Alachua County Charter

Review Commission

21 East University Avenue

Gainesville, Florida 32601

Ladies and Gentlemen:

This letter will provide our supplemental report on the proposed charter revision issues discussed at your meetings held on March 7, 14 and 21. Although we do not presume to direct the order in which these issues will be discussed at your March 28 meeting, each remaining issue will be identified in this letter to facilitate its possible use as an agenda.

Requiring fees for the use of all governmental resources

No additional assignment was made with respect to this issue.

Conflicts in Charter

Two specific areas of conflict were identified and discussed: dissolution of the Charter Review Commission and residency requirements for County Commission elections. We were assigned to prepare draft language for consideration by the CRC.

Dissolution of the Charter Review Commission: The current charter does not provide for dissolution of the CRC if amendments are submitted to the County Commission but do not appear on the general election ballot. This issue was addressed by the Circuit Court in Alachua County v. The Alachua County Charter Review Commission, Case No. 99-489-CA. The following draft amendment to Section 4.2(B)(6) would provide for dissolution on the general election date whether or not amendments are submitted to the County Commission or appear on the general election ballot. The draft amendment is consistent with the result reached by the Circuit Court in the above-referenced case.

(B) Amendments and revision by charter review commission.

(6) If it does not submit any proposed charter amendments or revisions to the board of county commissioners at least ninety (90) days prior to the general election, the charter review commission shall be automatically dissolved. Otherwise upon acceptance or rejection of the proposed amendments of revisions by the electors, the charter review commission shall be automatically dissolved on the date of such general election. Upon dissolution of the charter review commission, all property of the charter review commission shall thereupon become the property of the county.

County Commission Residency Requirement: As discussed in our April 22 letter, there is a Florida Supreme Court case which holds that requiring a county commission candidate to reside in the district on the date of qualification to run for office is unconstitutional. The following draft amendment to Section 2.2(A) would remove that requirement from the current charter.

(A) The county commission. The governing body of the county shall be a board of county commissioners composed of five (5) members serving staggered terms of four (4) years. There shall be one (1) commissioner for each of the five (5) county commission districts established pursuant to general law and they shall be elected on a countywide basis by the electors of the county. Each candidate for the office of county commissioner shall reside within the district from which such candidate seeks election at the time of qualifying to run for the office, and during During the term of office each commissioner shall reside in the district from which such commissioner ran for office, provided that any commissioner who is removed from a district by redistricting may continue to server during the balance of the term of office.

Empanel the CRC more frequently

We were assigned to prepare amendment language that would accommodate a proposal to require appointment of a charter review commission more frequently than once every ten years. The following draft amendment to Section 4.2(B)(1) would accommodate a proposal that the CRC be appointed at two, four, six, or eight year intervals, multiples of two year intervals being consistent with amendments appearing on a general election ballot.

(B) Amendments and revision by charter review commission.

(1) A charter review commission consisting of not less than eleven (11) nor more than fifteen (15) electors of the county shall be appointed by the board of county commissioners at least twelve (12) months before the general election occurring in 1990 [insert year] and at least twelve (12) months before the general election occurring every ten (10) [insert number (x)] years thereafter, to review the home rule charter and propose any amendments or revisions which may be advisable for placement on the general election ballot. No member of the state legislature of the board of county commissioners shall be a member of the charter review commission. Vacancies shall be filled within thirty (30) days in the same manner as the original appointments.

Independent Auditor

We were assigned to outline the available options for transferring the county auditor responsibilities from the clerk to a charter office of county auditor. There are two constitutional provisions that address the clerk's responsibilities. Article V, section 16 of the Florida Constitution primarily addresses judicial functions and provides as follows:

There shall be in each county a clerk of the circuit court who shall be selected pursuant to the provisions of Article VIII section 1. Notwithstanding any other provision of the constitution, the duties of the clerk of the circuit court may be divided by special or general law between two officers, one serving as clerk of court and one serving as ex officio clerk of the board of county commissioners, auditor, recorder, and custodian of all county funds. There may be a clerk of the county court if authorized by general or special law.

Article VIII, section 1(d) more specifically addresses county functions and provides as follows:

There shall be elected by the electors of each county, for terms of four years, a sheriff, a tax collector, a property appraiser, a supervisor of elections, and a clerk of the circuit court; except, when provided by county charter or special law approved by vote of the electors of the county, any county officer may be chosen in another manner therein specified, or any county office may be abolished when all the duties of the office prescribed by general law are transferred to another office. When not otherwise provided by county charter or special law approved by vote of the electors, the clerk of the circuit court shall be ex officio clerk of the board of county commissioners, auditor, recorder and custodian of all county funds.

