CEO 06-13 -- August 2, 2006



To: Name withheld at person's request (Cape Coral)


Florida's anti-nepotism law (Section 112.3135, Florida Statutes) is applicable to prohibit employments, appointments, promotions, or advancements made or advocated by members of a municipal charter school authority board and its administrators of their respective relatives. An overriding purpose of the anti-nepotism law is that individuals not be placed in public positions by their relatives or by collegial bodies on which their relatives sit. CEO 96-5 and CEO 99-2 are referenced.


Is Section 112.3135, Florida Statutes, applicable to prohibit employments, appointments, promotions, or advancements made or advocated by members of a municipal charter school authority board and its administrators of their respective relatives?

Your question is answered in the affirmative.

By your letter of inquiry and additional materials provided to our staff, we are advised that the City of Cape Coral established by ordinance the Cape Coral Charter School Authority (which exercises power through a governing Board) to manage the municipal charter schools created by the City. In addition, we are advised that charter school operations are governed by a contract (charter) between the Lee County School District and the City, but that the Authority manages and operates the charter schools for the City. Further, your inquiry discusses various attributes of the Authority and concludes that "[t]he best characterization of the Charter School Authority is that it is an independent agency of the City of Cape Coral." Also, in describing the Authority and delineating some of its powers and duties, the ordinance (within its Sec. 26-15) provides:

A. Powers and Duties of Authority.

The powers and/or duties granted by this Chapter to the Authority are declared to be public and governmental functions, exercised for public purposes, and are matters of public necessity. Any list of powers and/or duties contained herein is not meant to be exclusive, but only illustrative of the powers that may be exercised by the Authority. The Authority is a public body corporate and shall have the right and responsibility to exercise the following powers and/or duties:

1. Establish positions, duties, and a pay plan, and employ, pay, and provide benefits for personnel as well as establish personnel policies. All personnel shall be at will employees with no property rights whatsoever in their employment with the Board whether employed by contract or otherwise. The Board shall have no authority whatsoever to grant any property rights in employment to any person employed by the Authority and any attempt to do so shall be null and void. Authority employees are not employees of the City of Cape Coral, but they are public employees. Authority employees are subject only to the rules, regulations, policies and authority of the Cape Coral Charter School Authority.

In CEO 96-5, we considered questions very similar to yours, especially in regard to what constitutes an "agency" for purposes of Section 112.3135,1 determining, inter alia, that a city's community redevelopment agency (CRA) was a part of the city (an "agency" subject to the law), and determining that a city's enterprise zone development agency was an "agency" in which a city commissioner served or an "agency" over which the city commission exercised jurisdiction or control. Thus, we went on to opine in CEO 96-5 that appointments of the husband of a member of the city commission/CRA to a position on an advisory board of the CRA and of the son of a city commissioner to the enterprise zone development agency were prohibited by the law. Likewise, we find, regarding your inquiry, that the Authority is an "agency" subject to Section 112.3135. Consistent with our finding in CEO 96-5, we find in the instant matter that the Authority is an agency of the City. CEO 96-5. As was our decision in CEO 96-5, our decision herein is grounded in the overriding theme and purpose of the anti-nepotism law—that persons not be placed in public positions by the actions of their relatives or by the actions of collegial bodies upon which their relatives sit.2

In addition, we find that the Authority is not within the exemption from the anti-nepotism law's prohibitions found within Section 112.3135(1)(a)6 ("except a district school board"). The Lee County School District's contracting with the City via the school charter does not transform the Authority or its Board into the School District or the School Board for purposes of Section 112.3135, if for any other purpose;3 and an exemption to a prohibition is to be narrowly construed (construed against one seeking applicability of the exemption). State v. Nourse, 340 So. 2d 966 (Fla. 3d DCA 1976).

Accordingly, we find that the Authority Board members, and Authority administrators and other personnel who come within the definition of "public official" under Section 112.3135, Florida Statutes, are subject to the prohibitions of Section 112.3135. Thus, they are prohibited from employing, appointing, promoting, or advancing, or advocating for employment, appointment, promotion, or advancement, their relatives to charter school or Authority positions.4

ORDERED by the State of Florida Commission on Ethics meeting in public session on July 28, 2006 and RENDERED this 2nd day of August, 2006.

