CEO 93-15 -- June 11, 1993

ANTI-NEPOTISM; VOTING CONFLICT

HOSPITAL DISTRICT BOARD APPROVING BONUSES

FOR HOSPITAL DISTRICT EMPLOYEES INCLUDING

BOARD MEMBER'S BROTHER EMPLOYED

BY HOSPITAL DISTRICT

To: Mr. Harry A. Jones, Attorney for North Brevard County Hospital District (Titusville)

SUMMARY:

A hospital district board would not violate Section 112.3135(2)(a), Florida Statutes, by approving bonuses for hospital district employees where one of the employees who is recommended to receive a bonus is the brother of a hospital district board member. In Slaughter v. City of Jacksonville, 338 So.2d 902 (Fla. 1st DCA 1976), the court ruled that an increase in salary, within limits fixed for the pay grade in which a position was classified, did not constitute a "promotion" or "advancement" for purposes of the anti-nepotism law. Thus, here, where the recommended bonus does not result in an increase in pay grade or rank, the hospital district board has not advanced or promoted a relative of a board member. Further, the hospital district board member would not be required, pursuant to Section 112.3143(3), Florida Statutes, to abstain from voting on the bonus recommendation because, although the $5,119 bonus inures to the special private gain of the board member's brother, brothers are not considered "relatives" under the voting conflict statute. However, the hospital district board member may abstain from voting on the bonus in accordance with the policy expressed in Section 286.012, Florida Statutes. CEO 90-62 is referenced.

QUESTION 1:

Does the anti-nepotism law prohibit a hospital district board from approving a bonus for a relative of a board member who is employed by the hospital district?

Under the specific circumstances presented, Question 1 is answered in the negative.

In your letter of inquiry and in subsequent correspondence with our staff, we are advised that . . . . serves as a member of the North Brevard County Hospital District Board of Directors, which operates Parrish Medical Center in Titusville. The Hospital District is a special taxing district created by the Legislature through the enactment of Chapter 53-28924, Laws of Florida, as amended. Its nine-member Board of Directors are appointed by either the Titusville City Council or the Brevard County Board of County Commissioners, as specified by law.

In December, 1992, the Titusville City Council appointed the subject Director. This Board member is the brother of a Hospital District employee who was employed by the Hospital District in June, 1990, and holds the position of controller.

You advise that in September, 1991, the Hospital District Board established a Management Incentive Compensation Plan to review and reward the performance of certain Hospital District employees. The position of controller is considered a Management Council position under the terms of the Incentive Program. In reviewing the design of the Incentive Program, it appears to be a complex formula with a number of performance components of varying weights, which may be modified further by an adjustment factor based upon Board-identified criteria. Recommendations for awards are made by the Hospital District's Chief Executive Officer, who, under the Hospital District's by-laws and through an employment contract, has the authority to select, employ, control, and discharge any Hospital District employee.

In December, 1992, the Hospital District's Chief Executive Officer presented his recommendations to the Hospital District Board regarding bonus payments to be made under the Incentive Program. Twenty-five employees were recommended for bonuses under the Incentive Program, including the controller. It was anticipated that the Hospital District Board would ratify the recommendations of the Chief Executive Officer. However, the Board questioned whether Section 112.3135, Florida Statutes, the Anti-Nepotism Law, prohibited the Board from approving a bonus for a relative of a Board member.

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 officer. 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 or exercising jurisdiction or control over the agency, who is a relative of the individual.

This provision prohibits a public official from promoting or advancing, or advocating the promotion or advancement of, a relative in the agency he serves or over which he exercises control. For purposes of the anti-nepotism law, the term "relative" includes one's brother. See Section 112.3135(1)(c), Florida Statutes. The issue, then, is whether the Hospital District Board's ratification of the Chief Executive Officer's bonus recommendation for the brother of a Board member would constitute a promotion or advancement, which would violate Section 112.3135(2)(a), Florida Statutes.

