ANTI-NEPOTISM
PROMOTION OF SON-IN-LAW OF POLICE CHIEF
WITHIN POLICE DEPARTMENT
To: Name Withheld at Person's Request (Miami)
SUMMARY:
Under the circumstances presented, Section 112.3135(2)(a), Florida Statutes, prohibits a City Police Chief's son-in-law from being promoted or receiving "advancements" within the Police Department, so long as he is Police Chief. However, he is not prohibited from receiving cost-of-living or other routine pay increases or maintaining his position within the Police Department under the supervision of his father-in-law, the Police Chief.
QUESTION:
Does the anti-nepotism law prohibit the promotion within the Police Department of the son-in-law of the Police Chief, where the City Manager, pursuant to the City Charter, has the power to appoint and remove employees of the City and to authorize the head of a department to appoint and remove subordinates in the department, and thus, the power to withdraw the delegation of appointment authority with respect to the Police Chief's son-in-law?
Under the circumstances presented, your question is answered in the affirmative.
Through your letter of inquiry and conversation with our staff, you ask whether the anti-nepotism law [Section 112.3135(2)(a), Florida Statutes] prohibits the son-in-law of the City's Police Chief from being promoted within the Police Department. You advise that the Police Chief has served as Police Chief since November 22, 1987. His son-in-law was hired as a police officer by the City on November 25, 1982, prior to becoming the Police Chief's son-in-law, you advise. You advise further that he was promoted to the position of Sergeant in November of 1990, and in 1996 he married the Police Chief's daughter.
You advise that during the Sergeant's tenure with the Police Department several promotional opportunities have arisen. However, he has neither applied for nor has the Police Chief recommended him for any of the higher classified positions, you write.
You also advise that pursuant to Section 4.1 of the City Charter, the City Manager acts as the administrative head of the City. Except for those positions whose appointment is controlled by the City Council, you write, the City Manager is authorized under Section 4.5(2) of the City Charter to appoint and remove employees of the City or he may authorize the head of a department or office to appoint and remove subordinates in his or her department or office.
The Police Department, you advise, also is under the direction of the City Manager.[1] However, you write that the "promotion" of an employee is not specifically mentioned in either the City Charter or Code. With respect to the Police Department, pursuant to Section 2-238 of the City Code, the Police Chief exercises general supervision over the Department, you advise. Nevertheless, for the position of Lieutenant, you advise that pursuant to the collective bargaining agreement between the City and the Dade County Police Benevolent Association, the following promotion process currently is followed:
1. The eligibility for competing for Lieutenant is established.
2. A written exam is given.
3. Those who score a minimum of "60" participate in an oral interview panel for which a score is given.[2]
4. The two scores are added, and a promotional eligibility list is established based on high to low score.
5. City management can select any person in the top three slots on the list for promotion.
For non-bargaining unit positions above Lieutenant, i.e., Captain or Major, the Chief recommends the promotion, you advise; however, the City Manager has final selection approval.
You advise that in practice the Police Chief has been instrumental in recommending or advising the City Manager regarding promotions within his department. You also advise that, pursuant to the authority granted in the City Charter and the custom and practice of the City Manager, the Police Chief apparently has been delegated the authority to promote, advance, or recommend individuals for promotion. However, inasmuch as the power to appoint or remove an employee ultimately devolves from the City Charter and the City Manager, you suggest that the City Manager could remove the delegation of responsibility regarding possible promotional opportunities for his son-in-law from the Police Chief.
Within the Code of Ethics for Public Officers and Employees, the Anti-Nepotism Law provides in relevant part:
RESTRICTION ON EMPLOYMENT OF RELATIVES.--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. [Section 112.3135(2)(a), Florida Statutes.]
This provision prohibits a public official from promoting or advancing, or advocating the promotion or advancement of, a relative in the agency he or she serves or over which he or she exercises control. For purposes of this law, the term "relative" includes one's "son-in-law." See Section 112.3135(1)(d), Florida Statutes. In addition, you correctly note that the term "public official" is defined at Section 112.3135(1)(c), Florida Statutes, to include an officer or employee of a city who is vested with 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 in the City. Because the Police Chief possesses the delegated authority to promote or to recommend or advise the City Manager regarding promotions within his department, we find that he is a "public officer" within the meaning of Section 112.3135(1)(c).
In CEO 96-6, CEO 93-15 and CEO 90-62, we noted that prior to the 1989 transfer of the anti-nepotism law into the Code of Ethics for Public Officers and Employees, that provision (formerly Section 116.111, Florida Statutes) was interpreted by a number of Attorney General's opinions whose reasoning we essentially have adopted in issuing our opinions involving Section 112.3135. Thus, in CEO 90-62, we opined that Section 112.3135(2)(a) was not violated where a city police chief and his father both worked in the police department and where the father was employed there prior to his son's becoming chief. We noted that the Attorney General had consistently interpreted Section 116.111 not to require the discharge of a person whose relative took the higher position after the person's employment or otherwise where the prohibited relationship came into being after the person's employment. In other words, where a public official married one of his employees, the Attorney General opined that the employee was allowed to continue in the same position and to participate in routine raises, but she could not be promoted or advanced, or recommended or advocated for a promotion or advancement. See AGO's 77-36 and 73-35. Consequently, as we opined in CEO 96-6 and CEO 89-46, we are of the opinion here that no violation of Section 112.3135(2)(a) has been created by the Police Chief's son-in-law's continuing to work in the Police Department after he married the Police Chief's daughter.
