FEBRUARY 6, 2013

ONLY IN MIAMI
LUIS CABRERA’S HOLDING 2 OFFICES IN CITY GOVERNMENT IS, HAS, AND ALWAYS WILL BE ILLEGAL

From November of 2010, when he was unceremoniously  transferred to the City Manager’s Office as an Assistant City Manager, Miami’s former Deputy Police Chief, Luis Cabrera, has illegally been holding two offices in contradiction to both the Florida Constitution and Florida Attorney General Opinion 2006-27.


I have written on more than one occasion that since Cabrera became an Assistant City Manager he has shown up at police related events in his police dress uniform, and even went so far as to go to Washington D.C. last month at the head of the police detail that took part in providing security for the Presidential Inaugural.


If you go to the Headquarters of the Police Department you will see Cabrera’s photo on the wall as part of the leadership of the department.


Although he claims to be the “Acting Assistant City Manager,” Cabrera, only on very rare occasions attaches the term “Acting” to any of the documents he signs, and worse, on occasion has assume the duties of “Acting City Manager,” a position that requires being appointed by the Mayor, with the de-facto acceptance or concurrence of the Miami City Commission.


In fact, all of this “Acting” nonsense is just part and parcel of the countless illegal activities flagrantly carried out or sanctioned in the Banana Republic of Regaladoland, by the 5 Dwarfs on the City Commission.


Not only does Cabrera continue to be paid by the Police Department - thereby receiving more money than if he were being paid as an Assistant City Manager - but worse, he continues to get all of the allowances that a Deputy Police Chief gets, starting with a uniform allowance and ending with the use of a city Chevy Tahoe SUV.


According to both the Florida Constitution and the Florida Attorney General all of this is flagrantly illegal.


The practice of what is called “dual office holding,” has long been illegal in Florida, and in 2006, the Florida Attorney General was asked for a legal opinion on whether the Casselberry Police Chief could serve as the “acting” City Manager.


The answer was a resounding NO!


Here is the Attorney General’s Opinion in full.

Advisory Legal Opinion - AGO 2006-27

Print Version

Number: AGO 2006-27

Date: June 29, 2006

Subject: Dual Office Holding, police chief as city manager


Ms. Catherine D. Reischmann
Casselberry City Attorney
1001 Heathrow Park Lane, Suite 4001
Lake Mary, Florida 32746

RE: MUNICIPALITIES–DUAL OFFICE HOLDING–police chief serving as temporary city manager. Art. II, s. 5(a), Fla. Const.

Dear Ms. Reischmann:

On behalf of the Casselberry City Commission, you ask substantially the following questions:

1) Does Article II, section 5(a), Florida Constitution, preclude the city and the former police chief, who resigned in order to temporarily serve as acting city manager, from entering into an agreement that the former chief will again serve as police chief once he no longer serves as acting city manager?

2) Does the exception to dual officeholding recognized by the courts in Vinales v. State[1] and Rampil v. State[2] permit the police chief to serve as acting city manager without resigning his or her office when such appointment is temporary and without additional remuneration?

Question One

Article II, section 5(a), Florida Constitution, provides in part:

"No person shall hold at the same time more than one office under the government of the state and the counties and municipalities therein, except . . . any officer may be a member of a . . . statutory body having only advisory powers."

This constitutional provision prohibits a person from simultaneously serving in more than one state, county, or municipal office, regardless of whether elected or appointed.

Recognizing that this office has stated that the constitutional provision prohibits a police chief from simultaneously serving as the city administrator,[3] the police chief resigned as police chief when he was named by the city commission as acting city manager. You ask, however, whether the city is precluded from entering into an agreement providing that the acting city manager may return to his position as police chief once the position of city manager has permanently been filled by another individual.

Generally, the acceptance of a second office has been considered to be a vacancy in the first office.[4] Thus, the acceptance of the position as acting city manager created a vacancy in the office of police chief, not a leave of absence. I am not aware of any prohibition in Article II, section 5(a), Florida Constitution, that would preclude the city from reappointing the current acting city manager as police chief when he no longer is serving as city manager.

Question Two

The Supreme Court of Florida recognized a limited exception to the constitutional dual officeholding prohibition in Vinales v. State,[5] which concerned the appointment of municipal police officers as state attorney investigators pursuant to statute. Since the police officers' appointment was temporary and no additional remuneration was paid for performing the additional criminal investigative duties, the Court held that the officers were not simultaneously holding two offices and thus the constitutional dual office holding prohibition did not apply. The Second District Court of Appeal in Rampil v. State,[6] following the Vinales exception, concluded that it was not a violation of Article II, section 5(a), Florida Constitution, for a city police officer to act in the capacity of deputy sheriff since that officer received no remuneration for such duties.

The above exception, however, has been applied only when both offices have related to criminal investigation or prosecution and not to the exercise of governmental power or performance of official duties on a disparate board or position. Thus, this office, in considering the Vinales and Rampil exception, has stated that the exception is limited and does not apply to a member of a municipal board of adjustment serving as a part-time law enforcement officer or to a police officer who serves as a law enforcement officer.[7]

Accordingly, I am of the opinion that the exception to dual officeholding recognized by the courts in Vinales v. State, supra, and Rampil v. State, supra, does not permit the police chief to serve as acting city manager without resigning his or her office.[8]

Sincerely,

Charlie Crist
Attorney General

CC/tjw
--------------------------------------------------

[1] 394 So. 2d 993 (Fla. 1981).

