CEO 90-62 -- September 7, 1990

ANTI-NEPOTISM

CITY POLICE CHIEF'S FATHER SERVING AS CITY POLICE OFFICER

To: Michael H. Hatfield, City Attorney, City of Umatilla

SUMMARY:

Section 112.3135, Florida Statutes, prohibits a city police chief from appointing, employing, promoting, or advancing his father to a position in the city police department. However, when the father was employed with the police department prior to the time that the police chief assumed his position, the father's employment would be grandfathered in. So long as the father were not promoted or advanced subsequently, the anti-nepotism law does not preclude the police chief from supervising his father. As favoritism in the terms or conditions of the father's employment may violate Section 112.313(6), Florida Statutes, the police chief should be cautioned against misuse of his official position to benefit his father.

QUESTION:

Does the anti-nepotism law prohibit a city police chief and his father from serving together in the city's police department, where the father was employed with the police department prior to the time that the police chief assumed his position?

Your question is answered in the negative.

In your letter of inquiry, you advise that Mr. Stephen A. Foster serves as the Chief of Police for the City of Umatilla. You also advise that in 1983, after both he and his father had obtained full-time employment with the City Police Department, he was elevated to the position of Chief. Since that time, you advised in a telephone conversation with our staff, the father has not been advanced or promoted. Any salary increases the father has received have been the result of across-the-board increases for the members of the Department, rather than being based upon evaluations of his work.

Under the City Charter the Police Department is part of the Department of Public Safety, which is headed by the City Clerk. The Police Chief evaluates the members of the police force and has exclusive control over their stationing and transfer, subject to the approval of the City Clerk. In addition, the Police Chief has the authority to suspend police officers for cause. The City Clerk, as head of the Public Safety Department, is responsible for final action in such cases.

Regarding your question, 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 he is serving or over which he 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.

Chapter 89-67, Laws of Florida, enacted Section 112.3135 by transferring the anti-nepotism law from Section 116.111, Florida Statutes, effective June 19, 1989, with only one, minor change. Because the anti-nepotism law presently is within our jurisdiction, we will address your question in the context of the present application of the law.

The Attorney General consistently interpreted Section 116.111, Florida Statutes, not to require the discharge of a person whose relative took the higher position after the person's employment or otherwise where the prohibited relationship came into being after the person's employment. For example, where a public official married one of his employees, the employee was allowed to continue to work in the same position and to participate in routine raises, but could not be promoted or advanced, or recommended or advocated for a promotion or advancement. See AGO 77-36 and AGO 73-351. We previously approved of this interpretation of the anti-nepotism law in CEO 89-46.

In Slaughter v. City of Jacksonville, 338 So.2d 902 (Fla. 1st DCA 1976), the court found "advancement" or "promotion" to mean an increase in grade which elevates an employee to a higher rank or position of greater personal dignity or importance. Therefore, under the circumstances presented here it does not appear that the Police Chief's father has been promoted or advanced within the meaning of the anti-nepotism law.

By its terms, the law addresses only appointment, employment, promotions, and advancement. As it does not address any other aspect of the supervisory authority a public official may have over a relative, we do not believe that it can be applied to prohibit an official from such actions as stationing, transferring, evaluating, or even suspending a relative. This was recognized in AGO 73-397, where it was found that a city could hire a policewoman who was the daughter of a patrolman who at times would supervise his daughter. Therefore, we find that so long as the Chief of Police does not promote, advance, or advocate or recommend the promotion or advancement of his father, the two may continue to serve in the Police Department.

We do not mean to imply that the Police Chief's discretion regarding the terms or conditions of his father's employment is unlimited. Section 112.313(6), Florida Statutes, provides:

MISUSE OF PUBLIC POSITION.--No public officer or employee of an agency shall corruptly use or attempt to use his official position or any property or resource which may be within his trust, or perform his official duties, to secure a special privilege, benefit, or exemption for himself or others. This section shall not be construed to conflict with s. 104.31.

In light of this prohibition, we suggest that the Police Chief should be cautioned to avoid even the appearance of favoritism toward his father when supervising the members of the police force.

Accordingly, we find that Section 112.3135, Florida Statutes, does not prohibit the subject Chief of Police and his father from serving together in the Police Department, so long as he does not promote, advance, or advocate or recommend the promotion or advancement of his father.