CEO 02-3 -- January 29, 2002
ANTI-NEPOTISM; CONFLICT OF INTEREST
CITY DEPARTMENT DIRECTOR'S PARAMOUR PROMOTED WITHIN DEPARTMENT; COMPANY'S PURCHASE OF GIFT BASKETS FROM PARAMOUR'S BUSINESS; CONSTRUCTION OF PARAMOUR'S HOME BY CONTRACTOR PARTICIPATING IN CITY HOUSING PROGRAMS; PERMITTING OF HOME; AND HANDLING OF CODE VIOLATION COMPLAINTS
To: (Name withheld at person's request.)
SUMMARY:
The State's anti-nepotism law (Section 112.3135, Florida Statutes) did not prohibit the promotion within a city department of an employee who was not a "relative" of the department's director, notwithstanding the close, personal relationship between the two. However, due to the unavailability of adjudicatory fact-finding in the context of an advisory opinion, the other questions of the inquiry are not answered herein. The Legislature is strongly urged to amend the anti-nepotism law to include paramours. CEO's 99-5, 94-27, and 90-62 are referenced.
QUESTION 1:
Did the State's anti-nepotism law (Section 112.3135, Florida Statutes) prohibit the promotion of the paramour of a city department head to a senior redevelopment counselor position in the department?
This question is answered in the negative.
By your letter of inquiry and accompanying materials, we are advised that . . . (Director) served as Director of the Department of Business and Community Services (BCS), one of approximately twenty governmental departments of the City of Tampa. Further, we are advised that BCS is divided into eight divisions, one of which is the Community Redevelopment Agency (CRA) Division (Division). BCS, we are advised, is responsible for coordinating all land development activities, including subdivisions, rights-of-way, and zoning; management of City real estate sales, acquisitions, and leases; coordination of neighborhood improvement activities, including code enforcement; conducting inspection and regulation of residential and commercial building construction; and administration of housing redevelopment programs, job training, and urban redevelopment. Further, we are advised that BCS has approximately 240 employees and a fiscal year 2001 proposed budget of approximately ten million dollars.
In addition, we are advised that . . . (Employee) began her service with the City in 1989 as a Clerical Specialist I in the CRA Division of what is now the Department of BCS; that she remained there until November 1992, when she was promoted to Redevelopment Counselor Trainee in the CRA Division; and that on April 24, 1995, she was promoted to Senior Redevelopment Counselor (the position which is the focus of the instant inquiry) in the administrative offices of BCS, where she also performed the function of an administrative assistant to the Director. Also, we are advised that the Director and the Employee are and have been involved in a personal relationship; that the Employee is pregnant with the Director's child; that the Employee is single/divorced; and that the Director is proceeding with dissolution of his marriage to a person other than the Employee.
Section 112.3135, Florida Statutes, 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. 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(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.
Section 112.3135 prohibits a "public official" from appointing, employing, promoting, or advancing, or advocating the appointment, employment, promotion, or advancement, of a "relative" [as defined in paragraph (1)(d)].[1] Therefore, assuming arguendo that the Director promoted or advocated promotion of the Employee, we nevertheless find that her promotion was not prohibited by Section 112.3135. Notwithstanding the existence of the very close, personal relationship between the Director and the Employee, apparently existing at least in some measure at the time of the promotion at issue, it is clear that such a relationship (that of paramour, "significant other," or lover) does not fall within the relationships (e.g., "uncle," "aunt," "husband," "wife") chosen by the Legislature in enacting the prohibition. See, for example, CEO 99-5 in which we found that a county commissioner's mother's sister's husband could be hired by the county commission because he was not the county commissioner's "uncle" for purposes of the anti-nepotism law. Also, see CEO 94-27 in which we found that a gentleman friend of a school board member was not her "spouse" under Section 112.313(3), Florida Statutes. Further, Section 112.3135 is a penal statute; when a statute imposes a penalty, any doubt as to its meaning must be resolved in favor of strict construction (narrow interpretation favorable to a potential respondent) so that those covered by the statute have clear notice of what conduct the statute proscribes; and thus a position that the anti-nepotism statute should be liberally interpreted (construed beyond its plain meaning) for the public benefit is clearly misplaced. See City of Miami Beach v. Galbut, 626 So. 2d 192 (Fla. 1993). In essence, it is not the role of this Commission to rewrite or enlarge statutory terminology selected by the lawmaking body of this State, no matter the existence of compelling policy concerns.[2] However, the Legislature is strongly urged to amend the anti-nepotism law to include paramours.
This question is answered accordingly.[3]
QUESTION 2:
Was a prohibited conflict of interest created under Section 112.313(3) or Section 112.313(7)(a), Florida Statutes, by virtue of the Employee's business's provision, via a contract with a limited liability company, of gift baskets to new homeowners?
Under the scenario presented, we decline to answer this question due to the unavailability of adjudicatory fact-finding in the context of an advisory opinion.
QUESTION 3:
Did the home-construction contract between the Employee and a construction company participating in City affordable housing programs create a prohibited conflict of interest under Section 112.313(7)(a), Florida Statutes?
Under the scenario presented, we decline to answer this question due to the unavailability of adjudicatory fact-finding in the context of an advisory opinion.
QUESTION 4:
Was a prohibited conflict of interest created under Section 112.313(6) or Section 112.313(8), Florida Statutes, regarding the plans review, permitting, or construction of the home?
Under the scenario presented, we decline to answer this question due to the unavailability of adjudicatory fact-finding in the context of an advisory opinion.
QUESTION 5:
Was a prohibited conflict of interest created for either the Employee or the Director under either Section 112.313(6) or Section 112.313(8), Florida Statutes, regarding the filing and handling of code violation complaints against and by the Employee?
Under the scenario presented, we decline to answer this question due to the unavailability of adjudicatory fact-finding in the context of an advisory opinion.
ORDERED by the State of Florida Commission on Ethics meeting in public session on January 24, 2002 and RENDERED this 29th day of January, 2002.
__________________________
Ronald S. Spencer, Jr.
Chair
[1]The statute does not address such activities as supervising or evaluating the performance of a relative. See CEO 90-62.
[2]See Section 112.312(21), Florida Statutes, which contains a definition of "relative" applicable to, inter alia, the gift law codified at Section 112.3148, Florida Statutes, but clearly not applicable to the anti-nepotism law, for an example of statutory language that likely would encompass the situation of the instant inquiry. Section 112.312(21) defines "relative" to mean ". . . person who is engaged to be married to the public officer or employee or who otherwise holds himself or herself out as or is generally known as the person whom the public officer or employee intends to marry or with whom the public officer or employee intends to form a household, or any other natural person having the same legal residence as the public officer or employee."
[3]Whether the Director's involvement in matters related to the Employee's promotion [e.g., his sending a memorandum to the City's personnel manager requesting predetermination of the Employee's eligibility for a position (opinion request exhibit 8) and his possible attempt to placate disappointed seekers of the position the Employee was promoted to (page 5 of the opinion request's Presentation of Facts and Issues, first full paragraph)] constitutes a misuse of public position under Section 112.313(6), Florida Statutes, cannot be answered in the context of this opinion. Such issues are laden with factual nuances, witness credibility questions, the need for cross examination and argument, and other factors necessary to fact-finding that are not available in the opinion process.