CEO 78-82 -- November 15, 1978

CONFLICT OF INTEREST

CITY POLICE OFFICER OWNING OR MANAGING PRIVATE SECURITY BUSINESS

To: (Name withheld at the person's request.)

Prepared by: Phil Claypool

SUMMARY:

A police officer's operating and managing a security business licensed under Ch. 493, F. S., is deemed to constitute an employment that will create a frequently recurring conflict between his private interests and the performance of his public duties and that would impede the full and faithful discharge of his public duties in violation of s. 112.313(7)(a), F. S. 1977. A police officer's sworn duty to uphold the law -- including broad arrest powers, the authority to detain and search persons under certain circumstances, and the right to bear concealed firearms -- does not terminate when he goes off duty. On the other hand, persons engaged in providing security services and licensed under Ch. 493, F. S., are prohibited from divulging information acquired as a result of their security services, thus requiring a person who manages a security business to keep confidential information received during the course of his business. Full compliance with this provision, which carries a criminal penalty, is inconsistent with the proper performance of a police officer's sworn duty to uphold the law. A further conflict is perceived because of a police officer's access to confidential information through his department and the possibility that such information could be used to benefit a private client.

Were a police officer merely to own stock in a security business as an investment, without participating in the management of the business, a different situation is presented as, under s. 493.12, F. S., a mere stockholder of a security business, under whose qualifications the business is not licensed, is not subject to the provisions of that chapter. Therefore, there would be no substantial interference with the duties of a police officer were he to own stock in a security business.

Accordingly, a prohibited conflict of interest would be created were a city police officer to manage a private security business, licensed under Ch. 493; but he may own stock in such a business, provided that the business is not licensed under his qualifications. To the extent that this opinion is inconsistent with CEO's 76-101 and 77-79, those opinions are hereby revoked.

QUESTION:

Would a prohibited conflict of interest be created were a city police officer to own or manage a private security business, licensed under the provisions of Ch. 493, F. S.?

In your letter of request, you advise that Officer ____ wishes to participate in the ownership or operation and management of a private security business, to be licensed under the provisions of Ch. 493, F. S., in addition to his full-time employment as a ____ police officer. You also advise that his "ownership" would involve only the holding of stock in an incorporated security business as opposed to participating in the day-to-day activities involved in running the business.

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. 1977.]

The first portion of this section does not apply to the situation you have described, as a security business is subject to the regulation of the Department of State under Ch. 493, F. S., rather than to that of the officer's agency, the city police department. See s. 112.312(2), F. S. 1977, defining "agency." Additionally, we assume that the security business would not be doing business with the police department, as your letter of inquiry does not mention this possibility.

However, we are of the opinion that a police officer's operating and managing a security business licensed under Ch. 493, F. S., constitutes an employment that will create a frequently recurring conflict between his private interests and the performance of his public duties and that would impede the full and faithful discharge of his public duties, in violation of the second portion of s. 112.313(7)(a), above. Police officers perform an especially important and sensitive function and possess substantial authority. A police officer is sworn to uphold the law and, as a consequence, possesses broad arrest powers and the authority to detain and search persons under certain circumstances. See Ch. 901, F. S. In addition, full-time police officers possess

the right to carry, on or about their persons, concealed firearms, during off-duty hours, at the discretion of their superior officers, and may perform those law enforcement functions that they normally perform during duty hours, utilizing their weapons in a manner which is reasonably expected of on-duty officers in similar situations. [Section 790.052, F. S. 1977.]

Thus, a police officer's responsibility to uphold the law does not terminate when he goes off duty.

On the other hand, persons engaged in providing security services and licensed under Ch. 493, F. S., are subject to the following provision of law:

Divulging information; prohibited; false reports; penalty. -- No licensee or any employee of such licensee shall divulge to any person, except as otherwise provided by law, other than to his principal or his employer any information acquired as a result of any investigation, surveillance, or other employment performed by such licensee or employee. Provided, however, that the provisions of this section shall not apply to any employer who is also the holder of a license issued pursuant to this part who has the written consent of the client or principal to divulge any information falling within the terms of this section, and further provided, that the provisions of this section will not apply to the taking of testimony or the receiving of evidence in any judicial proceeding. Any person violating this section or any employee who shall willfully make a false report to his employer concerning his employment or work shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083. [Section 493.19, F. S. 1977.]

This provision would require any person who manages a security business to keep confidential any information received during the course of his business, unless written consent to divulge such information is obtained from the client.

In our opinion, full compliance with this provision, which carries a criminal penalty, is inconsistent with the proper performance of a police officer's sworn duties to uphold the law. Therefore, managing a security business would impede the full and faithful discharge of those public duties. In addition, we perceive a conflict of interest because of a police officer's access to confidential information through his department and the possibility that such information could be used to the benefit of a private client. Even if the officer does not avail himself of department information, the appearance of impropriety would remain, together with the appearance that the police officer has an advantage over his private competitors by virtue of his public position.

Were the subject police officer merely to own stock in a security business as an investment without participating in the management of the business, we feel that a different situation is presented. Section 493.091, F. S. 1977, provides:

Supervision of agencies. -- Each [private investigative or watchman, guard, or patrolman] agency must be under the direct supervision of the owner or corporate officer upon whose qualifications the agency is licensed.

As we read s. 493.19, above, a mere stockholder of a security business, under whose qualifications the business is not licensed, is not subject to its provisions. Therefore, there would be no substantial interference with the duties of a police officer were he to own stock in a security business.

Accordingly, we find that a prohibited conflict of interest would be created were a city police officer to manage a private security business, licensed under Ch. 493, F. S., but that he may own stock in such a business, provided that the business is not licensed under his qualifications.

To the extent that this opinion is inconsistent with CEO's 76-101 and 77-79, those opinions are hereby revoked.

We are without jurisdiction to issue an advisory opinion interpreting the city code provisions and police department regulations which you have referenced.