CEO 00-17 -- August 29, 2000
COUNTY HEALTH DEPARTMENT DIRECTOR'S SPOUSE EMPLOYED BY NEIGHBORING HEALTH DEPARTMENT TO WORK AT DIRECTOR'S HEALTH DEPARTMENT
To: Stephen W. Foxwell, Esquire, Senior Attorney, Department of Health (Tallahassee)
The anti-nepotism law would not be violated were the husband of the director of a county health department to be employed by another county health department and to provide services at the health department of which his wife is director because his wife is not the "public official" vested with the authority to employ him, because she did not employ him, and because she did not advocate his employment. CEO's 94-6, 96-5, and 96-13 are referenced.
Would Section 112.3135, Florida Statutes (the State's anti-nepotism law), be violated were the husband of the director of a county health department to be employed by the health department of a neighboring county and then work at the health department where his wife is director?
Under the situation described herein, your question is answered in the negative.
By your letter of inquiry, an earlier letter submitted to our staff, and a telephone call from you and Dr. Les Beitsch, the Assistant State Health Officer of the Florida Department of Health ("Department"), we are advised that Diane Walgren ("Director") serves as Director of the St. Lucie County Health Department ("St. Lucie"), that the Department is proposing that the Director's husband (Ken Walgren, a nurse-practitioner) be employed and supervised by an adjacent health department [the Indian River County Health Department ("Indian River")], that the husband would be assigned to work at St. Lucie, that the Director has no authority to hire her husband (or anyone) to a position at Indian River, that the Director will not be in her husband's chain-of-command at St. Lucie, and that the Director has not and will not advocate for her husband's proposed employment. Further, you stress that the Department's motive in proposing this arrangement is to enhance the quality of medical services at St. Lucie, due to the husband's extensive training and experience in pediatrics, prenatal care, and HIV/AIDS management, pursuant to the Assistant State Health Officer's recognition of a significant need to have the husband work in St. Lucie, where his expertise would provide an enhancement of services. Additionally, you advise that the husband was employed by St. Lucie from November 1993 to August 1999, resigning due to the Department's promulgation of an "internal code of ethics which prohibited any employment by a relative under 'line authority' of another relative." Further, we are advised that the Director of Indian River is the person in whom the Department has vested the authority to hire the husband, that the Director/wife does not possess such authority, that other employees in other county health departments are at times "detailed" to provide services at departments which did not employ them, that the husband likely will be working in a one-half-time OPS position, that the employees of St. Lucie (exclusive of the Director) have expressed a strong desire to have him working again at St. Lucie, in view of his past proficiency and efficiency, and that the net result of implementation of the proposed situation will be that the Department will receive more service for less money.
In view of the foregoing, you inquire as to whether the proposed arrangement would violate Section 112.3135, Florida Statutes, which provides, in part with emphasis supplied:
(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.
The law would prohibit the husband's employment in a position for which the Director/his wife has hiring authority (for which she is the "public official"); and it would prohibit his employment in an agency over which she exercises jurisdiction or control, if she advocated his employment.
Under the situation you describe, we find that the law would not be violated were the husband to be employed by Indian River (where his wife is not the "public official" with hiring authority and which is a separate agency over which she does not exercise jurisdiction or control), notwithstanding that the husband would provide services at St. Lucie. This finding is in accord with our previous decisions and is in accord with the judicial view that the anti-nepotism law is a penal statute which must be strictly construed (construed most favorably toward those against whom its application is sought). In particular, see CEO 96-13, in which we found that the law would not be violated where an executive director with a county housing rental assistance program requested that her niece, employed by a different county department, be transferred to her department, reasoning that the executive director's recommendation to another county department head that he hire her niece did not violate the law, since the executive director was not advocating the employment of her niece to a position in her department. See also CEO 94-6 (promotion of police officer whose first cousin is city manager not a violation because police chief, and not city manager/cousin, holds promotional authority).
In making our instant finding, we are not unmindful of the argument that the husband would be placed at St. Lucie (the agency in which his wife is serving or over which she exercises jurisdiction or control), notwithstanding that he would be employed by Indian River. However, as required by the reasoning of Galbut, our role is to strictly construe the law that the Legislature has enacted, under the terms and elements it has chosen; our role is not to attempt to usurp the role of the lawmaker through our opinion process and thereby impermissibly broaden or make more strict the law. In addition, our decision in this matter does no violence to the overriding theme 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 on which their relatives sit (see CEO 96-5)] because the Department's leadership and the Director of Indian River (not the Director/wife) are the actors in the situation before us.
Accordingly, under the circumstances described, we find that Section 112.3135, Florida Statutes, would not be violated were the husband of the Director of the St. Lucie County Health Department to be employed by the Indian River County Health Department and perform services at St. Lucie.
ORDERED by the State of Florida Commission on Ethics meeting in public session on August 24, 2000 and RENDERED this 29th day of August.
Howard Marks, Chair
We are advised that health department directors are Selected Exempt Service employees of the Department, that they are treated by the Department as being the equivalent of bureau chiefs, and that all sixty-seven directors in the State report to the Department's central office in Tallahassee.
You advise that the husband was hired by St. Lucie in 1993, but that his wife was not appointed Director of St. Lucie until 1996.
3Contrary to a common view, the anti-nepotism law does not prohibit one's supervision of a relative or two relatives merely working together at the same public agency. See, for example, CEO 96-13.