Norm M. Ostrau, Chairman

[1]112.3135 Restriction on employment of relatives.

(1) In this section, unless the context otherwise requires:

(a) Agency means:

1. A state agency, except an institution under the jurisdiction of the Division of Universities of the Department of Education;

2. An office, agency, or other establishment in the legislative branch;

3. An office, agency, or other establishment in the judicial branch;

4. A county;

5. A city; and

6. Any other political subdivision of the state, except a district school board or community college district.

(b) Collegial body means a governmental entity marked by power or authority vested equally in each of a number of colleagues.

(c) Public official means an officer, including a member of the Legislature, the Governor, and a member of the Cabinet, or an employee of an agency in whom is vested the authority by law, rule, or regulation, or to whom the authority has been delegated, to appoint, employ, promote, or advance individuals or to recommend individuals for appointment, employment, promotion, or advancement in connection with employment in an agency, including the authority as a member of a collegial body to vote on the appointment, employment, promotion, or advancement of individuals.

(d) Relative, for purposes of this section only, with respect to a public official, means an individual who is related to the public official as father, mother, son, daughter, brother, sister, uncle, aunt, first cousin, nephew, niece, husband, wife, father-in-law, mother-in-law, son-in-law, daughter-in-law, brother-in-law, sister-in-law, stepfather, stepmother, stepson, stepdaughter, stepbrother, stepsister, half brother, or half sister.

(2)(a) A public official may not appoint, employ, promote, or advance, or advocate for appointment, employment, promotion, or advancement, in or to a position in the agency in which the official is serving or over which the official exercises jurisdiction or control any individual who is a relative of the public official. An individual may not be appointed, employed, promoted, or advanced in or to a position in an agency if such appointment, employment, promotion, or advancement has been advocated by a public official, serving in or exercising jurisdiction or control over the agency, who is a relative of the individual or if such appointment, employment, promotion, or advancement is made by a collegial body of which a relative of the individual is a member. However, this subsection shall not apply to appointments to boards other than those with land-planning or zoning responsibilities in those municipalities with less than 35,000 population. This subsection does not apply to persons serving in a volunteer capacity who provide emergency medical, firefighting, or police services. Such persons may receive, without losing their volunteer status, reimbursements for the costs of any training they get relating to the provision of volunteer emergency medical, firefighting, or police services and payment for any incidental expenses relating to those services that they provide.

(b) Mere approval of budgets shall not be sufficient to constitute jurisdiction or control for the purposes of this section.

(3) An agency may prescribe regulations authorizing the temporary employment, in the event of an emergency as defined in s. 252.34(3), of individuals whose employment would be otherwise prohibited by this section.

(4) Legislators relatives may be employed as pages or messengers during legislative sessions.

[2]Our decision herein concerns the anti-nepotism law (Section 112.3135); it does not apply to the financial disclosure laws (portions of which are codified in Section 112.3145, Florida Statutes). Therefore, via our finding herein that the Authority is an agency of the City, we do not expressly or impliedly find that Authority Board members are "local officers" required to file financial disclosure. See the letter from our financial disclosure staff dated March 14, 2006 to the City Attorney's Office advising that the members are not required to file. It is clear that officers of a government entity can be subject to provisions of the Code of Ethics other than its financial disclosure requirements without also being subject to financial disclosure. CEO 99-2 (city-operated charter school).
[3]However, we do not find that employments, appointments, promotions, or advancements of employees of the School District made or recommended by their relatives in the capacity of a "public official" of the School District are not within the exemption, even if City charter schools or the Authority contract with the School District [its sponsoring entity under Section 1002.33(5)(a)1, Florida Statutes] for the services of personnel employed by the sponsor.
[4]Please note that Authority Board members can violate the law even if they abstain from voting regarding a relative and abstain from advocacy regarding a relative (that Board collegial conduct can be "imputed" to them under the current law). See the discussion in CEO 96-5 regarding the Legislature's response to the Galbut decision by the Florida Supreme Court. Also note that potentially the law can be violated if a "public official" advocates for his or her relative, regardless of whether the public official's authority to recommend goes to the position the relative is seeking or to another position.