CEO 96-13 -- June 3, 1996

ANTI-NEPOTISM

COUNTY DEPARTMENT EXECUTIVE DIRECTOR CONTRACTING WITH NIECE

FOR JANITORIAL SERVICES; RECOMMENDING THE EMPLOYMENT

OF HER NIECE WITH A DIFFERENT COUNTY DEPARTMENT;

AND SUBSEQUENTLY RECOMMENDING HER NIECE BE TRANSFERRED

TO HER DEPARTMENT

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

SUMMARY:

Section 112.3135(2)(a), Florida Statutes, would not be violated where an executive director with a county housing rental assistance program requested that her niece, employed by a different county department, be transferred to her department. Although the niece=s employment responsibilities changed as a result of the transfer, it cannot be concluded that that change alone constituted an advancement or promotion for purposes of Section 112.3135(2)(a). Additionally, the executive director=s earlier decision to contract with her niece to obtain janitorial services for the housing program office did not violate Section 112.3135(2)(a), since the niece was essentially an independent contractor and not a county employee. Nor did the executive director=s recommendation to another county department head that he hire her niece for a janitorial position violate Section 112.3135(2)(a), since the executive director was not advocating the employment of her niece to a position in her department.

The Commission cannot determine through the context of an advisory opinion whether the executive director=s actions regarding her niece were undertaken with a Acorrupt@ intent in violation of Section 112.313(6), Florida Statutes. However, the executive director is cautioned to avoid the appearance of favoritism regarding her niece=s employment in her department, and any other promotions or advances of the niece by the executive director would violate the Anti-Nepotism Law.

Additionally, it is noted that Section 112.326, Florida Statutes, authorizes the county to enact an ordinance imposing additional or more stringent standards of conduct than those contained in Chapter 112, Part III. Thus, the county could enact an ordinance prohibiting its employees from working together or supervising one another.

QUESTION:

Would Section 112.3135, Florida Statutes, be violated where a county employee recommended the employment of her niece with a County department other than the one she heads as executive director and, shortly thereafter, recommended that the niece be transferred to her department where she took on clerical duties rather than the janitorial duties she had originally been hired to perform?

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

In the correspondence associated with your opinion request, you relate that you represent the Walton County Board of County Commissioners and that you seek this opinion on their behalf concerning the Executive Director of the Walton County Housing Rental Assistance Program, . . ., whom they have the authority to hire and terminate.

You relate that in December 1993, the Executive Director contracted with her niece (her sister=s daughter) to clean the Housing Agency Office once a week at a rate of $5.00 per hour. This arrangement continued until approximately January 1995, when, upon the recommendation of the Executive Director, the County Maintenance Supervisor employed the niece to clean the Housing Agency Office and the Courthouse Annex. With this personnel action, which resulted in a $1.00 pay increase (to $6.00 per hour), the niece was considered to be a full-time County employee with the same benefits paid to other County employees.

You further relate that in February 1995, the Executive Director requested that her niece be transferred to her department to help in a review of files adjusting an utility allowance. Her pay rate and other benefits remained the same with this change. After about a month, the niece completed her work on the files and began to assume new responsibilities pursuant to the Executive Director=s instructions, you state. Her position there is considered permanent, although there is no particular job description for the position she fills. Further, even though she works under the direction and supervision of her aunt, the Executive Director, the niece=s time sheets are still signed by her former supervisor, the County Maintenance Supervisor, and the Housing Program Office reimburses the County for her salary. Thus, you question whether this situation violates the Anti-Nepotism Law.

Section 112.3135(2)(a), Florida Statutes, states:

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 the official is serving or over which the official 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 (1995).]

Pursuant to Section 112.3135(1)(d), the term Arelative@ includes one=s niece.

With regard to the initial decision to contract with the niece to clean the County Housing Agency=s office, we do not view that action as coming within the proscriptions of Section 112.3135(2)(a), since the niece was not Aemployed@ in a duly created position with the County Housing Agency. Instead, she appears to have been acting as an independent contractor providing janitorial services to the County Housing Agency. In AGO 82-39, the Attorney General construed the predecessor to Section 112.3135(2)(a)--Section 116.111(2)(a)--to conclude that the Anti-Nepotism Law was not violated where a state attorney permitted his brother-in-law=s corporation to sell dental insurance to the state attorney=s employees, since neither the brother-in-law nor his corporation would be appointed to, employed by, or hold a position in the office of the state attorney. Thus, based upon the rationale of that opinion, we conclude that the initial action between the Executive Director and her niece did not constitute an appointment to, an employment by, or holding a position with the County Housing Agency for purposes of Section 112.3135(2)(a).

With regard to the next action, the Executive Director=s recommendation to the County Maintenance Supervisor that he hire her niece to a full-time position in his department, we also conclude that that action did not violate Section 112.3135(2)(a). The County Maintenance Supervisor is apparently employed in a separate department from that of the Executive Director, and there is no indication that she has any jurisdiction or control over the County Maintenance Supervisor or his department. Therefore, her recommendation by itself does not indicate a violation of Section 112.3135(2)(a), Florida Statutes.

Concerning the Executive Director=s February 1995 request that her niece be transferred to her department, we cannot conclude that by that action the Executive Director advocated the advancement or promotion of her niece to a position in her agency over which she has jurisdiction and control. In other opinions where we were asked to determine whether a personnel action constituted an advancement or a promotion for purposes of Section 112.3135(2)(a), the actions generally involved a pay increase, change in title, and the assignment of additional responsibilities. See CEO 94-39 and CEO 94-30. Here, however, the only factor that changed as a result of the niece=s transfer is that she went from providing janitorial services to clerical services. That change, by itself, is not sufficient under our opinion precedent or under Slaughter v. City of Jacksonville, 338 So. 2d 902 (Fla. 1st DCA 1976), to indicate that the Executive Director advocated the advancement or promotion of her niece in violation of Section 112.3135(2)(a).

Although we are somewhat skeptical of the Executive Director=s actions as they have been represented to us, there is no clear indication that they would constitute a violation of Section 112.313(6), Florida Statutes, the Misuse of Public Position provision, as we cannot determine in the context of an advisory opinion whether her actions were undertaken with a Acorrupt@ intent without a full investigation. Nevertheless, if she contrived with the County Maintenance Supervisor to have him hire her niece and then have her transferred to her department, such efforts to circumvent the proscriptions of Section 112.3135(2)(a) could violate Section 112.313(6). Moreover, if the Executive Director subsequently advances or promotes her niece, those actions would violate the Anti-Nepotism Law. We also observe that while previous opinions have opined that the Anti-Nepotism Law does not prohibit two relatives from working together or even one relative supervising the other, the Executive Director should be cautioned to avoid even the appearance of favoritism toward her niece while she is stationed in the County=s Housing Rental Assistance Program, particularly since the Executive Director=s actions could be construed as violating Section 112.313(6).

Finally, we would note that Section 112.326, Florida Statutes, authorizes the County to enact ordinances imposing additional or more stringent standards of conduct than those specified in Chapter 112, Part III, Florida Statutes. The only limitation on that authorization is that the ordinance cannot otherwise conflict with any provision contained in the Code of Ethics for Public Officers and Employees. Thus, if it chose to do so, the County could enact an ordinance prohibiting relatives from working together or supervising one another.

Accordingly, under the specific factual circumstances presented, the actions of the Executive Director of a County Housing Rental Assistance Program did not violate Section 112.3135(2)(a), Florida Statutes.

ORDERED by the State of Florida Commission on Ethics meeting in public session on May 30, 1996, and RENDERED this 3rd day of June, 1996.

______________________________

William J. Rish

Chairman