CEO 19-24—December 11, 2019
CITY COUNCIL MEMBER'S WIFE RECEIVING
To: Nancy Stuparich, Attorney for City (Brooksville)
A city councilmember will not transgress Section 112.3135(2)(a), Florida Statutes, the State's anti-nepotism law, were the city council to approve a budgetary appropriation and direct it be used to increase the salary of the city clerk, a position held by his wife, so long as the pay increase will not exceed the salary range authorized for that position. Referenced are CEO 18-17, CEO 13-7, CEO 06-13, CEO 00-17, CEO 98-7, CEO 96-5, CEO 95-12, CEO 94-30, and CEO 93-15.
Would a city councilmember be in violation of Section 112.3135, Florida Statutes, were the city council to approve an appropriation to the city manager's budget and direct the city manager to use the appropriation to increase the salary of the city clerk, who is the councilmember's wife?
Under the circumstances presented, your question is answered in the negative, provided the salary increase to the councilmember's wife does not exceed the salary range for her position.
In your letter of inquiry and additional written information provided to our staff, you indicate you are bringing this inquiry on behalf of a member of the Brooksville City Council.1 You indicate the Councilmember questions whether he will be in violation of Section 112.3135(2), Florida Statutes, the anti-nepotism law, were the City Council to approve an appropriation intended to increase the salary of the City Clerk, a position currently held by his wife.
You relate the City Council does not have the direct authority to increase the salary of the City Clerk position, as the City Manager alone is responsible for managing City employees and their salaries. As support, you cite to provisions in the City Charter that clarify that the City Manager, as the chief administrative officer of the City, is responsible for directing and supervising all City offices and positions, with the exception of employees directly retained by the City Council such as the City Attorney and certain municipal consultants.2 You emphasize that, as part of the managerial responsibilities commensurate with the position, the City Manager-not the City Council-technically has the authority to offer City employees, such as the City Clerk, a salary increase.
However, from the materials you submit, it seems the City Council remains involved in decisions regarding salary increases—albeit indirectly—as you indicate an increase can only come from a budgetary appropriation requested by the City Manager and approved by the City Council.3 Moreover, you indicate that the City Manager must identify a particular reason for the appropriation when bringing the request. Accordingly, considering that a salary increase can only occur if the City Council approves a specific appropriation request, it seems, at the very least, that a pay increase requires the Council's tacit approval.
Here, you relate that a motion to increase the City Clerk's salary was raised in an unorthodox way, inasmuch as it was proposed not by the City Manager but by a City Councilmember—other than the requestor (i.e., other than the husband of the Clerk)—at a recent City Council meeting. The specific motion was to increase the City Clerk's salary by $10,000. You indicate the motion was not voted upon and, ultimately, the motion was withdrawn until an opinion could be obtained on whether the proposed increase would place the requestor in violation of Section 112.3135(2). You anticipate that a measure to appropriate a $10,000 salary increase to the position may arise again—presumably in the form of an appropriation request by the City Manager—and you inquire whether the City Councilmember related to the City Clerk will be in violation of Section 112.3135(2) if the request is approved. From what you indicate, the salary increase will not be connected to any increase or change in the City Clerk's responsibilities.
Section 112.3135(2)(a), Florida Statutes, the portion of anti-nepotism law relevant here, 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 . . .
The provision prohibits a public official from appointing, employing, promoting, or advancing, or advocating for the appointment, employment, promotion, or advancement of a "relative."4 See CEO 13-7. Importantly, the statute, by its very language, also is triggered if the collegial body on which a public official serves appoints, employs, promotes, or advances the relative of a member, or advocates for such an appointment, employment, promotion, or advancement, even if the public official abstains from the decision.5 See CEO 18-17. Considering that the City Councilmember's wife is already employed as City Clerk, the question here is whether a decision to appropriate money to increase the City Clerk's salary—in particular a $10,000 increase—constitutes a promotion or advancement, such as to place him in violation of the prohibition.
The meaning of the terms "promotion" and "advancement," as used in Section 112.3135(2)(a), was clarified in Slaughter v. City of Jacksonville, 338 So. 2d 902 (Fla. 1st DCA 1976), which concerned whether a merit pay increase should be considered a "promotion" or "advancement" under the statute. In Slaughter, the Court stated:
It is our view that it is only an increase in grade which elevates an employee to a higher rank or position of greater personal dignity or importance [that] is an advancement or promotion.
Id. at 904. Ultimately, the Court concluded that a merit-based pay increase that did not move an employee into a higher civil service grade—and stayed within the maximum and minimum limits for his or her current service grade—would not constitute an "advancement" or a "promotion" and, accordingly, would not trigger Section 112.3135(2)(a).
The Commission has consistently applied this reasoning. For example, in CEO 93-15, it found the brother of a hospital district board member would not receive a "promotion" or "advancement" for the purpose of the anti-nepotism law were the board to approve a bonus for the brother that would not increase his grade or elevate him to a higher rank. Similarly, in CEO 98-7, we found no "promotion" or "advancement" under Section 112.3135(2)(a) would occur if the son-in-law of a city's police chief received an across-the-board cost-of-living increase or merit-based pay increase, provided the increase did not change his pay grade or elevate him to a higher rank.
