CEO 94-39 -- October 13, 1994

ANTI-NEPOTISM

COUNTY SUPERVISOR OF ELECTIONS

PROMOTING OR ADVANCING SON-IN-LAW

To: (Name withheld for lack of consent.)

SUMMARY:

The anti-nepotism law, Section 112.3135, Florida Statutes, prohibits the promotion of an employee in a county supervisor of elections office where the employee is the son-in-law of the supervisor. Although the prohibited relationship came into being after the employee's initial hiring and would not require his discharge, an April 1994 personnel change affecting the employee's title, job responsibilities, and salary appears to be a "promotion" or "advancement" prohibited by Section 112.3135(2)(a), Florida Statutes. Referenced are CEO's 94-30, 90-62 and 89-46.

QUESTION:

Does the Anti-Nepotism Law prohibit you, a county supervisor of elections, from assigning additional responsibilities along with a pay increase to an employee in your office who is also your son-in-law?

Under the circumstances presented, your question is answered in the affirmative.

Through your letter of inquiry and other information provided by you to our staff we are advised that in May 1992, you hired an individual as a summer employee whose duties involved the maintenance of voting equipment and facilities. His compensation was fixed at $6.00 per hour, which equated to $12,480.00 annually. In November 1992 he became a permanent employee on your staff, with an increase in his hourly rate to $6.50 per hour, or $13,520.00 annually. You relate that he was trained in all phases of the voter registration process and worked with various software and data processing equipment. He also, you advise, assisted in redistricting, precinct mapping, and conducting the 1992 elections. In July 1993, he was assigned to Data Information Services and was given additional duties and responsibilities relating to the selection of mapping and delivery of voting equipment to the precincts. His hourly rate was increased as a result of these additional responsibilities to $8.00 per hour, or $16,640.00 annually.

In November 1993, you relate that this employee married one of your daughters. Your office reviewed his employment status with the County's personnel department and was assured that he could continue working in your office without violating the Anti-Nepotism Law, Section 112.3135, Florida Statutes. This employee's duties were further supplemented in February 1994, when he was given the responsibility of coordinating and delivering voting equipment to those precincts involved in a special election for Florida House of Representatives District 55. Because of his exceptional performance of these additional responsibilities, in April 1994 he was formally transferred to Election Services and his salary was increased to $8.50 per hour ($17,680.00 annually). You now question whether Section 112.3135(2)(a), Florida Statutes, was violated as a result of this latest personnel action.

Section 112.3135(2)(a), Florida Statutes, provides:

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 officer. 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 or exercising jurisdiction or control over the agency, who is a relative of the individual.

This provision prohibits a public official from promoting or advancing, or advocating the promotion or advancement of, a relative in the agency he serves or over which he exercises control. For purposes of the Anti-Nepotism Law, the term "relative" includes one's son-in-law. See Section 112.3135(1)(c), Florida Statutes.

Initially, we note that Section 112.3135(2)(a), Florida Statutes, does not prohibit the individual who subsequently became your son-in-law from continuing to be employed in the Supervisor of Elections office. We addressed this issue in CEO 90-62, in which we opined that the Anti-Nepotism Law did not require the discharge of a person where the prohibited relationship came into being after the person's employment. However, we also have consistently stated that the related individual may continue to work in the same position and participate in routine raises, but cannot be promoted or advanced, or recommended or advocated for promotion or advancement. See also CEO 94-30 and CEO 89-46.

Here, it is our view that this employee's April 1994 pay increase, change in title, and assignment of additional responsibilities constituted an "advancement" or "promotion" and, thus, contravened Section 112.3135(2)(a), Florida Statutes. In Slaughter v. City of Jacksonville, 338 So.2d 902 (Fla. 1st DCA 1976), the court found that "advancement" or "promotion" meant "an increase in grade which elevates an employee to a higher rank or position of greater personal dignity or performance." In the situation you have described, although this employee's April 1994 personnel action was characterized as a "lateral transfer," his job title changed from "Data Processing" to "Precinct Coordinator." Additionally, while the various personnel forms indicate that his "range/step" remained the same with each personnel action, clearly, his compensation increased, notwithstanding the fact that it may have remained within the range authorized by the pay and classification table used by the County personnel system. Nor are we persuaded that his was not a promotion simply because all employees in your office are "cross-trained" and able to perform numerous tasks in addition to their primary assigned responsibilities, or because the action did not elevate him into one of the four designated management positions on your staff. Because this employee's change in personnel status was more than a routine or across-the-board pay raise or salary increase enjoyed by every other employee in your office, and it appears to us to also have had the effect of "enhancing" the personal dignity and importance of his position, we conclude that his April 1994 change in personnel status constituted a "promotion" or "advancement" which, under the circumstances presented, is prohibited by Section 112.3135(2)(a), Florida Statutes.

Your question is answered accordingly.