HISTORY OF FLORIDA COUNTIES AND THE RISE OF HOME RULE

Constitutional history of Florida county governments’
The history of County government under the successive Constitutions of the State of Florida is shadowy.  Of the seven constitutions which have been adopted since Florida became a territory, the first two did not specifically establish county officers at all except, as a part of the judicial power, to authorize the Legislature to establish in each county a board of commissioners.  The legislature responded to this provision by creating boards which consisted of five justices of the peace.

The third constitution, adopted during Reconstruction (1865) continues that general authorization to the Legislature to create boards of county commissioners, but requires the election of “judges of probate (later known as County Judges), sheriffs, clerks of circuit court, solicitors,…. County commissioners, coroners, justices of the peace, county surveyors, and all other officers…..

Three years later, under Congressional pressure during post-Civil War Reconstruction, the state Constitution was again revised.  In the 1868 charter, the Governor was given the power to appoint under the executive department “an assessor of taxes and a collector of revenue…. a county treasurer, county surveyor, superintendent of common schools, and five county commissioners…..County judges, State Attorneys, sheriffs, and clerks of circuit court were likewise appointed by the Governor under the judicial department, only constables were specifically required to be elected by the voters of the County.  The clerk of circuit court was also assigned the duties of clerk of the board of county commissioners, recorder, and ex officio auditor of the county.

In 1885, having emerged from Reconstruction, the state again revised the Constitution, providing for the first time a separate Article VIII dealing with counties and cities.  It provided that in every county there shall be elected “a clerk of circuit court, a sheriff, constables, a county assessor of taxes, a tax collector, a county treasurer, a superintendent of public instruction, and a county surveyor.”  Five County Commissioners in each county were still the subject of appointment by the Governor; not until 1900 was Article VIII, § 5 amended to provide for popular election of County Commissioners to two-year terms.  In 1944, this section was again amended to provide for staggered four-year terms of commissioners.

During its first forty years of statehood, Florida had six constitutions.  The last of these endured for the next eighty-three years, though not without strain.  During that time, the state’s population increased twenty fold.  By 1965, various forms of home rule or consolidation has been constitutionally authorized for Dade, Duval Monroe and Hillsborough counties, and a reconfiguration of county officers was authorized in Orange County.  Other urban counties pressed for statewide passage of lesser constitutional amendments which applied only to their own territory.

Characteristics of county government.
The County Commission form of government existed in many forms in late 19^th  Century America.  It is characterized by two features:  the existence of a plural executive, and the fusion of legislative and executive functions.  It reflects the bias of its times against a strong central executive, and the simplicity of the problems with which governments of that era had to struggle. 

Indeed, in Florida the original dual service of justices of the peace as county commissioners shows that there was so little to do at the county level that the executive, legislative and judicial function could be combined in a single small panel of part-time officers. 

Throughout the first two-thirds of the Twentieth Century, Florida counties continued to function as governments of limited services.  They provided jails, courthouses, central records, a property tax administration system, a rural and intercity road system, rudimentary health and social services, and little more.  Unlike many other jurisdictions, in Florida control of the local school system was lodged in a separate and independently elected School Board rather than the city or county government.

Origin of Charter governments.
Under the Constitution of 1885 and its predecessors, charters for county governments were unknown.  Most if not all counties were rural and sparsely populated, and there was little demand for concentrated public infrastructure and local regulatory power.  Those who demanded more in local government services than county government could lawfully provide, simply sought charters from the Legislature as municipal governments.  Residents of these cities were deemed citizens of both the city and the county, but the two governments performed entirely different functions.  The general central functions of providing jails and courthouses, a transportation system, and public records remained with the County.  But the unincorporated areas of most counties still demanded little in government services. 

The myriad municipal charters granted by the Legislature contained a diverse assortment of formal structures and delegated powers.  Cities had power to construct public utilities, enact zoning and other regulations, enact ordinances, and in general provide for the grater demand for services that flowed from a relatively more urban population.  However, both cities and counties were confounded by the fact that all power ultimately flowed from the Legislature, and no governmental power could exist at the local level unless it could be discovered within the general statues of the special acts and charters passed in Tallahassee.

