CEO 96-6 -- January 29, 1996
EMPLOYMENT OF AGENCY DIRECTOR=S WIFE=S BROTHER=S
WIFE UNDER DIRECTOR=S SUPERVISION AND DIRECTION
To: (Name withheld at the person=s request.)
Because the relationship created by the marriage of an employee to an agency director's wife's brother does not come within the classes of relationship specified in Section 112.3135(1)(d), Florida Statutes, upon which the anti-nepotism law, Section 112.3135, Florida Statutes, operates, the law does not prohibit the employee's employment under the director's supervision and direction. For purposes of the application of Section 112.3135, the wife of the brother-in-law of the director is not the director's sister-in-law, a relationship that is included in the classes of "relatives" specified in Section 112.3135(1)(d).
Does the anti-nepotism law prohibit the wife of the brother of the wife of the Director of Audit in the Department of Management Services' Office of Inspector General from being assigned to work under the Director's supervision and direction?
Your question is answered in the negative.
In your letter of inquiry, you advise that Mr. A has been employed in the Department of Management Services' ("DMS") Office of the Inspector General since October 1990. In February 1993, you advise, Ms. B. applied for an Internal Auditor I Position within the Office. At that time, you write, she was engaged to Mr. A's wife's brother. Upon determining that Ms. B. was the best candidate for the position and with full knowledge of Mr. A's relationship to Ms. B, the then Inspector General hired Ms. B. You advise that Mr. A. did not influence the Inspector General's assessment of Ms. B's suitability for the position in any way. Shortly thereafter, Ms. B married Mr. A's wife's brother, you advise.
You advise further that after the then Inspector General resigned her position in March 1995, the Office of Inspector General was reorganized. Under the new organizational structure, an Internal Audit Function and a Management Advisory Services Function were created. The Internal Audit Function consists of the former Office of the Inspector General, you write, and the Management Advisory Services Function consists of the former Office of Quality Improvement. You advise that both the Director of Audit and the Director of Advisory Services report to you, the Inspector General.
Because Mr. A was appointed Director of Audit, the Department has become concerned about the appearance and legality of Ms. B's working on projects under Mr. A's direction, you write. However, in order to address the appearance issue, Ms. B was assigned by you to the Management Advisory Services Function. Moreover, because the Department's General Counsel determined that there was no limit to the percentage of Ms. B's time that could be devoted to projects under Mr. A's direction, she also was assigned to work on these projects.
You write that you are concerned about this arrangement because Ms. B's background, knowledge, skills, and abilities are much more suited to the type of projects handled by the Internal Audit Function. You write that you believe that she can best serve the Department by working on projects within the Internal Audit Function. Therefore, until you receive our opinion on the effect of the Code of Ethics and, specifically, the anti-nepotism provision on Ms. B's employment vis-a-vis Mr. A's position as Director of Audit, Ms. B will be assigned to work directly for you. You advise that you will assign her projects relating to both the Internal Audit and Management Advisory Services Functions.
Additionally, you advise you will continue to seek information from Mr. A regarding the performance of employees working on projects under his direction. However, his comments are only one of the factors that you consider in determining whether an employee should receive a promotion or salary increase. Other factors that you consider in making these determinations are whether the employee has received advanced degrees and/or certifications, the employee's experience, and the employee's position and salary level in comparison to other employees within your office and the Department. With respect to your consideration of Ms. B for possible promotions and/or pay increases, you write that you also will have the option of directly reviewing any work papers and/or reports that she has prepared.
Within the Code of Ethics for Public Officers and Employees, the Anti-Nepotism Law provides in relevant part:
RESTRICTION ON EMPLOYMENT OF RELATIVES.--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. [Section 112.3135(2)(a), Florida Statutes.]
This provision prohibits a public official from promoting or advancing, or advocating the promotion or advancement of, a relative in the agency he or she serves or over which he or she exercises control. For purposes of this law, the term "relative" includes one's "sister-in-law." See Section 112.3135(1)(d), Florida Statutes.
