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V.
THE CHARTER
The charter of any new municipal government is a critical document. It is the foundation on which the city will govern itself. This section will provide background on the charter document, address the requirements found in Ch. 165, F.S., and will offer suggested practices relevant to drafting charter provisions.
A.
Background
Although the charter sets the framework for the city=s governance, there are only two statutorily required characteristics for a proposed charter under s. 165.061, F.S. First, the charter must describe the form of government that will be used by the municipality. Second, the charter cannot prohibit the legislative body of the municipality from exercising certain taxing powers. With so little guidance and so much flexibility given to
the drafters, as many contingencies as possible must be considered in preparing the charter, because shortcomings or omissions in the charter may give rise to problems later.
There are several resources available to groups considering a draft charter. The Florida Municipal Officials= Handbook, published by the Florida Institute of Government, and the Model Charter published by the National Civic League are excellent sources. These publications offer the fundamentals of charter writing, but do not reach the level of detail that citizen groups may need. Also, the House Committee on Community Affairs publishes annually the Local Bill Policies and Procedures Manual.72 This publication provides guidance regarding incorporation, annexation, merger and other local government formation matters.
The National Civic League recommends that a city charter include, at a minimum, an article for each of the following subjects:
<Powers of the City
<City Council
<City Manager
<Departments, Offices and Agencies (Planning)
<Financial Procedures
<Elections
<General Provisions
<Charter Amendment
<Transition/Separability Provision
The National Civic League offers alternatives to many of its suggested provisions. While some of these topics are straightforward, a few warrant special attention and comment. A good way to supplement the information provided by the National Civic League, the Florida Institute of Government and other sources is to review, analyze and build on existing charters found in the Laws of Florida, as well as the bill analyses that provided
72 This manual
can be located at the Florida Legislature=s
Internet website at http://www.leg.state.fl.us and navigating to the House
Committee on Community Affairs= publications.
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invaluable feedback to the drafters. The need for attention to detail when drafting the charter cannot be overstated. By carefully considering and defining the form, function and powers of the governing body in the charter document, the new municipality will avoid the need for any subsequent Aclean-up@ ordinances or worse, litigation, to clarify the terms of the charter.
Neither statutory law nor House Committee on Local Government and Veterans= Affairs prescribe any particular format for a special act or a proposed charter. Subsequently, special acts and charters vary in their structure. Under those circumstances when charter amendment may be necessary, it can be awkward to amend a charter that is not organized well. It may be more efficient if the special act is divided into major
sections, rather than current practice to have any number of sections. The first section could address all of the charter provisions, and other non-charter items such as transitional matters and referendum procedures could be placed in distinct sections of the special act.
B.
Basic Forms of Municipal Government73
1.
Background
Florida
state law neither requires nor prohibits municipalities from adopting a
particular form of municipal government. The only requirements are that Aeach municipal legislative
body shall be elective,@74 and that an acceptable proposed municipal
charter is one that Aprescribes
the form of government and clearly defines the responsibility for legislative
and executive functions.@75
There are five basic forms of municipal government. The first type of government, the council-weak mayor form represents the original form of municipal government in this country. It is still widely used in small towns. In general, the mayor=s authority is not significantly greater than that of the other council members.
The second type of municipal government is the council-strong mayor form, which provides for a distinct division of powers between the council and the mayor. The mayor is the chief executive and has substantial influence in the policy-making process and substantial control over administrative matters. The mayor holds important budgetary and appointing powers, along with the power to veto legislation actions of the council.
The
commission or third type, combines both executive and legislative powers into a
governing board, the commission. The underlying theory of this form of
government is that the concentration of power in the hands of a few elected
officials would make administration more effective and would enhance
accountability to the public. However, some believe that the effect has been
rather to provide Ainadequate
coordination, insufficient internal control, and amateur direction of
administration.@76
73 See
generally Florida Institute of
Government, The Florida Municipal Officials= Manual,
3d ed. (1996), at II-2 B
II-7.
74 Fla. Const.
art. VIII, '
2(b).
75 S.
165.061(1)(e), F.S.
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The National Civic League endorses the fourth type of municipal government, the council-manager structure, but not to the exclusion of all other forms.77 The theory behind the council-manager form of government is that a strong, non-political executive office should function in the administrative role at the local level.
