City of Miami Beach v. Galbut

• Decision Date: 21 October 1993
• Docket Number: No. 80780,80780
• Citation: 626 So.2d 192
• Parties: 18 Fla. L. Weekly S546 CITY OF MIAMI BEACH, Petitioner, v. Russell GALBUT, Respondent.
• Court: Florida Supreme Court

Page 192

626 So.2d 192

18 Fla. L. Weekly S546

CITY OF MIAMI BEACH, Petitioner, v. Russell GALBUT, Respondent.

No. 80780.

Supreme Court of Florida.

Oct. 21, 1993.

Laurence Feingold, City Attorney and Jean K. Olin, First Asst. City Atty., Miami Beach, for petitioner.

David H. Nevel, Miami Beach, for respondent.

Philip C. Claypool, Gen. Counsel and Julia Cobb Costas, Staff Counsel, Tallahassee, amicus curiae for State of Florida Com'n on Ethics.

KOGAN, Justice.

We have for review Galbut v. City of Miami Beach, 605 So.2d 466 (Fla. 3d DCA 1992), in which the court certified the following question as one of great public importance:

WHETHER THE ANTI-NEPOTISM LAW PROHIBITS THE APPOINTMENT OF A CITY COMMISSIONER'S RELATIVE TO THE CITY'S BOARD OF ADJUSTMENT WHERE (1) APPOINTMENTS ARE MADE BY A FIVE-SEVENTHS VOTE OF THE CITY COMMISSION; (2) THE RELATED CITY COMMISSIONER ABSTAINS FROM VOTING; AND (3) THE RELATED CITY COMMISSIONER TAKES NO ACTION WHICH IN ANY WAY ADVOCATES THE APPOINTMENT OF THE RELATIVE.

Id. at 468. We have jurisdiction under Article V, section 3(b)(4) of the Florida Constitution.

Russell Galbut served on the Miami Beach Zoning Board of Adjustment for ten years. Members of this Board serve without compensation and are chosen by a five-sevenths vote of the City Commission for a one-year term. In 1991, Galbut's father-in-law, Seymour Eisenberg, was elected to the City Commission. After the election, Galbut's term on the Board expired and he sought reappointment. The City Attorney determined that section 112.3135(2)(a), Florida Statutes (1991), prohibited Galbut's reappointment. Section 112.3135(2)(a) 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 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.

In response to the City Attorney's conclusion, Galbut brought a declaratory action in circuit court. The court adopted a general master's report finding that the anti-nepotism law precluded Galbut's reappointment. On appeal, the district court reversed, holding that the anti-nepotism law did not preclude Galbut's reappointment by the collegial body if Galbut's father-in-law recused himself and did not in any way advocate the reappointment. The court reasoned that because there was no affirmative action by the individual public official either to make or advocate Galbut's appointment, this case did not fit within the plain language of the statute. The court also noted that due to the statute's penal nature, any doubts as to its meaning must be resolved in favor of a narrow construction. 605 So.2d at 467. For the reasons set forth below, we agree that section 112.3135(2) does not prohibit Galbut's reappointment to the Board of Adjustment.

The City of Miami Beach maintains that Florida's anti-nepotism law should be liberally construed to mean that relatives of members of appointing authorities should not be appointed by boards or commissions on which their relatives serve. The City maintains that a public official's abstention will not resolve the concerns the anti-nepotism law was designed to address.

It is well settled that where a statute is clear and unambiguous, as it is here, a court will not look behind the statute's plain language for legislative intent. See In Re McCollam, 612 So.2d 572, 573 (Fla.1993); Holly v. Auld, 450 So.2d 217, 219 (Fla.1984). A statute's plain and ordinary meaning must be given effect unless to do so would lead to an unreasonable or ridiculous result. 612 So.2d at 573; 450 So.2d at 219.

The plain language of the statute at issue indicates that only overt actions by a public official resulting in the appointment of that official's relative are prohibited. Section 112.3135(2)(a) provides in pertinent part:

A public official may not appoint ... or advocate for appointment ... to a position in the agency ... over which he exercises jurisdiction or control any individual who is a relative of the public official. An individual may not be appointed ... to a position in an agency if such appointment ... has been advocated by a public official ... exercising jurisdiction or control over the agency, who is a relative of the individual.

(Emphasis added). As the district court noted,

[t]he statute is addressed to the individual public official and to the relative of that public official. It prohibits the public official from taking overt action to appoint a relative, either by making the appointment, or advocating the relative for appointment. Similarly, the relative may not accept the appointment if the appointment has been made or advocated by the related public official.

605 So.2d at 467.

This construction is consistent with other provisions of chapter 112. In particular, section 112.311(2), Florida Statutes (1991), provides that it is

essential that government attract those citizens best qualified to serve. Thus, the law against conflict of interest must be so designed as not to impede unreasonably or unnecessarily the recruitment and retention by government of those best qualified to serve.

In a similar vein, section 112.311(4), Florida Statutes (1991), makes clear that the act was intended to protect the integrity of the government and to facilitate the recruitment and retention of qualified personnel by prescribing...