CEO 94-26 -- June 2, 1994

ANTI-NEPOTISM

STATE DEPARTMENT EMPLOYEE WHOSE SISTER IS THE

SECRETARY OF THE DEPARTMENT RECEIVING A

SPECIAL PAY INCREASE

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

SUMMARY:

Neither the anti-nepotism law (Section 112.3135(2)(a), Florida Statutes) nor Section 112.313(6), Florida Statutes, would be violated were the brother of a secretary of a state department who works for the same department to receive a special pay increase pursuant to Rule 60K-2.006(4), F.A.C., where the secretary has delegated decision-making with regard to her brother's employment to an assistant secretary and where no direct or indirect influence is exerted by the secretary regarding any issue respecting his employment, salary, or benefits. Because the brother's receipt of a special pay increase would not elevate him either to a higher rank or to a position of greater personal dignity or importance, it does not constitute a promotion or advancement and is not prohibited. In addition, under the circumstances, it does not appear that his receipt of a special pay increase would constitute a misuse of position on the part of the secretary.

QUESTION:

Does the Code of Ethics for Public Officers and Employees prohibit the brother of a Secretary of a State Department who is an employee of the same Department from receiving a special pay increase where the recommendation for a special pay increase is made independently by the brother's Division Director and where the Secretary has executed an irrevocable delegation of authority to an Assistant Secretary for decisions respecting her brother's employment?

Under the circumstances presented, your question is answered in the negative.

In your letter of inquiry, you ask whether an employee of the Department of Community Affairs who is the brother of the Secretary of the Department may receive a special pay increase without violating the anti-nepotism law, where the Secretary has executed an irrevocable delegation of authority to the Assistant Secretary of the Department with regard to all matters pertaining to her brother and where the recommendation for the special pay increase is made by the Director of the Division to which the Secretary's brother is assigned. You advise that under the irrevocable delegation of authority, you, as Assistant Secretary, would make all final decisions pertaining to the special pay increase of the Secretary's brother without any "input or approval" from the Secretary. Additionally, you advise that the Division Director's recommendation is made "independent[ly]" and is solely within his prerogative.

Under Department of Management Services Rule 60K-2.006(4), "special pay increases" may be given to an employee "if unusual conditions exist which justify pay increases not provided for in [Rule Chapter 60K-2, F.A.C.]." According to a policy statement issued to all agency heads on March 22, 1992 by the Secretary of the former Department of Administration, justification for a "special pay increase" includes an employee's handling of "more complex duties/responsibilities, substantially different from those in the class concept, but not warranting reclassification of the position." In a telephone conversation with staff, you advised that the Secretary's brother did take on greater responsibility than his position required.

Within the Code of Ethics for Public Officers and Employees, the anti-nepotism law provides in relevant part:

RESTRICTION ON EMPLOYMENT OF RELATIVES.--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(2)(a), Florida Statutes.]

This provision prohibits a public official from promoting or advancing, or advocating the promotion or advancement of, a relative in the agency she serves or over which she exercises control. For purposes of this law, the term "relative" includes one's brother. See Section 112.3135(1)(c), Florida Statutes.

In CEO 93-15 and CEO 90-62, we noted that prior to the 1989 transfer of the anti-nepotism law into the Code of Ethics, that provision (formerly Section 116.111, Florida Statutes) was interpreted by a number of Attorney General's opinions we essentially have followed in issuing our opinions involving Section 112.3135. Thus, in CEO 90-62, we opined that Section 112.3135(2)(a) was not violated where a city police chief and his father both worked in the police department and where the father was employed there prior to his son's becoming chief. Similarly in CEO 93-15, we opined that a hospital district board's ratification of the chief executive officer's bonus recommendation for the brother of a board member did not constitute a prohibited promotion or advancement in violation of Section 112.3135(2)(a).

In both CEO 90-62 and CEO 93-15, we 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.

In applying this decision in CEO 90-62, we concluded that since the anti-nepotism law does not address any other aspect of the supervisory authority a public official may have over a relative and because it did not appear that the police chief's father had been promoted or advanced within the meaning of the law, Section 112.3135(2)(a) did not prohibit them from serving together. See also AGO 077-36 and AGO 074-255. In CEO 93-15, we concluded that because it appeared that the relative of the hospital district board member was at a specific pay grade and because we had no indication that the recommended bonus constituted an increase in grade or elevation to a higher rank, the board's ratification of the bonus did not constitute an "advancement" or "promotion" under the Slaughter decision.

Similarly, applying the Slaughter decision here, we find that there is no indication that the Secretary's brother's receipt of a "special pay increase" would constitute an "advancement" or "promotion" within the meaning of Section 112.3135(2)(a). We do not believe that his receipt of a special pay increase would elevate him either to a higher rank or to a position of greater personal dignity or importance. In fact, to the contrary, Rule 60K-2.006(4) and the accompanying policy statement indicate that a special pay increase may be given under certain conditions where reclassification of the employee's position is not warranted.

In CEO 90-62, we also observed that the Police Chief's discretion regarding the terms or conditions of his father's employment was not unlimited. Therefore, we cautioned him to avoid even the appearance of favoritism toward his father when supervising the members of the police force, as use of his authority to favor his father could constitute a violation of Section 112.313(6), Florida Statutes, which provides:

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

For purposes of this provision, the term "corruptly" is defined as follows:

'Corruptly' means done with a wrongful intent and for the purpose of obtaining, or compensating or receiving compensation for, any benefit resulting from some act or omission of a public servant which is inconsistent with the proper performance of his public duties. [Section 112.312(9), Florida Statutes.]

In previous opinions, we have observed that this statute requires a determination of intent which is extremely difficult to make while rendering an advisory opinion, since intent is to be determined from an examination of all relevant circumstances. See CEO 93-6 and the opinions cited therein. Nevertheless, while no final conclusion can be drawn as to whether the Secretary's brother's receipt of a special pay increase would constitute a misuse of position, we believe that where the Secretary has delegated decision-making with regard to her brother's employment to you, an Assistant Secretary, and where no direct or indirect influence is exerted by her on you to approve the special pay increase or on her brother's Division Director to make a recommendation, it does not appear that there would be any use of official position or performance of public duties that could constitute a violation.

Accordingly, under the circumstances presented, we find that no violation of Sections 112.3135(2)(a) or 112.313(6), Florida Statutes, would exist were the Secretary's brother to receive a special pay increase.