The fifth type of municipal government is the consolidated government. Its roots can be traced to 1933, when the Legislature approved a constitutional amendment declaring legislative power to establish a municipal corporation that consolidated the governments of Duval County and any of the municipalities within its boundaries, subject to referendum approval of the affected voters.78 Similar constitutional amendments were
provided for Key West and Monroe County in 1935, and Tampa and Hillsborough County in 1965. The revised Florida Constitution of 1968 included a grant of general authority for consolidation in article VIII, section 3, allowing consolidation of a county with one or more cities located therein, through special law and a vote of the electors of the county, to create a government that may exercise any and all powers of the county
and
the municipalities. The only successful consolidation in Florida occurred in
196779 when the Legislature approved the
charter of Jacksonville-Duval County,80 which
was passed by the voters later that year, creating the largest city in land
area in the contiguous United States.81
Most
recent changes in municipal government form in Florida have been from some
other form to the council-manager form, which is currently the most common form
of municipal government in the state. It is difficult to provide precise
numbers regarding the types of government in Florida because quite a few
municipal charters call for a hybrid form of government. Presently, there are
approximately 240 council-manager governments; about 30-40 municipalities with
council-strong mayor; about 100 council-weak mayor governments and about 20
cities with the commission form of government.82
76 Florida
Institute of Government, The Florida Municipal Officials = Manual, 3rd ed. (1996), at II-4.
77 National Civil
League, Model City Charter, seventh ed. (1996), at p. x.
78 Fla. Const. art.
VIII, '
9.
79 The following
unsuccessful consolidation attempts have been made in Florida:
Tampa/Hillsborough County (1967, 1970, 1972); Pensacola/Escambia County (1970);
Tallahassee/Leon County (1971, 1973, 1976, 1992); Ft. Pierce/St.Lucie County (1972);
Gainesville/Alachua County (1975, 1990); Okeechobee/Okeechobee County (1979,
1989);
Halifax/Volusia County (1985).
80 Ch. 67-1320,
L.O.F. (1967), readopted in Ch. 92-341, L.O.F. (1992). See also Jacksonville
Ordinance Code, Part A, Charter of the City of Jacksonville.
81 Information
from the City of Jacksonville homepage, http://www.coj.net.
82 Figures
provided by the Florida League of Cities staff, November 1, 2000.
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2.
Suggested Practices
Explaining the form of government is one of the most important aspects of the charter. The charter must give the public notice of how the city officials are hired, fired, what their role will be, and what their limitations are, among other things. A common omission in proposed charters is the delineation of who is responsible for what, particularly whether a mayor is a voting member of the council. These types of gaps can negatively
impact hiring and firing and other areas requiring decision making.83 Regardless of which form of government is selected, it is incumbent on the drafters of the proposed charter to ensure clarity and thoroughness regarding the officials= powers, responsibilities and duties.
C.
Financial Procedures
1.
Background
Under s. 165.061(1)(e)2, F.S., a new municipality must have a Aproposed charter which does not prohibit the legislative body of the municipality from exercising its powers to levy any tax authorized by the Constitution or general law.@ This requirement is the second element that must be included in the proposed charter. Fiscal matters can be quite complex and may pose the most significant challenges for groups drafting a charter.
Interestingly, there is no statutory provision that explicitly requires incorporation advocates to address the potential fiscal impact of a new municipality on existing municipalities, the parent county, and other local governments. This analysis could be prepared in a manner consistent with Attachment D.
2.
Revenue Sharing Eligibility
Once a new municipality is established, it is entitled under the law to share in certain revenues collected by the state and distributed to local governments, provided certain criteria are met. Chapter 218, Part II, is the AFlorida Revenue Sharing Act of 1972@ and sets forth the conditions and mechanisms under which local governments may share in certain revenues.
Section 218.21(3), F.S., requires that the new municipality Amust have held an election for its legislative body pursuant to law and established such a legislative body which meets pursuant to law@84 in order to be eligible to participate in revenue sharing. A newly established municipality will not meet this definition until such time as the legislative body meets. It appears that this provision as written does not distinguish between existing
and newly established municipalities. Thus, it is often requested in the proposed charter that the new city be exempt from this provision, which is inconsistent with general law.
Requests are often made for a waiver of other statutory criteria, as well. For example, under s. 218.23(1)(a), F.S., the local government is required to have Areported its finances
83 See Blake
v. Partyka, 731 So.2d 749 (Fla. 5th
DCA 1999), reh=g denied 744
So. 2d 456 (Fla. 5th DCA 1999) (finding that under commission/manager form of
government, power given in the charter to appoint the city attorney could not
be read to imply the power to remove the city attorney).
84 S. 218.21(3),
F.S.
