This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives.
STORAGE NAME: h0209a.LFS
DATE: 2/15/2023
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: HB 209 Recall of County Commissioners
SPONSOR(S): Rudman and others
TIED BILLS: HJR 131 IDEN./SIM. BILLS:
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Local Administration, Federal Affairs & Special
Districts Subcommittee
16 Y, 0 N Roy Miller
2) Ethics, Elections & Open Government
Subcommittee
3) State Affairs Committee
SUMMARY ANALYSIS
Art. VIII, s. 1 of the Florida Constitution provides the framework for county government in Florida, including
requiring counties to be governed by a board of county commissioners and establishing the offices of sheriff,
tax collector, property appraiser, supervisor of elections, and clerk of the circuit court.
The county officers created in the Florida constitution and county commissioners may be removed from office
when their terms expire or if suspended by the Governor and removed by the Senate. A county charter also
may provide for recall of county commissioners or county constitutional officers, or both.
A member of a governing body of a municipality or charter county may be subject to recall if a petition alleging
the grounds for recall is signed by a sufficient number of voters in the municipality, county, or district in which
the member was elected. If enough voters sign the petition, the allegations, as well as the member’s
response to those allegations, are presented to the public as a document entitled “Recall Petition and
Defense.” If a sufficient number of voters sign the “Recall Petition and Defense,” a recall election is held.
The bill implements HJR 131, which amends art. VIII, s. 1 of the Florida Constitution to authorize the
Legislature to provide for the recall of county officers and commissioners by general law. The bill revises
existing procedures for the recall of members of county and municipal governing bodies, including the
governing bodies of non-charter counties. The bill is effective upon Florida voter approval of the proposed
constitutional amendment. STORAGE NAME: h0209a.LFS PAGE: 2
DATE: 2/15/2023
FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Background
County Officers and Commissioners
Art. VIII of the Florida Constitution establishes the authority for home rule by counties and
municipalities in Florida. The Legislature is required to divide the state into counties
1
and has the
authority to choose to create municipalities.
2
Pursuant either to general
3
or special law, a county government may be adopted by charter approved
by the county voters. A county without a charter has such powers of self-government as provided by
general
4
or special law.
5
A county with a charter has all powers of self-government not inconsistent with
general law or special law approved by the county voters.
6
The Florida Constitution provides unique
authorization
7
for specific home rule charters including those of Duval
8
and Miami-Dade Counties.
9
Currently, 20 Florida counties have adopted charters.
10
The Constitution creates five specific county officers: sheriff, tax collector, property appraiser,
supervisor of elections, and clerk of the circuit court (collectively, the Five Constitutional
Offices/Officers).
11
The clerk of the circuit court also serves as the ex officio clerk of the board of county
commissioners, auditor, recorder, and custodian of county funds. Each officer is elected separately by
the voters of the county for terms of four years. These officers have duties prescribed in general law.
12
1
Art. VIII, s. 1(a), Fla. Const.
2
Art. VIII, s. 2(a), Fla. Const.
3
S. 125.60, F.S.
4
Ch. 125, Part I, F.S.
5
Art. VIII, s. 1(f), Fla. Const.
6
Art. VIII, s. 1(g), Fla. Const.
7
Art. VIII, s. 6(e), Fla. Const., incorporating by reference ss. 9, 10, 11, 24 from article VIII of the 1885 Constitution, states
that these specific provisions respectively for Duval, Miami-Dade, Monroe, and Hillsborough Counties “shall remain in full
force and effect as to each county affected, as if this article had not been adopted, until that county shall expressly adopt
a charter or home rule plan pursuant to this article.”
8
The consolidated government of the City of Jacksonville was created by ch. 67-1320, Laws of Florida, adopted pursuant
to Art. VIII, s. 9, Fla. Const. (1885).
9
In 1956, an amendment to the 1885 Florida Constitution provided Dade County with the authority to adopt, revise, and
amend from time to time a home rule charter government for the county. The voters of Dade County approved that charter
on May 21, 1957. Dade County, now known as Miami-Dade County, has unique home rule status. Article VIII, s. 11(5) of
the 1885 State Constitution, now incorporated by reference in art. VIII, s. 6(e), Fla. Const. (1968), further provided the
Metropolitan Dade County Home Rule Charter, and any subsequent ordinances enacted pursuant to the charter, may
conflict with, modify, or nullify any existing local, special, or general law applicable only to Dade County. Accordingly,
Miami-Dade County ordinances enacted pursuant to the Charter may implicitly, as well as expressly, amend or repeal a
special act that conflicts with a Miami-Dade County ordinance. Effectively, the Miami-Dade Charter can only be altered
through constitutional amendment, general law, or County actions approved by referendum. Chase v. Cowart, 102 So. 2d
147, 149-50 (Fla. 1958).
