CEO 96-5 -- January 29, 1996

 

ANTI-NEPOTISM

 

COLLEGIAL BODY APPOINTMENTS TO ADVISORY BOARD

AND ENTERPRISE ZONE DEVELOPMENT AGENCY

 

To:      Marion J. Radson, City Attorney (Gainesville)

 

SUMMARY:

 

The State's anti-nepotism law, currently codified at Section 112.3135, Florida Statutes, prohibited the appointment of the husband of a member of the city commission/community redevelopment agency (CRA) to a position on an advisory board of the CRA.  The CRA is within the member's agency (the city) or is a separate agency of the member; in either event it is an "agency" governed by the anti-nepotism law.  In addition, the anti-nepotism law prohibited the appointment of the son of a city commissioner to an enterprise zone development agency.  The city commission had jurisdiction or control over the appointment and over the enterprise zone development agency, or the appointment was to a position in the agency in which the city commissioner was serving.  An overriding purpose of the anti-nepotism law is that individuals not be placed in public positions by their relatives or by collegial bodies on which their relatives sit.  CEO 95-12 and AGO's 70-15, 73-75, 83-13, 83-81, and 85-35 are referenced.

 

QUESTION 1:

 

Was the appointment by a community redevelopment agency (CRA) of the husband of a member of the CRA to a CRA advisory board prohibited by Section 112.3135, Florida Statutes?

 

Your question is answered in the affirmative.

 

By your letter of inquiry, materials accompanying the letter, and additional written information supplied by your office to our staff, we are advised that the Community Redevelopment Agency of the City of Gainesville (CRA) created three advisory boards, one for each of the redevelopment areas in the City, and appointed the members of each board.  One of these appointments, you advise, was bestowed upon the husband of CRA member Paula DeLaney, with the CRA member abstaining from the vote on her husband's appointment.

Pursuant to Section 163.357(1)(b), Florida Statutes, the City Commission, by resolution, declared itself to be the CRA, you advise.  Further, you maintain that under Section 163.357(1)(b), the CRA is "separate, distinct, and independent" from the City Commission.

You question whether the appointment was prohibited by Section 112.3135, and focus on the issue of whether or not the CRA is an "agency" under the definition found at Section 112.3135(1)(a), Florida Statutes.

The State's anti-nepotism law, now found within the Code of Ethics for Public Officers and Employees at 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.

(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.

 

We find that the appointment by the CRA of the CRA member's husband was contrary to Section 112.3135.  Notwithstanding that the member did not participate in the vote to appoint her husband, Section 112.3135, as amended by Chapter 94-277, Laws of Florida, plainly prohibits such appointments, and contains no exception for situations in which the collegial body member whose relative is appointed abstains from voting and otherwise does not actively participate in the appointment.  Further the express language placed in Section 112.3135 by Chapter 94-277, concerning appointments of relatives of members of collegial bodies, was a response to the decision of Galbut v. City of Miami Beach, 605 So. 2d 466 (Fla. 3rd DCA 1992)[1], which held that then Section 112.3135 did not prohibit the appointment of the relative of a member of a collegial body, so long as the member abstained from voting and in no way advocated the appointment.  Additionally, we find that the husband's seat on the CRA's advisory board is a position in an agency in which the CRA member is serving within the meaning of Section 112.3135.

As you point out, Section 163.357(1)(b) [a portion of the Community Redevelopment Act] provides that the members of the governing body of a municipality which declares itself to be a community redevelopment agency "constitute the head of a legal entity, separate, distinct, and independent from the governing body of the . . . municipality."  However, assuming arguendo that language from the Community Redevelopment Act controls an issue under the anti-nepotism statute and therefore that the City Commission and the CRA are not identical entities, we are not persuaded that the language of Section 163.357(1)(b) places the CRA completely outside of, and thus not a part of, the entire political subdivision known as the City of Gainesville.  The definition of "agency" contained in Section 112.3135, unlike the definition of "agency" found at Section 112.312(2), Florida Statutes, which applies to other provisions of the Code of Ethics, encompasses the entirety of a city and other political subdivisions and not merely divisions, bureaus, or parts thereof.

