ANTI-NEPOTISM

TOWN COUNCIL ELEVATING
PLANNING AND ZONING BOARD MEMBERS

To: Mr. Karl W. Bohne, Jr., Town Attorney, Town of Malabar

SUMMARY:

The anti-nepotism law, Section 112.3135(2)(a), Florida Statutes, would prohibit a town councilmember from acting to elevate a relative of the councilmember from a nonvoting alternate position on the town's planning and zoning board to a voting position or to a "first alternate" position, but would not prohibit the town councilmember from acting to rotate voting among alternates. In Slaughter v. City of Jacksonville, 338 So. 2d 902 (Fla. 1st DCA 1976), the Court concluded that it is only an increase in grade which elevates an employee to a higher rank or position of greater personal dignity or importance which constitutes an "advancement" or "promotion" within the contemplation of the anti-nepotism law. Here, the proposals to reconstitute the Planning and Zoning Board by either elevating both alternates to voting positions or designating one alternate as the first to be used in the absence of a regular voting member would correlate to an "advancement" or "promotion" under Slaughter, as any alternate gaining voting status under these proposals would attain a higher rank or position of greater personal dignity or importance. However, the proposal to reconstitute the Board by simply rotating voting privileges between the alternates in the absence of a regular voting member would not be an "advancement" or "promotion" as the position of an alternate would not be elevated. Referenced are CEOs 09-15, 98-23, 94-39, and 90-62.

QUESTION:

Does the anti-nepotism law prohibit a town councilmember from approving proposals which would alter the make-up of the town's planning and zoning board where a relative of that town councilmember serves as an alternate on the board?¹

Under the circumstances presented, your question is answered as set forth below.

In your letter of inquiry, you state that the Town Council of Malabar has appointment power over the Town's Planning and Zoning Board. The Board currently has five regular members and two alternates. The alternates have the ability to attend all Board meetings and participate in all discussions; their only difference from regular members is that they may not vote unless an active member is absent, disabled, or disqualified from considering a particular measure. At the present time, there is no official policy or procedure as to which alternate should be selected in the absence of a regular voting member. The informal procedure is for the voting members of the Board to simply elevate the alternate with the most seniority in the absence of a regular member.

You relate that the Town Council is considering three proposals which will change the structure of the Board or, at the least, institute an official procedure for how alternates should be selected when a regular member is absent. These three proposals are as follows:

Proposal One: Expand the Board's membership to seven regular members with no alternates, elevating the two current alternates to the status of regular members

Proposal Two: Keep the existing Board as five members with two alternates, but select a particular alternate to be the first to have voting status in the absence of a regular voting member

Proposal Three: Keep the existing Board as five members with two alternates, but rotate between the alternates as to who will be given voting status in the absence of a regular voting member

You advise that a relative of a Town Council member is currently serving as an alternate on the Planning and Zoning Board.² This alternate was serving in that capacity prior to the Councilmember's election. Given this relationship, you indicate the Town Council is concerned whether the anti-nepotism law-found in Section 112.3135, Florida Statutes - restricts its ability to adopt any of the three above proposals.

Section 112.3135(2)(a), Florida Statutes, provides:

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.

Section 112.3135(1)(c), Florida Statutes, defines "public official" to mean:

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.

(emphasis added). Section 112.3135, Florida Statutes, prohibits public officials from promoting or advancing, or advocating for the promotion or advancement of, a relative in the agency where he serves or over which he exercises control. The question thus is whether the Town Council's adoption of any of the proposals to restructure the Planning and Zoning Board would promote or advance the Councilmember's relative who currently is serving as an alternate on the Board.

Initially, we find that the law does not prohibit the alternate from continuing to serve on the Planning and Zoning Board, despite the relation to the current Councilmember. In CEO 90-62, we found the anti-nepotism law does not require a person's discharge when a prohibited relationship comes into being after the person's initial placement. Here, you indicate the alternate began serving on the Board prior to the relative's election to the Town Council. Accordingly, the alternate may continue serving on the Board in that same capacity, although we caution that the alternate cannot be promoted or advanced, and that the councilmember may not recommend or advocate for the alternate's promotion or advancement. See CEO 09-15 and 98-23.

Turning to whether the proposals for restructuring the Planning and Zoning Board would constitute a promotion or advancement, in Slaughter v. City of Jacksonville, 338 So. 2d 902 (Fla. 1st DCA 1976), the court found the terms "promotion" or "advancement" correspond to "an increase in grade which elevates an employee to a higher rank or position of greater personal dignity or importance[.]" Whether an individual has increased in "rank" or has been ascribed more "dignity" or "importance" implies some factor—such as an increase in pay, an increase in title, or an increase in duties and responsibilities—has heightened the individual's stature within the agency itself. In CEO 94-39, we found a "promotion" or "advancement" had occurred when the son-in-law of a county supervisor of elections was given a change in title commensurate with additional responsibilities and a pay increase. We found that because the increase in pay and responsibilities "had the effect of 'enhancing' the personal dignity and importance of [the son-in-law's] position," he had been "promoted" or "advanced" under Section 112.3135(2)(a), Florida Statutes. On the other hand, in CEO 98-23, we found no "promotion" or "advancement" would occur if the designation of the brother-in-law of a Sheriff were changed from Deputy Second Class to Deputy First Class. The change, we reasoned, merely reflected the deputy's time-in-grade, attainment of school hours, and evaluation scores, and did not confer "any greater authority" or place the brother-in-law in "a position of higher rank or greater dignity or importance."

Applying this reasoning to the three proposals here, it is our view that adopting Proposals One and Two would constitute a promotion or advancement of the alternate with the relative on the Town Council, and, thus, place that councilmember in violation of Section 112.3135, Florida Statutes. Proposal One would elevate the alternate from a nonvoting position to a voting position. This corresponds to an increase in grade under Slaughter as it both elevates the alternate's "rank" on the Board and places the alternate in a position of "greater personal dignity or importance." Proposal Two similarly is problematic because—assuming the alternate in question is selected to be the individual first called upon to vote—the alternate will be assuming a position of greater "dignity or importance."³ Therefore, were the Town Council to adopt Proposal One or ascribe preferential voting status to the alternate under Proposal Two, it would place the Town Councilmember related to this alternate in violation of Section 112.3135.

However, we find that Proposal Three presents no such concern. Under Proposal Three, neither alternate is elevated to voting status or given a preferential treatment status in the absence of a regular voting member. The privilege of voting simply is rotated between them, ensuring that they are treated equally, albeit subordinately to the regular voting members of the Council. Accordingly, given the specific factual circumstances you describe, Section 112.3135 will not be implicated if the Town Council adopts Proposal Three because this measure would not "advance" or "promote" the alternate whose relative is on the Council.

Your questions are answered accordingly.

ORDERED by the State of Florida Commission on Ethics meeting in public session on July 26, 2013, and RENDERED this 31st day of July, 2013.

____________________________________

Morgan R. Bentley, Chair

^[1]This question combines and rephrases Questions A and B from the request for a formal opinion, although the substance of the Questions remains the same.

^[2]The term "relative" is being used as defined in Section 112.3135(1)(d), Florida Statutes.

^[3]We would reach a different conclusion concerning Proposal Two if the Town Council selects the other alternate as the individual first called upon to vote. In such a circumstance, the alternate with the family member on the Town Council would remain in the same position and not receive any preferential status.