ANTI-NEPOTISM

GENERAL MANAGER/CHIEF EXECUTIVE OFFICER OF
MUNICIPAL UTILITY BOARD SELECTING SON
OF BOARD'S CHAIR FOR POSITION

To: Name withheld at person's request (Monroe County)

SUMMARY:

Under the circumstances presented here, the anti-nepotism law (Section 112.3135, Florida Statutes) will not be violated were the son of the chair of a municipal utility board to be hired to a position with the board. The board's general manager/chief executive officer, not the board, is the "public official" vested with the authority to hire for the position, and the utility board and its chair have not participated in the hiring process or advocated for the selection of the chair's son. CEO 13-7, CEO 02-11, CEO 02-3, CEO 98-2, and CEO 93-1 are referenced. ¹

QUESTION:

Would the anti-nepotism law (Section 112.3135, Florida Statutes) be violated were the general manager/chief executive officer of a municipal utility board to hire the son of the board's chair to a position?

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

You write that you are inquiring on behalf of a member of the Utility Board of the City of Key West (d/b/a KEYS Energy Services) who currently is serving as the Board's Chair. You relate the Board engaged the services of an outside consultant to review its organizational structure and make recommendations on how to streamline operations. You relate that one of the consultant's recommendations was to create a new position—a Director of Legal and Regulatory Services—who would be responsible for providing legal counsel and organizational risk management, overseeing safety and compliance issues, and acting as a liaison to the Key West Emergency Operations Center. At the Board's request, the consultant also prepared a job description and a pay scale for the proposed position. You state that the Board's General Manager/Chief Executive Officer (General Manager) approved the job description for the new position and the Board approved the position's pay scale.²

You relate that at that point, the General Manager initiated a selection process for the new position. You state the General Manager directed that the position be posted and advertised through various channels—such as on the Board's website and in an informational blast sent to members of the Monroe County Bar Association—and, after applications were received, she reviewed them with two other Board employees as well as with the general counsel of another public utility. Ultimately, you state, the General Manager selected the son of the Board's Chair as the best-suited candidate. You relate that neither the Board's Chair nor any other Board member participated in or was consulted during the hiring process, and you emphasize the hiring decision was made by the General Manager alone. You state the General Manager made the Chair's son an offer of employment, contingent upon verifying whether the son's employment would place the Chair in violation of Section 112.3135, the anti-nepotism statute.

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(2)(a) prohibits a public official from appointing, employing, promoting, or advancing, or advocating for the appointment, employment, promotion, or advancement of a "relative."³ See CEO 13-7. The statute also is triggered if the collegial body on which a public official serves appoints, employs, promotes or advances the relative of one of its members, or advocates for such an appointment, employment, promotion, or advancement, even if the member who is related abstains from the decision. See CEO 93-1. Considering this, the question here is whether the Board's Chair—or the Board on which he serves—is appointing or employing, or advocating for the appointment or employment, of his son.

Initially, we note that the legislative act creating the Board does not give it authority to become involved in the type of hiring decision raised by your scenario. When passing the enabling legislation, the Legislature did not grant the Board broad employment authority, but stated the Board "shall direct, employ, fix the compensation of and discharge all employees" only through its General Manager.⁴ Moreover, Section 6 of Article V of the Board's bylaws states the General Manager "shall have the responsibility of hiring and establishing the conditions of employment for all employees of the Utility to the extent permitted by law."⁵ Accordingly, pursuant to the Board's charter and bylaws, the authority to appoint or employ Board employees is vested in the General Manager/Chief Executive Officer, not in the Board.⁶

The hiring process here reflected this framework. You relate that while the Board approved the pay scale for the position in question, the General Manager and three other individuals—none of whom were Board members—reviewed the applications and the General Manager then selected the Chair's son as the best—suited candidate. Neither the Board collectively, nor the Chair personally, participated in or was consulted during the hiring process, and the authority to make the final hire rested solely with the General Manager.

We addressed a similar situation in CEO 93-1, which dealt with a county manager promoting the wife of a county commissioner to a higher pay classification within the county's solid waste department. There, we found Section 112.3135 did not apply, as the county's charter and pertinent statutory law vested authority to promote the wife with the county manager, not the county commission. While the county commission had the ability to adopt the job classification into which the commissioner's wife was promoted, it did not have the authority to promote an employee to that classification. Accordingly, we concluded that so long as the county commissioner personally—and the county commission as a collegial body—refrained from advocating for the promotion, and so long as the promotional decision was made by the county manager, alone, Section 112.3135 would not apply.

Considering CEO 93-1, as well as the fact that the hiring authority here is vested in the General Manager and not the Board, we find the Board's Chair will not be in violation of Section 112.3135 were his son to be employed as the Director for Legal and Regulatory Services, provided that neither he, nor the Board as a collegial body, advocate for his son's hiring.

In finding that the law would not be violated under these circumstances, we are aware that the public's confidence in the Board's hiring decisions might be strengthened were we to interpret the anti-nepotism provision more liberally to preclude the hiring of the Chair's son. However, Section 112.3135 is a penal statute and, as such, it is subject to strict (narrow) construction so that those covered by its prohibition will have clear notice of what conduct it proscribes. See CEO 02-11 and CEO 02-3 (Question 1). The Florida Supreme Court itself has strictly interpreted the anti-nepotism law and has definitively rejected the argument that the statute should be broadly construed, stating in City of Miami Beach v. Galbut, 626 So. 2d 192, 194 (Fla. 1993):

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.

While we understand the public may be concerned with a decision by the Board's General Manager to employ the son of the Board's Chair, it is not our role to rewrite or expand the prohibition in Section 112.3135 beyond that written by the Legislature.

Your question is answered accordingly.

ORDERED by the State of Florida Commission on Ethics meeting in public session on December 7, 2018, and RENDERED this 12th day of December, 2018.

____________________________________

Guy W. Norris, Chair

^[1]Prior opinions of the Commission on Ethics can be viewed at www.ethics.state.fl.us.

^[2]You indicate the Utility Board only approves pay scales, not job descriptions, for management positions such as the Director of Legal and Regulatory Services.

^[3]The term "relative" is defined for the purpose of the anti-nepotism law in Section 112.3135(1)(d), Florida Statutes, and includes one's son.

^[4]This language is included in Section 12 of the Board's charter, which, in turn, is found in Chapter 69-1191, Laws of Florida.

^[5]The only exceptions in the bylaws are that the Board itself hires the General Manager and the Board Attorney, and that the Board Attorney hires the employees in the Attorney's office.

^[6]Because the source of authority was based in the charter and bylaws, we do not view this as a scenario where the Board merely has delegated or attempted to delegate authority to the General Manager. See, in general, CEO 02-11, n. 7 and CEO 98-2.