CEO 90-58 -- September 7, 1990

ANTI-NEPOTISM

CITY COUNCIL MEMBER=S SPOUSE APPOINTED TO UNCOMPENSATED POSITION ON CITY ADVISORY BOARD

To: (Name withheld at the person's request.)

SUMMARY:

Section 112.3135, Florida Statutes, prohibits a city council member's husband from being appointed by the council to the city's land development and regulatory agency, regardless of whether the appointee would receive any compensation for service on the agency. As found in CEO 89-53, the anti-nepotism law prohibits a collegial body from appointing a relative of one of its members to serve on an advisory board, even if such service is without compensation.

QUESTION:

May a city council member's husband be appointed by the council to serve in a noncompensated position as a member of a city advisory board?

Your question is answered in the negative.

In your letter of inquiry, you advise that . . . . serves as a member of the Edgewater City Council. In 1983, after her election to the Council, the Council member sought an opinion on the question of whether she had a voting conflict of interest when considering matters coming before the Council from the City Planning Commission, as her husband had been serving on the Planning Commission for approximately two years. In CEO 83-14, we advised that no voting conflict of interest existed under those circumstances, finding that under Section 112.3143, Florida Statutes, measures coming before the Council from the Planning Commission could not be said to inure to her special private gain or to the special gain of a principal by whom she was retained.

The Council member's husband served on the Planning Commission until 1985. In 1988 he was appointed to the Planning Commission for one year. In April of 1989 he was appointed to the Code Enforcement Board, and then in July of 1989 he was appointed to the City Land Development and Regulatory Agency (the successor to the Planning Commission) by unanimous vote of the City Council. You question whether he may continue to serve in that position.

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. Although we did not have the authority to address the anti-nepotism law in CEO 83-14, we have jurisdiction to address your question because the appointment of the Council member's husband to the Land Development and Regulatory Agency occurred in July of 1989.

In a previous opinion rendered in October, 1989, CEO 89-53, we concluded that the son of a city council member may not be appointed to the uncompensated position of alternate member of the city planning commission. As we noted in CEO 89-53, a "public official" is defined as an officer of an agency in whom is vested the authority or to whom the authority has been delegated to appoint, promote, or advance individuals or to recommend individuals for appointment, employment, promotion, or advancement in connection with employment in an agency. Section 112.3135(1)(b), Florida Statutes. A city is an "agency" under Section 112.3135(1)(a)5, and a public official's son or husband is classified as a "relative" under Section 112.3135(1)(c).

In CEO 89-53, we agreed with the Attorney General's opinion AGO 88-51 that there is no exception in the anti-nepotism law for uncompensated positions. This conclusion was based upon the statute's lack of an express exception to that effect and upon our lack of authority to interpret the law as having such an exception. Similarly, in Morris v. Seely, 541 So.2d 659 (Fla. 1st DCA 1989), the court concluded that under Section 116.111 the brother of a sheriff could not be promoted in the sheriff's department, even though the promotions were made by one of the sheriff's majors based upon lists submitted by the county's civil service commission. In that case, the court found that the plain meaning of the statute applied to preclude the promotions and stated that no exception to the law could be inferred other than those specifically provided.

The prior language of Section 116.111, Florida Statutes, (now Section 112.3135) does not, as urged in your inquiry, imply a legislative intent to provide an exception for uncompensated positions in the current statute. The portion of Section 116.111 which provided that a person employed or promoted in violation of the anti-nepotism law would not be entitled to compensation was deleted when Section 112.3135 was adopted. It is presumed that when the Legislature amends a statute, it intends to accord the statute different meaning from that accorded it before the amendment. Capella v. City of Gainesville, 377 So.2d 658 (Fla. 1979); and U.S. Fire Insurance Co. v. Roberts, 541 So.2d 1297 (Fla. 1st DCA 1989). Thus, even if the former statute did imply an exception for uncompensated positions by virtue of its lack of any meaningful penalty against improper appointments to uncompensated positions, we are not persuaded that the current anti-nepotism statute should be read as implying an exception for noncompensated positions.

You question whether the anti-nepotism law applies only to appointments made by individual public officers and therefore would not apply to appointments made by collegial bodies. We concluded in CEO 89-53 that the law is applicable to an appointment made by a city council, even should the related council member abstain from voting on the appointment. That conclusion was based upon the Attorney General's opinions AGO 77-130, AGO 73-75, and AGO 73-335. In Morris v. Seely, cited above, the court referenced two of these opinions in stating that a sheriff's relative cannot be employed within the sheriff's department even if the sheriff abstains from voting on such employment. As noted by the Attorney General, if abstention by the related official were allowed, the purpose of the anti-nepotism provision would be circumvented and, conceivably, family members of all the members of the appointing body could be appointed if their relatives abstained in turn. For this reason, the prior interpretations of the anti-nepotism law conclude that relatives of members of appointing authorities simply are ineligible for appointment by the boards or commissions on which their relatives serve.

Accordingly, we find that Section 112.3135, Florida Statutes, prohibited the subject city council member's husband from being appointed by the council to serve as a member of the City Land Development and Regulatory Agency.