However, in CEO 94-30, the Commission found Section 112.3135(2)(a) would be triggered were a county property appraiser to designate the position of chief deputy property appraiser—a position held by his wife—for inclusion in the Florida Retirement System's Senior Management Service Class, thereby increasing his wife's retirement benefits. Applying the reasoning in Slaughter, the Commission found such a designation would elevate his wife to a position of greater dignity or importance because the retirement benefits to which she would then be entitled would not correspond to those of her pay grade but instead those of a higher pay grade. Accordingly, the Commission found the designation would constitute a "promotion" or "advancement" and would place the property appraiser in violation of Section 112.3135(2)(a).
Here, so long as an appropriation approved by the City Council for the City Clerk position stays within the maximum and minimum amount approved for her pay grade, we find that it will not constitute a "promotion" or "advancement" under the reasoning in Slaughter. From what you indicate, the $10,000 increase likely to be proposed will slightly exceed the high end of the Clerk's salary range.6 If the City Council were to approve that amount of an increase and direct that it be given to the City Clerk, she will be receiving a benefit not commensurate with her position, similar to the deputy county property appraiser in CEO 94-30, and the City Councilmember requesting this opinion, assuming he is still serving on the Council, will be in violation of Section 112.3135(2)(a). In short, any appropriation intended by the City Council to increase the salary of the City Clerk must be carefully calculated to stay within the salary range for the position or else Section 112.3135(2)(a) will be triggered as to the City Councilmember.7
To the extent you assert Section 112.3135(2)(a) is inapplicable to this situation as the City Manager alone exercises "jurisdiction and control" over the City Clerk—having been vested with the authority to make salary decisions—we find your argument unpersuasive. Section 112.3135(2)(a), in part, prohibits a public official from promoting or advancing a relative, or for advocating for the promotion or advancement of a relative, "in or to a position in the agency in which the official is serving or over which the official exercises jurisdiction or control[.]" Here, the position of City Clerk is unquestionably "a position in the agency in which the [City Councilmember] is serving." Accordingly, the statute will be triggered if the City Councilmember or the City Council is involved in promoting or advancing his wife. See CEO 96-5 (finding Section 112.3135(2)(a) can be triggered when the relative's position is in an agency where the public official is serving as well as when the position is one over which the public official exercises jurisdiction or control). We also note, under the facts presented here, that the City Council arguably has some degree of jurisdiction or control over aspects of the City Clerk position, inasmuch as your inquiry indicates the Council may—in the future—specifically direct the City Manager to appropriate funds to increase the City Clerk's salary. Finally, to find the anti-nepotism law inapplicable here would contravene the purpose of the statute, which is that persons not be placed in or advanced to public positions by their relatives or by the actions of the collegial body on which their relatives sit. See CEO 06-13 and CEO 00-17.
Your question is answered accordingly.8
ORDERED by the State of Florida Commission on Ethics meeting in public session on December 6, 2019, and RENDERED this 11th day of December, 2019.
Kimberly B. Rezanka, Chair
You state the City Council (as a body) also has asked you to seek our opinion concerning the question addressed herein.
In particular, Section 3.04(4) of the City Charter states the City Manager shall "[d]irect and supervise the administration of all departments, offices, and agencies of the city" while Section 3.05 of the Charter states the City Manager is "responsible for the supervision and direction of all departments, agencies, and offices of the [C]ity." Section 4.02 of the Charter carves out a narrow exception inasmuch as it states the City Attorney, any assistants to the City Attorney, and consultants retained by the City Council "serve under, and at the pleasure of, the [Council]."
 Section 3.04(7) of the City Charter indicates the City Manager must prepare and submit the budget—presumably including all appropriations—to the City Council for approval.
The term "relative" is defined in Section 112.3135(1)(d), Florida Statutes, and includes one's wife.
In your inquiry, you assert it is "fundamentally unfair" and constitutes "an undue hardship" to find a member of a collegial body in violation of Section 112.3135(2)(a) when he or she abstains from a vote concerning the appointment, employment, promotion, or advancement of a relative. However, the Legislature in 1994 amended the statute to clarify there is no exception for situations in which a collegial body member whose relative is appointed abstains from voting. See CEO 96-5 and CEO 95-12. The express language inserted into the statute—namely that the prohibition is triggered simply when the appointment, employment, promotion, or advancement is made by a public official's collegial body—was in response to Galbut v. City of Miami Beach, 605 So. 2d 466 (Fla. 3d DCA 1992), affirmed 626 So. 2d 192 (Fla. 1993), which held the statute inapplicable when the official abstained from voting and in no way advocated for the appointment. See CEO 96-5.
You relate the City, in the past, has considered pay increases exceeding an employee's salary range to be merit-based bonuses that do not alter the employee's pay grade. However, as previously discussed, we have found bonuses or merit-based increases not to be "promotions" or "advancements" under Section 112.3135(2)(a) only when they fall within the salary range authorized for the position in question.
Even if the appropriation will not increase the City Clerk's pay beyond her salary range, the City Councilmember will have a voting conflict concerning any measure to approve the appropriation and he should respond in accordance with Section 112.3143(3)(a), Florida Statutes, which is the voting conflict statute. See CE Form 8B. In addition, depending on the particular circumstances, a vote by the City Councilmember in such a situation—which would constitute a prohibited voting conflict—might also implicate the recently-enacted constitutional amendment concerning the abuse of public position.
This opinion does not address the potential application of the anti-nepotism law if the City Council is involved in changing the parameters of the salary range for the position of City Clerk. If that is contemplated in the future, please contact us for further guidance.