CEO 04-13 -- April 27, 2004

CONFLICT OF INTEREST

SHERIFF'S ADMINISTRATIVE REVIEW BOARD MEMBER PRESIDENT OF POLICE UNION LOCAL


To: Kenneth J. Afienko, Attorney at Law (St. Petersburg)

SUMMARY:

A prohibited conflict of interest would be created under Section 112.313(7)(a), Florida Statutes, were a lieutenant of a sheriff's office serving as a member of a sheriff's administrative review board also to serve as president of the union local serving as the collective bargaining agent for personnel of the sheriff's office. His involvement as both a board member and union president regarding accused officers and disciplinary matters would create a continuing or frequently recurring conflict between his private (union) interests and the performance of his public (board) duties and would impede the full and faithful discharge of his public duties.† CEO 79-50 is referenced.[1]

QUESTION:


Would a prohibited conflict of interest be created were a lieutenant in a sheriff's office serving as a member of a disciplinary review board also to serve as president of the police union local serving as the bargaining agent for personnel of the sheriff's office, including officers accused before the board?


Your question is answered in the affirmative.


By your letter of inquiry and a telephone conversation between you and our staff, we are advised that ... ("lieutenant") serves as a member of the Pinellas County Sheriff's Office, holding the rank of lieutenant, and that he has been requested by his superiors to participate as a member of the Sheriff's Administrative Review Board.† The Board's function, you advise, is to evaluate completed internal affairs investigations concerning conduct of law enforcement officers of the Sheriff's Office and make disciplinary recommendations to the Sheriff, who usually ratifies the findings of the Board.† Further, you advise that typically the Board is comprised of three to six superior officers within the accused officer's chain of command, that Board members individually question the accused officer, and that the Board then discusses and votes on the matter in closed session.† Additionally, you advise, if the Board determines that a rule or regulation has been violated by the accused officer, it notifies the accused officer of its determination, which is then forwarded as a recommendation for a finding of a violation and appropriate discipline to the Sheriff.† Further, you advise, should the Sheriff adopt the recommendation of a violation and discipline, the accused officer is eligible to appeal pursuant to agency rules and regulations.


Also, you advise, the lieutenant is president of the police union local,[2] recently elected as the collective bargaining agent for personnel of the Sheriff's Office, which has approximately more than seven hundred officers in the bargaining unit, the large majority of which belong to the union.† Part of the lieutenant's responsibilities as president, you state, include advising officers of the benefits of union membership, one of which is the right of appeal regarding disciplinary matters.† More specifically, you state, as part of union protocol an accused officer is advised by the president (lieutenant) about procedures concerning the disciplinary appeal process, and the president (lieutenant) also is the decisionmaker regarding whether the union will represent the officer in the appeal.† Further, you state, should the union decide to represent the accused officer, the union pays for any and all attorney fees and costs associated with the appeal.


Against the scenario presented by you and summarized above, you inquire as to whether a prohibited conflict of interest would be created for the lieutenant/Board member were he also to serve as president of the union local.


The statute within the Code of Ethics for Public Officers and Employees relevant to this inquiry is Section 112.313(7)(a), Florida Statutes, which provides, with emphasis supplied:


CONFLICTING EMPLOYMENT OR CONTRACTUAL RELATIONSHIP.óNo 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 or she 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 or her private interests and the performance of his or her public duties or that would impede the full and faithful discharge of his or her public duties.


In accord with our precedent we find that the situation presented would create a prohibited conflict under the second part of the statute.[3]† See CEO 79-50, in which we found that a continuing or frequently recurring conflict or an impediment to the full and faithful discharge of public duty existed under Section 112.313(7)(a) where a municipal employee who served on the municipality's civil service board also served as president of a union local representing municipal employees.† There, as here, union members had matters which could be remedied through the public board of which the union president was a member and the board member would be involved in the private (union) side of the same matters.† In CEO 79-50, we wrote:

. . . we find that your employment or contractual relationship as an officer of the collective bargaining organization would impede the full and faithful discharge of your public duties as a member of the Civil Service Board and would create a frequently recurring conflict between your interest as president of the organization and the performance of your duties as a Civil Service Board member. It is contemplated by the current employee organization agreement that some city employees will have grievances which could be remedied either by the Civil Service Board, of which you are a member, or by the grievance procedures of the agreement, in which you are involved as president of the local.† In such cases, you would be presented with a conflict of interest in advising the employee as to which procedure to follow and in assisting him through the processing of his grievance.† Your knowledge and responsibilities as president of the union local place you in a unique position which would impede the full and faithful discharge of your responsibilities as the employee-elected member of the Civil Service Board.


Accordingly, we find that a prohibited conflict of interest would be created under Section 112.313(7)(a), Florida Statutes, were the lieutenant (serving as a member of the Board) also to serve as president of the union local acting as the collective bargaining agent for personnel of the Sheriff's Office.[4]


ORDERED by the State of Florida Commission on Ethics meeting in public session on July 22, 2004 and RENDERED this 27th day of July, 2004.




__________________________

Joel K. Gustafson

Chairman



[1]Advisory opinions of the Commission on Ethics cited herein are viewable on the Commission on Ethics' website: www.ethics.state.fl.us.

[2]Fraternal Order of Police.

[3]For the sake of clarity, we note here, as we noted in CEO 79-50, that your inquiry does not involve the first part of the statute. While language of the first part clearly permits a public employee merely to serve as an officer of a collective bargaining unit which holds a collective bargaining contract with his or her public agency, your inquiry, as that of CEO 79-50, concerns the second part of the statute and relates to the propriety of simultaneous service as both a member of a public civil service/grievance/disciplinary board and president of a nongovernmental organization privately acting in relation to the same subject matter and persons as the board.

[4]We have not overlooked the fact that your inquiry, in addition to seeking guidance regarding Section 112.313, Florida Statutes, also inquires as to whether the scenario would be conflicting under "any other statute, code and/or regulation." Based on our response in this opinion, any further inquiry would seem to be "moot." In addition, with very limited exceptions, statutes, rules, or standards outside the Code of Ethics and outside the Sunshine Amendment (Article II, Section 8, Florida Constitution) are not within our jurisdiction to address.