CEO 98-23 -- December 3, 1998
ANTI-NEPOTISM
SHERIFF'S BROTHER-IN-LAW PROMOTED TO
RANK OF DEPUTY FIRST CLASS
To: Major Keith Stewart, Administrative Bureau Chief, Manatee County Sheriff's Office (Bradenton)
SUMMARY:
The anti-nepotism law (Section 112.3135(2)(a), Florida Statutes) would not be violated were the Sheriff's brother-in-law to be promoted to Deputy First Class. In Slaughter v. City of Jacksonville, 338 So. 2d 902 (Fla. 1st DCA 1976), the Court concluded that it is only an increase in grade which elevates an employee to a higher rank or position of greater personal dignity or importance and is an advancement or promotion. Under the Sheriff's Office's policy, the status promotion is not to a position having any greater authority. Therefore, his proposed Apromotion would not be an Aadvancement or Apromotion according to the Slaughter decision, because it would not be to a position of higher rank or to a position of greater personal dignity or importance.
Furthermore, the deputies are ranked for promotion to Deputy Second Class or Deputy First Class by time with the agency, attendance at job-related classes, seminars, and schools, and required above-average scores in certain areas of their annual performance evaluation which the Sheriff has no involvement with, and all of the deputies who have met the requirements are promoted. Because the authority to promote the deputies to the status of Deputy First Class or Deputy Second Class is vested, pursuant to the written policy of the Sheriff's Office, with the Director of the Personnel Section, and because the Sheriff exercises no control over such promotions, no violation of Section 112.3135(2)(a) would exist were the Sheriff's brother-in-law to be promoted to Deputy First Class, as long as the Sheriff in no way advocates the status promotion of his brother-in-law.
QUESTION:
Having met all of the qualifications regarding time in grade, attainment of school hours, and evaluation scoring, does the Code of Ethics prohibit the Sheriff's brother-in-law from being promoted to the rank of Deputy First Class under the Sheriff's Office's old General Order?
Under the circumstances presented, your question is answered in the negative.
Through your letter of inquiry and written responses to our staff's questions, we are advised that Charles B. Wells was
elected Sheriff of Manatee County in November 1984 and took office on January 8, 1985. He has held office ever since,
you advise.
We are advised that the Sheriff's Office employs 1,006 individuals, of whom 578 are sworn law enforcement and corrections officers (both, you advise, are eligible for First and Second Class status). You write that 118 of the 578 sworn law enforcement or corrections officers have attained the rank of Sergeant and above, 110 of the officers are classified as Deputy Second Class, and 128 of the officers are classified as Deputy First Class. Because they may not have attained, for example, time in grade, the remaining 222 sworn law enforcement or corrections officers are not all eligiblefor promotion to Deputy First Class or Second Class status.
You further advise that Sheriff Wells' brother-in-law [1] was hired by the administration of the previous Sheriff on
June 1, 1983, as a certified law enforcement officer (deputy sheriff). However, since Sheriff Wells took office in 1985,
you advise, he has received no promotions. He has received only those pay increases awarded to all employees of
the Department.
In 1995, you write, the Sheriff's Office instituted a status ranking for Deputy Second Class and Deputy First Class
officers. These statuses were attained, you advise, by time with the agency, attending job-related classes, seminars,
and schools, and required above average scores in certain areas of the annual performance evaluations. The Sheriff is
not involved in the evaluation process, you advise. He neither approves, reviews, nor,in most cases, even sees the
evaluations, unless it is part of a termination hearing file.
You advise further, that at the time that the status rankings were instituted, there were no pay raises awarded for attainment
of either rank.
In fact, the policy specifically provided as follows:
THE RANKS . . . CARRY NO AUTHORITY. THEY ARE STATUS CHANGES ONLY. THEYARE NOT PROMOTIONS IN THE TRUEST SENSE OF THE WORD. ATTAINMENT OFTHE RANK ALLOWS THE RECIPIENT TO PROGRESS IN THE PAY SCALE AT THE REGULAR ANNUAL INTERVALS AND BECOME ELIGIBLE TO TAKE FUTURE PROMOTIONAL EXAMS.
THERE IS NO AUTOMATIC PAY INCREASE GRANTED ON THE DATE THESE RANKS ARE GRANTED[2]
Pursuant to Manatee County Sheriff's Office General Order 3015 - Promotion and Transfer (old order), attainment of the rank of Deputy First Class also was required in order for a deputy to be eligible to participate in the official Sergeant's examination, you write.
However, on October 1, 1998, pursuant to General Order 3015 - Promotion and Transfer (new order), you advise,
the Sheriff's Office's pay plan was changed and pay scales for Deputy Second Class and Deputy First Class were
included with the status rankings. The new General Order continues to provide that the ranks of Deputy First Class
and Deputy Second Class carry no authority and were instituted in order to allow employees of the Sheriff's Office to
advance through the pay scale. In fact, it specifically prohibits the use of the ranks as part of the deputies title.
You relate that currently there are 95 deputies throughout the Sheriff's office who are eligible for Deputy First Class by
meeting the five (5) year employment in a full-time certified position requirement. However, they do not meet the
other requirements [3] to qualify. Under the new policy, you advise, a deputy must be a Deputy Second Class for
two years before moving to Deputy First Class. Given this two year requirement, there are 41 of the 95 deputies who have
not yet attained the Deputy Second Class rank and who would not be eligible to move to Deputy First Class, even if they
met all of the other requirements.
Under these circumstances, you ask whether the Code of Ethics would prohibit the Sheriff's brother-in-law from being
eligible for promotion to the rank of Deputy First Class under the old General Order, where no monetary advancement
was involved, since he met all qualifications regarding time in grade, attainment of school hours, and evaluation scoring.
