CEO 02-11 -- April 30, 2002

ANTI-NEPOTISM

HIGHWAY PATROL DIRECTOR'S BROTHER

PROMOTED TO MAJOR (TROOP COMMANDER)

To: (Name withheld at person's request)

SUMMARY:

The State's anti-nepotism law (Section 112.3135, Florida Statutes) would not be violated were the brother of the Director of the Florida Highway Patrol (FHP), a Division of the Department of Highway Safety and Motor Vehicles, to be promoted to the position of Major (Troop Commander). Under the circumstances of this opinion, the Department's Executive Director (and not the brother/Director) is the "public official" vested with the authority to make the appointment, and the brother/Director will not advocate promotion of his brother. CEO 93-16 and CEO 96-13 are referenced and CEO 98-7 is receded from.

QUESTION:

Would the State's anti-nepotism law (Section 112.3135, Florida Statutes) be violated were the brother of the Director of the Florida Highway Patrol (FHP) to be promoted to the position of Major (Troop Commander) within FHP?

Under the particular circumstances of this opinion, your question is answered in the negative.

By your letter of inquiry, a booklet/manual accompanying the letter, telephone conversations between our staff and counsel for the Department of Highway Safety and Motor Vehicles (DHSMV or Department), and additional written information provided by Department counsel in response to questions from our staff, we are advised that Christopher A. Knight (Colonel or Director) serves as Director of the Florida Highway Patrol (Patrol or FHP), a Division of the Department, having been appointed in July 2001. In addition, we are advised that Thomas M. Knight (Captain), the Director's brother, has served as a member of FHP since March 1988, having progressed to his current rank (Captain/District Commander), a position he has held since January 2000.

Further, we are advised that the Captain is first on the promotion list for appointment to a Troop Commander (rank of Major) position [a selected exempt service (SES) position] for one of the ten field troops within the Patrol. The promotion process for Troop Commander positions, you advise, has various components, utilizes candidate assessors from outside FHP, operates on an equal, competitive, and objective basis, and has served the Patrol well in recent years in identifying future law enforcement managerial candidates. You emphasize that the Captain has been first on the promotion list for a Troop Commander position since completing examination in June 2001 (a top-of-the-list ranking which predates the Colonel's appointment as head of the Patrol and which is valid through June 30, 2002).^[1] In addition, we are advised that the Director of the Patrol (the position currently occupied by the Colonel) neither administers nor oversees the promotion process; and that with the arrival of the Governor's Service First Initiative^[2] (which transferred career service positions to selected exempt positions), appointments to Troop Commander (Major) positions are now made by the Department's Executive Director,^[3] "upon recommendation of the Patrol."^[4]

Thus, in view of the foregoing, you question whether Section 112.3135 would bar the promotion of the Captain (a person whom you describe as a career law enforcement officer who has displayed competence and integrity in his quest to become a higher level manager within the Patrol).^[5]

Within the Code of Ethics for Public Officers and Employees, the anti-nepotism law (Section 112.3135, Florida Statutes) 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 law prohibits a "public official" from (1)appointing, employing, promoting, or advancing his "relative" (defined to include one's brother) and (2)advocating the appointment, employment, promotion, or advancement of his relative.

Under the first ("promotion") prong of the prohibition, we find that the law would not be violated under the scenario described. Clearly, the Executive Director of the Department (and not the brother/FHP Director) is the person vested^[6] with the authority to promote persons into Troop Commander positions (including the position sought by the Captain).^[7]

Under the second ("advocacy" or "recommendation") prong of the prohibition, we also find that the law would not be violated under the scenario described. It is represented to us that neither the Director of the Patrol (the Colonel) nor his command staff will make a recommendation to the Executive Director regarding candidates for the Troop Commander position sought by the Captain; therefore, the advocacy (overt actions) by a public official/relative required for a violation of the law will not be present. See City of Miami Beach v. Galbut , 626 So. 2d 192 (Fla. 1993), in which the Florida Supreme Court, in construing language of the anti-nepotism law identical to that relevant to your inquiry, stated:

The plain language of the statute at issue indicates that only overt actions by a public official resulting in the appointment of that official's relative are prohibited.

Galbut, at 193 and 194. Clearly, the scenario before us does not indicate any advocacy (overt actions) on the part of the Colonel regarding his brother. In finding that the law would not be violated were the Captain to be promoted under the scenario described, we are not unaware of the argument that the anti-nepotism law should be broadly or liberally interpreted for the public benefit and thus that it should be applied to preclude a promotion of the Captain, thereby arguably fostering public confidence in the employment practices of the Department.^[8] However, relative to this argument our Supreme Court also has definitively spoken as follows:

. . . the . . . position that Florida's anti-nepotism statute should be liberally interpreted for the public benefit, in accordance with past Attorney General and Ethics Commission opinions on this issue, is clearly misplaced.

