CEO 94-6 -- March 10, 1994
CITY POLICE OFFICER ELIGIBLE FOR PROMOTION WHERE
HIS FIRST COUSIN IS CITY MANAGER
To: (Name withheld for lack of consent.)
The anti-nepotism law, Section 112.3135, Florida Statutes, does not prohibit the promotion of a city police officer whose first cousin is city manager, where the city manager has no role in the promotion procedures within the police department. To the extent that the facts differ from CEO 91-27, CEO 91-27 is superseded.
Does the anti-nepotism law prohibit the promotion of a city police officer where the officer's first cousin is the city manager, where the promotion decision is made by the police chief and the city manager has no role in the process?
Under the circumstances presented, your question is answered in the negative.
In your letter of inquiry, you have asked us to reconsider our opinion CEO 91-27. In that opinion, we found that the anti-nepotism law, Section 112.3135(2)(a), Florida Statutes, prohibited the promotion of a City police officer whose first cousin was the City Manager, where the City Manager had approval authority over police promotions pursuant to the collective bargaining agreement between the City and the police union.
You advise that since we issued CEO 91-27, the promotion article of the collective bargaining agreement has been renegotiated and amended. It appears that the provision for oral examination has been removed, as well as the provision requiring the Chief of Police to make recommendations to the City Manager, who then was responsible for approving that recommendation. Pursuant to the amended collective bargaining agreement, the procedure that is now followed is that the Chief of Police makes the promotional determination without review or approval by the City Manager. This amendment appears to be consistent with Section 1.03 of the City's Personnel Rules, which states:
Department heads will be responsible for the proper and effective administration of these rules and regulations within their respective departments.
As was noted in CEO 91-27, Section 112.3135(2)(a), Florida Statutes, states:
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 he is serving or over which he exercises jurisdiction or control any individual who is a relative of the public officer. 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 or exercising jurisdiction or control over the agency, who is a relative of the individual.
This provision prohibits a public official from promoting or advancing, or advocating the promotion or advancement of, a relative in the agency he serves or over which he exercises control. For purposes of the anti-nepotism law, the term "relative" includes one's first cousin. Section 112.3135(1)(c), Florida Statutes.
As a result of the change to the promotion article in the collective bargaining agreement, it appears that the City Manager no longer exercises any control over promotions within the Police Department. That authority is now vested in the Police Chief. Because the City Manager's authority has been so modified, we now conclude that Section 112.3135, Florida Statutes, does not prohibit the police officer from being promoted or advanced while his first cousin is City Manager, as long as the City Manager in no way advocates the promotion of his first cousin, the police officer. To the extent that the facts differ from CEO 91-27, then CEO 91-27 is hereby superseded.
Your question is answered accordingly.