  By the time the Constitutional Revision Commission was convened in the 1960’s, it was apparent that the traditional stingy flow of power from state to local governments was inadequate to deal with the demands of a growing urban population.  Dade County had sought and was granted a constitutional amendment allowing it’s a “home rule” charter; other counties obtained other dispensations, each through the cumbersome process of a constitutional amendment requiring approval at a statewide referendum.  The 1968 Constitution finally provided a simple method by which any county might receive a home rule charter, much as cities had done.  Shortly thereafter, the Legislature authorized board powers by general law for those counties not having charters. 

Courts were initially reluctant to recognize that the 1968 Constitution had intended to cede most of the Legislature’s traditional prerogatives.  Under the previous constitutions and the 19^th  Century principle known as “Dillon’s rule, the courts had traditionally treated the Legislature as the ultimate repository of the people’s legislative powers.  Local units of government were deemed to have only those powers which were expressly created by the Legislature, either through general legislation of statewide applicability found in the statutes, or through special or local bills which applied only to a particular city or county (such as the charter of a city, which was always a special act of the legislature).  For the first few years after the 1968 Constitution was adopted, court decisions continued to presume that local governments had no home rule powers except those granted by the legislature.

One of the purposes of the 1968 Constitution was thereby frustrated.  At the time of its adoption, the consideration of local bills for the solution of purely local problems and issues had become a principal part of the Legislature’s workload, often distracting it from issues of more statewide import.  It was the intent of the drafters of the 1968 Constitution that cities and charter counties could provide solutions for most of their problems on a “home rule” basis without the necessity of seeking the express delegation of new or special powers from the Legislature.

The Legislature reacted to these early decisions of the courts, and within a few years after the 1968 Constitution, the Legislature expressly declared its own recognition that the power of cities and Charter counties hereafter flowed directly from the people of Florida, through the Constitution, to the units of chartered local government. The Legislature was essentially removed from the process.

This did not mean that the Legislature was powerless over local governments.  As to cities, the Constitution provided that they should have all powers of local self-government for municipal purposes, except those inconsistent with some general or special law.  There are thus three situations in which a city may be held not to possess a home-rule power.  It may be that the Charter or some other special act expressly disclaims or prohibits such a power.  It may be that the State by a general statute has found a particular problem deserving of a statewide solution, program or regulation to which all cities are bound to adhere.  Or it may be that a particular regulation adopted by a city is in fact directed at something other than a “municipal” purpose, and hence is outside the Constitution’s delegation of power.

Charter counties were generally authorized for the first time under the 1968 Constitution (special provisions had been made for a handful of counties under amendments to the 1885 Constitution).  Their powers, like those of cities, flow directly from the Constitution.  There is one minor difference, in the case of cities, the Legislature may be special act create a conflicting provision which overrides some local power.  In the case of a charter county, the Legislature can override the powers of the county only by a general or statewide statute, or by a special act approved by a referendum of the local electors.

Noncharter County Government.
The County Commission form of government continues to be the form prescribed in the Constitution for those counties not having charters.  Counties may have either five or seven commissioners.

In addition, the Constitution prescribes the election of a sheriff, a tax collector, a property appraiser, a supervisor of elections, and a clerk of circuit court.

These county officers are frequently called the “constitutional officers”, but neither they nor the Board of County Commissioners have any express powers or duties under the Constitution (other than the constitutional provision which says that in the absence of a charter or contrary special act, the Clerk of Circuit Court serves as ex officio auditor and recorder), their duties are prescribed only in the general statutes, and are therefore subject to alteration at the discretion of the Legislature.

Forms of Charter County government.
Charter county governments have, under the Constitution, all powers of local self-government, including the ability within the charter to alter or abolish the constitutional offices.  All that is required is that the charter identify some other office within the government where the statutory powers of the constitutional officers will be carried out.

Charter governments are not required to adopt any particular form of government, and there are varying models.  Some like Orange, have strong elected executive.  Others continue to collegial legislative body as a Commission or Council, with an appointed executive reporting to the body.  Still others have forms of government that have no apparent difference from the traditional County Commission form, except that by virtue of the existence of their charter, their powers emanate directly from the Constitution rather than from the Legislature.  Some charters leave the constitutional officers and their power intact; other charters may alter or abolish come or all of the constitutional officers.

The Constitution provides that for noncharter counties, their ordinances in conflict with municipal ordinances shall not be effective within the municipality.  It was long thought that this restricted the county government solely to the regulation of the unincorporated area.  Recent decisions have held that when a county addresses subjects entrusted exclusively to it by the Legislature, such as the intercity road network, there is no valid municipal purpose in adopting an obstructive or contrary ordinance, and the municipal ordinance is therefore unconstitutional.