The combined effect of these provisions was addressed by the Florida Supreme Court in Alachua County v. Powers, 351 So.2d 32 (Fla. 1977).

The trial court was correct in interpreting these two constitutional provisions as prescribing the only means of separating the clerk's judicial functions as clerk of the court from his clerk's county officer functions as auditor, accountant, custodian of county funds and official recorder. The office may be divided by special or general law pursuant to Article V, Section 16, Florida Constitution, or the clerk's county officer functions may be divided by county charter or special law approved by a vote of the electors pursuant to Article VIII, Section 1(d), Florida Constitution. In the absence of either of these two methods, the clerk must perform the dual role prescribed by constitutional mandate.

Powers at 36.

Based upon the Powers decision, we indicated at your February 8 meeting that a charter office of county auditor could be established by a charter amendment dividing the clerk's responsibilities, as specifically authorized by Article VIII, section 1(d) of the Florida Constitution. Two different models have been employed in other county charters. Under the first model, exemplified by Orange County, all of the clerk's county officer functions were assigned to a separately elected comptroller. Under the second model, exemplified by Osceola County, the clerk's county officer duties were divided between the county manager (who became the clerk to the board of county commissioners, accountant, recorder and custodian of county funds) and an appointed county auditor reporting directly to the county commission.

Although no formal vote was taken during your March 7 discussion, the members appear to be interested only in establishing a charter office responsible for performance auditing that would be independent of the county manager and report directly to the county commission. No interest was expressed in changing the current status of financial auditing (either in connection with the pre-audit function or the post-audit function). Although Powers clearly holds that a county charter may reassign all of the clerk's county officer responsibilities, it is less clear that a county charter may establish an officer responsible for some but not all of the clerk's county officer functions and we found no reported appellate case specifically addressing this issue.

Although the issue is not free from doubt, we believe that the Alachua County Charter may be amended to establish a charter officer responsible only for performance auditing. Consistent with our February 22 and March 7 correspondence, we intend no comment on the advisability of any specific proposal.

You will recall that our February 22 letter addressed the issue of the sheriff's autonomy. With respect to that issue, we advised you that Article VIII, section 1(d) clearly permits a county charter to abolish any county constitutional office, including the sheriff, if all of the duties are transferred to another office. However, if the office is not abolished and all of the duties transferred, it is our view that the charter may not supercede the constitutional and statutory provisions relating to the sheriff. Our advise was based upon the following language of Article VIII, section 1(d) that is applicable to all of the county constitutional officers.

when provided by county charter or special law approved by vote of the electors of the county, any county officer may be chosen in another manner therein specified, or any county office may be abolished when all the duties of the office prescribed by general law are transferred to another office.

Unlike the language applicable to all county constitutional officers, which requires an "all or nothing" approach, the following language in Article VIII, section 1(d) that is applicable only to the clerk may be read to allow a charter provision that transfers less than all of the clerk's county officer responsibilities.

When not otherwise provided by county charter or special law approved by vote of the electors, the clerk of the circuit court shall be ex officio clerk of the board of county commissioners, auditor, recorder and custodian of all county funds.

To preserve the functionality of the clerk's office, the foregoing provision would likely be interpreted to allow transfer of less than all of the clerk's county officer responsibilities to another charter officer only if the transferred responsibility is functionally severable from the clerk's remaining county officer duties. Transferring responsibility for performance auditing would seem to meet this requirement. Section 11.45(1)(g) provides a definition of performance auditing that, while it includes some provisions specifically directed to state government, may be of some assistance.

(g) "Performance audit" means an examination of a program, activity, or function of a governmental entity, conducted in accordance with applicable government auditing standards or auditing and evaluation standards of other appropriate authoritative bodies. The term includes an examination of issues related to:

1. Economy, efficiency, or effectiveness of the program.

2. Structure or design of the program to accomplish its goals and objectives.

3. Adequacy of the program to meet the needs identified by the Legislature or governing body.

4. Alternative methods of providing program services or products.

5. Goals, objectives, and performance measures used by the agency to monitor and report program accomplishments.

6. The accuracy or adequacy of public documents, reports, or requests prepared under the program by state agencies.

7. Compliance of the program with appropriate policies, rules, or laws.

8. Any other issues related to governmental entities as directed by the Legislative Auditing Committee.

As defined in Section 11.45(g), transfer of the performance audit function does not appear to adversely affect the clerk's obligation to pre-audit expenditures in connection with his or her responsibilities as custodian of county funds. This is consistent with the distinction made by the Florida Supreme Court in Alachua County v. Powers, in which the Court held, in part, as follows:

Pre-audits are conducted by the clerk in his capacity as county auditor, a performance audit may be made by an independent certified public accountant (or independent auditing firm), and post-audit may be made by the auditor general or the independent accounting firm.

