CEO 92-50 -- October 15, 1992

ANTI‑NEPOTISM

RELATIVES OF CITY COUNCIL MEMBERS REAPPOINTED

TO UNCOMPENSATED POSITIONS ON CITY ADVISORY BOARDS

To: Mr. John R. Kancilia, City Attorney, City of Cape Canaveral

SUMMARY:

Previous opinions interpreting Section 112.3135(2)(a), Florida Statutes, to prohibit the appointment of relatives of members of collegial bodies to uncompensated positions on advisory boards by the collegial body, even where the member of the appointing body abstains, are reaffirmed. See CEO 91-29, CEO 90-58, and CEO 89-53. The decision in Galbut v. City of Miami Beach, 17 F.L.W. D1504 (June 16, 1992), is in conflict with this opinion.

QUESTION:

May relatives of city council members be reappointed by the council to serve in uncompensated positions on city advisory boards?

Your question is answered in the negative.

In your letter of inquiry, you relate that the City of Cape Canaveral has several situations in which relatives of City Council members serve as uncompensated members of City advisory boards and will be eligible for reappointment by the City Council. You question whether our previous opinions interpreting Section 112.3135, Florida Statutes, remain in effect in light of a recent court decision involving the precise issue raised by your inquiry.

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 beenadvocated by a public official, serving in or exercising jurisdiction or control over the agency, who is a relative of the individual.

Prior opinions interpreting the anti‑nepotism law concluded that relatives of members of appointing authorities were ineligible for appointment by the boards or commissions on which their relatives serve. See CEO 91-29, CEO 90-58, and CEO 89-53. Our rationale, discussed extensively in CEO 90-58 and CEO 89-53, relied on previous opinions by the Attorney General dating to 1973 and recognized that the purpose of the statute could be circumvented if abstention by the related person was allowed. We hereby reaffirm our earlier pronouncements on this issue.

However, in a recent decision by the Third District Court of Appeal in Galbut v. City of Miami Beach, 17 F.L.W. D1504 (June 16, 1992), the Court ruled that as long as a member of a collegial body abstained from voting on an appointment and did not otherwise advocate the relative's appointment, then the requirements of Section 112.3135, Florida Statutes, were satisfied. Although the Third District, as of the date this opinion was drafted, has not yet disposed of a petition for rehearing filed by counsel for the City, we believe that our interpretation of Section 112.3135, Florida Statutes, is consistent with the legislative intent behind the anti‑nepotism statute. Inasmuch as an agency's determinations with regard to a statute's interpretation will receive great deference in the absence of clear error or conflict with legislative intent [Tri‑State System, Inc. v. Department of Transportation, 491 So.2d 1192, 1193 (Fla. 1st DCA 1986)], we affirm our earlier opinions on this issue. In doing so, we acknowledge that we are in conflict with the Third District Court of Appeal's opinion in Galbut. See McDonald's Corporation v. Department of Transportation, 535 So.2d 323 (Fla. 2d DCA 1988).

Accordingly, we find that relatives of Cape Canaveral City Council members may not be reappointed to positions on City advisory boards without contravening Section 112.3135, Florida Statutes.