Prior to the 1989 transfer of the anti-nepotism law into the Code of Ethics for Public Officers and Employees, that provision (formerly Section 116.111, Florida Statutes) was interpreted by a number of Attorney General opinions. In fact, we essentially have adopted the reasoning of those earlier Attorney General opinions in issuing our opinions involving Section 112.3135, Florida Statutes. Thus, in CEO 90-62, we opined that Section 112.3135(2)(a), Florida Statutes, would not be violated where a city police chief and his father both worked in the police department, where the father was employed there prior to his son becoming chief. Further, this opinion specifically referenced Slaughter v. City of Jacksonville, 338 So.2d 902 (Fla. 1st DCA 1976), which examined the question of whether a merit pay increase constituted a "promotion" or "advancement" under the terms of the anti-nepotism law. In Slaughter, the Court concluded:

It is our view that it is only an increase in grade which elevates an employee to a higher rank or position of greater personal dignity or importance and is an advancement or promotion.

Id., at 904. Thus, Slaughter, whose father was the Clerk of the Circuit Court, was permitted to keep the merit pay increases he had received over the course of his employment in the Clerk's Office.

Here, the information you have submitted indicates that the controller is at a specific pay grade, and there is no indication that his recommended bonus would constitute an increase in grade or elevation to a higher rank. Further, even though it appears that the Board of Directors has, through the legislation establishing the Hospital District, the ultimate authority for personnel decisions, it is our view that the Board's ratification of the bonus would not be an "advancement" or "promotion" according to the Slaughter decision. This conclusion is especially appropriate under the facts of this case, where the Incentive Program was implemented in 1991 and where the controller's recommended bonus was based on the independent recommendation of the Hospital District's Chief Executive Officer for a time period predating the appointment of the controller's brother to the Hospital District Board.

Accordingly, under these specific factual circumstances, the Hospital District Board of Directors would not violate Section 112.3135(2)(a), Florida Statutes, by approving a bonus for a Hospital District employee who is a relative of a Board member, because that bonus would not constitute an "advancement" or "promotion."

QUESTION 2:

Is a Hospital District Board member prohibited from voting on recommendations regarding bonuses for Hospital District employees, where one of the employees recommended to receive a bonus is the brother of the Board member?

Question 2 is answered in the negative.

Because our response to Question 1 indicates that the anti-nepotism law would not be violated by Board action on the bonuses, next address the issue of whether the Board member could vote to approve the Chief Executive Officer's bonus recommendations, where the brother of the Board member is one of 25 Hospital District employees recommended to receive a bonus.

The Code of Ethics for Public Officers and Employees provides in relevant part:

No county, municipal, or other local public officer shall vote in his official capacity upon any measure which would inure to his special private gain; which he knows would inure to the special private gain of any principal by whom he is retained or to the parent organization of subsidiary of a corporate principal by which he is retained, other than an agency as defined in s. 112.312(2); or which he knows would inure to the special private gain of a relative or business associate of the public officer. Such public officer shall, prior to the vote being taken, publicly state to the assembly the nature of his interest in the matter from which he is abstaining from voting and, within 15 days after the vote occurs, disclose the nature of his interest as a public record in a memorandum filed with the person responsible for recording the minutes of the meeting, who shall incorporate the memorandum in the minutes. [Section 112.3143(3)(a), Florida Statutes (1991).]

This provision prohibits a local public officer from voting in certain specified circumstances, including when he knowingly votes on a matter which inures to the special private gain of a relative.

The statutory definition of "relative" for the voting conflicts law is different than that for the anti-nepotism law. Section 112.3143(1)(b), Florida Statutes, defines "relative" to mean

any father, mother, son, daughter, husband, wife, father-in-law, mother-in-law, son-in-law, or daughter-in-law.

Thus, because brothers are not included in the definition of "relative" under Section 112.3143, Florida Statutes, there is no statutory restriction against the Board Member voting to approve the recommendation of the Chief Executive Officer resulting in a $5,119 bonus to his brother. However, the Board member may wish to abstain from the vote on the bonus recommendation as per the policy expressed in Section 286.012, Florida Statutes.

Question 2 is answered accordingly.