That sort of conflict may be addressed in the charter of a chartered county government; the Constitution requires that the charter shall provide which ordinance prevails in the event of conflict.

Opportunities for reform.
It is apparent from this account that the 1968 constitutional debates resulted in a more apparent than real trust by the State in the responsiveness and creativity of local governments.  There remains a high degree of state control over the decision and fortunes of local communities, particularly since the legislature may strip all non-ad valorem revenue sources and arguably could remove most home rule powers altogether.

Charter counties enjoy the strongest form of home rule.  It is important to understand why the Constitution so provides.  Aside from the state-local tensions evident in the historical home rule debates, there has been in more recent times an emerging tension between local governments.  As the state has become increasingly urbanized, cities become contiguous with each other.  County governments which once provided skeletal administrative functions have become full-service units of government for urban but unincorporated populations, often jostling with their constituent cities for jurisdiction over services and regional regulation.  The 1885 constitution, as it stood when it was superseded, had already recognized the potential for such tensions in the major urban of Dade, Duval and Hillsborough Counties (as well as Monroe).  The former Constitution provided the opportunity for these communities to redistribute local power by revising or consolidating their city and county governments.  The 1968 Constitution afforded the same opportunity to all counties, and many urban or urbanizing counties have seized that opportunity.

Should the grant of home rule powers and the opportunity for their redistribution be used as an incentive to solve local tensions and rethink the way local governments, especially counties, are organized?  The framers of the 1968 revision obviously thought so.  But the constitutional promise has fallen short, because the local governments however constituted must still operate within, and often compete for, a fixed and limited revenue base.

The 1968 revisors and subsequent legislatures have singled out charter counties in the distribution of home rule powers.  Both the Constitution and general law have empowered local voters with dual citizenship in the constituent governments to reallocate city-county functional relationships. 

Three principal tools were used:  the constitutional potential of superiority of charter county ordinances over municipal ordinances; a broad grant of both constitutional and legislative power to charter counties allowing them to determine locally that certain regulations are more conductive to uniform countywide enforcement; and specific statutory preference for counties over municipalities in specified functional areas.  As one might expect, there has been much litigation between Florida cities and charter counties over their respective rights and powers.

Generally, the current decisions hold that charter counties may exercise regulatory powers within municipalities where such a charter has been approved by a single countywide vote, but the outright assumption of municipal services through county charter provisions requires approval by referendum of the electors of each government under Article VIII, § 4.

A deeper issue was offered by one county in such a contest, when it argued:

 “In order for a transfer of power to take place, the power must exist.  Article VIII,  Section 2, gives cities only those powers not prohibited by general or special law.  Chapter 125.86(7) (which allows for county charter provisions that designate specific functional areas as being conducive to uniform countywide enforcement) is a limitation by general law on the constitutional power of the city.  If the people of a county, by charter amendment, have found a subject conducive to uniform countywide regulation, then by virtue of general law 125.86(7) the power of the city is removed, and no power remains to be transferred under the provisions of Article VIII, Section 4.

To date, the courts have held that even where a majority of the electors of the county approves, county charter provisions may not unilaterally achieve a functional consolidation of services or usurp municipal services by providing that specific services shall be provided only by the county.  Two solutions have been recommended to address this antimajoritarian constraint.  One is to repeal Section 4 altogether. 

The other is to persuade the legislature to enact legislation under that section (‘as otherwise provided by law”), expressly authorizing local charters to provide for local reallocation of service functions.

The allocation of home rule powers also may affect use of independent special taxing districts.  These districts usually include unincorporated areas of a county.  Historically, use of independent special taxing districts has been criticized.  Overlap of responsibilities, duplication and underutilization of resources, inability to coordinate the programs of independent special taxing districts with community-wide priorities and needs, and problems of political accountability are all arguments against use of this method of providing local services. 

The 1968 Constitution provides, “Local laws on the effective date of this Article relating only to unincorporated areas of a county may be amended or repealed by county ordinance”.  This provision applies to charter and non-charter counties, and is a limit of the powers of the former and a grant of power otherwise unauthorized to the latter.  The provision is a limit on the powers of charter counties because it specifies that only those special acts in effect at the time of the constitutional revision are subject to local amendment or repeal.  Special acts adopted after 1968 arguably cannot be amended or repealed by county ordinance, even in the presence of a charter provision granting such authority to the county (but see the provisions of Article VIII, § 1(g), requiring that such special acts be first approved by referendum.) 

