CEO 09-15 July 29, 2009

ANTI-NEPOTISM

CITY COMMISSION MEMBER'S RELATIVE SERVING IN UNCOMPENSATED
POSITION ON ADVISORY BOARD

To: Samuel S. Goren, (Attorney, Ft. Lauderdale)

SUMMARY:

An uncompensated member of an advisory board nominated for appointment by a non-related City Commission member may continue to serve after his or her relative is elected to the Commission, provided that neither the related Commission member nor the Commission take any affirmative action to reappoint the advisory board member or advocate for his or her reappointment. Section 112.3135, Florida Statutes prohibits a collegial body from appointing a relative of one of its members to an advisory board, even if the nomination for appointment was not made by the related City Commission member.


QUESTION 1:

Would the Code of Ethics for Public Officers and Employees be violated were a City Commission member to nominate his brother for reappointment to an uncompensated position on a City advisory board?


Your question is answered in the affirmative.


You advise that your firm serves as the City Attorney for the City of Pembroke Pines, and that you write on behalf of three members of that City Commission, all with related questions. You state that each member of the Commission is entitled to nominate persons to various City advisory boards and committees. Those nominations are subject to the review of the full Commission, which then makes the appointment1, and the individuals appointed serve at the pleasure of the Commissioner who nominated them. You state that new nominees do not begin to serve until their nomination is ratified (i.e., the appointment made) by the full Commission, but that a currently serving advisory board member continues to serve without interruption when a new Commission member is elected, unless or until that Commission member nominates someone else for appointment and the Commission ratifies that selection. You relate that Section 32.502 of the City of Pembroke Pines' Code of Ordinances provides:


(A) Except where otherwise provided by or inconsistent with, the City's Charter, general or special law, all appointees to Advisory Boards and Committees shall serve at the pleasure of the nominating member of the City Commission, or until the nominating member of the City Commissioner [sic] vacates his or her office for any reason.


If the nominating member of the City Commission vacates his or her office for any reason, the terms of the respective Advisory Board/Committee members nominated by the member of the City Commission shall terminate at the time the new member of the City Commission appoints a replacement member to the Advisory Board or Committee.


You first inquire whether a newly-elected City Commission member may affirmatively act to nominate for reappointment a relative who is already serving without compensation on a board or committee. You relate that a newly-elected member nominated his brother for reappointment to the City's Board of Adjustments ("BOA") and that the newly-elected Commissioner's brother was reappointed by the City Commission. This individual had been initially nominated for appointment to the BOA by his brother's predecessor in office in 1997 and had served continuously since then until his resignation in June of this year.


Section 112.3135, Florida Statutes, provides in relevant part:


(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.


Section 112.3135 prohibits public officials from appointing, employing, or advancing a relative, or for advocating for such appointment, employment, or advancement. Should a City Commission member nominate for appointment a person who is a "relative" as defined by the statute, such action would constitute advocacy for appointment, whether or not the individual was already serving on the board. The prohibition would exist even should the related member abstain from the vote, as Section 112.3135 prohibits a collegial body from appointing a relative of one of its members to a position on an advisory board. CEO 95-12. The fact that the position is uncompensated does not alter the result, as the statute makes no exception for uncompensated positions. See, CEO 95-12.


Accordingly, we find that Section 112.3135, Florida Statutes, prohibits a City Commission member from nominating a relative for reappointment to an uncompensated position on a City board.


QUESTION 2:

Would the Code of Ethics for Public Officers and Employees be violated were a City Commission member to take no action, and thereby allow a previously-appointed relative to continue to serve in an uncompensated position on a City advisory board?


Your question is answered in the negative.


You relate that a member of the Landscape Advisory Board ("LAB") was appointed in 1993 after being nominated by the City Commissioner representing District 2. In 2008, the LAB member's husband was elected to represent District 2 on the City Commission, and he has taken no action either to replace her or to nominate her for reappointment.


Unlike the scenario addressed in Question 1, here it cannot be said that the City Commissioner either made or advocated for his wife's appointment; nor has the collegial body taken any action.


Prior to the 1989 transfer of the anti-nepotism law into the Code of Ethics for Public Officers and Employees, the provision (formerly Section 116.111, Florida Statutes) was interpreted by a number of Attorney General opinions. In AGO 70-18, the Attorney General dealt with the question of whether the law required the discharge of employees when a prohibited relationship, "for example, a change in the identity of the appointing officer, [e.s.]" came into existence after the law's effective date. Citing State ex rel. Robinson v. Keefe, 149 So. 638 (Fla. 1933), in which the Florida Supreme Court observed that the purpose of the law is to discourage "the bestowal of patronage by public officers in appointing others to offices or positions by reason of their blood or marital relationship to the appointing authority, rather than because of the merit or ability of the appointee," the Attorney General noted that where the relationship comes into existence after the original appointment is made, "the reason for the antinepotism rule ceases . . . ." Consistent with this reasoning, in AGO 73-351 the Attorney General opined that a judge's wife, who had been hired to serve as his secretary by the County Commission, could continue to be employed in that capacity after funding for her position was transferred to the State, and the judge became responsible for filling that position. We have adopted this rationale in prior opinions, (see, for example, CEO 90-62, CEO 98-7) and do so here as well.


Accordingly, we do not find that a lawfully appointed board member must leave her position due to the intervening election of a relative, where the related public official has taken no action to reappoint her or to advocate for her appointment.


QUESTION 3:

Would the Code of Ethics for Public Officers and Employees be violated were the City Commission to appoint a relative of one of its members to an advisory board, where the nomination for appointment is not made by the relative/member?


Your question is answered in the affirmative.


We have consistently stated that "An overriding purpose of the anti-nepotism law is that individuals not be placed in public positions by their relatives or by collegial bodies on which their relatives sit," and that Section 112.3135 prohibits a collegial body from appointing a relative of one of its members to a position on an advisory board. See, CEO 95-12 and CEO 96-5. As we have stated, the statute, "acts as a disqualification to those individuals whose relatives are members of the collegial bodies making the appointments." CEO 95-12. This is true even if the relative who is a member of the collegial body abstains from the vote. CEO 95-12, CEO 96-5. Section 112.3135(2)(a) prohibits a collegial body from appointing a relative of one of its members to a position in the agency, unless the appointment is to a board without land-planning or zoning responsibilities in a municipality with less than 35,000 population. CEO 95-12. As you have advised that the population of the City of Pembroke Park exceeds 150,000, the exception would not apply here.


Your question is answered accordingly.


ORDERED by the State of Florida Commission on Ethics meeting in public session on July 24, 2009 and RENDERED this 29th day of July, 2009.


____________________________________

Cheryl Forchilli, Chair


[1] We note that the language of the Ordinance indicates that the City Commission member makes the appointment. However, you have advised that, in practice, "the Commission members nominate," but the Commission appoints."