CEO 07-25 -- December 5, 2007

CONFLICT OF INTEREST

FISH AND WILDLIFE CONSERVATION COMMISSION LAW
ENFORCEMENT OFFICER PROVIDING SECURITY SERVICES

To: Name withheld at person's request (Tallahassee)

SUMMARY:

Under the circumstances presented, a prohibited conflict of interest would not be created under Section 112.313(7)(a), Florida Statutes, were a law enforcement officer of the Fish and Wildlife Conservation Commission (FWC) to accept outside employment providing security services for a private landowner. Such private employment would not present a continuing or frequently recurring conflict with the officer's public duties and would not impede the full and faithful discharge of his public duties. Inasmuch as FWC represents that the officer has no affirmative duty to check the landowner or its guests for hunting/fishing licenses, permits, or violations of the wildlife laws, CEO 85-1 and CEO 88-76 are distinguished.[1]


QUESTION:

Would a prohibited conflict of interest be created were a law enforcement officer of the Fish and Wildlife Conservation Commission to accept outside employment providing security services for a private landowner?


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


By your letter of inquiry and additional information provided to us, we are advised that ..., a law enforcement officer of the Fish and Wildlife Conservation Commission (FWC), has requested permission of his superiors to engage in outside employment working for a private landowner who desires the officer's services in order to provide security and a law enforcement presence on its property. More specifically, you advise, the landowner desires that the officer deter and detect littering, habitat destruction, poaching, and trespassing. Further, you advise that the landowner's property is not a game farm or private game preserve, although the landowner's guests occasionally hunt lawfully on the property, that the landowner does not do business with FWC, and that FWC's Division of Law Enforcement (the part of FWC within which the officer works) does not exercise any regulatory authority over the landowner. However, you emphasize that the officer has enforcement duties, including regarding game/hunting laws and regulations, but that he does not have an affirmative duty to check for hunting/fishing licenses, permits, or violations of the wildlife laws.[2] Thus, you advise, FWC would like to approve the officer's proposed outside employment if we do not find it to be conflicting.


The Code of Ethics for Public Officers and Employees provides in relevant part:


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 . . .; 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. [Section 112.313(7)(a), Florida Statutes.]


The second part of the statute, which prohibits outside employment that would create a continuing or frequently recurring conflict between a public officer or employee's private interests and the performance of his public duties or would impede the full and faithful discharge of his public duties, is at issue regarding your inquiry.

Twice previously, we have opined that a prohibited conflict of interest would be created under the second part of the statute were a State wildlife commission[3] law enforcement officer to be employed secondarily providing security services for private landowners, where the property was used for hunting by the landowner or its guests or associates, reasoning that the officer's regard for his continuing secondary employment and his private employer's interests would tend to lead to disregard of the officer's affirmative public agency duty to check his private employer and his employer's guests and associates to ensure that they had the appropriate permits and licenses and otherwise were in compliance with the game laws, and to arrest for violations. CEO 85-1 and CEO 88-76.


While we recognize that your inquiry does not indicate that the landowner's property is a game farm or a private game preserve (does not indicate that the property is dedicated primarily to hunting), we would remain of the opinion that outside employment by the officer of the type proposed would be conflicting under the statute because guests of the landowner nevertheless would be hunting on the property, thus implicating the officer's affirmative public capacity duty to check the guests for licenses and permits and compliance with the game laws, and to arrest if necessary, if the officer had such an affirmative duty. However, inasmuch as it is represented to us that the officer has no such affirmative duty, we distinguish the instant inquiry from the situations presented in CEO 85-1 and CEO 88-76.


Accordingly, we find that a prohibited conflict of interest would not be created were the officer to work secondarily providing security for the landowner.[4]


ORDERED by the State of Florida Commission on Ethics meeting in public session on November 30, 2007 and RENDERED this 5th day of December, 2007.

____________________________________

Albert P. Massey, III, Chairman


[1] For prior opinions of the Commission on Ethics, go to www.ethics.state.fl.us, go to Research, go to Advisory Opinions, go to the year, and go to the particular opinion number.

[2] By your letter to our Executive Director dated October 16, 2007 and your oral representations to us at a previous meeting of ours, we are advised that law enforcement officers of FWC have no such affirmative duty, notwithstanding our understanding from a predecessor agency of FWC (via its seeking CEO 85-1 and CEO 88-76) that wildlife officers of the former GFC had such an affirmative duty.

[3] The former Florida Marine Patrol and the former Florida Game and Fresh Water Fish Commission (GFC) were merged to become the Florida Fish and Wildlife Conservation Commission (FWC).

[4]However, we caution that our finding herein should not be read as a determination that no prohibited conflict will exist or be created under the statute in each and every situation in which a FWC law enforcement officer works secondarily providing security services to a private landowner, regardless of the facts specific to a given employment. For example, if an officer were to work for a landowner with a history of violating the wildlife laws, reliance on our instant opinion likely would be misplaced. It is our intent, via this opinion, to answer in the negative the narrow question of whether a prohibited conflict would be created by an officer's working secondarily for a private landowner (absent any additional "aggravating facts").