Also, assuming arguendo that the CRA is not at all a part of the City of Gainesville, the CRA itself can be considered an "agency" within the meaning of Section 112.3135.  This is because Section 112.3135(1)(a)6 defines "agency" to mean "[a]ny other political subdivision of the state, except a district school board or community college district."  Section 1.01(8), Florida Statutes, provides that "[t]he words 'public body,' 'body politic,' or 'political subdivision,' include counties, cities, towns, villages, special tax school districts, special road and bridge districts, bridge districts, and all other districts in this state," thus indicating that the Legislature views the term "political subdivision" as synonymous with "body politic."  We note that Section 163.356(1), Florida Statutes, refers to a community redevelopment agency as a "public body corporate and politic."[2]

We view Florida Department of Revenue v. Canaveral Port Authority, 642 So. 2d 1097 (Fla. 5th DCA 1994), cited in your letter of inquiry, as inapposite to our determination of what is an "agency" for anti-nepotism purposes.  That case focused on the question of what is a political subdivision of the State for purposes of sovereign immunity from taxation.[3]

Accordingly, we find that the subject CRA advisory board appointment was prohibited by Section 112.3135, Florida Statutes.

 

QUESTION 2:

 

Was the appointment by a city commission of the son of a member of the city commission to an enterprise zone development agency prohibited by Section 112.3135, Florida Statutes?

 

This question is answered in the affirmative.

 

You advise us that the Gainesville City Commission adopted an ordinance creating the Gainesville Enterprise Zone Development Agency (GEZDA), pursuant to Section 290.0056, Florida Statutes, delegating to GEZDA all powers allowed under the law.  In addition, you advise, the City Commission appointed members of GEZDA, including the son of City Commissioner Edward L. Jennings, Sr., with Commissioner Jennings refraining from voting on the appointment of his son.  Further, the City Commission, you advise, may remove GEZDA appointees only for cause and, thus, you maintain that the City Commission does not exercise any jurisdiction or control over GEZDA.

The powers of GEZDA, you advise, include processing applications for tax incentives, providing assistance to businesses and residents within the enterprise zone, borrowing money and applying for and accepting advances, loans, grants, contributions, and other financial assistance in furtherance of enterprise zone development, making and executing contracts, procuring insurance or bonds, investing funds, and purchasing and selling stocks, bonds, and other instruments.  In addition, you advise that GEZDA submits its budget to the City Commission for approval.

You recognize that Section 112.3135 prohibits a collegial body from appointing a relative of a member of the collegial body to a position in the agency in which the member of the collegial body is serving or to a position in an agency over which the collegial body exercises jurisdiction or control.  Further, you frame the issue as whether GEZDA is part of the City, such that its members have been appointed to positions in the City or to positions in an agency over which the City exercises jurisdiction or control, given, as you put it, the broad powers and independent operations of GEZDA.

Based upon the reasons set forth below, we find that the appointment of the Commissioner's son was prohibited by Section 112.3135.

Our analysis begins with a discussion of the language, "a position in the agency in which the official is serving or over which the official exercises jurisdiction or control" and "serving in or exercising jurisdiction or control over the agency," contained in Section 112.3135(2)(a).  We must determine whether the GEZDA position is located within the "agency" in which the Commissioner is serving.  Further, we must determine whether the subject language refers to jurisdiction and control over placement and occupancy of the position or, rather, whether it refers to other jurisdiction and control over the agency in which the position is located, and if so, whether such control over the agency exists.

Prior to the effective date of Chapter 89-67, Laws of Florida, advisory opinions under the anti-nepotism law were rendered by the Office of the Attorney General, and we have not deviated from the General's interpretation of that law in our administration of it.  Discussion of the jurisdiction and control language has received no advisory opinion treatment from us and little by the General.  The Attorney General apparently has viewed, in at least some opinions, the language as addressing jurisdiction and control over placement in the position, rather than addressing other jurisdiction and control over the agency in which the position is located.  See AGO 73-75, a situation involving employment of a relative of a county commissioner by an agency partly funded by the county commission, which states:

 

If the board of county commissioners is vested with, and actually exercises, jurisdiction or control with respect to the employment, promotion, or advancement of employees engaged in such work, [the anti-nepotism statute] is applicable and would direct that such employees so employed who are related to the degree specified shall not be paid.

If the authority of the Board of County Commissioners of Holmes County is merely that of approving the budget or approving the appointment or employment made by another official vested by law with the authority to appoint or employ, then the Antinepotism Law above referred to would not be applicable.

 

See also AGO 83-13, AGO 83-81, and AGO 85-35, which, in citing AGO 73-75, states:

 

In AGO 73-75, this office concluded that s. 116.111, F.S., prohibited the employment of a brother of a member of a board of county commissioners as a mosquito control and garbage disposal worker when the county commission actually exercised jurisdiction and control with respect to such employment and work.  Thus, it is the position of this office that a board or commission within the definition of 'agency' contained in s. 116.111(1)(a), F.S., which is vested with, and actually exercises, jurisdiction or control over the employment, promotion, or advancement of employees is subject to the nepotism law, and therefore, a collegial body cannot employ, appoint, or promote a relative of a member of the governing body in question.

