CEO 86-10 -- February 20, 1986

CONFLICT OF INTEREST

RETIRED CHIEF OF POLICE SERVING ON BOARD OF TRUSTEES OF MUNICIPAL POLICE OFFICERS' RETIREMENT TRUST FUND

To: Mr. Herbert Elliott, City Attorney, City of Tarpon Springs

SUMMARY:

A prohibited conflict of interest would be created under Section 112.313(7), Florida Statutes, were a retired chief of police to serve on the board of trustees of a municipal police officers' retirement trust fund. The former chief's vested right to receive a pension from the trust fund would create a continuing or frequently recurring conflict with the performance of duties as a member of the board of trustees.

QUESTION:

Would a prohibited conflict of interest be created were a retired Chief of Police to serve on the Board of Trustees of the Municipal Police Officers' Retirement Trust Fund from which he receives a pension?

Your question is answered in the affirmative.

In your letter of inquiry you advise that the City of Tarpon Springs is considering appointing its retired Chief of Police to the Tarpon Springs Municipal Police Officers' Retirement Trust Fund Board of Trustees and that he currently is receiving monthly pension benefits from the City. The Board of Trustees has the authority to determine qualified pensioners, pension amounts, and cost of living increases. You question whether this appointment would create a prohibited conflict of interest.

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 (1985).]

Under this provision, a public officer is prohibited from having any contractual relationship that would created a continuing or frequently recurring conflict between his private interests and the performance of his public duties.

We are of the opinion that the retired Police Chief has a contractual relationship with the City of Tarpon Springs because, as a qualified retiree, he has a vested right in the retirement trust fund. See State ex rel. Stringer v. Lee, 2 So.2d 127 (Fla. 1941), and City of Jacksonville Beach v. State ex rel. O'Donald, 151 So.2d 430 (Fla. 1963). We further are of the view 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 include determining qualified pensioners, pension amounts, and cost of living increases.

The appointment of the current Chief of Police and two regularly employed police officers of the municipality to the Board is required by Section 185.05, Florida Statutes. At first glance, there would seem to be a prohibited conflict of interest here as well, but this statute must be read in conjunction with Section 112.313(7)(b), Florida Statutes, which provides:

This subsection shall not prohibit a public officer or employee from practicing in a particular profession or occupation when such practice by persons holding such public office or employment is required or permitted by law or ordinance.

This provision allows the current Chief of Police and the two municipal police officers to remain in their occupations as law enforcement personnel while simultaneously serving as Board members.

Accordingly, we find that a prohibited conflict of interest would be created were the retired Chief of Police to be appointed to serve on the Board of Trustees of the Tarpon Springs Municipal Police Officers' Retirement Trust Fund.