Had he been classified as a Deputy First Class, you write, he would automatically have gone into the proper step on the
new pay scale.
You relate that you understand that even if we find that there is no prohibition to the Sheriff's brother-in-law's attainment of the status of Deputy First Class, he would not be eligible for promotion to Sergeant or any other advancement as longas Sheriff Wells remains in office. However, subject to our finding that no prohibition exists, you propose to promotethe Sheriff's brother-in-law under the old policy, because he met all of the qualification requirements under the Order.
You advise that if he were to be promoted under the new policy, he could only be elevated to Deputy Second Class, then two years later to Deputy First Class. You write that prior to the effective date of the new policy you conducted a case-by-casereview of all deputies who were eligible for promotion to Deputy First Class by meeting the time-in-grade
requirement. All of those deputies, with the exception of the Sheriff's brother-in-law, were promoted prior to the new
policy going into effect. You write that, pending our determination, the Sheriff's brother-in-law is the only remaining
deputy who is eligible to be promoted under the old policy.
Within the Code of Ethics for Public Officers and Employees, the Anti-Nepotism Law provides in relevant part:
RESTRICTION ON EMPLOYMENT OF RELATIVES.--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. [Section 112.3135(2)(a), Florida Statutes.]
This provision prohibits a public official from promoting or advancing, or advocating the promotion or advancement of,
a relative in the agency he or she serves or over which he or she exercises control. For purposes of this law, the term
"relative" includes one's "brother-in-law." See Section 112.3135(1)(d), Florida Statutes.
In CEO 98-7 and CEO 96-6, and the opinions cited therein, we noted that prior to the 1989 transfer of the anti-nepotism
law into the Code of Ethics for Public Officers and Employees, that provision (formerly Section 116.111, Florida Statutes)
was interpreted by a number of Attorney General's opinions whose reasoning we essentially have adopted in issuing
our opinions involving Section 112.3135. Thus, in CEO 90-62, we opined that Section 112.3135(2)(a) was not
violated where a city police chief and his father both worked in the police department and where the father was employed
there prior to his son's becoming chief. We noted that the Attorney General consistently had interpreted Section 116.111
not to require the discharge of a person whose relative took the higher position after the person's employment or
otherwise where the prohibited relationship came into being after the person's employment. In other words, where a
public official attained his or her higher public position after his or her relative became employed by the agency, the
Attorney General opined that the employee was allowed to continue in the same position and to participate in routine
raises, but could not be promoted or advanced, or recommended or advocated for a promotion or advancement.
See AGO's 77-36 and 73-35. Consequently, as we opined in CEO 98-7, CEO 96-6, and CEO 89-46, we are of
the opinion here that no violation of Section 112.3135(2)(a) has been created by the Sheriff's brother-in-law's continuing
to work in the Sheriff's Office after the Sheriff took office.
In both CEO 90-62 and CEO 93-15, we referenced Slaughter v. City of Jacksonville, 338 So. 2d 902
(Fla 1st DCA 1976), which examined the question of whether a merit pay increase constituted a "promotion" or
"advancement" under the terms of the anti-nepotism law. In Slaughter, the Court concluded:
It is our view that it is only an increase in grade which elevates an employee to a higher rank or position of greater
personal dignity or importance and is an advancement or promotion.
the Clerk of the Circuit Court, was permitted to keep the merit pay increases he had received over the course
of his employment in the Clerk's Office. Similarly, we find that no violation of Section 112.3135(2)(a) was created
by the Sheriff's brother-in-law's receipt of across the board salary increases. Furthermore, we find that no violation
of Section 112.3135(2)(a) would be created by the Sheriff's brother-in-law's promotion to Deputy First Class.
Although the proposed promotion of the Sheriff's brother-in-law to the status or rank of Deputy First Class under the
old policy, which only authorized a pay increase under the pay plan on the next annual increase date, appears to be
an Aadvancement or A promotion, the policy specifically provides that the status promotion is not to a position having
any greater authority, that is, to a position of higher rank or to a position of greater dignity or importance. Therefore,
we find that the promotion of the Sheriff's brother-in-law to the rank of Deputy First Class would not be an Aadvancement
or Apromotion under the Slaughter decision.
In addition, in CEO 98-2 we recently found that the anti-nepotism law prohibits the sons of a member of the Game and Fresh Water Fish Commission (GFC) from receiving promotions and advancements, other than those which involveno discretion on the part of the Commission, its Executive Director, or other GFC personnel. In that agency, the wildlife officers were ranked for promotion to sergeant and lieutenant by test score and time in-grade, and the top applicant was always the one who got the promotion, unless the top applicant declined it. Similarly, here the deputies
are ranked for promotion to Deputy Second Class or Deputy First Class by time with the agency, by attending
job-related classes, seminars, and schools, and by attaining above-average scores in certain areas of their annual
performance evaluation which the Sheriff is not involved in, that is, he exercises no discretion over, or reviews or approves.
All of the deputies who have met these requirements are promoted. Because the authority to promote deputies to the status
of Deputy First Class or Deputy Second Class is vested pursuant to the written policy of the Sheriff's Office with the
Director of the Personnel Section, and because the Sheriff exercises no control over such promotions, we find that no
violation of Section 112.3135(2)(a), Florida Statutes, would exist were the Sheriff's brother-in-law to be promoted to
Deputy First Class, as long as the Sheriff in no way advocates the status promotion of his brother-in-law.
Accordingly, under the circumstances presented, we find that no violation of Section 112.3135(2)(a), Florida Statutes,
would be created by the promotion of the Sheriff's brother-in-law to the rank or status of Deputy First Class.
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