Galbut v. City of Miami Beach, 92-86

• Citation: 605 So.2d 466
• Decision Date: 16 June 1992
• Docket Number: No. 92-86,92-86
• Parties: 17 Fla. L. Week. D1504, 17 Fla. L. Week. D2334 Russell GALBUT, Appellant, v. CITY OF MIAMI BEACH, Appellee.
• Court: Court of Appeal of Florida (US)

Page 466

605 So.2d 466

17 Fla. L. Week. D1504, 17 Fla. L. Week. D2334

Russell GALBUT, Appellant, v. CITY OF MIAMI BEACH, Appellee.

No. 92-86.

District Court of Appeal of Florida,

Third

District.

June 16, 1992.

On Motion for Rehearing

Oct. 13, 1992.

David H. Nevel, Miami Beach, for appellant.

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

Before FERGUSON, COPE and LEVY, JJ.

COPE, Judge.

Russell Galbut appeals a declaratory judgment which construed Florida's anti-nepotism law, section 112.3135, Florida Statutes (1991). We reverse.

For ten years Russell Galbut served as a member of the Miami Beach Board of Adjustment, which rules on zoning appeals. The members of the Board serve without In 1991 Galbut's father-in-law, Seymour Eisenberg, was elected to the City Commission. Thereafter, Galbut's term of membership on the Board of Adjustment expired and Galbut desired to seek reappointment. The City Attorney advised, however, that the anti-nepotism law prohibited Galbut from being reappointed.

compensation. Members of the Board are chosen by a five-sevenths vote of the Miami Beach City Commission for terms of one year.

Galbut brought a declaratory judgment action in circuit court, seeking a declaration that the anti-nepotism law did not preclude his reappointment. The circuit court adopted a general master's report which concluded that the anti-nepotism law applies to the Board of Adjustment, and that the law precludes Galbut's reappointment. Galbut has appealed.

Galbut first contends that the anti-nepotism law applies only to paid positions of employment, and does not apply to service on unpaid boards. We disagree. The statute provides, in part, "A public official may not appoint, employ, promote, or advance ... any individual who is a relative of the public official." Section 112.3135(2)(a), Fla.Stat. (1991). The use of the words "appoint" and "employ" in the same sentence indicate that the statute was intended to encompass not only paid employment, but also appointment to other positions. There is no indication in the text of the law that there was an intention to exempt service on unpaid boards from the coverage of the statute. We conclude that the Board of Adjustment is covered by the anti-nepotism law.

Galbut's second point, however, has merit. Insofar as applicable here, the anti-nepotism law provides, "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." Id. Sec. 112.3135(2)(a) (emphasis added).

The 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.

In the present case the appointing authority is a collegial body, the Miami Beach City Commission. Under the applicable ordinance, the concurrence of five commissioners is necessary in order to make the appointment. Commissioner Eisenberg's vote is not necessary for the appointment, so long as five of the other commissioners agree.

Under the terms of the anti-nepotism law, there is no proscription against Galbut's being reappointed, so long as Commissioner Eisenberg recuses himself, and so long as Commissioner Eisenberg does not in any way advocate Galbut for appointment. That is the plain meaning of the statute. Because this statute is penal in nature, see id. Sec. 112.317, any doubt must be resolved in favor of a narrow construction so that the public official (and the official's relatives) are clearly on notice of what conduct is proscribed. See State v. Llopis, 257 So.2d 17, 18-19 (Fla.1971).

It is said that Commissioner Eisenberg's mere presence on the City Commission constitutes, in and of itself, implied advocacy of Galbut's appointment. The statute does not, however, proscribe appointment on that basis. The statute only reaches affirmative action by the public official to make the appointment or advocate the appointment. Assuming recusal and no advocacy by Commissioner Eisenberg, the requirements of the statute are satisfied. ^* In this court and the proceeding below, the City has advocated a more expansive reading of the statute. Nothing precludes the City from adopting a stronger policy should it wish to do so.

The declaratory judgment is reversed.

FERGUSON, J., concurs.

LEVY, J., dissents.

ON MOTION FOR REHEARING

We have carefully considered the motion for rehearing filed by the City of Miami Beach, but for the reasons which follow, we adhere to the opinion previously filed in this case.

The City first points out that the anti-nepotism law does not impose criminal penalties for a violation. The City argues, therefore, that this court erred by treating the anti-nepotism law as being penal in nature and by following the rules of statutory...