CEO 98-2 -- January 22, 1998
ANTINEPOTISM
GAME AND FISH COMMISSION MEMBER'S SONS WILDLIFE
OFFICERS RECEIVING PROMOTIONS AND ADVANCEMENTS
To: Mr. James L. Adams, Jr., Member of Florida Game and Fresh Water Fish Commission (Tallahassee)
SUMMARY:
The antinepotism law (Section 112.3135, Florida Statutes) prohibits the sons of a member of the Game and Fresh Water Fish Commission from receiving promotions and advancements, other than those which involve no discretion on the part of the Commission, its Executive Director, or other GFC personnel. Notwithstanding its delegation of authority to its Executive Director, the Commission remains, inherently/Constitutionally and by virtue of statute, the entity ("public official") responsible for the promotions or advancements of the Commissioner's sons; and caselaw concerning individual relative-members of collegial bodies has been superseded by subsequent statutory amendment. CEO’s 90-11, 90-62, 91-27, 93-1, 93-15, 93-16, 94-26, 94-30, 94-39, and 96-13 are referenced.
QUESTION:
Does the antinepotism law (Section 112.3135, Florida Statutes) prohibit the sons of a member of the Florida Game and Fresh Water Fish Commission who are employed by the Commission as wildlife officers from receiving promotions and advancements where the Commission has delegated to its Executive Director responsibility regarding the promotions and advancements?
Your question is answered in the affirmative, except as noted below.
By your letter of inquiry, correspondence between our staff and the Executive Director of the Florida Game and Fresh Water Fish Commission (Commission) in your behalf, and a telephone conversation between our staff and the Executive Director's office, we are advised that you recently were appointed by the Governor to the Commission, your term running from August 5, 1997 to January 4, 2001. In addition, we are advised that you have two sons who are employed as Commission wildlife officers, their employment as wildlife officers beginning (according to the Executive Director's office when telephoned by our staff) prior to your appointment to the Commission.
Further, we are advised that in order to be promoted to sergeant or lieutenant, wildlife officers are required to take and pass a written promotional test through the Department of Management Services(DMS); that DMS then establishes a statewide promotional list from which those who are promoted must be chosen; that a Commission bureau chief then makes a recommendation from the top five officers; and that the director of the Commission's Division of Law Enforcement then selects the officers to be promoted, with no input by others into the selection process.[1] Additionally, we are advised that similar processes are involved farther up the promotional ladder [lieutenant to captain to major (bureau chief)], with the Commission (via its chair) only having promotional input beginning at the division director level. Regarding pay for wildlife officers, we are advised that pay raise adjustments are negotiated by the labor union and given to officers as instructed by DMS with, as it is emphasized to us, no involvement by the Commission itself. In essence, we are advised that the day-to-day administration of the Commission's functions, including promotion decisions and pay matters affecting employees through the rank of major (bureau chief), are the responsibility of the Commission's Executive Director (via written instruments dated July 13, 1984 and May 17, 1995). We also are advised that the Commission does not vote on promotions, individually or en masse.
In addition, we have been advised, via correspondence between our staff and the Commission's Executive Director, telephone conversation between our staff and the Commission's Deputy Executive Director, telephone conversation between our staff and the Commission's General Counsel, and a facsimile from the Commission's General Counsel to our staff, of several additional points. As to these additional matters, we are advised that Commissioners do not take formal action to approve or disapprove the Commission's budget; that the proposed budget is presented to the Commissioners at a Commission meeting as a "status report"; and that Commissioners may give direction to the Executive Director as to the proposed budget, but that Commissioners do not approve or disapprove the budget. Further, we are advised that the budget may contain specific funding proposals for wildlife officer positions, such as additional wildlife officer positions for the boating-safety or wildlife-inspection programs and, if appropriated by the Legislature, the funding for such positions may be expressed as a line item in the appropriations bill.[2] Additionally, we are advised that the Executive Director may grant various pay additives under appropriate circumstances, that competitive area differentials are implemented only by the Department of Management Services, that Commissioners do not take formal action to approve or disapprove pay additives, and that wildlife officers receive pay increases upon promotion to a higher job classification. Also, we are advised that the Commission's Executive Director is a Senior Management Service employee who serves at the pleasure of the Commission without benefit of contract or agreement, and that the Director may receive pay increases. Further, it is emphasized to us that the Commission does not have a direct role in personnel appointments, separations, or salary adjustments, but that the Commission merely "ratifies" (at a regular Commission meeting) personnel actions already taken by the Executive Director, without the Commission having previewed or given prior approval to the Executive Director's actions.[3]
Within the Code of Ethics for Public Officers and Employees, the anti-nepotism law 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) 'Collegial body' means a governmental entity marked by power or authority vested equally in each of a number of colleagues.
