CEO 19-8—April 17, 2019
STEPMOTHER-IN-LAW OF DIRECTOR OF COUNTY
VETERANS AFFAIRS DEPARTMENT
To: Cynthia L. Hall, Esq., County Attorney's Office (Monroe County)
The stepmother of a public official's spouse is not the official's "relative" within the meaning of the anti-nepotism law (Section 112.3135, Florida Statutes). Thus, Section 112.3135 would not prohibit the director of a county veterans affairs department from promoting, or recommending for promotion, her spouse's stepmother. CEOs 14-9, 10-6, and 91-23 are referenced. 1
Is the stepmother of one's spouse one's "relative" within the meaning of Section 112.3135, Florida Statutes (the anti-nepotism law)?
Your question is answered in the negative.
In your letter of inquiry, you relate that the current Director of your County's Veterans Affairs Department recently has been appointed, that the Department has nine employees, and that one of the employees (employee), who was hired before the current Director was appointed, is the stepmother of the Director's spouse. You ask whether the employee can be promoted within the Department without the Director running afoul of Section 112.3135, Florida Statutes (the anti-nepotism law). That statute provides, with emphasis supplied:
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, of individuals whose employment would be otherwise prohibited by this section. (4) Legislators' relatives may be employed as pages or messengers during legislative sessions.
The Director would be a "public official" (person with hiring, promotion, or recommending for hiring or promotion authority) in relation to the promotion of the employee (an employee within her Department and the stepmother of her spouse). Therefore, the issue is whether the employee is the Director's "relative," by virtue of being the stepmother of the Director's spouse. We find that the employee is not the Director's "relative."
While we have not considered this particular issue before, our finding is guided by the language (or lack of language) of Section 112.3135 itself, our prior decisions, decisions of the Attorney General, and case law. To begin with, we note that while the statute's definition includes mother-in-law, it does not also include stepmother-in-law. The Florida Supreme Court has strictly interpreted the anti-nepotism law and has definitively rejected the argument that the statute should be broadly construed. City of Miami Beach v. Galbut, 626 So. 2d 192 (Fla. 1993); see also, Holly v. Auld, 450 So. 2d 217 (Fla. 1984), in which the Court reasoned that:
When the language of the statute is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning. It has also been accurately stated that courts of this state are without power to construe an unambiguous statute in a way that would extend, modify, or limit, its express terms or its reasonable and obvious implications. To do so would be an abrogation of legislative power.
Furthermore, Attorney General's Opinion (AGO)2073-31 states that "[t]he specific relationship of a stepdaughter-in-law is not included within the definition of 'relative' set forth in [the anti-nepotism law]."3 Therefore, the Attorney General opined that the legislature did not intend to extend the statute's anti-nepotism prohibition to a "stepdaughter-in-law."4 This point also is supported by reference to CEO 10-6, where the Commission determined that a mosquito control district commissioner voting on her district's acquisition of real property owned by business entities created and owned by her brother-in-law would violate the voting conflicts law—Section 112.3143, Florida Statutes—because the statute's definition of relative included "brother-in-law." See, also, CEO 91-23 ("stepdaughter" listed in the statute).
AGO 073-31 also points out that "not only is the relationship of a 'stepdaughter-in-law' not mentioned in the statute, it is not defined in any of the standard legal texts nor is it defined in any of the decisional case law." Following the Attorney General's reasoning, if a stepdaughter-in-law does not fit under the statute's definition of a "relative," then neither would a stepmother-in-law.
Additionally, CEO 14-9 found that a property appraiser would not be prohibited from offering his former wife's daughter (his former stepdaughter) a position in the property appraiser's office. The opinion reasoned that while the law would prohibit the appraiser from offering his current "stepdaughter" a position in the property appraiser's office, it would not prohibit him from offering a position to his former stepdaughter. There, the Commission applied the same principle of statutory construction the Attorney General used in AGO 85-35, expressio unius est exclusio alterius (the expression of one thing is the exclusion of the other).
Accordingly, we find that a stepmother-in-law5 is not one's "relative" under Section 112.3135, Florida Statutes, and, thus, that the Director is not prohibited by the statute from promoting, or recommending for promotion, her spouse's stepmother.
ORDERED by the State of Florida Commission on Ethics meeting in public session on April 12, 2019, and RENDERED this 17th day of April, 2019.
Guy W. Norris, Chair
Prior opinions of the Commission on Ethics may be obtained from its website (www.ethics.state.fl.us).
Prior to 1989, the anti-nepotism law was in Ch. 116 and was interpreted by the Attorney General.
Section 116.111 Florida Statutes (renumbered as Section 112.3135), does not prohibit employment by a county of a "cousin-in-law" or "sister-in-law by marriage" of a current member of the county commission. AGO 85-35.
The interpretation of AGO 073-31 is based upon the rule of statutory construction, embodied in the phrase expressio unius est exclusio alterius, which means that had the legislature intended to include those other familial relationships, it would have listed them.
Black's Law Dictionary, while defining stepmother as "the wife of one's father by virtue of a marriage subsequent to that of which the person spoken of is the offspring," contains no entry or definition for stepmother-in-law.