 

However, AGO 70-15 states that

 

. . . the antinepotism act requires that the employing agency is one over which the civil service board 'exercises jurisdiction or control.'  In that connection it is to be noted that [the anti-nepotism act] states in part:  'Mere approval of budgets shall not be sufficient to constitute "jurisdiction or control" . . . .'

 

Thus it appears that there is no precedent clearly interpreting whether the position in an agency/jurisdiction or control language means that the appointing authority must control appointments to the position or whether the appointing authority must control (in some other sense) the agency in which the position is located.  Nevertheless, we are persuaded that the circumstances of this inquiry establish that the City Commission has jurisdiction or control over appointments to GEZDA's governing board, and that the City Commission has other jurisdiction or control over GEZDA.

The City Commission's jurisdiction or control over appointments is obvious.  Further, notwithstanding that the City Commission has delegated certain powers to GEZDA, language from Chapter 290, Florida Statutes, which addresses entities such as GEZDA, indicates that the City Commission has jurisdiction or control over GEZDA:

 

. . . the . . . municipality shall create a public body corporate and politic to be known as an 'enterprise zone development agency." . . . .  [Section 290.0056(1), Florida Statutes.]

 

When the governing body creates an enterprise zone development agency, that body shall, by ordinance, appoint a board of commissioners of the agency . . . .  [Section 290.0056(2), Florida Statutes.]

 

The governing body shall designate a chair and vice chair from among the commissioners [of the enterprise zone development agency.] . . .  [Section 290.0056(5), Florida Statutes.]

 

At any time after the creation of an enterprise zone development agency, the governing body of the . . . municipality may appropriate to the agency such amounts as the governing body deems necessary for the administrative expenses and overhead of the agency.  [Section 290.0056(6), Florida Statutes.]

 

The governing body may remove a commissioner for inefficiency, neglect of duty, or misconduct in office . . . .  [Section 290.0056(7), Florida Statutes.]

 

. . . contingent upon approval by such governing body, such powers and responsibilities shall be performed by the enterprise zone development agency . . . .  [Section 290.0056(9), Florida Statutes.]

 

Contingent upon approval by the governing body, the agency may invest in community investments corporations . . . .  [Section 290.0056(10), Florida Statutes.]

 

In the event that the nominated area selected by the governing body is not designated a state enterprise zone, the governing body may dissolve the agency after receiving notification from the department that the area was not designated as an enterprise zone.  [Section 290.0056(12), Florida Statutes.]

 

Each application for designation as an enterprise zone must be accompanied by a strategic plan adopted by the governing body of the municipality . . . .  [Section 290.0057(1), Florida Statutes.]

 

In addition, notwithstanding that the City Commission appears to possess jurisdiction or control over both the appointments to GEZDA's board and other aspects of GEZDA's operations, our finding that the appointment was prohibited also is grounded in the overriding theme and purpose of the anti-nepotism statute--that persons not be placed in public positions by the actions of their relatives or of collegial bodies upon which their relatives sit.

In addition to our finding that GEZDA is an agency over which the City Commission exercises jurisdiction or control, we find that the appointment violated Section 112.3135 because the GEZDA governing board position to which the City Commissioner's son was appointed is "a position in the agency in which the [City Commissioner] is serving."  While GEZDA has some powers or responsibilities separate from those of the City Commission, we do not view GEZDA as being totally outside of the political subdivision ("agency") known as the City of Gainesville.

Accordingly, we find that the anti-nepotism law also prohibited the appointment of the City Commissioner's son to GEZDA.

 

ORDERED by the State of Florida Commission on Ethics meeting in public session on January 25, 1996, and RENDERED this 29th day of January, 1996.

 

 

 

__________________________

William J. Rish

Chairman

 


[1] The decision of the District Court of Appeal, Third District, was approved by the Florida Supreme Court in City of Miami Beach v. Galbut, 626 So. 2d 192 (Fla. 1993).

[2] The Legislature's failure to expressly except community redevelopment agencies from the definition of "agency" found in Section 112.3135(1)(a)6, Florida Statutes, as it excepted district school boards and community college districts, supports the view that all other public bodies, bodies politic, or political subdivisions, including community redevelopment agencies, are included within Section 112.3135's definition of agency.  A maxim of statutory construction, expressio unius est exclusio alterius (the expression of one thing is the exclusion of another), supports this reasoning.

[3] Canaveral Port Authority, supra, recognized that "Florida has 'political subdivisions' other than counties which are immune from taxation."  Id., 1099.  Further, the court's observation in footnote 6 of the opinion (that the definition of "political subdivision" contained in Section 1.01(8) does not control the question of immunity from taxation) buttresses our position that the State's jurisprudence concerning sovereign immunity from taxation does not control the question of what is an "agency" under the anti-nepotism law.