CEO 89-53 -- October 26, 1989

ANTI-NEPOTISM

CITY COUNCIL MEMBER APPOINTING RELATIVE TO NONCOMPENSATED POSITION ON ADVISORY BOARD

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

SUMMARY:

Under Section 112.3135, Florida Statutes, the son of a city council member may not be appointed to the non-compensated advisory board position of an alternate member of the city planning commission, even should the official abstain from voting on the appointment. Penalties are provided in Section 112.317, Florida Statutes, for officials who are determined to have violated the anti-nepotism law.

QUESTION 1:

May the son of a city council member be appointed to serve as an alternate member of the city planning commission, which is a non-compensated position on an advisory board, even should the related council member abstain from voting on the appointment?

This question is answered in the negative.

In regard to your question, Section 112.3135(2)(a), Florida Statutes, as created by Chapter 89-67, Laws of Florida, 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.

Section 112.3135(1)(b) defines a "public official" 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. An "agency" is defined to include a city under Section 112.3135(1)(a)(5), and a "relative" is defined to include the son of a public official under Section 112.3135(1)(c).

In AGO 88-51, the Attorney General opined that the anti-nepotism law prohibited a county commissioner from appointing a relative to a non-compensated position on an advisory board. We agree. The language of Section 112.3135(2)(a), Florida Statutes, prohibits a public official from appointing a relative to any position over which the official exercises jurisdiction or control, or to any position in his agency. There is no express exception for a non-compensated position, and we are unaware of any authority which would allow us to interpret the statute as having such an exemption. See Morris v. Seeley, 541 So. 2d 659 (Fla. 1st DCA 1989).

It is argued in the request for this opinion that the decision of the Third District Court of Appeal in Baille v. Town of Medley, 262 So. 2d 693 (Fla. 3d DCA 1972), might give us authority to construe Section 112.3135 as not applying to non-compensated positions. We disagree. The Third District decided in Baille that the anti-nepotism law did not apply to towns, despite language in the statute which might support the opposite conclusion. The Court did not address the issue of whether the anti-nepotism law applied to non-compensated positions. We do not believe that the Third District's decision to interpret the anti-nepotism law to include an exemption which may not have been expressed in the precise language of the statute gives us the authority to interpret the statute to include an entirely different exemption. Contrary to the argument expressed in the opinion request, we do not believe such an interpretation would constitute a strict construction of the statute, but rather that it would amount to something akin to judicial legislation. See Morris v. Seeley, supra.

Nor are we of the opinion that the prohibitions of the anti-nepotism law can be avoided by the abstention from a vote on the appointment of an individual by the related public official. In AGO 77-130, the Attorney General opined that the anti-nepotism law prohibits a board or commission from hiring a relative of one of its members, even should the related member abstain from voting, citing AGO 73-75 and AGO 73-335. We agree that an official should not be able to circumvent the prohibition of the anti-nepotism law by merely abstaining from the vote on an appointment of a relative.

Accordingly, we find that the son of a city council member may not be appointed to a non-compensated position on an advisory board, even if the related official abstains from voting on his son's appointment.

QUESTION 2:

What are the penalties should a public official be determined to have violated the anti-nepotism law?

This question is answered below.

During the 1989 Legislative Session, the anti-nepotism law was transferred from Chapter 116 to Chapter 112, renumbered as Section 112.3135, and language prohibiting the individual appointed in violation of the law from receiving pay was deleted. The revised version and placement of the anti-nepotism law gives us the authority to recommend that the penalties provided in Section 112.317 be imposed against officials who are determined to have violated the anti-nepotism law. Since the anti-nepotism law only addresses prohibited action by the related official and his appointee, penalties pursuant to the anti-nepotism law could only be recommended against those individuals. However, it is conceivable that Section 112.313(6), Florida Statutes, could be applicable in a situation where it was determined that an unrelated official conspired with a related official to have a relative appointed in violation of the law. That Section states:

MISUSE OF PUBLIC POSITION.--No public officer or employee of an agency shall 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.

Penalties for violations of Section 112.313(6) also are provided for in Section 112.317, Florida Statutes.

Accordingly, we find that penalties for violations of Section 112.3135 are provided for in Section 112.317, Florida Statutes.