CEO 89-46 -- September 14, 1989

ANTI-NEPOTISM

COUNTY SHERIFF HIRING NEPHEW AS DEPUTY SHERIFF

To: Maury Kolchakian, General Counsel, Florida Sheriff's Association (Tallahassee)

SUMMARY:

Under the anti-nepotism law, now Section 112.3135, Florida Statutes, a sheriff may not hire his nephew as a deputy when the county sheriff's office assumes the provision of law enforcement services formerly provided by a city police department. Even though the nephew was an employee of the city police department, here the employees of the police department will not become employees of the sheriff's office automatically; only 12 of the 14 existing employees will be hired.

QUESTION:

Does Section 112.3135, Florida Statutes, prohibit a county sheriff from hiring his nephew as a deputy when the sheriff's office assumes the provision of law enforcement services previously provided by a city police department, where the nephew currently is employed as a police officer?

Under the circumstances as described in this opinion, your question is answered in the affirmative.

In your letter of inquiry, you advise that the Hardee County Sheriff's Department is assuming the provision of services formerly provided by the Wauchula Police Department. Sheriff Doyle W. Bryan is the Sheriff of Hardee County. The Sheriff's nephew is employed by the Wauchula Police Department. The employees of the Police Department will not automatically become employed by the County Sheriff's Office. They will have to be hired. Currently there are 14 employees of the Wauchula Police Department, and only 12 will be hired once the Sheriff begins providing services. On behalf of the Sheriff, you ask if he can hire his nephew without violating the anti-nepotism law.

The anti-nepotism law formerly contained in Section 116.111, Florida Statutes, has been transferred and renumbered as Section 112.3135, Florida Statutes. Chapter 89-67, Laws of Florida. Section 112.3135 provides in relevant part:

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.

The term "relative" includes one's nephew. Section 112.3135(1)(c).

This provision prohibits the Sheriff from employing his nephew to a position in the Sheriff's Department. See Morris v. Seeley, 541 So. 2d 659 (Fla. 1st DCA 1989). You have indicated that the nephew will not assume the position of deputy sheriff through a merging of the two departments but that he will have to be hired by the Sheriff's Department. Therefore, it would appear that the Sheriff could not hire his nephew without violating the anti-nepotism law.

In AGO 73-351 the Attorney General stated that the anti-nepotism law did not require the discharge of persons when a prohibited relationship develops after lawful employment, such as when an employee's marriage brings him within the prohibitions of the statute. Rather, in such cases the position would be "grandfathered in." The Attorney General therefore opined that the wife of a county judge could continue to serve as her husband's secretary even after her position was transferred to the state payroll and the anti-nepotism law became applicable.

We are of the opinion that the position of Deputy Sheriff under the circumstances you describe could not be "grandfathered in," as the nephew will not continue to hold his position during the merger but will have to be re-hired by the Sheriff's Office. As the situation you describe requires the Sheriff actually to hire his nephew and the statute prohibits a public official from hiring a relative, the employment of the nephew would appear to fall within the prohibitions of Section 112.3135, Florida Statutes.

Accordingly, we find that the subject Sheriff may not hire his nephew as an employee of the County Sheriff's Office without violating the anti-nepotism law.