CEO 98-22 -- December 3, 1998
ANTI-NEPOTISM
CITY COMMISSIONER'S HUSBAND APPOINTED
TO CITY CODE ENFORCEMENT BOARD
To: Allan H. Kaye, City Attorney, City of Archer
SUMMARY:
Section 112.3135, Florida Statutes (the State's anti-nepotism law), prohibits the appointment of a city commissioner's spouse to the city's code enforcement board. The board has zoning responsibilities, and thus does not come within the exemption for certain boards in municipalities with less than 35,000 population. CEO's 95-15 and 95-10 are referenced.
QUESTION:
Does Section 112.3135, Florida Statutes (the State's anti-nepotism law), prohibit the appointment of the husband of a city commissioner to a noncompensated position on the city's code enforcement board, in a city with a population less than 35,000?
Your question is answered in the affirmative.
By your letter of inquiry and a telephone conversation between you and our staff, we are advised that . . . . . . . . (Amember) serves as a member of the City Commission of the City of Archer, a municipality with a population less than 35,000. In addition, we are advised that the member's husband has applied for appointment to the City's Code Enforcement Board (ABoard), that Board appointees serve without compensation, that the City Commission collegially appoints members of the Board, and that the City has a Planning and Zoning Board that is separate and distinct in duties and membership from its Code Enforcement Board.
The Board, we are advised, has the authority to impose administrative fines and other non-criminal penalties for violations of the City's Code of Ordinances, including zoning ordinances, pursuant to its conducting hearings on matters brought before it by the City's Code Inspector. Any review of Board action is in the Circuit Court.
Further, you state that this is a question of first impression for the Commission on Ethics and that the Board can be distinguished from boards having land-planning or zoning responsibilities (boards thus not coming within the exemption stated below) because the Board Aacts as a back end enforcement board and has no front end responsibility for land-planning or zoning.
Section 112.3135, Florida Statutes, with emphasis supplied, 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 an agency, 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 define 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.
Thus, in opining as to the member's husband's desired appointment to the Board, the central question for us is whether the Board possesses land-planning or zoning responsibilities.
As you point out in your inquiry, we have not had occasion to consider the applicability of the exemption contained in subsection (2) of the statute, vis-a-vis the question of whether a board possesses land-planning or zoning responsibilities, and particularly in regard to the more narrow question of whether a municipal code enforcement board with the power to enforce zoning ordinances possesses land-planning or zoning responsibilities such that the board will not fall within the meaning of the exemption.[2] However, we have had occasion to construe similar language regarding financial disclosure, found at Section 112.3145, Florida Statutes. Section 112.3145 defines various Alocal officers who are thus subject to various disclosures, excludes from the definition members of an Aadvisory body, and then goes on to state that A[a] governmental body with land-planning, zoning, or natural resources responsibilities shall not be considered an advisory body.
In construing the meaning of Aresponsibilities under Section 112.3145, we are of the view that if a board has a duty to take some action as to a particular matter, as opposed to merely the ability to formulate policy recommendations and to present its advice to a superior board or officer, it has Aresponsibilities in regard to the matter. See, for example, CEO 95-15 and CEO 95-10. Likewise, we are persuaded that the Board also possess Aresponsibilities, in that it has a duty to act in regard to particular matters; indeed, its actions are reviewable, as you state, through the Court and are not merely recommendations or advice given to the City Commission.[3] Further, we think the conclusion inescapable that the Board's responsibilities include zoning responsibilities. The exemption is phrased in the alternative or disjunctive in regard to responsibilities which involve either land-planning OR zoning. Although the Board is not involved in the up-front land-planning process, we find that the Board's enforcement of zoning ordinances certainly is a responsibility which concerns zoning, within the meaning of the exclusion from the exemption.
Accordingly, we find that appointment by the City Commission of the City Commission member's spouse to the City's Code Enforcement Board is prohibited by Section 112.3135, Florida Statutes.
ORDERED by the State of Florida Commission on Ethics meeting in public session on December 3, 1998 and RENDERED this 8th day of
December, 1998.
__________________________
Charles A. Stampelos
Chairman
[1] Attorney General opinions, our opinions, and statutory language make it clear that a position does not have to be paid or compensated to come within the anti-nepotism law; there is no issue that the Board seat is a position within an agency within the meaning of the statute; and statutory language makes it clear that appointments by collegial bodies which contain a member whose relative is the appointee are covered by the statute, regardless of whether or not the member abstains from voting and otherwise does not participate in the collegial action appointing the relative.
[2] This is a relatively new exemption. See Section 2 of Chapter 94-277, Laws of Florida.
[3] While the ability to take final action reviewable only by a court is not essential in our view for a body to have Aresponsibilities under Section 112.3145, it is apparent that the Board indeed does have Aresponsibilities, inasmuch as Section 162.08, Florida Statutes, provides that local government code enforcement boards have the power, inter alia, to A[i]ssue orders having the force of law to command whatever steps are necessary to bring a violation into compliance. See Section 162.08(5), Florida Statutes.