(c) 'Public official' means an officer, including a member of the Legislature, the Governor, and a member of the Cabinet,or an 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 anagency, including the authority as a member of a collegial body to vote on the appointment, employment, promotion, or advancement of individuals.
(d) 'Relative,' for purposes of this section only, 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 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 in 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.
(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(3), of individuals whose employment would be otherwise prohibited by this section.
(4) Legislators' relatives may be employed as pages or messengers during legislative sessions. [Section 112.3135, Florida Statutes.]
This law prohibits a public official from promoting or advancing, or advocating the promotion or advancement of, a relative to a position in the agency in which the public official serves or over which the public official exercises jurisdiction or control. For purposes of this law, the term "relative" includes "son" and the term "public official" includes "the authority as a member of a collegial body to vote on the appointment, employment, promotion, or advancement of individuals."
In Galbut v. City of Miami Beach, 605 So. 2d 466 (Fla. 3rd DCA 1992),[4] the District Court of Appeal held that then Section 112.3135, Florida Statutes, did not prohibit the appointment of a relative of a member of a collegial body, so long as the member abstained from voting and in no way advocated the appointment. In response to the Galbut decision, the Legislature amended Section 112.3135 by adding the language currently found in the statute concerning appointments by collegial bodies, intending to prohibit appointments made under the authority of a relative-member's collegial body, regardless of whether or not the collegial body delegated or sought to delegate such authority. Therefore, the Commission's delegation of significant responsibility to its Executive Director, while convenient to and furthering the operations of the GFC, does not divest the Commission of its inherent/Constitutional and statutory authority to hire, promote, terminate, and advance its employees, and to otherwise run and operate the agency. Thus, the Commission remains the "public official" vested by law with the authority to promote, advocate for promotion, and otherwise deal with personnel matters involving Commission employees. This authority derives from both the inherent/Constitutional ability of the Commission itself, if it so desires, to run, manage, and control all aspects of GFC operations,[5] and derives from Section 372.05, Florida Statutes, which provides, with emphasis supplied:
372.05 Duties of director.--The director shall:
(1) Keep full and correct minutes of the proceedings of said commission at its meetings, which minutes shall be open for public inspection.
(2) Purchase such supplies and employ such help and assistants as may be reasonably necessary in the performance of the director's duties.
(3) Have full authority to represent the commission in its dealings with other state departments, county commissioners, and the federal government.
(4) Submit to the commission at each of its meetings a report of all the director's actions and doings as official representative of the commission.
(5) Visit each county in the state at least once each year and oftener if it appears to the director to be necessary.
(6) Appoint, fix salaries of, and at pleasure remove, subject to the approval of the commission, assistants and other employees who shall have such powers and duties as may be assigned them by the commission or director.
(7) Have such other powers and duties as may be prescribed by the commission in pursuance of its duties under s. 9, Art. IV of the State Constitution.
Therefore, we find that the Commission, a collegial body of which you are a member, is vested inherently/Constitutionally and by statute with the authority to make GFC personnel decisions, including promotions and advancements, notwithstanding that its agent (its Executive Director) has been assigned the day-to-day carrying out of personnel functions. In this regard, we find that your situation is more akin to that of the sheriff in Morris v. Seely, 541 So. 2d 659 (Fla. 1st DCA 1989) than it is to that of the city commissioner in Galbut, supra. In Morris, the court held that the antinepotism law was violated by a sheriff's promotion of his brother, even though the sheriff had established a policy of abstaining from decisionmaking or advocacy of any kind whenever his brother was considered for a promotion, even though the county civil service commission would submit a list of names from which one of the sheriff's majors would select the person to be promoted, and even though the sheriff or his appointee would merely sign the promotion appointment. While we recognize that Galbut distinguished Morris, based primarily on the city commissioner's total lack of individual involvement in the decisions of his collegial body as to the appointment of his relative, we also recognize that the Legislature has seen fit in the wake of Galbut to do away with the ability of an individual member of a collegial body to divorce himself from the authority or actions of his collegial body.
