CEO 81-19 -- April 2, 1981

CONFLICT OF INTEREST

CITY CLERK SERVING ON MUNICIPAL PENSION BOARD; PENSION BOARD MEMBER'S CHILD A MEMBER OF RETIREMENT SYSTEM

To: Barbara A. Forsythe, City Clerk, Lake Worth

SUMMARY:

No prohibited conflict of interest under the Code of Ethics for Public Officers and Employees would be created were a city clerk to serve as an employee representative on the city's board of trustees of the employees' retirement system, when the city pension code permits either the city clerk or a deputy city clerk to serve as secretary to the board of trustees. In addition, there is no provision in the Code of Ethics which would prohibit a member of an employees' retirement system board of trustees from serving on the board while a child of the member is a member of the retirement system.

QUESTION 1:

Would a prohibited conflict of interest be created were you, a city clerk, to serve as an employee representative on the city's board of trustees of the employees' retirement system?

Question 1 is answered in the negative.

In your letter of inquiry you advise that you are the City Clerk of the City of Lake Worth. You also advise that you are considering running for election as an employee representative on the City's Board of Trustees of the Employees' Retirement System. In a telephone conversation with our staff you advised that the Board is composed of the Mayor, the City Manager, two city employees who are elected to represent the employees of the City, and one citizen representative. The Board is responsible for administering the pension system for City employees other than firefighters and police. In doing so, you advise, the Board is responsible for the investment of pension funds and for determining benefit eligibility according to the City Pension Code.

As City Clerk, you advised, you have been appointed by the City Manager as an employee of the City, with the confirmation of the City Commission. Your primary responsibilities as Clerk include attending Commission meetings and preparing minutes, preserving City records, supervising municipal elections, and providing secretarial and administrative services for the City. Pursuant to the City Pension Code, either the City Clerk or a Deputy City Clerk is to serve as secretary of the Board of Trustees of the Employees' Retirement System. In this respect, you advise that a Deputy City Clerk has served as secretary to the Board for a number of years.

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), F. S.]

This provision prohibits certain employment and contractual relationships on the part of public officers and employees. As a member of the Board of Trustees, you would not have any "employment" or "contractual relationship" with the Board; rather, you would be an officer of the City as a member of the Board. Therefore, we view your question as asking whether a member of the Board of Trustees may be employed as City Clerk.

Section 112.313(7)(a) prohibits a member of the Board of Trustees from being employed by an agency which is either subject to the regulation of, or is doing business with, the Board. As City Clerk, your employing "agency" would be the City, as opposed to the City's Board of Trustees of the Employees' Retirement System. See Section 112.312(2), F. S., defining the term "agency." However, it appears that the City is neither subject to the regulation of, nor doing business with, the Board of Trustees.

Section 112.313(7)(a) also prohibits a public officer from having any employment that would create a continuing or frequently recurring conflict of interest or that would impede the full and faithful discharge of his public duties. We do not perceive that such a conflict of interest would be created were you to serve on the Board of Trustees. We note that the City Pension Code permits either the City Clerk or a Deputy City Clerk to serve as secretary to the Board, so that you would not be required to serve as secretary to the Board while serving on the Board. In addition, we see no reason to believe that your duties as a Board member would be impeded by the fact that, as Clerk, you must review the performance of the Deputy City Clerk who would serve as secretary to the Board.

Accordingly, we find that no prohibited conflict of interest would be created were you to serve on the Board of Trustees of the Employees' Retirement System.

QUESTION 2:

Would a prohibited conflict of interest be created were you to serve on the board of trustees of the Employees' Retirement System while your daughter is an employee member of the Retirement System?

There is no provision in the Code of Ethics for Public Officers and Employees which would prohibit a member of an Employees' Retirement System Board of Trustees from serving on that Board while a child of that member is a member of the Retirement System. Accordingly, this question also is answered in the negative.