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for its most recently completed fiscal year to the Department of Banking and Finance, pursuant to s. 218.32@ in order to participate in revenue sharing.This waiver does not create a problem, provided the new municipality gives itself adequate time within which
to comply with the statutory criteria in future years before it seeks to participate in revenue sharing. If a municipality seeks a waiver that is not long enough in duration to allow it to complete its entire fiscal year and report its finances accordingly, the municipality may become ineligible for revenue sharing, and will need to seek legislative correction. Any waiver of the required time constraints poses administrative challenges for the Department of Revenue, which administers the revenue sharing process. The department must reconcile the state fiscal year, the local government fiscal year and the ad valorem tax calendar year. Because the statute offers no guidance on how to interpret and reconcile these apparently conflicting timeframes, drafters must determine how much time is needed in order to fulfill the statutory criteria in the most logical manner possible.
Islamorada,
for example, did not allow itself adequate time within which to meet the
eligibility requirements, and thus had to amend its charter by special act the
following year.85
3.
Local Option Surtaxes
Sections 212.055(2)(c) and 212.055(3)(c), F.S., provide that distributions of Local Government Infrastructure Surtax or Small County Surtax revenues will be in accord with an interlocal agreement entered into by the county and municipalities representing a majority of the county=s municipal population, or, if there is no such agreement, then in accordance with the default formula found in s. 218.62, F.S. On occasion, neither option is written in the proposed charter. Instead, the proposed charter will contain a date by which the municipality is entitled to receive these revenues, even where there is no interlocal agreement in place because there will be no municipality in existence with whom the county can enter into such agreement.
4.
Adequate Fiscal Resources
Under s. 218.23(1)(c), F.S., the new municipality must also show that it has levied revenues equivalent to a millage rate of 3 mills either through a remittance by the county pursuant to s. 125.01(6)(a), F.S., by collecting an occupational license tax or utility tax, levying of an ad valorem tax, or any combination of these four sources. The purpose behind this 3 mill provision is to require the local government to show a nominal taxing
effort before it would be eligible for revenue sharing. Occasionally, to satisfy this requirement, groups seeking incorporation inadvertently or shortsightedly include millage rates that are within the jurisdiction of special districts or school boards. Unless the charter specifically entitles the municipality to use these millage rates, there is no legal authority for counting such revenues as belonging to the proposed municipality.
On rare occasion, a charter may contain provisions that inadvertently tie the hands of the local government=s legislative body to levy taxes. Bills containing such provisions generally fail or are amended to conform to the law. In the event the municipality limits its revenue raising or spending authority in its charter, it could find itself in a genuine
85 Ch. 97-348,
L.O.F. (1997); Ch. 98-518, '1, L.O.F.
(1998).
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financial
bind. The City of Marco Island, for example, had inserted a provision in its
charter that imposed a cap on the amount the city=s
operating expenditures could be increased from one year to the next.86 The city must now convince voters to amend
the charter to remove the cap so that it can provide adequate services, such as
public safety, to the citizens.
5.
Suggested Practices
The revenue sharing provisions in Ch. 218, F.S., as they relate to newly established municipalities are not a model of clarity. Over the years, local governments and the Department of Revenue have come to apply the statutes in a logical and productive manner. Nonetheless, these laws, possibly more so than any others relevant to municipal incorporation, appear amenable to amendment. Any such amendments would be aimed
to clarify and codify current interpretation and application of the laws, rather than attempt to change the substance of the statutes. However, until such time as statutory amendment does occur, the following suggestions are offered.
First, bill drafters should ensure that the dates established in the bill call for election of the city=s legislative body before the date on which the city is entitled to participate in revenue sharing. This will ensure that there is a municipal government in existence at the time when revenue sharing becomes effective.
Second, for purposes related to ease of administration, new municipalities may consider putting language in their charters that provide for receipt of other tax distributions, such as local option fuel tax revenues, in synchronization with the state fiscal year and the ad valorem tax year. As mentioned previously, any date provided for in the charter and thus in the special act, will supersede dates found in general law, in this case, s.
336.025(4)(b), F.S.
Third, if the new municipality is not going to use the local option sales tax default formula offered in statute, an explanation should be offered indicating on what basis that formula will not be used. This will ensure that the municipality has considered its options, and has made a clear selection on how it will proceed regarding surtax
distributions.
Fourth, the municipality should be candid when determining and declaring its fiscal resources. Claiming resources which it is not legally authorized to claim as its own will leave the municipality short of funds.