We also repeatedly have stated that the anti-nepotism law addresses only appointment, employment, promotions, and advancement. As it does not address any other aspect of the supervisory authority a public official may have over a relative, it cannot be applied to prohibit an official from such actions as stationing, transferring, evaluating, or even suspending a relative. This principle also was recognized in AGO 73-397, in which it was found that a city could hire a policewoman who was the daughter of a patrolman who at times would supervise his daughter. Thus, in CEO 91-27, we found that where a police officer's first cousin was assistant city manager with no authority to employ or promote police officers at the time when the police officer was hired, the officer's hiring was not prohibited by Section 112.3135 because the officer's cousin, even as city manager with such authority, was not hiring, promoting, or advocating the hiring or promotion of the officer. See also CEO 93-15, CEO 94-26, and CEO 94-30. We adhere to that reasoning here and find that the anti-nepotism law does not prohibit the Police Chief from either supervising his son-in-law or evaluating his work.
In both CEO 90-62 and CEO 93-15, we referenced Slaughter v. City of Jacksonville, 338 So. 2d 902 (Fla 1st DCA 1976), which examined the question of whether a merit pay increase constituted a "promotion" or "advancement" under the terms of the anti-nepotism law. In Slaughter, the Court concluded:
It is our view that it is only an increase in grade which elevates an employee to a higher rank or position of greater personal dignity or importance and is an advancement or promotion. [Id. at 904.]
Thus, Slaughter, whose father was the Clerk of the Circuit Court, was permitted to keep the merit pay increases he had received over the course of his employment in the Clerk's Office. Similarly, we find that no violation of Section 112.3135(2)(a) would be created were the Police Chief's son-in-law to receive across the board cost-of-living increases or merit pay increases, as long as any such increase does not constitute an increase in grade or elevation to a higher rank for the son-in-law.
However, in response to your primary question, because of the discretion inherent in the promotion process, we are of the opinion that a violation of Section 112.3135(2)(a) would be created were the Police Chief's son-in-law to be promoted following the promotion process that is currently followed pursuant to the collective bargaining agreement between the City and the Dade County Police Benevolent Association, which you describe in your letter of inquiry. The situation here appears to analogous to that described in CEO 93-16, wherein we found that the anti-nepotism law prohibited the placement of the brother-in-law of a city police captain in a police sergeant's position, where the captain was vested with the authority to recommend individuals for the position, regardless of his delegation of the authority. We found there that even though the actual hiring decision was the police chief's and not the police captain's, the police captain was the employee in whom was vested the authority to recommend persons to fill the two sergeant openings, and his temporary delegation of that authority did not divest him of it such that the anti-nepotism law would not be violated. Similarly, we find that the ad hoc removal of the authority to recommend possible promotional opportunities for the Police Chief's son-in-law does not divest the Police Chief of that authority.
Recently, in CEO 98-2, we found that the anti-nepotism law prohibits the sons of a member of the Game and Fresh Water Fish Commission (GFC) from receiving promotions and advancements, other than those which involve no discretion on the part of the Commission, its Executive Director, or other GFC personnel. In that agency, the wildlife officers were ranked for promotion to sergeant and lieutenant by test score and time in-grade, and the top applicant was always the one who got the promotion, unless the top applicant declined it. In contrast, here, the Police Department's promotional policy does not require that the eligible candidate for promotion be the top scorer; instead, it is one of the top three scorers who is either promoted or recommended for promotion by the Police Chief.
Accordingly, we find that Section 112.3135(2)(a), Florida Statutes, prohibits the Police Chief's son-in-law from being promoted or receiving "advancements" within the City's Police Department under current promotional procedures, so long as he is Police Chief. However, we also find that he is not prohibited from receiving cost-of-living or other routine pay increases or maintaining his position within the Police Department under the supervision of his father-in-law, the Police Chief.
ORDERED by the State of Florida Commission on Ethics meeting in public session on March 5,1998 and RENDERED this 10th day of March, 1998.
__________________________
Kathy Chinoy
Chair
[1] Section 2-338 of the City Code provides that "the chief of police shall exercise general supervision over the police department and shall be responsible to the city manager for its efficiency and for the maintenance of peace and order within the city."
[2] You advise that there is no set policy regarding who sits on the interview panel. It could be the Human Resources Director and someone else from inside the City's administration, i.e., possibly the Assistant Police Chief and officers from other local police departments. You advise that the Police Chief does not sit or participate as a member of the panel.