CEO 91-23 -- April 19, 1991
CITY POLICE CHIEF'S STEPDAUGHTER EMPLOYED AS COMMUNICATIONS OFFICER
To: (Name withheld at the person's request.)
Even though there were only two qualified applicants for a position in a city police department, and where only one of the two applicants successfully completed the training period, there is no exception to Section 112.3135, Florida Statutes, which would permit the police chief to employ his stepdaughter in the position. CEO's 90-11 and 89-46, and AGO 74-370 are referenced.
Are there any exceptions to Section 112.3135, Florida Statutes, which would permit a city police chief to employ his stepdaughter in a position with the police department?
Under the circumstances presented, your question is answered in the negative.
In your letter of inquiry, you advise that you serve as the Police Chief of the City of Williston and that in 1989 you employed your stepdaughter as a part-time Animal Control Officer. In February, 1991, a Communications Officer position needed to be filled. Your stepdaughter and one other person applied for the position. Both underwent training, but the other applicant quit prior to the end of the training period. You indicate that there was also a part-time employee who was interested in the position but that she did not meet the qualifications to become a full-time employee. Ultimately, the Lead Communications Officer recommended your stepdaughter for the position. The chain of command for this position is: Communications Officer - Sergeant - Lieutenant - Chief - Mayor. Finally, you state that your step-daughter has not been treated any differently than any other employee. You question whether there are any circumstances under which a public officer could employ his stepdaughter.
The anti-nepotism law, which has been incorporated into the Code of Ethics for Public Officers and Employees as 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) "Public official" means an officer, including a member of the Legislature, the Governor, and a member of the Cabinet, or 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; and
(c) "Relative" 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 he is serving or over which he exercises jurisdiction or control any individual who is a relative or 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.
This provision prohibits a public official from employing or appointing, or advocating the employment or appointment of, a relative into the agency in which he serves or exercises control. The term "relative" includes one's stepdaughter. Section 112.3135(1)(c), Florida Statutes.
From the information you have provided it appears that you, as Chief of the Police Department, have final authority and responsibility for personnel decisions in your department. Therefore, we conclude that you may not employ your stepdaughter in the Communications Officer position, notwithstanding the fact that she was one of only two applicants for the position and that she was the only applicant who completed the training period. This conclusion is consistent with the opinions we have previously rendered interpreting Section 112.3135, Florida Statutes. See CEO 90-11 and CEO 89-46. It is also consistent with those opinions rendered by the Attorney General when the anti-nepotism statute was contained in Section 116.111, Florida Statutes.
Although there is an exception in Section 112.3135(3), Florida Statutes, which would permit you to temporarily employ your stepdaughter during an emergency of disastrous proportions, there is no other exception in the statute that would permit you to employ your stepdaughter as the Communications Officer. As noted by the Attorney General in AGO 74-370:
Any other exceptions from the statutory requirements must be provided by the legislature. Where a statute sets forth exceptions, no others may be inferred. Dobbs v. Sea Isle Hotel, 56 So.2d 341 (Fla. 1952); Williams v. American Surety Company of New York, 99 So.2d 877 (Fla. 1958). Had the legislature intended to establish other exceptions it would have done so clearly and unequivocally. Dobbs, supra.
We are not unmindful of the hardship the anti-nepotism statute places among less populated communities where there is a smaller pool of qualified applicants. However, to ameliorate this provision, the Legislature would have to enact a statutory exception, and it has not, to date, seen fit to do so.
Accordingly, we find that you, as Chief of the City of Williston Police Department, may not employ your stepdaughter in the position of Communications Officer.