CEO 99-5 -- March 17, 1999

 

ANTI-NEPOTISM

 

COUNTY COMMISSIONER=S MOTHER=S SISTER=S

HUSBAND HIRED AS COUNTY ROAD HAND

 

To:      Conrad C. Bishop, Jr., Attorney for Lafayette County Commission (Mayo)

 

SUMMARY:

 

One=s mother=s sister=s husband is not one=s Auncle@ subject to the prohibitions of the anti-nepotism law.  CEO 96-6 is referenced.

 

QUESTION:

 

Is a county commissioner=s mother=s sister=s husband the commissioner=s uncle under Section 112.3135, Florida Statutes (Florida=s anti-nepotism law), thereby prohibiting his employment by the county commission?

 

Your question is answered in the negative.

 

By your letter of inquiry, a subsequent letter from you, and a telephone conversation between your office and our staff, we are advised that William Shaw (Amember@) serves as a member and Chair of the Board of County Commissioners of Lafayette County (ABoard@).  We are advised further that the Board desires to know whether Section 112.3135, Florida Statutes (the State=s anti-nepotism law), would prohibit its hiring of the member=s mother=s sister=s husband as a County road hand.

Section 112.3135, with emphasis supplied, provides:

 

(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.

 

The employment by the Board of the member=s mother=s sister=s husband is prohibited by the statute, if he is the member=s uncle within the meaning of the law.

In construing the meaning of the anti-nepotism law, we have not had occasion to opine as to the question you present.  However, in CEO 96-6, we answered a question similar to yours when we determined that the wife of an agency director=s wife=s brother was not the director=s sister-in-law.  In CEO 96-6, we relied on the Black=s Law Dictionary definition of sister-in-law, which did not include the wife of one=s wife=s brother, and we relied on AGO 85-35.[1]  In AGO 85-35, the Attorney General opined that the wife of a county commissioner=s brother-in-law was not within the enumerated classes of relationships encompassed within the anti-nepotism law (apparently, that she was not the county commissioner=s sister-in-law by virtue of marriage to his brother-in-law), relying on the statutory rule of construction expressio unius est exclusio alterius (the expression of one thing in a statute implies the exclusion of other things not mentioned) and noting the penal nature of the anti-nepotism law.[2]  In addition, in AGO 70-71, the Attorney General determined that a Anephew-in-law@ is not within the relationships by affinity named within the anti-nepotism law, citing Capps v. State, 100 So. 172, 87 Fla. 388 (Fla. 1924), in which the Florida Supreme Court stated that Athe words >uncle= and >niece= are generally understood to mean blood relationship.@  Also, Black=s Law Dictionary, Fifth Edition, defines Auncle@ to mean A[t]he brother of one=s father or mother.@

Similarly, in consideration of the foregoing, because the relationship of what could be referred to as Auncle-in-law@ is not listed as a prohibited relationship within the anti-nepotism law, we find that one=s mother=s sister=s husband is not one=s uncle within the meaning of Section 112.3135, Florida Statutes.

Accordingly, we find that the anti-nepotism law would not be violated were the Board to employ the individual in question.

 

ORDERED by the State of Florida Commission on Ethics meeting in public session on March 12, 1999 and RENDERED this 16th day of March, 1999.

 

 

 

__________________________

Charles A. Stampelos

Chair


[1]Cited in CEO 96-6 as AGO 85-36, due to a scrivener=s error.

[2]Prior to its inclusion within the Code of Ethics (see Chapter 89-67, Laws of Florida), the anti-nepotism law was interpreted by the Attorney General.