10
Alachua, Brevard, Broward, Charlotte, Clay, Columbia, Duval (consolidated government with the City of Jacksonville,
ch. 67 -1320, Laws of Fla.), Hillsborough, Lee, Leon, Miami-Dade, Orange, Osceola, Palm Beach, Pinellas, Polk,
Sarasota, Seminole, Volusia, and Wakulla Counties. 2020-2022 The Local Government Formation Manual, p. 104-108, at
https://www.myfloridahouse.gov/Sections/Documents/loaddoc.aspx?PublicationType=Committees&CommitteeId=3117&S
ession=2021 &DocumentType=General+Publications&FileName=2021-2022+Local+Government+Formation+Manual.pdf,
(last visited Jan. 27, 2023).
11
Art. VIII, s. 1(e), Fla. Const.
12
See ch. 30, F.S. (stating certain duties of the sheriff as a Constitutional officer); ch. 197, F.S. (stating certain duties of
the tax collector as a Constitutional officer); ch. 193, Part I, F.S. (stating certain duties of the property appraiser as a
Constitutional officer); ch. 102, F.S. (stating certain duties of the supervisor of elections as a Constitutional officer); and
ch. 28, F.S. (stating certain duties of the clerk of the circuit court as a Constitutional officer). STORAGE NAME: h0209a.LFS PAGE: 3
DATE: 2/15/2023
The continuation, duties, or term in office of each of the Five Constitutional Offices may not be altered.
Other provision for the county government duties of the Clerk of the Court may be made as provided
under article V, section 16 of the Florida Constitution or by special act approved by the voters of the
county.
13
The Constitution also provides that each county, except as otherwise provided by a county charter, is
governed by a board of county commissioners composed of five or seven members serving staggered
four-year terms.
14
Each county must be divided into districts that are contiguous and as nearly equal in
population as practicable, which are redrawn after each decennial census. One commissioner must
reside in each district as provided by law.
The default method created by general law provides that each county has a five-member commission,
with a commissioner representing each district elected at-large by all voters of the county.
15
Subject to
approval in a referendum of the county’s voters, the commission may alternatively be structured as:
A five-member board, with each member elected only by the qualified electors who reside in the
same county commission district as the commissioner; or
A seven-member board, with five members elected only by the qualified electors who reside in
the same county commission district as the commissioner and two members elected at-large.
16
Most counties use the default five-member board, elected at-large method, while 20 counties elect
commissioners from single-member districts and 7 counties use the seven-member board system.
17
Charter counties have various numbers of single-member and at-large commissioners.
Recall of Officials
General law currently provides for the recall of members of the governing body of a municipality or
charter county (if provided in the charter). The recall process may be initiated by a petition of the
electors of the district or the entire governmental unit (if the member is elected at large).
18
The petition
must include the name of the members sought to be recalled and a statement of grounds for the
recall.
19
The statement of grounds may not exceed 200 words and must describe malfeasance,
misfeasance, neglect of duty, drunkenness, incompetence, permanent inability to perform official
duties, or conviction of a felony involving moral turpitude.
20
A separate petition is required for each
member sough to be recalled.
21
The recall petition must be signed by the greater of a set population threshold based on size of the
municipality, county, or district, or ten percent of the registered voters of the municipality, county, or
district.
22
The petition process must be completed within 30 days after the first signature is obtained
and the completed petition must be submitted to the clerk of the municipality or county by the chair of
the recall committee.
23
After receipt of the petition, the clerk is responsible for submitting the petition to
the supervisor of elections for the purpose of verifying signatures.
24
13
Art. VIII, s. 1(d), Fla. Const.
14
Art. VIII, s. 1(e), Fla. Const.
15
S. 124.011(1), F.S.
16
S. 124.011(1)(a)-(b), F.S.
17
Fla. Association of Counties, County Districting, https://www.fl-counties.com/county-districting (last visited Jan. 10,
2022).
18
S. 100.361(1), F.S.
19
S. 100.361(2)(a), F.S.
20
S. 100.361(2)(a), (d), F.S.
21
S. 100.361(2)(a), F.S.
22
S. 100.361(2)(b), F.S.
23
S. 100.361(2)(f), F.S. The recall committee consists of all electors of the municipality, county, or district making charges
contained in the statement of grounds for recall, as well as those signing the recall petition. One member of the recall
committee must serve as the chair. S. 100.361(2)(c), F.S.
24
S. 100.361(2)(g), F.S. STORAGE NAME: h0209a.LFS PAGE: 4
DATE: 2/15/2023
If the requisite number of signatures has been obtained, and the supervisor of elections determines a
sufficient number of signatures are valid, the clerk of the county or municipality must serve a certified
copy of the petition to the member for which a recall is sought.
25
The member has five days after
service within which to file a defensive statement with the clerk. Upon receipt of the defensive
statement, the clerk, within five days, must prepare a sufficient number of copies of the petition and
defensive statement, and copies of the names, addresses, and oaths on the original petition. The clerk
must deliver these copies to the chair of the committee and obtain a receipt from the chair. The clerk’s
prepared copies are referred to as the “Recall Petition and Defense.”
26
The “Recall Petition and Defense” must be signed by at least 15 percent of the electors.