Some analysts have suggested that the Florida Constitution should be amended to provide expressly for local repeal and transfer of all special acts creating independent special taxing districts (not just those established prior to 1968) by county charters, or by county ordinances in both charter and non-charter counties.  Charters have nevertheless often addressed special acts creating independent special taxing districts adopted prior to 1968, including those that span municipal and unincorporated areas.  In the Volusia County Charter, for example, some thirty-seven special acts, most establishing special taxing districts, were abolished, with the powers, duties and responsibilities conferred to the charter government.  The Broward County Charter repealed and transferred at least ten special acts. 

City-county consolidations, mergers of cities and new incorporations are other tools of local reform.  While county charters can be initiated by local effort independent of the legislature (but may be authorized by special act), mergers incorporations and consolidations require legislative authority.  In all cases, charters, mergers and consolidations require local referenda. 

Curiously, school districts have thus far been overlooked by constitutional revisors or local reformers.  Local county charters or consolidation charters may not disturb the independence of school districts, presumably because of the Constitutional guarantee of a uniform system of free public schools.  Nevertheless the Constitution in  IX, § 4 allows the consolidation of school boards in two or more contiguous counties, so the concept of functional reorganization is not totally foreign in the area.  In some states, the governing boards of counties, usually a county commission or county council, must approve school board budgets and otherwise may exercise a measure of control over local school programs. 

One other dimension of local reform involves the use of home rule to reform the structure of county governments per se.  The traditional county organization has been widely criticized as inefficient and inconsistent with modern principles of local governance and public administration.  The traditional organization consists of an elected board of county commissioners which wields both legislative and administrative powers.  There is no discernible executive in the traditional form.  The presence of five independently elected constitutional officers – clerk of the circuit court, sheriff, tax collector, property appraiser, and supervisor of elections – further diffuses power at the county level.  The fragmentation, duplication, overlap and lack of political accountability of the traditional structure of Florida counties have been widely documented.  Through the powers of home rule, county charters may continue to be used to reform this structure.  The powers, duties and responsibilities of county commissioners can be altered substantially.  Similarly, the independently elected constitutional officers may be changed or abolished altogether, with their powers and duties vesting in the reformed county structure.

Any analysis of the existing Florida home rule scheme would be incomplete without a cursory review of the use of existing powers by local governments.  To what extent have local governments implemented the home rule powers now available to them?  There are at least two measures.  One is to examine the extent and frequency which local governments have used charter county powers to sort out functional relationships among themselves (and to restructure counties) or have otherwise used available tools to implement local structural reforms.  The other is to recognize an accomplished fact; through home rule, Florida cities and counties no longer must seek legislative authorization to enact local laws.  In the 1965 session of the legislature, 2,107 local bills were introduced, consuming scarce legislative time and attention.  Home rule has changed this cumbersome process.  Cities and counties now routinely legislate on a wide variety of local issues, a fact that is so obvious to contemporary observers of local government that it is difficult to understand that it was not always so.  Although no hard data are readily available to document the extent to which special acts would be necessary if the old Constitution were still in place, even a cursory review of the numbers and breadth of city and county ordinances since 1968 strongly indicates that Florida local governments have seized the opportunity to legislate on their own, with few if any complaints of abuse coming to the attention of the legislature.  During the past quarter century, the number of local bills introduced before the Florida Legislature has decreased substantially.

By contrast, use of the tools available to reform local government structure and sort out roles and relationships among governments has not been widespread.  Attempts to merge cities or consolidate counties and cities have routinely failed at the polls.  The formation of new cities has almost stopped.  Twelve counties have adopted home rule charters pursuant to the 1968 Revised Constitution.  These jurisdictions join Dade County, which enacted a charter by special constitutional amendment in 1957; and Jacksonville – Duval County, which adopted a city-county consolidation charter through constitutional amendment in 1967, in placing perhaps 90 per cent of the State’s population under some form of County charter government.  After an exhaustive analysis of the use of Florida county charters, one author concluded in 1989:  “When all is said and done, one is led to the inescapable conclusion that the county charter movement has not lived up to its expectations or potential.  The Florida political landscape of the past twenty years is littered with failed charter attempts and weak charters….While progress in (county government) structural reforms (the problem of constitutional officers notwithstanding) has been steady, the promise of charters as mechanisms to address assignment of functional responsibilities at the local level has been largely unfulfilled.”