CEO 88-73 -- October 19, 1988

CONFLICT OF INTEREST

CITY COMMISSION MEMBER ELIGIBLE FOR CITY RETIREMENT BENEFITS

To: (Name withheld at the person's request.)

SUMMARY:

No prohibited conflict of interest would be created under Section 112.313(7), Florida Statutes, were a former city employee to be elected to serve on the city commission, where he will be eligible at a later date to receive retirement benefits from the city pension fund which is administered by the city commission. Although CEO 86-10 found a prohibited conflict of interest where a retired chief of police served on the board of trustees of the municipal police officers' retirement trust fund from which he was receiving a pension, here the former city employee is not receiving pension benefits currently and therefore has no tangible, present-day interest which might conflict with his duties as city commissioner.

QUESTION:

Would a prohibited conflict of interest be created were you, a former City employee, to be elected to serve on the City Commission, where you will be eligible at a later date to receive retirement benefits from the City pension fund which is administered by the City Commission?

Your question is answered in the negative.

In your letter of inquiry you advise that you are a candidate for election to the City Commission of the City of Fort Meade. You also advise that approximately two years ago you resigned from your employment with the City. At that time your length of service with the City provided you with vested retirement benefits from the City pension fund which is administered by the City Commission. You presently are not receiving any pension benefits because you have not reached retirement age.

The Code of Ethics for Public Officers and Employees provides in relevant part:

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 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 private interests and the performance of his public duties or that would impede the full and faithful discharge of his public duties. [Section 112.313(7)(a), Florida Statutes (1987).]

In a previous opinion, CEO 86-10, we found that this provision of the Code of Ethics would prohibit a retired chief of police who was receiving monthly pension benefits from the city's police officers' retirement trust fund from serving on the fund's board of trustees. We concluded that the former police chief's ongoing private interests in the trust fund would present a continuing or frequently recurring conflict of interest with the duties of a member of the board of trustees, as the board's duties included determining qualified pensioners, pension amounts, and cost of living increases.

Here, however, you are not receiving pension benefits and will not receive them until you reach retirement age, assuming that you are alive at the time and elect to receive them. At present, therefore, you are not receiving any tangible benefit of a real, present-day value. Because of these circumstances, we find that your relationship with the pension fund would not present such a continuing or frequently recurring conflict of interest as to disqualify you from serving on the City Commission.

Local officials also are governed by the following provision of the Code of Ethics:

No county, municipal, or other local public officer shall vote in his official capacity upon any measure which inures to his special private gain or shall knowingly vote in his official capacity upon any measure which inures to the special gain of any principal, other than an agency as defined in s. 112.312(2), by whom he is retained. Such public officer shall, prior to the vote being taken, publicly state to the assembly the nature of his interest in the matter from which he is abstaining from voting and, within 15 days after the vote occurs, disclose the nature of his 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. However, a commissioner of a community redevelopment agency created or designated pursuant to s. 163.356 or s. 163.357 or an officer of an independent special tax district elected on a one- acre, one-vote basis is not prohibited from voting. [Section 112.3143(3), Florida Statutes (1987).]

It is questionable whether every vote on a pension fund matter which would result in an increase in benefits would be classified as inuring to your special private gain. However, we believe in the interest of avoiding even the appearance of a conflict, it would be advisable for you to follow the mandate of Section 112.3143(3).

Accordingly, we find that no prohibited conflict of interest would be created were you to serve on the City Commission while being eligible at a later date to receive retirement benefits from the City pension fund administered by the City Commission.