CEO 91-27 -- June 7, 1991
CITY POLICE OFFICER BEING PROMOTED
WHERE HIS FIRST COUSIN IS CITY MANAGER
To: Joseph J. Mancini, Attorney for City of Port St. Lucie,(Fort Pierce)
The anti-nepotism law, Section 112.3135, Florida Statutes, prohibits the promotion of a city police officer whose first cousin is city manager where the city manager has approval authority over police promotions. The application of the statute cannot be avoided by the city manager's delegation of his approval authority. Since the officer began employment prior to his cousin's becoming city manager, the anti-nepotism law does not prohibit his remaining in that position. CEO 90-11 and CEO 90-62 are referenced.
Does the anti-nepotism law prohibit the promotion of a city police officer where the officer's first cousin is city manager if the city manager delegated his approval authority regarding the promotion?
Your question is answered in the affirmative.
In your letter of inquiry, in a subsequent letter to our staff, and in a telephone conversation with our staff, you advise that in June 1990 an individual was hired as a police officer by the City of Port St. Lucie. At the time of hiring, the individual's first cousin was Assistant City Manager, and the Assistant City Manager had no authority regarding the employment or appointment of police officers. Approximately six months after the hiring, the officer's first cousin became City Manager. The City's Chief of Police, pursuant to his employment contract, is vested with authority to appoint, employ, and otherwise direct the police force, subject to the supervision of the City Manager. Promotions to ranks such as police sergeant are by written examination and oral review board interview, with the Chief of Police recommending one of the top three examination/interview scorers to the City Manager for approval or disapproval of the promotion. The collective bargaining agreement between the City and the police union provides that the City Manager may withhold approval of the Chief of Police's recommendation if the City Manager determines that the promotion is not in the best interest of the City. Promotions to ranks such as police captain are made by the Chief of Police and are subject to the review and approval of the City Manager; the City Manager has delegated primary responsibility for reviewing the Chief's promotion decisions to the City Personnel Director, although the City Manager does review the promotion decision. You are unaware of any instances in which persons recommended for promotion to ranks such as sergeant or captain have not been approved by the City Manager. You further advise that it is uncertain what would be the eventual outcome of a decision by the City Manager not to approve a promotion or advancement.
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 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.
This provision prohibits a public official from employing, appointing, promoting, or advancing, or advocating for employment, appointment, promotion, or advancement, a relative into or within the agency in which the official serves or over which he exercises jurisdiction or control. The term "relative" includes one's first cousin. Section 112.3135(1)(c).
From the information you have provided us, it appears that the City Manager has final authority over the promotion or advancement of police officers, even though a portion of his role in the process may have been delegated. Further, delegation by the City Manager of his duties in the promotion or advancement process does not divest the City Manager of his authority regarding promotions or advancements. See CEO 90-11. Therefore, we find that the police officer may not be promoted or advanced as long as his first cousin is City Manager.
In reaching our conclusion, we are not unmindful of the uncertainties you expressed regarding the eventual outcome of a decision by the City Manager not to approve promotion or advancement of a police officer, under the union contract or outside of it. However, absent clear guidance from a court to the contrary, we must presume the City Manager's powers and responsibilities, under the police union contract and otherwise, as you have related them, to be valid and enforceable rather than merely directory or of no effect.
Accordingly, we find that the anti-nepotism law prohibits the police officer from being promoted or advanced while his first cousin is City Manager.
Does the anti-nepotism law prohibit the continued employment of a city police officer whose first cousin was assistant city manager when the officer was hired and whose first cousin is currently city manager?
This question is answered in the negative.
Inasmuch as the police officer's first cousin, as assistant city manager at the time the officer was hired, had no authority to employ or appoint police officers, the officer's hiring was not prohibited by the anti-nepotism law. Similarly, continued service by the officer is not prohibited by the anti-nepotism law because the officer's cousin, even as City Manager, is not hiring, promoting, or advocating hiring or promotion of the officer. See CEO 90-62.
Your question is answered accordingly.