CEO 92-24 -- June 5, 1992

CONFLICT OF INTEREST

CITY FIREFIGHTER AND PRESIDENT OF FIREFIGHTERS' UNION

SERVING AS POLICE PENSION BOARD MEMBER

To: David Ginsburg, Candidate for City of Palm Bay Fire and Police Pension and Retirement Board

SUMMARY:

A prohibited conflict of interest would not be created under Section 112.313(7)(a), Florida Statutes, were a city firefighter and president of the firefighter's union local to serve as a member of the city's pension board. The board is not doing business with or regulating the union; in addition, the first part of that Section contains a limited exemption regarding organizations and their officers engaged in collective bargaining. No frequently recurring conflict or impediment to duty would be present due to the member's lack of responsibility as union president to assist firefighters through the pension process. CEO 88-53 is referenced.

QUESTION:

Would a prohibited conflict of interest be created were you, a city firefighter and president of the local firefighters' union, to become a member of the board of trustees of the city's firefighter and police pension and retirement system?

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

By your letter of inquiry, further written information and documents supplied to our staff, and telephone conversation between you and our staff, we are advised that you are a firefighter employed by the City of Palm Bay and that you are president of the union local (union) which represents firefighters employed by the City. We are advised further that you are seeking membership on the Board of Trustees of the City's fire and police pension and retirement system (Board).

The Board totals five members and, by City ordinance, is composed of two residents of the City appointed by the City Council, one police officer elected by a majority of police officers who are members of the retirement system, one firefighterelected by a majority of firefighters who are members of the system, and one member chosen by the other four members. You advise that you are seeking the position on the Board filled by the choice of the other four members. In addition, the City's Code provides:

The further duties and functions of the board of trustees, other than investment functions, shall be as follows:

(a) To observe and oversee the operation of the system and fund.

(b) To make recommendations for improvements.

(d) To determine by uniform rules all questions concerning credited service and membership.

(e) To maintain or have maintained accurate records of credited service and accumulated contributions of members and such other data as may be necessary.

(f) To have performed regular, annual actuarial valuations of the retirement system and fund.

(g) To have prepared and render annually to the city council a complete accounting of the financial and other transactions of the retirement fund and system.

(h) To establish uniform rules and regulations for operation of the system.

The union deals with the City Council regarding the collective bargaining agreement between the City and the union and with matters related thereto; the union does not deal with or appear before the Board. The Board hears and determines claims of firefighters for disability and retirements benefits, with retirement benefit determinations being "ministerial" due to the limited nature of the factual inquiry in a retirement matter.

You are a paid firefighter and receive additional compensation for your duties as president of the union. As union president, you are not responsible for representing union members in pension matters or for assisting them through the pension process.

You question whether you can serve on the Board without violating the Code of Ethics for Public Officers and Employees, which 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, excluding those organizations and their officers who, when acting in their official capacity, enter into or negotiate a collective bargaining contract with the state or any municipality, county, or other political subdivision of the state; 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.]

Since your scenario does not indicate that the union is doing business with or is subject to the regulation of the Board, and since any conflict under the first prohibition of Section 112.313(7)(a) would not be prohibited because of the language of that prohibition concerning organizations and their officers involved in collective bargaining, our inquiry is limited to whether your situation is one that will create a continuing or frequently recurring conflict between your private interests and the performance of your public duties or that would impede the full and faithful discharge of your public duties. In that regard, CEO 88-53 is particularly instructive. In that opinion, under a factual scenario materially similar to yours, we found that no prohibited conflict of interest existed where a city police and firefighters pension board member served as president of a firefighters union. Although that opinion appears to be partially grounded in the language of Section 112.313(7)(b), Florida Statutes, its essence is stated in our finding of a lack of substantial conflict between the board member's public duties and his private interests as union president, particularly due to the fact that as president he did not assist firefighters in the pension process. Therefore, we likewise find that, under the facts of this scenario, there is no frequently recurring conflict or impediment to duty.

Accordingly, we find that a prohibited conflict of interest would not be created were you to serve as a member of the City's firefighter and police pension board while serving as a City firefighter and president of the City firefighter's union local.