How are vacancies filled on a multicounty water control district board, by appointment or by special election?

Plain-English summary

State Senator Michael Bennett relayed a constituent's question to the Attorney General's office: how should vacancies be filled on the board of the East County Water Control District, a multicounty special district in Lee and Hendry Counties? A senior assistant attorney general (Gerry Hammond) responded with informal comments, noting at the outset that the office would not opine on the Governor's duties absent a request from the Governor's office.

The district's board is popularly elected at large by district voters. In 2009, Chapter 2009-260 amended the district's special act so that vacancies are filled "pursuant to section 189.405(3)(a), Florida Statutes." That statute says that for a multicounty special district with a popularly elected board, elections must conform to the Florida Election Code (Chapters 97-106). The amendment had removed the district's prior vacancy method, which used section 298.12. The bill's legislative history said the change was meant to switch the method to a special election.

Reading those pieces together, the office concluded it appears the Legislature intended a vacancy on the board to be filled by a special election conducted under the Election Code. But the office flagged that the matter is "not free from doubt" and suggested the Legislature revisit Chapter 2009-260 to clarify its intent. Because this was an informal response to a legislator's constituent question, it does not bind anyone.

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.

Background and statutory framework

The East County Water Control District is governed by a five-member board of commissioners who must be registered voters and residents of the district, elected at large. Section 189.405(3)(a), Florida Statutes, provides that "[i]f a multicounty special district has a popularly elected governing board, elections for the purpose of electing members to such board shall conform to the Florida Election Code, chapters 97-106."

The 2009 amendment (Chapter 2009-260, CS/HB 1113) changed how vacancies are filled: section 4(4) of the special act now ties vacancy-filling to section 189.405(3)(a), replacing the earlier reference to section 298.12. The House Local Bill Staff Analysis described the change as switching "the method for filling vacancies through special election."

The office's bottom line was that, by cross-referencing section 189.405(3)(a) and the Election Code, the amended act appears to call for filling vacancies by special election rather than by appointment, but the ambiguity warranted a legislative fix. The office also cited section 16.01(3), Florida Statutes, as the basis for declining to comment on the Governor's role.

Citations and references

Statutes and session laws:

• § 189.405(3)(a), Fla. Stat. (multicounty special districts; Florida Election Code)
• Ch. 2009-260, Laws of Fla. (2009 amendment to the district's special act)
• § 298.12, Fla. Stat. (former vacancy-filling method)
• § 16.01(3), Fla. Stat. (scope of Attorney General opinions)
• Chapters 97-106, Fla. Stat. (Florida Election Code)

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/muticounty-special-district-filling-vacancies
• Original PDF: https://www.myfloridalegal.com/print/pdf/node/8178

Original opinion text

The Honorable Michael S. Bennett

Senator, 21st District

Wildewood Professional Park, Suite 90

3653 Cortez Road West

Bradenton, Florida 34210

Dear Senator Bennett:

Thank you for your letter of October 28, 2010, requesting assistance regarding the process to be used in filling vacancies on multicounty special district boards. Information supplied with your letter indicates that a constituent has questions regarding filling vacancies on the district board as that procedure is controlled by section 189.405(3)(a), Florida Statutes. Attorney General McCollum has asked me to respond to your letter. I would note that this office will not comment on the duties and authority of the Governor in the absence of a request from that office for our assistance.[1] The following general comments are provided in an effort to assist you in advising your constituents.

Chapter 2009-260, Laws of Florida, CS/HB 1113, amended the special act creating the East County Water Control District in Lee and Hendry Counties. The act states that vacancies on the board shall be filled pursuant to section 189,.405(3)(a), Florida Statutes.[2]

Section 189.405(3)(a), Florida Statutes, provides:

"If a multicounty special district has a popularly elected governing board, elections for the purpose of electing members to such board shall conform to the Florida Election Code, chapters 97-106."

The East County Water Control District Board of Commissioners is composed of five members who are registered voters and residents of the district.[3] As the act specifically recognizes, "[t]he Board of Commissioners shall be elected at large by the electors residing in the District."[4] Clearly, the board of commissioners of the East County Water Control District are popularly elected and their election must be conducted using the procedures set forth in the Election Code as required by section 189.405(3), Florida Statutes. However, section 4(4) of the special act also requires that vacancies be filled pursuant to section 189.405(3), Florida Statutes, and, by reference, the Florida Election Code.

A review of the legislative history contained in the House of Representatives Local Bill Staff Analysis indicates that the Legislature, in amending the special act to remove the requirement that vacancies be filled pursuant to section 298.12, Florida Statutes, intended to "chang[e] the method for filling vacancies through special election[.]"[5]

Thus, it would appear that the Legislature intended that a vacancy occurring on the Board of Commissioners of the East County Water Control District be filled by a special election conducted pursuant to the Florida Election Code, Chapters 97-106, Florida Statutes. Because this matter is not free from doubt, the Legislature may wish to revisit Chapter 2009-260, Laws of Florida, and clarify its intent regarding the methods to be used in filling vacancies on the board of commissioners for the district.

I trust that these informal comments will be of assistance to you in advising your constituents.

Sincerely

Gerry Hammond

Senior Assistant Attorney General

GH/srh

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

[2] The previous method for filling vacancies was provided in section 298.12, Fla. Stat. See s. 4.(4), Ch. 2009-260, Laws of Fla.

[3] See s. 4.(1), Ch. 2009-260, Law of Florida.

[4] Id.

[5] See s. III.A. "Constitutional Issues," House of Representatives Local Bill Staff Analysis for CS/HB 113, dated 4/1/2009.