CEO 85-45 -- June 13, 1985

VOTING CONFLICT OF INTEREST

CITY COMMISSIONER VOTING ON AMENDMENT TO CITY RETIREMENT PLAN OF WHICH HE IS MEMBER

To: Mr. John T. Brennan, City Attorney, City of Fort Pierce

SUMMARY:

A city commissioner is not prohibited by Section 112.3143, Florida Statutes, from voting on an amendment to the city's retirement plan, where the commissioner would be affected by the amendment as a member of the retirement plan. As the amendment would affect the commissioner only insofar as he is one of the class of persons who are and will become members of the retirement plan, and not to any greater degree than the other members, the amendment to the plan would not inure to the "special private gain" of the commissioner. CEO 77-57 is referenced.

QUESTION:

Is a city commissioner prohibited by Section 112.3143, Florida Statutes, from voting on an amendment to the City's retirement plan, where the Commissioner would be affected by the amendment as a member of the retirement plan?

Your question is answered in the negative.

In your letter of inquiry you advise that Mr. Grover Leslie is a member of the Fort Pierce City Commission. You also advise that following ten years of public office the Commissioner elected to become a member of the City retirement plan.

At the present time some City employees have requested that the City Commission amend the retirement plan to allow a member to retire after 25 years of service, regardless of age. It appears that employees who would not benefit from the amendment could be adversely affected because there no longer would be an opportunity for any increase in benefits to the overall retirement program. In fact, additional contributions probably would have to be made to keep the program at its present level, you advise. As the Commissioner would not benefit from the amendment, he would be one of the members who could be adversely affected by the amendment.

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

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 (Supp. 1984).]

This provision prohibits a municipal officer from voting on a measure which would inure to his special private gain. We previously have advised that this provision would apply where the official stands to gain or lose as a direct result of the outcome of the measure being considered. However, we do not find that the amendment to the retirement plan would result in any "special" gain or loss to the Commissioner, within the contemplation of this provision.

In CEO 77-57 (Question 2), we advised that no voting conflict of interest would be created were a school board member to vote on ratification of the contract between teachers and the school board, where the member's wife was a school teacher whose salary would be set under the contract. We found that a contract of that nature, relating to all teachers within the district, involved no "special" gain as there would be no gain to the school board member's wife distinct from that of the other teachers whose salaries also were set under the contract.

Here, the amendment to the retirement plan would affect the subject Commissioner only insofar as he is one of the class of persons who are and will become members of the retirement plan. We see no reason to believe that he would be affected to any greater degree than the other members.

Accordingly, we find that the subject Commissioner is not prohibited from voting on the proposed amendment to the City's retirement plan because of his membership in the plan. Nevertheless, we are of the opinion that the Commissioner would be permitted to abstain from voting by Section 286.012, Florida Statutes, which authorizes a public officer to abstain from voting where there is, or appears to be, a conflict of interest under one of the provisions of the Code of Ethics.