[2] 422 So. 2d 867 (Fla. 2nd DCA 1982).

[3] See Op. Att'y Gen. Fla. 86-11 (1986). This office has repeatedly stated that a certified law enforcement officer, such as a municipal police officer, is an "officer" within the scope of the constitutional prohibition against dual office holding. See, e.g., Ops. Att'y Gen. Fla. 57-165 (1957), 69-2 (1969) , 76-92 (1976), 77-89 (1977), 84-25 (1984), and 86-11 (1986). And see Curry v. Hammond, 16 So. 2d 523, 524 (Fla. 1944). ("It can hardly be questioned that a patrolman on a city police force is clothed with sovereign power of the city while discharging his duty."). This office has also considered the position of city manager, as the chief administrative officer of the city, to constitute an office for purposes of Article II, section 5(a), Florida Constitution. See, e.g., Ops. Att'y Gen. Fla. 80-97 (1980) and 86-11 (1986).

[4] See In re Advisory Opinion to the Governor, 79 So. 874 (Fla. 1918) (when a person holding one office is appointed to and accepts another office, such appointment and acceptance vacates the person's right and status to the first office); and Ops. Att'y Gen. Fla. 94-40 (1994) and 77-63 (1977). Cf., Holley v. Adams, 238 So. 2d 401, 407 (Fla. 1970) (acceptance of an incompatible office by one already holding office operates as a resignation of the first).

[5] 394 So. 2d 993 (Fla. 1981).

[6] 422 So. 2d 867 (Fla. 2nd DCA 1982).

[7] See Op. Att'y Gen. Fla. 84-25 (1984). And see Op. Att'y Gen. Fla. 86-84 (1986) (Vinales and Rampil exceptions do not apply to a city council member simultaneously serving as a certified auxiliary law enforcement officer).

[8] You have advised this office that the city charter provides that the city manager may designate, subject to the city commission's approval, a qualified administrative officer to exercise the powers of the city manager due to the city manager's temporary absence or disability. The courts of this state have recognized that the legislative designation of an officer to perform ex officio the functions of another or additional office does not violate the dual officeholding prohibition, provided that the duties imposed are consistent with those already being exercised. See, e.g., Bath Club, Inc. v. Dade County, 394 So. 2d 110 (Fla. 1981).
There is, however, a distinction between a statute or charter provision imposing an ex officio position on the holder of another office and one authorizing the appointment of one officeholder to another distinct office. See, e.g., Advisory Opinion to the Governor, 1 So. 2d 636 (Fla. 1941) (provision making chairman of the state road department a member of the state planning board merely placed additional duties on the chairman and was constitutional; however, provision which permitted Governor to appoint state officials or employees to the board did "not impose additional duties on any particular State officer," but rather created a separate position, and thus violated the dual office holding prohibition. Id. at 638. As in the above case, the charter provision does not designate a particular municipal office to temporarily perform the duties of the city manager.

What’s worse than what Cabrera has been doing is that there have to have been more than a few people within the City’s  administration who have known about this prohibition against dual office holding activity but kept that information to themselves, thereby allowing this chicanery to go on.


Right at the top of the list has to be everyone’s not so favorite moron, Julie Bru, the City Attorney.


There is absolutely no way that Bru, as both an Assistant City Attorney as well as the City Attorney for almost all of her professional career, could not have known that this activity was illegal. But then again, as she demonstrated at the City Commission meeting on January 10th, ignoring the law when it suits her purpose is part of her MO.


The City Commission is also at fault for allowing this nonsense to go on, but you can bet a dollar to a donut that none of the Commissioners will bring this item up as part of a personal Discussion Item, or challenge the City Manager - who at the next City Commission meeting will be none other than Luis Cabrera -  and demand to know how and why Cabrera continues to operate like a petty little despot.


Another example of Cabrera in action is the Administrative Policy Memorandum below that I was informed he had prepared, and then had City Manager Johnny “The Doormat” Martinez sign.


On first look the Memorandum might seem as an exercise in good governance, except that in Regaladoland “good governance” is considered anything you can get away with.


What this memorandum really does is ham-string any new Chief of Police into having to continue to surround himself/herself with the usual incompetent, ass-kissing gang that Manny Orosa has surrounded himself with - most of whom are considered to be part of Luis Cabrera’s gang - which in turn means that any effort to bring in a new Police Chief to clean house would block his efforts to start a house cleaning at the top of the Department, where it desperately needs to happen.


Here’s the copy of the APM.

SERIESCRESPOGRAM_SERIES_-_MASTER.html
LINKS2012_LINKS.html
DOCUMENTSDOCUMENTS.html
CONTACT ME2012_CONTACT_INFO.html
CRESPOGRAM REPORT
2013 ARCHIVES2013_ARCHIVES.html
 OLD ARCHIVESOLDER_ARCHIVES.html

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