CEO 95-12 -- June 1, 1995

ANTI-NEPOTISM

COUNTY COMMISSIONER'S SON SEEKING REAPPOINTMENT

TO COUNTY ADVISORY COMMITTEE

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

SUMMARY:

Section 112.3135(2)(a), Florida Statutes (Supp. 1994), prohibits a county commission from reappointing a relative of one of its members to an uncompensated position on a county advisory board. The statute, as amended, acts as a disqualification to those individuals whose relatives are members of the collegial bodies making the appointments.

QUESTION:

May the son of a county commissioner be reappointed by the county commission to serve in an uncompensated position on a county advisory board?

Your question is answered in the negative.

In your letter of inquiry and in a telephone conversation with our staff, you relate that in 1994 you were appointed for a one-year term to the Manatee County Environmental Lands Management and Acquisition Committee by the Manatee County Commission, on which your father serves, and that he abstained from voting on your appointment. You are now interested in being reappointed to the Committee and question whether you are eligible for reappointment given the statutory changes to the Anti-Nepotism Law, Section 112.3135(2)(a), Florida Statutes (Supp. 1994).

We previously had opined that public officials could not appoint their relatives to uncompensated positions on advisory boards, even where the relative of the appointee abstained from voting on the appointment and did not otherwise advocate the appointment. See CEO 92-50 and the opinions cited therein. However, this interpretation was struck down by the Florida Supreme Court in City of Miami Beach v. Galbut, 626 So. 2d 192 (1993), where the Court construed Section 112.3135(2)(a), Florida Statutes, to prohibit only affirmative acts on the part of the public official/relative. Thus, the Court opined that Mr. Galbut was eligible for reappointment to the city zoning board of adjustment as long as his city commissioner father-in-law abstained from voting and in no way advocated his reappointment.

After the Court's decision in Galbut, the Legislature revisited Section 112.3135(2)(a), Florida Statutes, and amended it during the 1994 legislative session to read as follows:

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 or exercising jurisdiction or control over the agency, who is a relative of the individual or if such appointment, employment, promotion, or advancement is made by a collegial body of which a relative of the individual is a member. However, this subsection shall not apply to appointments to boards other than those with land-planning or zoning responsibilities in those municipalities with less than 35,000 population. [Section 112.3135(2)(a), Florida Statutes (Supp. 1994)] [e.s.]

As it now reads, Section 112.3135(2)(a) prohibits a collegial body from appointing a relative of one of its members to a position in the agency, unless the appointment is to a board without land-planning or zoning responsibilities in a municipality with less than 35,000 population.

This newly-created exemption would not apply to your situation for several reasons. First, the appointing authority is a county, not a municipality. Secondly, the 35,000 population figure is exceeded in Manatee County. Finally, it appears from our review of County Resolution 92-149, which created the Manatee County Environmental Lands Management and Acquisition Committee, that the Committee does possess some, albeit limited, land-planning responsibilities. For each of the foregoing reasons, the exemption is not applicable.

Based upon the statutory language now contained in Section 112.3135(2)(a), we are of the view that your reappointment to the Manatee County Environmental Lands Management and Acquisition Committee by the Manatee County Commission--even where your father abstains from the vote--would contravene Section 112.3135(2)(a), Florida Statutes.

Your question is answered accordingly.

ORDERED by the State of Florida Commission on Ethics meeting in public session on June 1, 1995, and RENDERED this _____ day of June, 1995.

___________________________________

R. Terry Rigsby

Chairman