CEO 15-07– July 29, 2015
DUAL PUBLIC EMPLOYMENT
SCHOOL BOARD MEMBER SERVING AS COUNTY MANAGER
To: Name withheld at person’s request (Member, District School Board of . . . County)
Under the particular circumstances presented, Section 112.3125, Florida Statutes, would not be violated were a member of a school board to serve as county manager.
Would a school board member’s service as county manager violate the restrictions of Section 112.3125, Florida Statutes?
Under the particular circumstances presented, your question is answered in the negative.
In your letter of inquiry, you relate that you began your career with . . . County government as an emergency medical technician in 1991. Since that time you have been continuously employed by the County in the medical services arena and in 2008 you were appointed by the Board of County Commissioners to the position of Emergency Services Director, overseeing the provision of emergency medical services, fire services, and emergency management and enhanced 911 services. In addition, in November 2000 you were elected to serve on the District School Board of . . . County. Thereafter, you were reelected three times and you are currently serving in your fourth term. You state that on March 6, 2015, the County Manager notified the Board of County Commissioners of his intention to leave public employment and thereafter vacated the position on May 11, 2015. You relate that before leaving public office, the County Manger recommended you to the Board of County Commissioners for promotion to the position of County Manager. During its regularly scheduled meeting on March 19, 2015, the Board of County Commissioners voted to implement an Acting Assignment Agreement to enable you to perform the duties of County Manager in a temporary capacity, for a period of no more than one year from the designated commencement day (March 23, 2015), until such time that an opinion from the Commission on Ethics could be rendered in this matter. You further indicate that your expanded job responsibilities and additional compensation pursuant to this agreement require that you perform the duties of both the Emergency Services Director and the County Manager. Moreover, you relate that if permissible, the Board of County Commissioners would seek to place you in the permanent position of County Manager which will encompass the duties of the Emergency Services Director. Moreover, if permissible, you would like to continue to serve as a School Board member.
The provision of the Code of Ethics for Public Officers and Employees implicated is Section 112.3125, Florida Statutes, which provides:
DUAL PUBLIC EMPLOYMENT.-
(1) As used in this section, the term “public officer” includes any person who is elected to state or local office or, for the period of his or her candidacy, any person who has qualified as a candidate for state or local office.
(2) A public officer may not accept public employment with the state or any of its political subdivisions if the public officer knows, or with the exercise of reasonable care should know, that the position is being offered by the employer for the purpose of gaining influence or other advantage based on the public officer’s office or candidacy.
(3) Any public employment accepted by a public officer must meet all of the following conditions: (a) The position was already in existence or was created by the employer without the knowledge or anticipation of the public officer’s interest in such position; (b) The position was publicly advertised; (c) The public officer was subject to the same application and hiring process as other candidates for the position; and (d) The public officer meets or exceeds the required qualifications for the position.
(4) A person who was employed by the state or any of its political subdivisions before qualifying as a public officer for his or her current term of office or the next available term of office may continue his or her employment. However, he or she may not accept promotion, advancement, additional compensation, or anything of value that he or she knows, or with the exercise of reasonable care should know, is provided or given as a result of his or her election or position, or that is otherwise inconsistent with the promotion, advancement, additional compensation, or anything of value provided or given an employee who is similarly situated.
(5) This section may not be interpreted as authorizing employment that is otherwise prohibited by law.
Section 112.3125(2) prohibits a public officer from accepting any public employment if he or she knows, or with the exercise of reasonable care should know, that the position is being offered for the purpose of gaining influence or other advantage. Section 112.3125(3) further requires that any additional public employment must be obtained in compliance with all of the requirements of the statute. In addition, Section 112.3125(4) permits a person that is currently employed by a political subdivision of the State to continue in that position, however, it further prohibits the employee from accepting promotion, advancement, additional compensation, or anything of value if he or she knows, or should know, that such advancement is being provided as a result of his or her election or position or which is inconsistent with advancements provided to similarly situated public employees.
Section 112.3125(1) defines “public officers” to include “any person who is elected to state or local office or, for the period of his or her candidacy, any person who has qualified as a candidate for state or local office.” In the instant matter, you are encompassed within this definition since you are serving as an elected member of the School Board. Moreover, the additional employment opportunity being considered is that of County Manager. The position of County Manager in this instance is being expanded to include the responsibilities of your previous public position as Emergency Services Director. The Board of County Commissioners has selected you for the position of County Manager based on the recommendation of the previous County Manager (who served in that capacity from April 2009 to May 2015) and in light of your 24 years of service with the County. Accordingly, we do not believe that the position of County Manager is being offered to you for the purpose of gaining influence or other advantage in contravention of Section 112.3125(2), Florida Statutes.
In addition, we must further analyze the additional public employment opportunity in light of the requirements of Section 112.3125(3), Florida Statues. In this matter you indicate that the position of County Manager has been in existence since January of 1998 and that since that time only two individuals have served in this position, the first of whom served from January 1, 1998, through October 31, 2009, and the second of whom served from April 20, 2009, through May 11, 2015. In light of the longevity of the previous two appointments and the lack of turnover associated therewith the County has not developed a rigid process for the selection of candidates for this position. For example, in 2009 the position was publicly advertised and interviews of qualified applicants were undertaken in a public workshop. In the instant matter, the previous County Manager recommended you, the individual currently serving as the Emergency Services Director, as the most qualified applicant. Thereafter, the Board of County Commissioners appointed you as acting County Manager in an interim capacity absent any public advertisement of the position or a formal interview process.
In lieu of a rigid selection process, the County has developed an Employee Policy that seeks to promote existing employees based on merit and experience. In accordance with this policy, in the two previous instances in which County Managers were selected, both individuals had served as Emergency Services Directors. You indicate that individuals that serve as Emergency Services Directors are uniquely qualified for the position of County Manager because they attend all County Commission meetings, coordinate with many departments within the County, and serve as administrative coordinators in the preparation of budgets and oversight of personnel, all of which are necessary to effectively serve in the position of County Manager. You indicate that you have served in a public capacity with the County for 24 years and most recently have served as Emergency Services Director from 2008 to present. Thus, on the basis of your extensive experience, knowledge, and prior work performance the facts indicate that you both meet and exceed the qualifications for the position of County Manager. In light of your objective qualifications for the position and your unique work experience we do not believe that it was the intent of the Legislature to eliminate a person with your work history from advancement based upon a rote application of Section 112.3125, Florida Statutes. Therefore, on the basis of the foregoing, we find that you have obtained the position of County Manager in accordance with Section 112.3125(3), Florida Statues.
In addition, the statute, in subsection (4), expressly “grandfathers” persons who held their public employment prior to their qualification for public office, a situation obvious from your work history with the County. And, it is clear from the language of subsection (4) that promotion from grandfathered employment is not prohibited unless it is based on actual or constructive knowledge that the promotion is given as a result of election or position (a situation not evident in the instant matter for the reasons set forth above) or unless it is otherwise inconsistent with the promotion provided or given to similarly situated employees; and your placement looks to be consistent with that of previous County Managers.
Accordingly, we find that your placement in the position of County Manager is not prohibited by Section 112.3125, Florida Statutes.
ORDERED by the State of Florida Commission on Ethics meeting in public session on July 24, 2015, and RENDERED this 29th day of July, 2015.
Stanley M. Weston, Chair