CEO 12-06 – April 4, 2012



To:        City Councilmember Leonard Nesta, Jr. (Cape Coral)


A city councilmember is not prohibited by Section 112.3143(3)(a), Florida Statutes, from voting on the city's ratification of the collective bargaining agreement or on amendments to the city's ordinances required to effectuate changes to the health insurance subsidy he and other union members receive under the collective bargaining agreement between the city and the union. The number of members receiving retirement benefits and in the deferred retirement option program who would be benefited immediately is sufficiently large that any gain or loss resulting from the city commission's ratification of the collective bargaining agreement would not be "special."


Would a voting conflict of interest be created were you, a city councilmember who is a retiree of the city's fire department and a recipient of benefits from the city, to vote on the ratification of a proposed collective bargaining agreement and on amendments to the city's ordinances required to implement changes to the retirement plan necessitated by the agreement?

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

In your letter of inquiry and through discussions between our staff and the City Attorney, you state that you retired in September 2011 from the City of Cape Coral after 31 years as a firefighter, and that you were subsequently elected to the Cape Coral City Council. You are considered an "actively retired" member of the Rank and File Cape Coral Professional Firefighters Union Local 2424 ("Union"). You explain that this means you are active in the Union but cannot vote on Union matters. You further relate that the Union presently has 184 members. Of that total, 74 members of the Union are retired and receiving pension benefits, 18 members are working and participating in the Deferred Retirement Option Program ("DROP"), and the balance are working without yet participating in DROP. You explain that current and retired members of the Union do not currently participate in the City's health insurance program but receive contributions towards health insurance provided through the Union pursuant to an agreement between the Union and the City, resulting in your receiving both a pension and health insurance contributions from the City.

The City currently is in negotiations with the Union, and health insurance and pension benefits are two provisions in the bargaining agreement that may be amended. Amendments to the bargaining agreement will come before the City Council for ratification, and the City Council also will have to vote on ordinances necessary to effectuate any changes to the bargaining agreement or benefits for retired employees generally. Inasmuch as the City Council has the authority to adopt ordinances that could affect health insurance benefits or pension benefits for retired employees1 as well as current and future employees, you ask whether you would have a voting conflict that would preclude you from voting if these issues come before the City Council.

Section 112.3143(3), Florida Statutes, provides:

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.

Section 112.3143(3)(a) prohibits you, as a City Councilmember, from voting on matters that would inure to your "special" private gain or loss.

In CEO 00-13, an opinion factually analogous to your situation, we opined that a retired firefighter who had been elected to a city commission did not have a voting conflict of interest when voting on the ratification of the city's collective bargaining agreement or amendments to city ordinances that were required to effectuate changes to the retirement system. There, we focused our analysis on whether the matters the city commission was voting on would inure to the "special private gain or loss" of the city commissioner. In that opinion there were 88 retired firefighters retired or in DROP, but the collective bargaining agreement affected many other firefighters and there were no circumstances unique to the city commissioner by which he stood to gain or lose more than the other members then receiving benefits or in DROP. Therefore, we concluded that the city commissioner in CEO 00-13 did not have a voting conflict.

In your situation, we are advised that there are 60 retired firefighters receiving benefits and 18 in DROP, or a total of 78 who would be immediately impacted by a decision on the amount of the health insurance subsidy or other pension benefits. While 78 is a smaller class size than 88, the term "special" is neither defined in the voting conflicts law nor bound to be employed via numerical percentages. As was the case in CEO 00-13, the collective bargaining agreement here contains provisions not limited to retired firefighters or those in DROP, and there is no indication that you would be treated differently than the other members directly affected by the changes.

Please note, in CEO 11-01, where a city councilmember was faced with a vote on a collective bargaining agreement which affected her husband, a city police officer, we concluded that she did not have a voting conflict. However, we also called her attention to Section 112.313(8), Florida Statutes,2 and cautioned her that Section 112.313(8) could apply to prohibit the disclosure or use of confidential collective bargaining information for the benefit of one's spouse or any other person or entity. In your situation, this caveat is also appropriate since you are still a member of the Union, albeit "actively retired."

Accordingly, we find that you would not be presented with a voting conflict of interest regarding the ratification of a proposed collective bargaining agreement or on amendments to the City's ordinances required to implement changes to the retirement plan necessitated by the collective bargaining agreement.

ORDERED by the State of Florida Commission on Ethics meeting in public session on March 30, 2012 and RENDERED this 4th day of April, 2012.


Robert J. Sniffen, Chairman

[1] There are approximately 531 retired City employees, including the retired firefighters.

[2] Section 112.313(8), Florida Statutes, provides:

DISCLOSURE OR USE OF CERTAIN INFORMATION.—A current or former public officer, employee of an agency, or local government attorney may not disclose or use information not available to members of the general public and gained by reason of his or her official position, except for information relating exclusively to governmental practices, for his or her personal gain or benefit or for the personal gain or benefit of any other person or business entity.