Finally, incorporation advocates should be wary of an Aincorporation at any cost@ approach. Placing spending restrictions in the charter to make incorporation more attractive may bring on a fiscal controversy or crisis at some point down the road. Fiscal responsibility must be consistent with the municipality=s responsibilities to
provide adequate services to the people.
86 Ch. 97-367,
L.O.F. (1997). In particular, Section 1.01 of the Charter caps the city=s operating expenditures to 3 percent over the
previous year=s, plus the then-current federal cost of living
adjustment, except under limited circumstances. Information on the city=s charter amendment efforts is available at the
website: http//www.marcoislandfl.virtualtownhall.net/MarcoIslandFl_Charter.
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D.
Elections
1.
Single member versus at-large elections
All elections must comply with the federal Voting Rights Act of 1965, as amended.87 This complex law and related caselaw can be treacherous ground for newly forming municipalities.88 There are currently no specific standards or feasibility study elements regarding voting that tie in directly to the establishment of a new municipality. Nonetheless, each municipal charter must contain a provision regarding elections. Elections may be conducted either through an at-large election or by single member districts, depending on the demographic make-up of an area. Where the municipality=s population is generally homogeneous, such as in Liberty and Lafayette counties, at-large elections are not problematic. Where, however, a municipality has a sizeable minority and other distinct populations, such as those in Dade County, single member district elections are preferable so as not to block minority group participation. Because voting structure must be determined based on the demographics of the individual local government, it would not be in the state=s best interests to mandate one or the other process.
2.
Suggested Practice
Charter drafters may wish to declare in the charter itself that the nuances of the specific area have been considered, and that the new municipality shall conform to all state and federal election laws. By inserting this phrase in the charter document, the drafters alert the Legislature that the drafters are cognizant of the law and have integrated the particulars of the new municipality with all legal requirements.
3.
Referendum
Even after a special act has been enacted, incorporation rides on the results of a local referendum, assuming that the otherwise non-mandatory provision is included in the special act. The special act will not take effect if the referendum fails. The language regarding the referendum must be crafted very carefully. Lack of clarity invites litigation. For example, when Islamorada sought incorporation, the charter drafters failed to clearly
delineate the margin of voters by which incorporation would become effective. A citizens= group filed suit in circuit court arguing that the referendum for incorporation had not passed because a majority of voters in each of two voting precincts did not vote in favor of incorporation. The lower court held that despite the ambiguous
language,
the Legislature intended that a majority of voters from the total area combined
needed to vote in favor of incorporation.89 This
decision was upheld by the Third District Court of Appeals. The ambiguous
language was subsequently corrected through an amendment to the original
special act.90
4.
Suggested Practice
87 42 U.S.C. '1973. See also, George Waas and Mitchell
Franks, AImplications of the Voting Rights Act on
Reapportionment and Redistricting of Local Government,@ The Florida Bar Journal, October, 1991.
88 See
Southwest Ranches: OK Town Charter without Districts, Ft. Lauderdale Sun Editorial, May 31, 2000.
89 Jensen v. Citizens
for Village Government, Inc., 710
So.2d 13 (Fla. 3rd DCA 1998).
90 Ch. 98-518, '2, L.O.F. (1998).
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Ambiguous language, such as that used in the Islamorada charter, should be avoided. In particular, it would behoove drafters to research whether proposed language has been previously used by any other municipality and whether it was the subject of any controversy or subsequent amendment.
E.
Planning and Growth Management
1.
Background
As discussed previously, the establishment of new municipalities in Areas of Critical State Concern has unique growth management ramifications. Also, a distinction must be made between communities seeking incorporation that are located in charter counties versus non-charter counties. This is so because charter counties have greater authority in certain areas throughout the county. For example, a charter county will generally have charter provisions establishing the primacy of the county=s comprehensive plan over that of any new municipality. On the other hand, a non-charter county=s ordinance that is in conflict with a municipal ordinance will not prevail within the jurisdiction of the municipality.
