CONFLICT OF INTEREST
CITY PENSION BOARD TRUSTEE EMPLOYED AS CITY FINANCE DIRECTORTo: Name withheld at person's request (Cape Coral)
No prohibited conflict of interest would be created under Section 112.313(7)(a), Florida Statutes, were a trustee of a city's pension board(s) to be employed as the city's finance director. Under the scenario presented, the trustee personally is not a member of any city pension plan/system; thus, he would not be tempted to favor any private interest of his over his public duties. CEO 94-45 and CEO 02-4 are referenced.1
Would a prohibited conflict of interest be created under Section 112.313(7)(a), Florida Statutes, were a trustee of a city's pension board(s) to hold employment as the city's finance director? 2
Under the circumstances presented, your question is answered in the negative.
By your letter of inquiry, additional materials provided to our staff, and a telephone conversation between your office and our staff, we are advised that ... (Finance Director) is employed as the Finance Director of the City of Cape Coral. Further, we are advised that the Finance Director seeks our opinion as to whether his simultaneous service as a trustee of one or more of the City's pension boards would be conflicting under the Code of Ethics. In addition to including a copy of the Finance Director's written job description in your inquiry, your office related by telephone to our staff that the Finance Director (as a duty or responsibility of his employment with the City) scrutinizes City payments to the several retirement plans administered by the City's pension boards, and related that City payments to the plans and matters associated therewith are within his responsibility as a City employee. Also, we are advised that the Finance Director is not a member of any of the retirement plans on whose board(s) he might sit, but, rather, that he has a personal "401 A" plan. Additionally, according to the materials provided to us, City ordinance language concerning the boards, as exemplified by ordinance language concerning the Police Officers' Retirement Plan, provides:
Section 3. BOARD OF TRUSTEES.
1. The sole and exclusive administration of and responsibility for the proper operation of the System and for making effective the provisions of this ordinance are hereby vested in a Board of Trustees. The Board is hereby designated as the plan administrator. The Board shall consist of five (5) Trustees, two (2) of whom, unless otherwise prohibited by law, shall be legal residents of the City, who shall be appointed by the Cape Coral City Council, and two (2) of whom shall be Members of the System, who shall be elected by a majority of the Police Officers who are Members of the System. The fifth Trustee shall be chosen by a majority of the previous four (4) Trustees as provided for herein, and such person's name shall be submitted to the Cape Coral City Council. Upon receipt of the fifth person's name, the Cape Coral City Council shall, as a ministerial duty, appoint such person to the Board of Trustees as its fifth Trustee. The fifth Trustee shall have the same rights as each of the other four (4) Trustees . . . .
In CEO 94-45, under a pension board structure similar to the one in your inquiry, we determined that no prohibited conflict of interest would be created under Section 112.313(7)(a), Florida Statutes,3 were a retired police officer, who received pension benefits from the city's police and firefighters retirement fund, to be elected as the fifth member of the city's police officers and firefighters retirement board. In CEO 94-45, we reasoned that the member's private interest in the trust fund would not create a frequently recurring conflict or impediment to the full and faithful discharge of his public duties because board members had little discretion in determining who qualified for a pension or the pension amount, and because the board member was prohibited by both statute and ordinance from taking part in any action in connection with his own participation in the fund.
Similarly, we find that the instant inquiry also is not indicative of a continuing or frequently recurring conflict or impediment to the full and faithful discharge of public duty under the statute.4 The ordinance in your inquiry reads like the one present in CEO 94-45, and, perhaps more importantly, the facts of your inquiry are that the Finance Director has no personal interest in the pension plans at all (being the holder of a private plan instead).5
Accordingly, under the circumstances presented, we find that a prohibited conflict of interest would not be created under Section 112.313(7)(a), Florida Statutes,6 were the City's Finance Director to serve as a trustee of the City's pension board(s).7
ORDERED by the State of Florida Commission on Ethics meeting in public session on July 28, 2006 and RENDERED this 2nd day of August, 2006.
1Opinions of the Commission on Ethics are viewable on its website: www.ethics.state.fl.us
Norm M. Ostrau, Chairman
CONFLICTING EMPLOYMENT OR CONTRACTUAL RELATIONSHIP.-No public officer or employee of an agency shall have or hold any employment or contractual relationship with any business entity or any agency which is subject to the regulation of, or is doing business with, an agency of which he or she is an officer or employee . . .; nor shall an officer or employee of an agency have or hold any employment or contractual relationship that will create a continuing or frequently recurring conflict between his or her private interests and the performance of his or her public duties or that would impede the full and faithful discharge of his or her public duties.
CONFLICTS.-No county, municipal, or other local public officer shall vote in
an official capacity upon any measure which would inure to his or her special
private gain or loss; which he or she knows would inure to the special private
gain or loss of any principal by whom he or she is retained or to the parent
organization or subsidiary of a corporate principal by which he or she is retained,
other than an agency as defined in s. 112.312(2); or which he or she
knows would inure to the special private gain or loss of a relative or business
associate of the public officer. Such public officer shall, prior to the vote
being taken, publicly state to the assembly the nature of the officer's interest
in the matter from which he or she is abstaining from voting and, within 15
days after the vote occurs, disclose the nature of his or her interest as a
public record in a memorandum filed with the person responsible for recording
the minutes of the meeting, who shall incorporate the memorandum in the minutes.