Further, our unwillingness to recognize the delegation of authority to the Commission's Executive Director as working a divestiture of the Commission's authority to hire or advance GFC personnel is, in addition to being consistent with the reasoning of Morris, supra, consistent with our previous pronouncements. See CEO 93-1 in which we found that the promotion of a county commissioner's wife within the county's solid waste department would not violate the antinepotism statute because the county manager, rather than the county commission, was the public official vested with the authority to make such promotions. In CEO 93-1, we found that the manager's authority to promote was based in general law and in a popularly-approved county charter, and that it thus was not "an authority of the Board [of County Commissioners] which the Board ha[d] delegated or attempted to delegate to the County Manager." See also CEO 93-16 in which we advised a city police captain that his brother-in-law could not be promoted without violating the anti-nepotism law, reasoning that "[e]ven though the actual hiring decision is the Chief's and not [the Captain's], [the Captain] is the employee in whom is vested the authority to recommend persons to fill the two sergeant openings and your temporary delegation of that authority does not divest you of it such that the Anti-nepotism Law would not be violated." In addition, see CEO 91-27 (application of statute cannot be avoided by city manager's delegation of his approval authority) and CEO 90-11 (ultimate responsibility and authority for operation of department is within proscription of antinepotism statute, even where hiring and firing responsibilities have been delegated).
Nevertheless, we find that promotions and advancements of your sons which are of a ministerial nature (promotions/advancements which do not involve discretion on the part of the Commission, its Executive Director, or other GFC personnel) are not prohibited by the antinepotism law. Promotions/advancements in such situations would not undermine the purposes of the antinepotism law, inasmuch as no favoritism toward your sons, via the Commission, yourself, the Executive Director (who serves at the pleasure of the Commission), or other GFC personnel, would be possible.[6] In essence, the GFC is not vested with the authority to make promotions in these situations.
Accordingly, we find that Section 112.3135, Florida Statutes, prohibits your sons from being promoted or receiving other "advancements" at GFC (other than ministerial promotions or advancements to sergeant or lieutenant), so long as you are a Commission member, and that it does not prohibit their receiving cost-of-living or other routine pay increases[7] or maintenance of their current positions as wildlife officers.[8]
ORDERED by the State of Florida Commission on Ethics meeting in public session on January 22, 1998 and RENDERED this 27th day of January, 1998.
__________________________
Kathy Chinoy
Chair
[1] At our meeting at which this opinion was adopted, GFC's general counsel clarified this process. He stated in substance that the top candidate by test score and time in-grade always gets the promotion (that there is no discretion to choose from a group of high-ranking candidates).
[2] The Commission's Deputy Executive Director informed our staff by telephone that the Legislature is the source of decisionmaking authority regarding the Commission's funding (appropriations and spending), and that a vote of the Commission is not necessary for the Commission's proposed budget to go to the Legislature.
[3] The Commission's General Counsel emphasized to our staff by telephone that the Commission's "ratification" of personnel actions of the Executive Director extends only to initial hirings ("new employees") and separations from Commission employment, not to promotions which would affect existing employees such as the Commissioner's sons who began their status as Commission employees prior to his appointment to the Commission. The General Counsel maintains that "as far back as can be remembered" promotions have not been subject to ratification by the Commission. See, for example, the Personnel Changes And Adjustments and Separations sheets provided by the General Counsel.
[4] The decision of the District Court of Appeal was approved by the Florida Supreme Court in City of Miami Beach v. Galbut, 626 So. 2d 192 (Fla. 1993).
[5] In a telephone conversation with our staff, the Commission's General Counsel maintained that all ultimate authority for GFC operations resides in the Commission itself; that the Commission "could run its snack bar if it wanted to"; that Section 372.05, Florida Statutes, may be unconstitutional to the extent that it purports to restrict the ability of a Constitutional body (the Commission) to assign personnel responsibilities to its Executive Director; and that he sees a distinction between personnel actions at GFC which are made by the Executive Director in view of Career Service and labor union factors and concerns and a sheriff's promotion of his deputies (public officers who are extensions of the sheriff) which was held to violate the anti-nepotism law in Morris v. Seely, infra, where a promoted deputy was a sheriff's brother.
[6] At our meeting in which we adopted this opinion, GFC's general counsel gave an example of a ministerial promotion. He stated that wildlife officers are ranked for promotion to sergeant and lieutenant by test score and time in-grade, and that the top applicant is always the one who will get the promotion, unless the top applicant does not want to make any necessary geographical relocation.