Galbut, at 194. In viewing Galbut as a correct interpretation of the anti-nepotism law, especially regarding the advocacy issue, we have not overlooked our decisions (CEO 93-16 and CEO 98-7) which arguably embody a different interpretation. However, upon examination of these opinions, we are of the view that the facts present in them are distinguishable from the instant scenario or that, in any event, the Galbut Court's view of the statute is applicable to your inquiry.^[9] In addition, very recently, in Commission on Ethics Complaint No. 99-083, In re Donald James (Commission Final Order And Public Report rendered January 29, 2002), we determined that a division chief of the Emergency Medical Services Division for the Miami-Dade Fire and Rescue Department violated the anti-nepotism law by advocating the appointment, employment, promotion, or advancement of his brother in or to a position in the Miami-Dade Fire and Rescue Department. In the James matter, the respondent clearly engaged in overt actions in advocating promotion of his brother, and the clear implication of our decision in the James matter is that the anti-nepotism law is not violated where the relative of a "public official" who possesses only recommending/advocacy (not hiring/placement) authority is promoted, absent actual advocacy or recommendation by the public official of his or her relative.

^[1]Regarding the promotion process, we are advised that a Bureau within the Patrol administers the written examination in April of each year, with the twenty highest-scoring candidates progressing to the assessment stage; that a two-part assessment ("in-basket exercise" and "oral interview board" ) is administered during the first week of June of each year; that the total of the three components (written exam, in-basket exercise, and oral interview) is the final score for a candidate and is posted on the eligibility list for the upcoming fiscal year; that appointments are made from among the five highest scorers who have applied for a position; that unless a particular candidate is experiencing job-performance deficiencies or disciplinary deficiencies, selection for a particular opening is normally made in sequential order, beginning with the highest scorer on the list; and that if a candidate declines selection, the person with the next highest score is given the offer.

^[2]Chapter 2001-43, Laws of Florida.

^[3]Currently, Fred O. Dickinson (a person not related to the Captain).

^[4]Regarding the Troop Commander position sought by the Captain, we are advised that the Colonel will recuse himself from any recommendation role; that the appointment will be made by the Executive Director acting on the placement achieved by the candidate in the promotion process; that the appointee normally is the top scorer on the list but the Executive Director may choose any one of the top five candidates to fill the opening; that the Patrol's Director or his delegate normally would sign a post-appointment personnel action form to document an employee action filling a Troop Commander position; that the "form is not the appointment document" and the Colonel has recused himself from signing any forms related to the promotion which may be conferred upon his brother; that there normally would be a recommendation from the Director of the Patrol to the Executive Director of the Department regarding Troop Commander appointments and the Colonel utilizes his Executive command staff (consisting of thirteen FHP members with the rank of Bureau Chief or above) in making such recommendations, but neither the Colonel nor his Executive command staff will make any recommendation regarding any candidate for the Troop Commander position sought by the Captain; and that appointments in the future (to positions not sought by the Colonel's brother) will involve participation by the Colonel and his command staff.

^[5]Contrary to a popular belief, the anti-nepotism law addresses only hires, promotions, and advancements; it does not prohibit two relatives from working together or one relative from supervising another. See CEO 96-13 and Slaughter v. City of Jacksonville, 338 So. 2d 902 (Fla. 1st DCA 1976).

^[6]Your scenario does not indicate that there has been any delegation of this "hiring" authority from the Executive Director to the Director of FHP.

^[7]We find that the instant scenario is distinguishable from the facts of Morris v. Seely, 541 So. 2d 659 (Fla. 1st DCA 1989), in which the Court held that the anti-nepotism law applied to preclude promotions of a sheriff's brother. In Morris, unquestionably the sheriff was the public official vested with the hiring/promotion authority, the sheriff had attempted to delegate the authority, and the sheriff signed his brother's appointment papers. In the instant situation represented to us, the Executive Director (not the Director/brother) is the public official vested with the hiring/promotion authority, there is no indication that the Director/brother has been delegated the hiring/promotion authority, and the Director/brother will not be signing any appointment papers concerning the Captain. Also, see City of Miami Beach v. Galbut, 626 So. 2d 192 (Fla. 1993).

^[8]The Legislature has expressly broadened the anti-nepotism law via amendment of the language construed in Galbut to, in effect, impute conduct or overt actions to some public officials. See Chapter 94-277, laws of Florida. However, the new language only applies to members of collegial bodies; and the Colonel is not a member of such a body.

^[9]In CEO 93-16, we found that a police Captain's brother-in-law could not be promoted into a position for which the Captain was vested with the authority to recommend persons for placement. However, in the scenario of CEO 93-16, the brother-in-law was recommended for the position (apparently by a person acting under an attempted delegation of the Captain's authority); in the instant inquiry, the scenario includes no recommendation from the FHP Director (personally or by a delegate) regarding candidates for the position sought by his brother. CEO 93-16 likely does not discuss or adopt Galbut's view of the law because CEO 93-16 was rendered June 11, 1993, between rendition of Galbut (October 21, 1993) and rendition of the District Court of Appeal's 1992 ruling appealed in Galbut, and because the Commission (as a friend of the Court) took a position in the Galbut litigation contrary to the position of the District Court and contrary to the view of the law ultimately adopted by the Supreme Court. In CEO 98-7, we found that the son-in-law of a police Chief could not be promoted where the Chief possessed (via custom and practices of the city manager) delegated authority to recommend individuals for the position, specifically relying on CEO 93-16 and apparently analogizing attempted ad hoc removal ("back up" to the city manager) of delegated authority to recommend to the attempted delegation ("away") of recommending authority present in CEO 93-16. CEO 98-7 does not mention Galbut.

^[10]See Galbut, at 194.