HomeMy WebLinkAbout2579 _ SEYMOUR B. F'LEMING, et al, vs.
LAWRENC`E D. KIMMEL, et al.
CASE NO. 75 38 CA
Kimmel and Beardsley were bo~h serving at the pleasure of the
City Council. Each performed administrative func~ions and had
no right by virtue of their position to exercise any of the ~
municipal powers of the City. The Court concludes that Council- _ j
- men Kimmel and Beardsley were emplojees of the City and did not
hold an additional "office" as prohibited by Article I.z,. Section
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5(a) , of the Flor ida Constitutian. - . ~
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. However, this finding is not determinative of the
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issue. Plain~iffs alternatively contend, even if the consti ~
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tutional prohibi~ion is not applicable, that common law rules ~
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~ still in effect in Florida contr~l. The~applicable law has been. t-
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. stated by the Attorney General in his Opinion 070-46, as follows: ~
"At common law, all officers who have the
appointing power-are disqualified for .
appointment to the offices or positions to _ -
which they may appoint. [Citations]~_Th~
- . reason for the public policy rule in this _
respect has been variously stated: In
~ - Wvod v. Whitehall, 1923, 197 N.Y. S. 789,
_ the court said that such an appointment is `
- against good-conscience and public mor~ls; =
in Hetrich v. County Commissioners of - ~
Anne Arundel County, Md . 1960, 159 ~1. 2d . ~ _
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642, 645, the prohibition was grounded '
on the need for imparti.al action with- ~
- out suspicion of bias;~ and in Ehl:inger r
v. Clark, Tex. 1928, 8 S.W.2d 666, the . ~ I
~ court said that the rule was based on - k
i 'the obviou~ incompatibility af being - - -
; both a member of a body making_the appoint- j
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~ ment and an appointee of that- body . . . ' " ~ ;
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~ This earlier opinion has beeii affirmed and reinforced by AGO ~ ~
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_ 072-384, which held that a ci~y council may not appoint one of
its own members as chief of police; AGO Oi3-359, which held -
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that a county commission may not appoint one of its own members ~
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_ L~ 5~rve ds su~eLvisor of a water and sewer district; and most _
recently, AGO 075-60, holding that an appointment by a board of
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county commissioners of one of its own to the county's industrial i
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development authority wo~.~ld be contrary to the common ~aw_rule.~ ~
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