When a community incorporates, the comprehensive plan of the county is the controlling document until the municipality adopts its own comprehensive plan pursuant to Ch. 163, Part II, F.S., and it is approved by the state. A new municipality has one year from the date of incorporation to establish a local planning agency under s. 163.3174, F.S., or it may exercise its authority jointly with the county. The Department of Community Affairs has recently taken a more pro-active role in sitting down with officials from the county, the new municipality, the water management district and other relevant entities in an attempt to facilitate better intergovernmental communication, cooperation and coordination. The department also issues to new municipalities a Growth Management Information Package, which contains a copy of Ch. 163, Part II, the Local Government Comprehensive Planning and Development Regulation Act; Rule 9J-5, Florida
Administrative Code; copies of publications from the department, and; the Model Local Intergovernmental Coordination Element for Local Governments in Pinellas County. This last document was prepared by the Pinellas Planning Council in December of 1998. It is comprehensive in its approach to intergovernmental relations in Pinellas County, and strives to be used as a resource, not as a mandate. The Model Element offers options to local governments, but within a framework that is consistent with state requirements and the county=s vision of growth management.
2.
Suggested Practices
Section 163.3177(6)(h), F.S., requires an intergovernmental coordination element (ICE) in each local comprehensive plan. This important requirement goes frequently unobserved, perhaps due to weak or nonexistent enforcement mechanisms. Whether there are penalties for non-compliance with this provision or not, it behooves new communities to take advantage of intergovernmental coordination. Discussing and planning development with neighboring or other affected jurisdictions will decrease acrimony and litigation between the stakeholders.
The trend towards improved communication and coordination between new municipalities and their county should be continued. New municipalities may wish to thoroughly review Pinellas County=s Model Intergovernmental Coordination Element to cull from it valuable information. Doing so may result in better compliance with ICE requirements.
The new municipality should also take advantage of the technical assistance that the DCA can provide, and work closely with the county to ensure land use and growth management issues are considered and resolved as early in the process as possible.
There are other examples of intergovernmental coordination that may prove useful, as well. Volusia County, a charter county, took an innovative approach to coordinating growth management issues by creating a Growth Management Commission (GMC). The GMC reviews and must certify every comprehensive plan and plan amendment for each local government in the county. Certification is granted if the plan or plan amendment
does not adversely impact an adjacent local government=s services or facilities and does not create a Aland use@ incompatibility. This approach assures coordination, cooperation and consistency regarding land use decisions.
F.
Transition Issues
1.
Background
It is critical for new municipalities to have comprehensive transition language in their charters. The transition phase can cover thorny issues such as eligibility for revenue sharing, elections and growth management ordinances. In Lee County, for example, as a result of a charter problem, the newly established city of Bonita Springs was without an acting government for four months. Until such time as the city was legally established,
the county had to continue to issue administrative permits to ensure continuation of the construction industry in that area.
Transition provisions must be clear and logical, or citizens will face confusion, frustration, and conflict. For example, citizens must know who will be providing sewer and water services. Developers must know where to go when applying for permits. County sanitation workers must know on what date to cease garbage pickup
for the newly incorporated areas, if appropriate. Transitional issues are challenging because several areas are left up to interlocal agreements between the municipality and the county. However, until the new municipality is incorporated and there is a governing body, there is no entity with whom the county can enter an interlocal agreement.
As mentioned, proposed charters are reviewed by legislative and agency staff. The House Community Affairs staff prepares a bill analysis for each proposed bill and has come across the same areas of concern time and again. Legislative staff has indicated that the transition language used in the proposed charter for the Village of the Lower Keys91 is comprehensive and clear. This language, which addresses critical issues such as
ordinances, resolutions, zoning, and revenue sharing is attached as Attachment E.
The value of these provisions is that they allow for an orderly transitional period between the passage of the special act, incorporation by referendum, and the actual seating of a
91 Ch. 2000-383, '' 7 and 8, L.O.F. (2000).
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governing body. The dates for the referendum, the actual incorporation, the first commission meeting, revenue sharing eligibility dates, and termination of waivers must be consistent with one another, and should be selected in such a way so as to not
cause unnecessary administrative challenges for those agencies interacting with the new municipality.
2.
Suggested Practice
In general, reviewing prior special acts and bill analyses will help decrease the number of obstacles facing communities when drafting the municipal charter. Currently, chapter laws codifying municipal incorporation bills are not available electronically, which may impede research efforts. The Florida Legislature=s Office of Legislative Services Division of Statutory Revision publishes a hard bound Index to Laws of Florida Special
and Local Laws. The Index is searchable only by the municipality=s name, however. The most recent compilation covers the period between 1971 and 2000.
Specifically, because there is no entity in existence who can speak for, or contract on behalf of, a just forming municipality, it may add legitimacy to the city=s proposed budget if the citizen group advocating for incorporation provides some written indication that it is working with the county or any other affected local government to plan for and resolve service delivery issues. This indication could be in the form of a Memorandum of Understanding or perhaps a Letter of Intent between the group and the other local
government(s).
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