What happens when a Florida city commissioner keeps serving after the term expired and no election was held?

Plain-English summary

The City Attorney for Wauchula asked the Attorney General's office about a tangle created by a clerical oversight. A city commissioner, Jerry Conerly, had been appointed to a District 7 seat in 2005 and elected to finish the term in 2006. His term should have come up for election in 2008, but the city clerk never declared an election, so he kept serving. The city attorney posed four questions: did the holdover commissioner have to repay salary and benefits, did the city have to re-examine his votes, could the city now declare a vacancy and appoint him (perhaps retroactively), and was he serving as a "de facto" commissioner until the 2010 election.

Senior Assistant Attorney General Gerry Hammond explained that the office could not resolve any of this. Its authority is limited to interpreting state law, not weighing complex facts or construing local ordinances, and these questions implicated voter rights and the validity of years of city commission actions. The office suggested that a definitive court ruling would be preferable to an advisory opinion and offered only general comments.

The one substantive observation was about timing. The Wauchula charter, amended in 2004, provided that each commissioner elected at general elections after Fall 2004 serves a four-year term. The office suggested that the seat Conerly was elected to in 2006 might be governed by that four-year term, which would run until the 2010 general election. If so, several of the city attorney's questions, about de facto status, repayment, and challenged votes, might not need to be answered at all. The office repeated that the city should seek a judicial resolution.

Currency note

This opinion was issued in 2010. 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: Could the Attorney General decide whether the holdover commissioner had to repay his salary or whether his votes were valid?
A: No. The office said it cannot resolve complex questions of law and fact or interpret local ordinances, and it recommended the city get a court ruling on these issues.

Q: Why did the office point to the city charter's four-year-term provision?
A: Because the 2004 charter amendment set four-year terms for commissioners elected after Fall 2004. If the 2006 election put the commissioner on a four-year term, his term may have run to the 2010 general election, which could make the holdover questions moot.

Q: What is a "de facto" officer, and did the office decide he was one?
A: A de facto officer is someone serving in an office under color of authority whose title may be defective. The office did not decide the question; it suggested the four-year-term reading might make the de facto issue unnecessary to reach.

Q: Why recommend a court instead of an AG opinion?
A: The matter involved voter rights and the potential to unwind official actions taken over several years, and resolving it required applying local ordinances to disputed facts, which is a judicial function rather than something the AG opines on under section 16.01(3).

Background and statutory framework

Florida's Attorney General issues legal opinions to public officials on questions of state law, but section 16.01(3) and the office's longstanding practice keep it from resolving mixed questions of law and fact or interpreting municipal ordinances and charters. Those limits drove the response here: the facts were disputed, the controlling text was the Wauchula charter and code, and the stakes (voter rights and the validity of past commission votes) were the kind of dispute courts resolve.

The factual record the city attorney supplied traced the seat from John Baxter's 2004 election and 2005 resignation, through Conerly's August 2005 appointment and November 2006 election, to the 2008 oversight when no election was declared. The charter's holdover clause let officers continue until successors are elected or appointed, and its post-2004 four-year-term provision supplied the office's tentative suggestion that the term might already run to 2010.

Citations and references

Statutes:

• § 16.01(3), Fla. Stat. (scope and limits of Attorney General opinions)

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/municipal-officer-holding-over
• Original PDF: https://www.myfloridalegal.com/print/pdf/node/8190

Original opinion text

Mr. Clifford M. Ables, III

202 West Main Street

Suite 103

Wauchula, Florida 33873

Dear Mr. Ables:

As City Attorney for the City of Wauchula, Florida, and based on the facts set out below, you have asked for assistance in resolving substantially the following questions:

1. Whether a city commissioner for the City of Wauchula, serving beyond the expiration of his term of office, is required to reimburse the city for salary and benefits received by him while he was "holding over" as a city commissioner?

2. Whether the City of Wauchula is required to re-examine votes cast by a city commissioner for the City of Wauchula, when that commissioner has continued to serve beyond the expiration of his term of office, to determine the validity of those votes?

3. Since no candidate qualified or was elected for that city commission seat, can the city commission now declare a vacancy and appoint the "hold-over" city commissioner to that commission seat, and if so, should that appointment be nunc pro tunc to the date the election for the commission seat should have been held?

4. Whether the "hold-over" city commissioner is entitled to continue to serve as a "de facto" city commissioner until he or his successor is duly qualified for the remainder of the term of the commission seat following the general election in 2010?

Because this office is not authorized to resolve complex questions of law and fact and our authority is limited to interpreting state law, not local legislation,[1] my response to your questions will be of a general nature. I would also suggest that, since this matter involves the significant matter of voter rights and the potential for challenges to official actions taken over a number of years by the city commission, a definitive judicial resolution may be preferable to an advisory opinion from this office. However, in an effort to provide you with some direction, I offer the following informal comments.

You have provided the following statement of facts:

"During the November 2004 General Election John Baxter was elected City of Wauchula District 7 Commissioner. His term was to expire in 2008; however, he resigned the District 7 Commission seat on June 13, 2005. On August 1, 2005, Commissioner Jerry Conerly was appointed to fill the District 7 Commission seat. During the next regularly scheduled election, November 7, 2006, Commissioner Conerly was elected to serve the remainder of the District 7 Commission seat term.

Commissioner Conerly should have been required to seek re-election when the District 7 Commission term expired in 2008; however, due to an oversight by the City of Wauchula Clerk, no election was declared for the District 7 Commission seat in 2008. Commissioner Conerly has remained the District 7 Commissioner without interruption since his appointment on August 1, 2005, and subsequent election on November 7, 2006."[2]

My research indicates that the Code of Ordinances, City of Wauchula, Florida, includes the following language:

"Elected or appointed officers shall continue to hold their offices and discharge the duties hereof until their successors are elected, or appointed as provided for in this Amended Charter."[3]

Further, the charter has contained, since 2004, a provision which states that "[a]t all general elections after Fall 2004, each city commission member shall be elected to serve for four (4) year terms."[4] (e.s.)

Thus, this office would suggest that an election held in 2006 for a city commission seat may be controlled by the four-year term of office described in the ordinance above, depending on the original term of office of the District 7 commissioner. If this is the case, the term of Commissioner Conerly would run until the general election in 2010. This would obviate the necessity for considering whether Commissioner Conerly is serving as a de facto commissioner; whether repayment of salary and benefits is necessary; whether any votes cast by Commissioner Conerly may be subject to challenge; and the term of succeeding commissioners.

Because this office cannot weigh the facts of this case and apply the ordinances of the City of Wauchula to resolve this matter and because of the substantial governmental concerns implicated, it is strongly suggested that the city seek a judicial resolution of these issues.

Sincerely,

Gerry Hammond

Senior Assistant Attorney General

GH:tsh

[1] See Department of Legal Affairs Statement Concerning Attorney General Opinions, and s. 16.01(3), Fla. Stat.

[2] Letter from Clifford M. Ables, III, dated May 18, 2010.

[3] See Ord. No. 2004-06, Code of Ordinances, City of Wauchula, Florida, 6-14-04.

[4] Id.