CEO 93-1 -- January 28, 1993

ANTI-NEPOTISM

COUNTY COMMISSIONER'S WIFE PROMOTED

IN COUNTY SOLID WASTE DEPARTMENT

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

SUMMARY:

The Anti-Nepotism Law (Section 112.3135, Florida Statutes) would not be violated were the wife of a county commissioner to be promoted within the county's solid waste department. The county manager and department head would hold the promotional authority, not the employee's husband or the county commission as a collegial body. Thus, the situation is distinguishable from the case of Galbut v. City of Miami Beach, 17 F.L.W. D1504 (Fla. 3rd DCA June 16, 1992), opinion on rehearing 17 F.L.W. D2334 (October 13, 1992), which is in conflict with prior opinions of the Commission on Ethics. CEO's 92-50, 91-27, and 90-11 are referenced.

QUESTION:

Would the Anti-Nepotism Law be violated were an administrative secretary employed in a county's solid waste department to be promoted to the position of staff assistant?

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

By your letter of inquiry, telephone conversation between you and our staff and between the County Attorney and our staff, and written materials supplied to us by the County Attorney, we are advised that you have been employed by Osceola County for sixteen years, serving currently as an administrative secretary in the County's Solid Waste Department. In 1988, your husband was elected to the County's Board of Commissioners (Board), and he was re-elected to another four-year term in 1992. Since your husband's initial election to the Board, you have received no advancements or promotions, and you have not received any increases in salary "that were not equally available to all employees of the County of which there are hundreds," you relate. You relate further that you are now at the maximum pay range for your job classification and that the head of your department has considered that you be promoted to a higher pay classification position--that of 'staff assistant.'

Osceola County is a charter county, having adopted its charter by ordinance and a special referendum in March 1992, pursuant to Part IV of Chapter 125, Florida Statutes. The County utilizes the county manager form of government described in Section 125.84(2), Florida Statutes. Under this form of government, pursuant to Section 125.85, Florida Statutes, the County Manager is the official vested with the authority to supervise, direct, and control the heads of County departments and to employ and promote personnel, including personnel for your current position and the one you seek to be promoted to. The Board hires only the County Manager, and it must give its advice and consent in the hiring of department heads. The Board adopts job classifications, including the classification to which you would be promoted, but has no authority to appoint, promote, or advance persons to fill positions (of which there are a total of three) in the class to which you seek promotion, and it has no authority to recommend individuals for such appointment, employment, promotion, or advancement.

You question whether your promotion would violate the State's antinepotism law contained in Section 112.3135, Florida Statutes, particularly in light of the case of Galbut v. City of Miami Beach, 17 F.L.W. D1504 (Fla. 3rd DCA June 16, 1992), rehearing denied 17 F.L.W. D2334 (October 13, 1992); pending review before Florida Supreme Court, Case No. 80,780.

Section 112.3135 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 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' 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.

Under our interpretation of the Anti-Nepotism Law, which follows the reasoning of opinions of the Attorney General, the provision would prohibit your being placed in the new position if the Board appointed, employed, promoted, or advanced you to the new position, or if the Board advocated your appointment, employment, promotion, or advancement, regardless of whether or not your husband personally abstained from voting or participating in the placement or advocacy for the placement. See, for example, CEO 92-50 and the opinions cited therein.

However, we view your situation to be factually distinguishable from that in Galbut, in which a member of the Miami Beach Board of Adjustment sought reappointment by the City Commission which contained his father-in-law. Under your scenario, the authority to place or recommend for placement is vested, pursuant to a popularly-approved charter and Chapter 125, in the County Manager, not in the Board; thus, promotion under such circumstances would appear to be in accord with the position of the Attorney General. See AGO 85-91. In addition, since the source of this authority is statutory and charter-based, we do not view it as being an authority of the Board which the Board has delegated or attempted to delegate to the County Manager. See, for example, CEO 91-27 and CEO 90-11 wherein we found that the Anti-Nepotism Law would be violated where a public official possessed placement authority but had delegated it to another.

Accordingly, so long as your husband, or the County Commission as a collegial body, do not advocate your promotion, Section 112.3135, Florida Statutes, does not preclude your promotion to the position of staff assistant.