In CEO 93-15 and CEO 90-62, we noted that prior to the 1989 transfer of the anti-nepotism law into the Code of Ethics for Public Officers and Employees, that provision (formerly Section 116.111, Florida Statutes) was interpreted by a number of Attorney General's opinions whose reasoning we essentially have adopted in issuing our opinions involving Section 112.3135. Thus, in CEO 90-62, we opined that Section 112.3135(2)(a) was not violated where a city police chief and his father both worked in the police department and where the father was employed there prior to his son's becoming chief. We noted that the Attorney General had consistently interpreted Section 116.111 not to require the discharge of a person whose relative took the higher position after the person's employment or otherwise where the prohibited relationship came into being after the person's employment. In other words, where a public official married one of his employees, the Attorney General opined that the employee was allowed to continue in the same position and to participate in routine raises, but she could not be promoted or advanced, or recommended or advocated for a promotion or advancement. See AGO's 77-36 and 73-35. We adhere to this interpretation, previously approved by us in CEO 89-46, and find that, assuming that Ms. B. is Mr. A's relative, she would be allowed to continue to work under his supervision and direction without violating Section 112.3135(2)(a).
The anti-nepotism law addresses only appointment, employment, promotions, and advancement. As it does not address any other aspect of the supervisory authority a public official may have over a relative, it cannot be applied to prohibit an official from such actions as stationing, transferring, evaluating, or even suspending a relative. This principle also was recognized in AGO 73-397, in which it was found that a city could hire a policewoman who was the daughter of a patrolman who at times would supervise his daughter. Thus, in CEO 91-27, we found that where a police officer's first cousin was assistant city manager with no authority to employ or promote police officers at the time when the police officer was hired, the officer's hiring was not prohibited by Section 112.3135 because the officer's cousin, even as city manager with such authority, was not hiring, promoting, or advocating the hiring or promotion of the officer. See also CEO 93-15, CEO 94-26, and CEO 94-30. Thus, as we indicated above, assuming for purposes of this analysis only that Ms. B is Mr. A's sister-in-law, the anti-nepotism law would not prohibit him from either supervising her or evaluating her work.
The ultimate question to be determined here, however, is whether Ms. B is Mr. A's sister-in-law for purposes of the application of Section 112.3135(2)(a). The term "sister-in-law" is defined in Black's Law Dictionary, 5th Edition, as the "[s]ister of one's spouse; wife of one's brother." In contrast, Ms. B is the wife of Mr. A's wife's brother. In AGO 85-36, the Attorney General applied the statutory rule of construction expressio unius est exclusio alterius [the express mention of one thing in a statute implies the exclusion of other things not mentioned] and concluded that the relationship created by marriage to the brother-in-law (defined in Black's Law Dictionary, 5th Ed., as "[a] wife's brother or a sister's husband") of one of the members of the board of county commissioners would not be within the classes of relationship that would "activate" the prohibition of Section 116.111, Florida Statutes. There, the Attorney General reiterated his previously held position that since the courts have held that the nepotism law is "penal in nature," it must be strictly construed. Therefore, the enumeration of various relationships in the nepotism statute operated to exclude those relationships not specifically included therein, opined the Attorney General, such as the relationship created by marriage to the brother-in-law of a county commissioner. In light of the Florida Supreme Court's recent reiteration and admonition that because of the "penal nature" of the anti-nepotism statute, a strict construction is required [see City of Miami Beach v. Galbut, 626 So. 2d 192, 194 (Fla. 1993)], we adhere to the opinion expressed by the Attorney General in AGO 85-35 and find that the relationship created by the marriage of Ms. B to Mr. A's brother-in-law does not come within the classes of relationship specified in Section 112.3135(1)(d), Florida Statutes, that would "activate" the prohibitions of Section 112.3135(2)(a). That is, we find that Ms. B is not Mr. A's "sister-in-law" for purposes of the application of Section 112.3135(2)(a) to Ms. B's employment with the Office of the Inspector General.
As we have found that Section 112.3135(2)(a) does not restrict in any way Ms. B's employment with the Office of the Inspector General, and because the Department's concern with appearances resulting from Ms. B's employment under Mr. A's supervision and direction is not indicative of a violation of the Code of Ethics and is, therefore, outside the jurisdiction of the Commission, we decline your invitation to respond to any of your other questions. Your question is answered accordingly.
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