate its canvassing board duties to a consolidated municipal canvassing board, absent an existing charter provision authorizing such a transfer or an amendment to the city's charter approved in a referendum by the city's electorate).

[2] See s. 166.031(1), Fla. Stat., providing that the governing body of the municipality "shall place the proposed amendment contained in the ordinance or petition to a vote of the electors at the next general election held within the municipality or at a special election called for such purpose." But see s. 166.031(5), Fla. Stat., stating that a municipality may, by unanimous vote of the governing body, abolish municipal departments provided for in the municipal charter and amend provisions or language out of the charter which has been judicially construed, either by judgment or by binding legal precedent from a decision of a court of last resort, to be contrary to either the State Constitution or Federal Constitution.

[3] And see s. 100.3605(1), Fla. Stat., stating that the Florida Election Code, Chs. 97 - 106, Fla. Stat., governs the conduct of municipal elections in the absence of an applicable special act, charter, or ordinance provision and that "[n]o charter or ordinance provision shall be adopted which conflicts with or exempts a municipality from any provision in the Florida Election Code that expressly applies to municipalities."

[4] See House of Representatives Committee on Ethics and Elections Final Bill Analysis & Economic Impact Statement on HB 2209 (passed by the Legislature as Ch. 95-178, Laws of Fla.), dated May 10, 1995, stating:

"HB 2209 authorizes amendment of a municipal charter or special act without referendum for the purpose of changing municipal election dates and qualifying period for candidates and for the adjustment of terms of office necessitated by such date changes. . . ."