CEO 90-11 -- January 24, 1990

ANTI-NEPOTISM

COUNTY E.M.T. HIRED BY COUNTY AMBULANCE SERVICE

OF WHICH HIS FATHER IS THE DIRECTOR

To: Karl Hindle, Emergency Medical Technician, Wakulla County Ambulance Department (Crawfordville)

SUMMARY:

Under the anti-nepotism law, now Section 112.3135, Florida Statutes, a county E.M.T. may not work for the county ambulance department while his father is the Director of the Department. Even where the director has delegated hiring and firing responsibilities to the assistant director/senior paramedic in the department, the fact that the director has ultimate responsibility and authority for the operation of his department is within the proscription of the anti-nepotism statute. CEO 89-46 is referenced.

QUESTION:

Does Section 112.3135, Florida Statutes, prohibit you, an emergency medical technician, from being employed by a County Ambulance Department while your father is director of that Department, even though the County Commission would make the decision to hire you and the director has delegated to a subordinate the authority to make hiring recommendations?

Your question is answered in the affirmative.

In your letter of inquiry and in subsequent telephone conversations with our staff, you have advised that the Wakulla County Ambulance Department hired you as an Emergency Medical Technician (E.M.T.) upon recommendation of the Department's Assistant Director/Senior Paramedic and approval by the County Commission. Your father is the Director of that Department, but he does not hire or fire personnel or immediately supervise ambulance service E.M.T. staff. Consequently, your father did not actually hire you or advocate that you be hired by the County. You question whether his nonparticipation in your employment renders the anti-nepotism law inapplicable.

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:

(1) In this section, unless the context otherwise requires:

(a) "Agency" means:

1. A state agency, except an institution under the jurisdiction of the Division of Universities of the Department of Education;

2. An office, agency, or other establishment in the legislative branch;

3. An office, agency, or other establishment in the judicial branch;

4. A county;

5. A city; and

6. Any other political subdivision of the state, except a district school board or community college district;

(b) "Public official" means an officer, including a member of the Legislature, the Governor, and a member of the Cabinet, or employee of an agency in whom is vested the authority by law, rule, or regulation, or to whom the authority has been delegated, to appoint, employ, promote, or advance individuals or to recommend individuals for appointment, employment, promotion, or advancement in connection with employment in an agency; and

(c) "Relative" with respect to a public official, means an individual who is related to the public official as father, mother, son, daughter, brother, sister, uncle, aunt, first cousin, nephew, niece, husband, wife, father-in-law, mother-in-law, son-in-law, daughter-in-law, brother-in-law, sister-in-law, stepfather, stepmother, stepson, stepdaughter, stepbrother, stepsister, half brother, or half sister.

(2)(a) 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.

This provision prohibits a public official from employing or appointing, or advocating the employment or appointment of, a relative in the agency in which he serves or exercises control. The term "relative" includes one's son. Section 112.3135(1)(c).

The information you provided was unclear as to whether the Ambulance Director has final authority and responsibility for personnel decisions made by his assistants. In an attempt to clarity these questions, our staff contacted a County official, who advised that County Department Directors have final authority and responsibility for all decisions and recommendations generated from their Departments for review by the County Commission, regardless of whether they have completely delegated control of a matter to assistants.

The Attorney General's office previously has opined that a public official may not circumvent the anti-nepotism law by delegating his or her authority to appoint, employ, promote, advance, or recommend the same to another person within the agency over which the official has jurisdiction or control. In an Informal Opinion to Mr. Larry Levy, General Counsel for the Department of Revenue, December 12, 1984, the Attorney General considered whether the appointment or promotion of the executive director's first cousin by a subordinate department official was prohibited. The general counsel had suggested that the prohibition in Section 116.111, Florida Statutes [now Section 112.3135], did not apply because the authority to promote previously had been delegated to subordinate department officials and the executive director had no direct supervision over the position and did not recommend the appointment. The Attorney General's office concluded that the delegation of such authority did not divest the director of his authority to appoint or promote; therefore, the appointment was prohibited. Likewise, in an Informal Opinion to Mr. Bruce Canova, July 24, 1987, the Attorney General concluded that the son of a city manager could not be hired by a department head under the city manager, since the city charter made the city manager responsible for the appointment, suspension, or removal of all city employees and the manager could authorize any administrative officer subject to his direction and supervision to exercise these powers over subordinates in that officer's department, office, or agency.

We agree with the rationale of the Attorney General's opinions and conclude that your employment as an E.M.T. under the circumstances you describe would not fall outside the anti-nepotism law. The present situation leaves your father as the Department Director ultimately responsible for the decision to recommend your employment and for future performance evaluations connected with recommendations for promotion, advancement, pay increases, etc.

Accordingly, we find that the anti-nepotism law prohibits you from being employed as an E.M.T. with the County Ambulance Department while your father is Director of that Department.