27
The chair of
the recall committee has 60 days from the delivery of the “Recall Petition and Defense” to obtain
signatures and file the petition with the clerk. The clerk, after assembling the petitions and checking
witness oaths, must deliver the petition to the supervisor of elections, who verifies signatures, purges
all names stricken, and certifies within 30 days if the petition contains the requisite number of
signatures.
28
The supervisor must report his or her findings to the governing body.
If the required signatures are not obtained, the clerk must report this information to the governing body,
file the petitions with the county supervisor of elections, and terminate the proceedings.
29
The petitions
cannot be used again. If, however, the required signatures are obtained, the clerk must serve notice on
the member being recalled and deliver to the governing body a certificate stating the percentage of
qualified voters who signed.
If the member does not resign within five days from receiving the final notice, the chief judge of the
judicial circuit sets the date for a recall election to occur no less than 30 days and no more than 60
days after the expiration of the five-day period in which the member may have resigned.
30
If the recall
election results in a single vacancy, the vacancy is filled by the governing body using the ordinary
method provided by law for filling vacancies.
31
If multiple members of the governing body are subject to
recall, any potential vacancy may be filled by a special election held at the same time as the recall (for
positions elected at-large) or at a special election held less than 30 days and no more than 60 days
after the recall election (for positions elected from districts).
32
A member can only be recalled if he or she has served at least one-fourth of the term of office. A
member is not eligible for appointment to the governing body for two years following recall or
resignation after a petition has been filed against him or her.
33
In addition to the above-described provision of law, most charter counties provide for recall in their
charters.
34
While not expressly identified in art. VIII, s. 1(d) of the State Constitution, there is no
constitutional prohibition limiting the ability of charter counties to impose additional removal procedures
on county commissioners. The broad home rule powers of charter counties allow them to act so long as
the action taken is not “inconsistent with general law, or with special law approved by vote of the
25
S. 100.361(3), F.S.
26
S. 100.361(3)(b), F.S.
27
S. 100.361(3)(c), F.S.
28
S. 100.361(3)(e), F.S.
29
S. 100.361(3)(f), F.S.
30
S. 100.361(4), F.S. If a general or special election is set within the time period, the recall election must be set on the
same day.
31
S. 100.361(6)(d), F.S.
32
S. 100.361(6)(a)-(b), F.S.
33
S. 100.361(8), F.S.
34
Of the state’s 20 charter counties, 18 provide for the recall of county commissioners. Additionally, the charters of
Brevard, Clay, Duval, Miami-Dade, and Sarasota provide for the recall of the Five Constitutional Officers. See Fla.
Association of Counties, Charter County Information, available at https://www.fl-counties.com/sites/default/files/2021-
03/Charter%20County%20Provision%20Comparisons.2020.pdf (last visited Jan. 28, 2023). STORAGE NAME: h0209a.LFS PAGE: 5
DATE: 2/15/2023
electors.”
35
Thus, a charter county currently may modify its recall procedures through charter
amendment or special law approved by the voters.
36
Apart from the power of charter counties to provide for recall, the constitution provides for four-year
terms of county officers.
Effects of Proposed Change
The bill implements HJR 131, which amends art. VIII, s. 1 of the Florida Constitution to authorize the
Legislature to provide for the recall of county officers and commissioners by general law. The bill
revises and applies existing procedures for the recall of members of municipal or charter county
governing bodies to governing bodies of non-charter counties.
B. SECTION DIRECTORY:
Section 1: Amends s. 100.361, F.S., to provide for the recall of any member of the governing body
of a non-charter county.
Section 2: Provides the bill shall take effect on the effective date of an amendment to the Florida
Constitution proposed by HJR 663 or a joint resolution having substantially the same
specific intent and purpose, if such amendment is approved at the next general election
or at an earlier special election specifically authorized by law for that purpose.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
None.
2. Expenditures:
None.
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
2. Expenditures:
The bill may have a negative fiscal impact on county governments in non-charter counties to the
extent additional recall elections are held.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
None.
D. FISCAL COMMENTS:
None.
35
Art. VIII, s. 1(g), Fla. Const.
36
See Telli v. Broward County, 94 So. 3d 504, 512-13 (Fla. 2012) (allowing charter counties to adopt term limits on county
commissioners and explicitly overruling a prior case which barred this in the case of the Five Constitutional Officers). STORAGE NAME: h0209a.LFS PAGE: 6
DATE: 2/15/2023
III. COMMENTS
A. CONSTITUTIONAL ISSUES:
1. Applicability of Municipality/County Mandates Provision:
Not Applicable. This bill does not appear to require counties or municipalities to spend funds or take
action requiring the expenditures of funds; reduce the authority that counties or municipalities have
to raise revenues in the aggregate; or reduce the percentage of state tax shared with counties or
municipalities.
2. Other:
None.
B. RULE-MAKING AUTHORITY:
The bill neither provides authority for nor requires rulemaking by executive branch agencies.
C. DRAFTING ISSUES OR OTHER COMMENTS:
None.
IV. AMENDMENTS/COMMITTEE SUBSTITUTE CHANGES