Judges: Robert L. Shevin, Attorney General Prepared by: Jerald S. Price Assistant Attorney General
Filed Date: 12/30/1977
Status: Precedential
Modified Date: 7/5/2016
QUESTIONS:
1. Would s. 116.111, F. S. (the Antinepotism Law) be violated if a municipal governing body employs the wife of one of the members of the governing body to serve as the municipal clerk?
2. Would such hiring be in violation of s. 116.111 on the basis that the applicant's husband is the first cousin of a member of the governing body?
3. Does abstention by the related governing body member from voting on the employment of his relative avoid violation of s. 116.111?
SUMMARY:
A municipal governing body is prohibited by s. 116.111, F. S., from employing the wife of one of the members of that body as municipal clerk. The prohibition cannot be avoided by the abstention of the related member of the governing body from voting on the employment of his wife. No violation of s. 116.111 would occur solely upon the employment by a board of the spouse of a first cousin of a member of the board, as the relationship of ``cousin-in-law' is not among the classes of relationship specified in s. 116.111(1)(c). The exception in s. 116.111(4) for temporary employment of a relative in emergencies is limited to emergencies resulting from natural disasters and the like and does not allow the employment of a relative as a substitute for a regular employee who is on sick leave. A person employed in violation of s. 116.111 is prohibited by s. 116.111(3) from receiving payment for such employment, and an agency is likewise prohibited from paying a person employed in violation of s. 116.111. Pending judicial or legislative clarification of the term ``any other political subdivision of the state,' as used in s. 116.111(1)(f), it cannot be unequivocally determined whether the prohibitions of s. 116.111 apply to all municipalities, irrespective of their designation as ``cities,' ``towns,' etc. Statutory distinctions between ``cities' and ``towns' based on population and cited in Baillie v. Town of Medley,
Your second question may be disposed of first, by reference to the language of s. 116.111(1)(c), F. S., and to AGO 070-71. Section 116.111(1)(c) sets forth those classes of relationship which are covered by the prohibitions of s. 116.111, as follows:
``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. (Emphasis supplied.)
In AGO 070-71 it was concluded that the relationship of ``nephew-in-law' is not covered by the prohibitions of s. 116.111. In that opinion it was emphasized that the specification of various relationships in s. 116.111(1)(c) excludes from the operation of the statute those classes of relationship not specifically included in s. 116.111(1)(c). In the instant case, it is not the job applicant who is the first cousin of the council member, but the husband of the job applicant. The relationship of the job applicant to the council member would be ``cousin-in-law.' While several ``in-law' relationships are specified in s. 116.111(1)(c), there is no mention of the relationship of ``cousin-in-law,' just as there is no mention of ``nephew-in-law.' Thus, the fact that a job applicant's spouse is a cousin of a member of the employing body would not, by itself, constitute a violation of s. 116.111.
A violation of s. 116.111 would occur, however, upon the council's hiring of the wife of one of the council members to be the municipal clerk. In two prior opinions of this office concerning s. 116.111 (AGO's 073-75 and 073-335), it was concluded that a board or commission may not hire the relative of one of the members of that body. And, in AGO 073-335, it was expressly concluded that a violation of s. 116.111 could not be avoided under such circumstances by the abstention of the related board member from voting on the employment of that member's relative. As was observed in AGO 073-335, ``[i]f each member of a commission were allowed to abstain, the board could conceivably employ a relative of each of its members.' Cf. s.
Another prior opinion, AGO 073-444, also applies to your question. You explained in your letter that the council member's wife has been acting in a temporary capacity because of the illness of the former clerk. In AGO 073-444, it was concluded that ``[t]he temporary employment of a relative as a substitute employee during the time the regular employee is on vacation or sick leave is violative of s. 116.111, F. S.' It was emphasized in that opinion that the provision in s. 116.111(4) authorizing temporary employment of a relative in an emergency is limited to ``emergencies resulting from natural disasters or similar unforeseen events or circumstances . . . .' It was concluded in AGO 073-444 that the illness of an employee does not constitute the sort of emergency contemplated by s. 116.111(4). It is a rule of statutory construction that an exception or proviso in a statute is to be strictly construed. Farrey v. Bettendorf,
However, one other matter is implicitly raised by your inquiry and should be considered. The municipality you represent is designated as a ``town,' rather than a ``city.' In 1972, in a two-to-one decision, the Third District Court of Appeal held that the prohibitions of both the former nepotism statute (s. 116.10, F. S. 1969) and the current statute (s. 116.111, F. S.) apply only to ``cities' and not to ``towns' (as those terms were defined in s. 165.02, F. S.). Baillie v. Town of Medley,
It is here that I must emphasize two points. First, the court did not mention, and apparently did not consider with regard to thepresent statute, the language of s.
The 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. (Emphasis supplied.)
The definitions provided in s.
Therefore, until such time as the decision in Baillie v. Town of Medley, supra, is reconsidered in light of the revision of Ch. 165, F. S., and in light of the definition of ``political subdivision' in s.
Except as provided herein, an individual appointed, employed, promoted, or advanced in violation of this section is not entitled to pay, and money may not be paid to an individual so appointed, employed, promoted, or advanced.
Prepared by: Jerald S. Price Assistant Attorney General