In fact, the foregoing language suggests that performance auditing may not be part of the clerk's constitutional duties as county auditor.

If the CRC elects to move forward with a proposed amendment to establish a charter officer responsible only for performance auditing, the language must be carefully crafted to meet the criteria described in this letter.

County ordinances prevailing over municipal ordinances

No additional assignment was made with respect to this issue.

County environmental ordinances prevailing over municipal ordinances

We were assigned to prepare amendment language providing that county ordinances establishing minimum standards for the protection of air and water would prevail over conflicting municipal ordinances. In addition, we were asked to research the prospect of requiring referendum approval or a supermajority vote to enact such ordinances.

Referendum Requirement. Charter provisions requiring referendum approval as a precondition for ordinance effectiveness have not been litigated extensively. The power of referendum is controlled by Article 6, section 5 of the Florida Constitution. As interpreted by the First District Court of Appeal in Holzendorf v. City of Jacksonville, 606 So.2d 645 (Fla. 1^st DCA 1992):

Article 6, section 5, Florida Constitution, controls the manner in which the power of referendum may be granted. That section provides in part: "Special elections and referenda shall be held as provided by law." Under the Constitution, the phrase "as provided by law" means as passed "by an act of the legislature." Broward County v. Plantation Imports, Inc., 419 So.2d 1145, 1148 (Fla. 4th DCA 1982).

Although many statutory provisions require that ordinances be approved by referendum in specific situations, none apply to the circumstance presented here. Section 125.01(1)(y), Florida Statutes, does allow the county to conduct straw ballots at general elections. However, since the express purpose is "to obtain an expression of elector sentiment with respect to matters of substantial concern within the county," the results are purely advisory. In the absence of a legislative act authorizing a binding referendum for this purpose, we believe that a charter provision requiring referendum approval as a precondition to enactment of an ordinance would be constitutionally suspect.

We are mindful of cases such as City of Winter Springs v. Florida Land Company, 413 So.2d 34 (Fla. 5^th DCA 1982) and Gaines v. City of Orlando, 450 So.2d 1174 (Fla. 5^th DCA 1984), which indicate that certain charter provisions requiring referendum approval as a precondition to ordinance effectiveness may be valid. However, since the charter was enacted by a special act of the legislature in each of these cases, the referendum authorization was in compliance with Article 6, section 5 of the Florida Constitution.

Supermajority Vote Requirement. We found no reported appellate cases involving charter provisions that require a supermajority vote as a precondition for ordinance effectiveness. However, our review of the statutory provisions under which county and municipal ordinances are enacted leads us to the conclusion that a supermajority requirement may be inconsistent with general law.

Section 125.66, Florida Statutes, provides for the enactment of county ordinances and has been interpreted universally to require a simple majority vote. In fact, the Attorney General has concluded that where only three members of the board of county commissioners are present at a regular meeting of the board, an ordinance may be enacted by two affirmative votes. See Op.Atty.Gen., 075-178.

Section 166.041, Florida Statutes, provides for the enactment of municipal ordinances and also has been interpreted universally to require a simple majority vote. Unlike the statutory provision applicable to counties, however, the statutory provision applicable to municipalities expressly permits more restrictive charter provisions.

The procedure as set forth herein shall constitute a uniform method for the adoption and enactment of municipal ordinances and resolutions and shall be taken as cumulative to other methods now provided by law for adoption and enactment of municipal ordinances and resolutions. By future ordinance or charter amendment, a municipality may specify additional requirements for the adoption or enactment of ordinances or resolutions or prescribe procedures in greater detail than contained herein. However, a municipality shall not have the power or authority to lessen or reduce the requirements of this section or other requirements as provided by general law. (emphasis supplied)

Section 166.041(6), Florida Statutes.

Since municipalities are expressly permitted to include more stringent ordinance enactment requirements in their charters and counties are not, it seems likely that requiring more than a majority vote to enact ordinances establishing minimum standards for the protection of air and water would be held inconsistent with general law.

Draft Charter Amendment. The following draft amendment would replace the current Section 1.4 and provide that county ordinances establishing minimum standards for the protection of air and water would prevail over conflicting municipal ordinances.

No county ordinance shall be effective within a municipality if the municipality maintains an ordinance covering the same subject matter, activity or conduct as the county ordinance, provided, however, that county ordinances shall be effective within municipalities and shall prevail over municipal ordinances only when such ordinances establish minimum standards for protecting the environment by prohibiting or regulating air or water pollution, and only to the extent that such minimum standards are stricter than the applicable municipal standards.

