CEO 93-12 -- April 22, 1993

VOTING CONFLICT OF INTEREST

FIREFIGHTER PENSION BOARD TRUSTEE MEMBER OF

CLASS SUING CITY AND BOARD VOTING REGARDING LAWSUIT

To: Michael S. Davis, City Attorney, City of St. Petersburg

SUMMARY:

A city firefighter pension board trustee who is also a firefighter and member of a pension plan, the members of which are suing the city and board in a class action lawsuit regarding the pension plan, is not prohibited by Section 112.3143(3)(a), Florida Statutes, from voting on measures concerning the lawsuit, and is not subject to the declaration and filing requirements for proper "participation" under Section 112.3143(4), Florida Statutes. The number of persons who stand to benefit from such measures (297) is sufficiently large such that any gain to the Trustee under the measures would not be "special." CEO 90-71 and CEO 83-69 are referenced.

QUESTION:

Do Sections 112.3143(3)(a) and 112.3143(4), Florida Statutes, respectively, prohibit a trustee of a firemen's pension fund, which is being sued by a class containing the trustee, from voting on matters concerning the lawsuit or from participating in matters concerning the lawsuit without complying with disclosure and memorandum filing requirements?

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

By your letter of inquiry, accompanying materials, and telephone conversation between your office and our staff, we are advised that Alan D. Rosetti serves as a member (Trustee) and Chairman of the Board of Trustees of the St. Petersburg Firemen's Retirement System and Supplemental Retirement System ("Board"). The Board, under Section 175.061, Florida Statutes, consists of five members--two appointed by the City Council, two required to come from the ranks of the City's firefighters, and the fifth to be chosen by the other four. We are advised further that the Board administers two pension plans (the 'Prior Plan' and the 'Supplemental Plan') and that a current firefighter and a retired firefighter have filed a class action lawsuit (which contains two certified classes--the Supplemental Plan class containing 297 members and the Prior Plan class containing 302 members) against the City and the Board. The lawsuit requests relief from the court which, if granted, would increase monetary benefits to current and future retirees, including the Trustee who is himself a City firefighter, a member of the Supplemental Plan, and a member of the Supplemental Plan class in the lawsuit. Thus far, we are advised, one issue regarding the lawsuit (the hiring of outside counsel to represent the Board) has come before the Board and the Board did in fact hire outside counsel; the Trustee abstained from voting on this issue, although discussing the issue, and publicly declared his private interest (lawsuit involvement) in the matter.

You foresee situations in which the Trustee will be faced with voting on or participating in matters regarding the lawsuit in his official capacity, such as whether and how to defend the lawsuit or oppose or address the aims of the suit's plaintiffs, whether to resist or acquiesce to the suit's demands or requests for relief, whether to accept settlement proposals that could benefit or harm himself as a member of the class action, and whether to take a position or litigation stance adversarial to the City (which would in effect, you relate, place the Board on the side of the plaintiff class).

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 would inure to his special private gain; which he knows would inure to the special private gain of any principal by whom he is retained or to the parent organization of subsidiary of a corporate principal by which he is retained, other than an agency as defined in s. 112.312(2); or which he knows would inure to the special private gain 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 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. [Section 112.3143(3)(a), Florida Statutes.]

(4) No appointed public officer shall participate in any matter which would inure to his special private gain; which he knows would inure to the special private gain of any principal by whom he is retained or to the parent organization or subsidiary of a corporate principal by which he is retained; or which he knows would inure to the special private gain of a relative or business associate of the public officer, without first disclosing the nature of his interest in the matter.

(a) Such disclosure, indicating the nature of the conflict, shall be made in a written memorandum filed with the person responsible for recording the minutes of the meeting, prior to the meeting in which consideration of the matter will take place, and shall be incorporated into the minutes. Any such memorandum shall become a public record upon filing, shall immediately be provided to the other members of the agency, and shall be read publicly at the next meeting held subsequent to the filing of this written memorandum.

(b) In the event that disclosure has not been made prior to the meeting or that any conflict is unknown prior to the meeting, the disclosure shall be made orally at the meeting when it becomes known that a conflict exists. A written memorandum disclosing the nature of the conflict shall then be filed within 15 days after the oral disclosure with the person responsible for recording the minutes of the meeting and shall be incorporated into the minutes of the meeting at which the oral disclosure was made. Any such memorandum shall become a public record upon filing, shall immediately be provided to the other members of the agency, and shall be read publicly at the next meeting held subsequent to the filing of this written memorandum.

(c) For purposes of this subsection, the term 'participate' means any attempt to influence the decision by oral or written communication, whether made by the officer or at his direction. [Section 112.3143(4), Florida Statutes.]

As an appointed (see CEO 83-69) local public officer, these sections apply to the Trustee. They would prohibit his voting on, and govern his proper participation in, matters which would inure to his special private gain.

In past opinions, we have focused on the size of the group or class of persons to be affected by a measure in determining whether the gain or loss to a public officer within the group would be "special" within the meaning of the provisions of Section 112.3143, unless there are circumstances unique to the officer which would distinguish the public officer's gain or loss from that of other members of the group. See CEO 90-71 and the opinions cited therein as examples of our findings in this regard. Here, it appears that all members of the group (civil lawsuit class) containing the Trustee are similarly situated, that is, they all stand to gain in the same way regarding firefighter retirement benefits. Therefore, we find, based upon our precedent, that 297 persons is not so small a class that gain to the Trustee as an individual member of the class would be "special" within the meaning of the statutory sections set forth above. Needless to say, if the two classes certified under the lawsuit all received gain regarding retirement benefits, the resultant group, numbering 599, also would be within our precedent.

Accordingly, under the circumstances recited in this opinion, we find that the Trustee is not prohibited by Section 112.3143(3)(a), Florida Statutes, from voting on measures concerning the class action lawsuit, and he is not subject to the disclosure and filing requirements of Section 112.3143(4), Florida Statutes, regarding such measures.