CEO 92-10 -- March 6, 1992

ANTI-NEPOTISM

COUNTY COMMISSION HIRING NEPHEW OF COUNTY

COMMISSIONER AS CORRECTIONAL OFFICER

To: William A. Bessent, III, County Attorney (Starke)

SUMMARY:

The Board of County Commissioners is prohibited from appointing a nephew of a County Commissioner as a corrections officer when the County Commission assumes operational control over the County jail from the Sheriff for whom the Commissioner's nephew had worked as a correctional officer. The prohibitions of Section 112.3135, Florida Statutes (the anti-nepotism law), apply to collegial bodies such as the County Commission so as to prohibit the hiring of a nephew of a County Commissioner where he did not become an employee of the County Commission automatically; only 9 of the former employees of the Sheriff's Department were hired after their employment was terminated by the Sheriff's Department.

QUESTION:

Does Section 112.3135, Florida Statutes, prohibit the Board of County Commissioners from hiring the nephew of a County Commissioner as a correctional officer when the Board assumes operational control of the County Jail from the County Sheriff, for whom the nephew had been previously employed at the jail as a correctional officer?

Under the circumstances as described in this opinion, your question is answered in the affirmative.

In your letter of inquiry and your responses to questions from staff, you advise that until recently the Bradford County Sheriff's Office was responsible for the operation of the County's jail. You advise that the Sheriff had sole responsibility for hiring, firing, promoting, and otherwise advancing all employees of the jail. You advise that now the Sheriff has surrendered the jail's entire operation to the Board of County Commissioners. You write thatwhen the surrender occurred, the jail and all correctional officer positions were deleted from the Sheriff's budget, and the employment of his former jail employees was terminated.

You advise that the Board of County Commissioners through an ad hoc "emergency transition committee" consisting of two members of the County Commission interviewed these same former Sheriff's Department employees before deciding to hire some of them. One of the Commissioners was the designated Emergency Interim Chief Correctional Officer, and the other was Chairperson of the Board. You advise that the entire Board made the final decision to hire nine of the Sheriff's former employees, all of whom were certified correctional officers, in order to form the nucleus of a new staff under the jurisdiction of the County and the Board of County Commissioners.

You also advise that the former Sheriff's Department employees who were hired were offered a pay raise and a carry-over of accumulated benefits as a hiring incentive. You advise that in the opinion of the "transition committee," the hiring incentive was necessary because the County had only eleven days within which to assume full responsibility for the jail operations and jail staffing. You advise that once the hiring occurred, the County learned that a nephew of one of the County Commissioners was one of the Sheriff's Department's former employees hired by the County as a Correctional Officer. You advise that the County Commissioner/uncle of the correctional officer was not present at any of the interviews or Board meetings. You advise that his absence was due to his work requiring him to be out of town, as opposed to his own choosing.

At the present time the Commissioner's nephew is supervised by the Chief Corrections Officer, who is in charge of all jail operations including employee evaluations and recommendations for pay increases, you advise. Further the Chief Corrections Officer would be in charge of promotions and demotions if there were any employment grade other than "correctional officer." You advise that presently the County has no personnel policy covering correctional officers. You also advise that the County pay raise procedures permit a supervisor to recommend specific employees for pay raises; however, the ultimate decision as to whether the raise should be given rests with the Board of County Commissioners, and no raises are permitted to be given in the absence of specific action by the Board.

The anti-nepotism law, which has been incorporated into the Code of Ethics for Public Officers and Employees as Section 112.3135, Florida Statutes, provides in relevant part:

A public official may not appoint, employ, promote, or advance, or advocate for 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.

For purposes of this section, the term "relative" includes one's nephew [Section 112.3135(1)(c), Florida Statutes], and the term "agency" is defined to include a county [Section 112.3135(1)(a)4., Florida Statutes].

In CEO 89-53, we concluded that the anti-nepotism law is applicable to an appointment made by a city council even though the related council member abstains from voting on the appointment. As we further noted in CEO 90-58:

That conclusion was based upon the Attorney General's opinions AGO 77-130, AGO 73-75, and AGO 73-335. In Morris v. Seely, [541 So.2d 659 (Fla. 1st DCA 1989)], 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.

Thus, allowing the mere abstention from voting on the hiring or appointment of a relative of a member of a collegial body by the relative/member or permitting the member to absent himself from the meeting at which action is to be taken by his collegial body would defeat the purpose of the anti-nepotism law, which, as stated by the Florida Supreme Court in discussing an earlier version of the law, Chapter 16088, Acts of 1933), is to discourage "the bestowal of patronage by public officers in appointing others to offices or positions by reason of their blood or marital relationship to the appointing authority, rather than because of the merit or ability of the appointee." State ex rel. Robinson v. Keefe, 149 So. 638 (Fla. 1933). In that opinion, the Court also recognized that the statute, being penal in nature, must be strictly construed.

We therefore find that the prohibitions of Section 112.3135, Florida Statutes, apply to collegial bodies so as to prohibit the County Commission from hiring the nephew of a County Commissioner, even when the relative/member of the Commission neither interviews the nephew for the correctional officer position nor votes to hire him. There is no statutory exception provided in the statute, other than for an "emergency" as that term is defined in Section 252.34(2), Florida Statutes. We find that the situation that you have described does not meet the definition of an "emergency."

Accordingly, we find that because the Commissioner's nephew will not continue to hold his position during the assumption of control of the jail by the County Commission but will have to be rehired by the County Commission, his employment by the County Commission would fall within the prohibitions of Section 112.3135, Florida Statutes, and the County Commission may not hire him as a County employee without violating the anti-nepotism law. See also CEO 89-46.