Joint planning structure

During your discussion of joint planning, it was suggested that the current charter is an impediment to the development of joint planning initiatives. While we have found no provision of the current charter that addresses planning issues, there are potential statutory issues that may be addressed through a charter amendment.

Section 163.3171(3), Florida Statutes, expressly contemplates joint planning initiatives.

Combinations of municipalities within a county, or counties, or an incorporated municipality or municipalities and a county or counties, or an incorporated municipality or municipalities and portions of a county or counties may jointly exercise the powers granted under the provisions of this act upon formal adoption of an official agreement by the governing bodies involved pursuant to law. . . .

However, Section 163.3174, Florida Statutes, which authorizes the establishment of local planning agencies includes the following:

In the case of chartered counties, the planning responsibility between the county and the several municipalities therein shall be as stipulated in the charter.

Section 163.3174(1)(b), Florida Statutes.

Since Section 163.3174(1)(b) suggests that a joint local planning agency may not be created unless it is authorized by the charter and since the local planning agency is an integral part of the planning process, those commenting on a charter impediment may have been reacting to the fact that there is no provision in current charter addressing the responsibility for planning between the county and its municipalities.

Since the issues related to joint land use planning (particularly enforceability and liability) are complex, it would be difficult to develop and include a mandatory joint planning structure in the charter itself. However, the potential statutory impediment could be eliminated by permitting joint planning if the county and municipality agree. A simple charter provision authorizing joint planning by interlocal agreement might read as follows:

Each municipality shall be responsible for land use planning within its respective boundaries and the county shall be responsible for land use planning in the unincorporated area. Notwithstanding the foregoing, the county and any municipality may enter into an interlocal agreement to provide for joint planning in the area reserved for annexation by such municipality.

At present, only Hawthorne and LaCrosse do not have designated reserve areas. As an alternative to the phrase "in the area reserved for annexation by such municipality," you may wish to consider the phrase "in portions of the unincorporated area adjacent to such municipality."

County Commission salaries

No additional assignment was made with respect to this issue.

Single member districts

We were assigned to prepare language amending the current charter to increase the number of county commissioners and to designate single-member districts for certain of the commissioners. The changes would occur when the county's population reached a designated level. The following draft would replace Section 2.2 in its entirety and should provide a basis for beginning your discussion. Please be aware that the transition issues may be affected by the total number of commissioners and the number of single-member districts. After you have established these parameters, we can provide a more refined draft.

2.2 Legislative Branch

(A) Population under [insert number]. As long as the population of persons within the county remains under [insert number], the governing body of the county shall be a board of county commissioners composed of five (5) members serving staggered terms of four (4) years. There shall be one (1) commissioner for each of the five (5) county commission districts established pursuant to general law and they shall be elected on a countywide basis by the electors of the county. During the term of office each commissioner shall reside in the district from which such commissioner ran for office, provided that any commissioner who is removed from a district by redistricting may continue to serve during the balance of the term of office.

(B) Population of [insert number] and over.

(1) At any time the population within the county reaches or exceeds [insert number] persons, as ascertained under either: the most recent decennial census of the population produced by the U.S. Bureau of the Census, or the most recent estimates of populations of counties produced by the State of Florida, Office of the Governor, or the designated agency thereof, whichever number is greater, then the county commission shall adopt a resolution which ratifies the number of persons in the county and authorizing the increase in the number of county commissioners and the creation of single-member districts, which shall become effective beginning with the next general election [Alt: next general election occurring in a year the number of which is a multiple of 4]. Until such time as the additional county commissioners are elected and placed in office, however, the legislative power of the county shall remain vested in a commission of five members.

(3) The governing body of the county shall be a board of county commissioners composed of [insert number] members serving staggered terms of four (4) years. The board of county commissioners shall consist of seven commissioners, each of whom shall be elected from one of seven districts. Each commissioner shall be elected by the electors residing in the district for which the commissioner qualifies. During the term of office each commissioner shall reside in the district from which such commissioner ran for office, provided that any commissioner who is removed from a district by redistricting may continue to serve during the balance of the term of office.

(4) The territory of [insert number] districts shall embrace the entire territory of the county and be designated as districts [insert numbers], respectively. The territory of [insert number] districts shall be established by dividing all of the county into [insert number] separate areas, designated as districts [insert numbers], respectively, as nearly equal in population as practicable.

I trust this additional information will assist in your deliberations.

Very truly yours,

George H. Nickerson, Jr.

GHN/kd