CEO 14-08 - April 30, 2014
SPOUSE OF STATE COLLEGE TRUSTEE
HIRED AT COLLEGE
To: Mark E. Lupe, General Counsel, Edison State College (Fort Myers)
The anti-nepotism law, Section 112.3135, Florida Statutes, does not apply to prohibit the employment of the spouse of a member of the board of trustees of a state college in a college position. For purposes of the anti-nepotism law, state colleges are the same as community colleges, which, along with state universities and public schools, are exempted from the law's application.
Does the anti-nepotism law, Section 112.3135, Florida Statutes, which prohibits, with exceptions, the hiring of a public official's relative, apply to prohibit the hiring of the spouse of a member of the board of trustees of a state college to a position at the college?
Your question is answered in the negative.
Through your letter of inquiry and additional information provided to our staff, you relate that the person in whose behalf you seek our opinion ("Trustee") serves as a member of the District Board of Trustees of Edison State College ("the College"), a member institution of the Florida College System; that the system consists of twenty-eight public colleges, each of which is designated to serve a geographic (often, multi-county) district; and that the College's district includes Charlotte, Collier, Glades, Hendry, and Lee Counties. Further, you state that each institution is governed by a local board of trustees; that each has a president who serves as the chief executive officer of the institution and as corporate secretary of the institution's board of trustees; and that among the statutory duties of a president is the establishment and implementation of policies and procedures to recruit, appoint, transfer, promote, compensate, evaluate, reward, demote, discipline, and remove personnel, within law and rules of the State Board of Education and in accord with rules or policies approved by the board of trustees (which, too, has personnel program duties). And, you relate, that employment of personnel at a Florida College System institution is by presidential appointment, subject to rejection for cause by the board of trustees. Continuing, you state that the College went through a screening process to identify and hire an individual ("successful candidate") as a dual enrollment specialist; that the successful candidate's spouse serves on the College's Board of Trustees; that the College's President, who is not a relative of the successful candidate, has already appointed the successful candidate to the position of employment; and that, pursuant to statute, the matter is pending presentment to the Board, which may consider rejection of the successful candidate for cause.
Florida's anti-nepotism law, Section 112.3135, Florida Statutes,1 prohibits a "public official," which can include both an individual with full hiring authority as well as a member of a collegial body where the body, collectively, has the hiring authority, from employing, or recommending for employment, the official's "relative" (defined to include "wife" and "husband"). However, the law applies only to job actions which occur in an "agency," which is defined in the law to include many entities, both state and local, but which excludes from applicability of the law an "institution under the jurisdiction of the Board of Governors of the State University System," a "district school board," and a "community college district." You inquire as to whether the hiring of the College Trustee's spouse would be within the community college district exception to the law, given the evolution of community colleges to state colleges within Florida's overall education system. That is, you inquire as to whether changes in laws affecting community colleges, enabling them to, among other things, effect changes in their titling or names and embark on some four-year degree programs, was intended to remove them from the scope of the exception to the anti-nepotism law, an exception clearly applicable to them if they bore the title "community college."
Under the reasoning below, we find that the exception still applies and, thus, that the College Trustee's spouse can be hired without the law being violated. It is apparent that the language of the exception, "community college district," refers to district-based, post-secondary educational institutions, not state-level (e.g., state university) institutions or elementary/secondary (public school) institutions; and, it is apparent from an examination of language of the Florida K-20 Education Code (Chapters 1000 through 1013, Florida Statutes), that it is not the intent of the Legislature, via enhancing the flexibility of Florida College System institutions regarding their education mission, to effect a change in their treatment under the anti-nepotism law. In this regard, there is nothing in the Education Code which purports to amend Section 112.3135 (the anti-nepotism law); indeed, language of the Education Code supports state colleges and community colleges being the same. See portions of the Education Code, which provide:
Each Florida College System institution shall be governed by a district board of trustees . . . . [Section 1004.65(1), Florida Statutes.]
Whenever the terms "Florida College System institution," "community college," and "junior college" appear in the Florida Statutes in reference to a tax-supported institution, they shall be construed identically. [Section 1004.66, Florida Statutes.]
With the approval of its district board of trustees, a Florida College System institution may change the institution's name set forth in s. 1000.21(3) and use the designation "college" or "state college" if it has been authorized to grant baccalaureate degrees . . . . [Section 1001.60(2)(b)1., Florida Statutes.]
Additionally, Section 1001.21(3), Florida Statutes, lists institutions in the "Florida College System," including Eastern Florida State College, Edison State College (the institution of this opinion), Florida Keys Community College, Hillsborough Community College, and Miami Dade College, among others.
Accordingly, we find that Section 112.3135, Florida Statutes, does not apply to prohibit the hiring of the Trustee's spouse to College employment.
ORDERED by the State of Florida Commission on Ethics meeting in public session on April 25, 2014, and RENDERED this 30th day of April, 2014.
Morgan R. Bentley, Chairman
 Section 112.3135 provides, in its entirety, with emphasis supplied:
(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. This subsection does not apply to persons serving in a volunteer capacity who provide emergency medical, firefighting, or police services. Such persons may receive, without losing their volunteer status, reimbursements for the costs of any training they get relating to the provision of volunteer emergency medical, firefighting, or police services and payment for any incidental expenses relating to those services that they provide.
(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, of individuals whose employment would be otherwise prohibited by this section.
(4) Legislators relatives may be employed as pages or messengers during legislative sessions.