EMPLOYEES HOLDING OFFICE; DUAL PUBLIC EMPLOYMENT

COUNTY EMPLOYEE APPOINTED TO FILL VACANCY ON
COUNTY COMMISSION

To:        Mr. Rick Brown (Okeechobee)

SUMMARY:

Section 112.313(10), Florida Statutes, would not be violated were an employee of a county to be appointed to fill a vacancy on the county commission, where he would take an unpaid leave of absence from his county employment while he holds office. Nor would his re-employment by the county upon leaving office violate the dual public employment provision contained in Section 112.3125, Florida Statutes, since he would no longer be a public officer when he returns to his employment with the county. CEO 81-21 is referenced.

QUESTION:

Would the appointment of a county commission employee to a vacancy on the county commission, and his subsequent reemployment by the county when his term of office ends, violate Section 112.313(10), Florida Statutes, or violate the dual public employment provision in Section 112.3125, Florida Statutes?

Under the circumstances presented, your question is answered in the negative.

From your letter of inquiry we are advised that you are employed by the Glades County Board of County Commissioners, and have applied for a vacancy on the County Commission created by the death of a County Commissioner. The Governor will fill the vacancy by appointment, and you have submitted an application for consideration. You question whether you could take an unpaid leave of absence from your County employment if you were to receive the appointment, and then return to your position when the term of office ends, without violating Sections 112.313(10) or 112.3125, Florida Statutes.

Section 112.313(10) provides in relevant part:

EMPLOYEES HOLDING OFFICE.-No employee of a state agency or of a county, municipality, special taxing district, or other political subdivision of the state shall hold office as a member of the governing board, council, commission, or authority, by whatever name known, which is his or her employer while, at the same time, continuing as an employee of such employer.

This provision prohibits a county employee from simultaneously serving on the same county's governing board. However, we find that it would not be violated were you to take a leave of absence from your current employment. In CEO 81-21, the Commission noted that the First District Court of Appeal, in deciding Wright v. Commission on Ethics, 389 So. 2d 662 (Fla. 1st DCA 1980), concluded that Section 112.313(10), Florida Statutes, would not be violated where a teacher in a continuing contract position in the school district took a personal leave of absence while serving on the school board, because she would no longer be an employee of the school district if she performed no teaching services and received no compensation while she was on leave of absence status. Therefore, under this precedent, your appointment to the County Commission while you take an unpaid, personal leave of absence from your County job would not violate Section 112.313(10), Florida Statutes.

You have also asked us to construe Section 112.3125, Florida Statutes, which was enacted in 2013. It provides:

DUAL PUBLIC EMPLOYMENT.-

(1) As used in this section, the term "public officer" includes any person who is elected to state or local office or, for the period of his or her candidacy, any person who has qualified as a candidate for state or local office.

(2) A public officer may not accept public employment with the state or any of its political subdivisions if the public officer knows, or with the exercise of reasonable care should know, that the position is being offered by the employer for the purpose of gaining influence or other advantage based on the public officer's office or candidacy.

(3) Any public employment accepted by a public officer must meet all of the following conditions: (a) The position was already in existence or was created by the employer without the knowledge or anticipation of the public officer's interest in such position; (b) The position was publicly advertised; (c) The public officer was subject to the same application and hiring process as other candidates for the position; and (d) The public officer meets or exceeds the required qualifications for the position.

(4) A person who was employed by the state or any of its political subdivisions before qualifying as a public officer for his or her current term of office or the next available term of office may continue his or her employment. However, he or she may not accept promotion, advancement, additional compensation, or anything of value that he or she knows, or with the exercise of reasonable care should know, is provided or given as a result of his or her election or position, or that is otherwise inconsistent with the promotion, advancement, additional compensation, or anything of value provided or given an employee who is similarly situated.

(5) This section may not be interpreted as authorizing employment that is otherwise prohibited by law.

By its own terms, we find that the statute would not prohibit you from reactivating your county employment after your term of office ends, since you would cease to be a County Commissioner ("public officer" as defined in the statute) at that time.

Accordingly, we find that you would not violate Sections 112.313(10) or 112.3125, Florida Statutes, if you were to take an unpaid leave of absence from your County job while you serve on the County Commission, and then return to your County job after your term of office ends.

ORDERED by the State of Florida Commission on Ethics meeting in public session on April 25, 2014, and RENDERED this 30th day of April, 2014.

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Morgan R. Bentley, Chairman