ANTI-NEPOTISM

APPLICABILITY OF SECTION 112.3135, FLORIDA STATUTES,
TO SHERIFF'S OFFICE VOLUNTEERS

To:        Name withheld at person's request

SUMMARY:

The anti-nepotism law, Section 112.3135, Florida Statutes, does not prohibit a sheriff's relative from serving as an uncompensated volunteer of the sheriff's office. While the law does not require that one hold a compensated position in order for its prohibitions to apply, an exemption within the law for service as a volunteer providing "police services" applies.

QUESTION 1:

Would appointment of a relative of a sheriff as an uncompensated auxiliary deputy sheriff be prohibited by the anti-nepotism law?

This question is answered in the negative.

You write in behalf of … County Sheriff … inquiring as to whether the State's anti-nepotism law, Section 112.3135, Florida Statutes, would prohibit the appointment of his sister as an uncompensated Auxiliary … County Deputy Sheriff. Further, you relate that there are several types of "Auxiliary Deputies" within the … Sheriff's Office, but that they all serve without compensation or remuneration of any kind. However, you state that the Sheriff's Office provides necessary training (conducted by the Sheriff's Office in-house) and uniforms for the Auxiliary Deputies; and you relate that an Auxiliary Deputy might receive Sheriff's Office payment/reimbursement for an incidental expense, such as the cost of repair of a Deputy's eyeglasses damaged during an arrest.

The anti-nepotism law, Section 112.3135, Florida Statutes, 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(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 law prohibits, absent applicability of an exemption, a "public official," as defined in the law (e.g., a sheriff vis-à-vis his sheriff's office), from appointing his "relative" (e.g., sister) to a position in his public agency; and the law has been found to apply to sheriffs and their relatives. Morris v. Seeley, 541 So. 2d 659 (Fla. 1st DCA 1989). Thus, since a sheriff is deemed to appoint or hire all personnel of the sheriff's office (Morris, supra), the law would, absent applicability of the "volunteer" exemption found in the next-to-last sentence of Section 112.3135(2)(a), Florida Statutes, emphasized above, prohibit the placement of the Sheriff's sister as an Auxiliary Deputy.

We find that the exemption applies to the situation presented. Clearly, the purpose of the exemption is to allow for the service of unpaid volunteers providing certain types of services, even if a volunteer is a relative of a sheriff or other "public official" involved in, or legally responsible for, their appointment or placement.¹ And, it is clear from the language of the exemption that one will not lose his or her "volunteer" (uncompensated)² status, which is necessary to applicability of the exemption, merely because he or she receives training or incidental expense payment/reimbursement from the public agency.

Question 1 is answered accordingly.

QUESTION 2:

Are "police services" within the meaning of the exemption limited to those activities for which volunteers must be sworn or certified law enforcement officers?

This question is answered in the negative.

In addition to the information provided regarding Question 1, above, you relate that, besides Auxiliary Deputy volunteers, the Sheriff's Office has approximately 120 volunteers who are recruited from the community, and that these volunteers provide a variety of services (data entry and analysis, follow-up telephone calls, fingerprinting, etc.), which helps other personnel of the Office (e.g., sworn officers) to carry out their duties. Further, you state that the scope of services performed by a law enforcement agency, such as the Sheriff's Office, is quite broad, and there are a great number of agency functions which are traditionally performed by non-law enforcement officers but are necessary in providing law enforcement services to the community--necessary in accomplishing the mission of the Sheriff's Office.

In order to come within the exemption, a volunteer must be providing "emergency medical services," "firefighting services," or "police services." We find, in the context of the anti-nepotism law, a portion of the Code of Ethics which we administer, that "police services" includes the services provided by these additional volunteers. Their service is voluntary/uncompensated and it is in the context of furthering the functions and mission of a law enforcement ("police") agency, the Sheriff's Office. For purposes of Section 112.3135, we do not construe "police services" only to mean service requiring sworn or certified law enforcement officer status.³

Question 2 is answered accordingly.

ORDERED by the State of Florida Commission on Ethics meeting in public session on January 25, 2013 and RENDERED this 30th day of January, 2013.

____________________________________

Susan Horovitz Maurer, Chair

^[1] The prohibitions of Section 112.3135 do not require that the position a relative of a public official seeks or is placed in be a paid or compensated position. Indeed, the language of the exemption, itself, belies a requirement of compensation for applicability of the prohibitions.

^[2]Black's Law Dictionary, Fifth Edition, defines "volunteer" as "A person who gives his services without any express or implied promise of remuneration."

^[3]"Police services" is not defined in Section 112.3135, or elsewhere in the Code of Ethics (Part III, Chapter 112, Florida Statutes). And, the term is not defined anywhere else in the Florida Statutes. Also, "law enforcement services," while referred to in several statutes, is not defined in any statute.