CEO 93-16 -- June 11, 1993

ANTI-NEPOTISM

CITY POLICE CAPTAIN'S BROTHER-IN-LAW

SEEKING POSITION IN CAPTAIN'S BUREAU

To: Lynne M. Nungesser, Police Captain, City of Palm Bay

SUMMARY:

The Anti-Nepotism Law (Section 112.3135, Florida Statutes) prohibits the placement of the brother-in-law of a city police captain in a police sergeant's position where the captain is vested with the authority to recommend individuals for the position, regardless of the captain's delegation of the authority. CEO 91-27, CEO 91-23, and CEO 90-11 are referenced.

QUESTION:

Would the Anti-Nepotism Law be violated were your brother-in-law a uniformed supervisor in the operations bureau of a city police department, to be promoted to a sergeant's position in the department's investigations bureau, where you are a captain in the investigations bureau?

Under the circumstances recited herein, your question is answered in the affirmative.

By your letter of inquiry and by telephone conversation between you and our staff, we are advised that you are employed as a captain in the Police Department of the City of Palm Bay, serving as the Bureau Commander of the Investigations Bureau. We are advised further that your brother-in-law currently works as a uniformed supervisor in the Department's Operations Bureau, having, married your sister after being employed for sometime with the police department. You also advise that you and your brother-in-law "worked in various positions, at different ranks, and in different bureaus" during this time.

In addition, you advise that you posted an opening for a sergeant in Vice, Intelligence and Narcotics (V.I.N.), which is located within your Bureau, in December 1992, that your brother-in-law was one of three applicants who applied for the position, and that you removed yourself from any interviews of applicants for the position and delegated the recommendation process to a lieutenant who was to make his recommendation directly to the Chief. Further, you advise that the City took the view that your brother-in-law could not be considered for the position because of the Anti-Nepotism Law, that another sergeant was selected for the position, and that your brother-in-law elected to grieve the City's decision. Subsequently, you advise, a second job posting was established to fill a position in your Bureau comparable to the first opening, since the sergeant who was hired for the first opening made a lateral transfer to fill the position and your brother-in-law also applied for the second position. Unlike the first position, you advise, your brother-in-law was permitted to be interviewed for the second position and, as with the first opening, you removed yourself from the selection process. You advise that your brother-in-law was recommended to fill the second position but that it remains unfilled pending the receipt of an opinion from us.

You relate that you are one of three captains who answer to the Chief of Police, that your position (captain) has no authority to hire, fire, promote, suspend, or demote individuals, that you can make recommendations on hirings, firings, promotions, suspensions, and demotions, and that the Chief possesses the final hiring authority.

The State's Antinepotism Law contained in Section 112.3135, Florida Statutes, provides:

(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 an 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.

(c) 'Relative,' for purposes of this section only, 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.

(b) Mere approval of budgets shall not be sufficient to constitute 'jurisdiction or control' for the purposes of this section.

(3) An agency may prescribe regulations authorizing the temporary employment, in the event of an emergency as defined in s. 252.34(2), of individuals whose employment would be otherwise prohibited by this section.

(4) Legislators' relatives may be employed as pages or messengers during legislative sessions. [Emphasis supplied.]

Based upon the facts as you relate them to us, we find that your brother-in-law cannot be placed in the position for which he has applied without the Anti-Nepotism Law being violated. Even though the actual hiring decision is the Chief's and not yours, you are the employee in whom is vested the authority to recommend persons to fill the two sergeant openings and your temporary delegation of that authority does not divest you of it such that the Anti-Nepotism Law would not be violated. See CEO 91-27 and CEO 90-11 (wherein we followed the reasoning of the Attorney General's office).

We are not unmindful of the hardship the Anti-Nepotism Law can place on communities or on persons seeking public positions. However, as we stated in CEO 91-23, it would be up to the Legislature, to ameliorate this provision.

Accordingly, so long as your captain's position comes under the definition of "public official" within the meaning of Section 112.3135, Florida Statutes, your brother-in-law may not be promoted as set forth in this opinion.