CEO 91-34 -- July 19, 1991
CONFLICT OF INTEREST
CITY POLICE CHIEF EMPLOYED AS
To: (Name withheld at the person's request.)
No prohibited conflict of interest would be created were a municipal police chief to perform private investigative services for cruise lines relative to incidents occurring on board ship and not involving intentional torts or crimes. Under these circumstances there is no conflict between the police chief's public duties and his private interests under Section 112.313(7)(a), Florida Statutes, because any access that he has to information unavailable to the general public would be of little benefit to his private employer.
A prohibited conflict of interest would exist were the police chief to be employed to investigate accidents occurring outside the jurisdiction of his police department but within neighboring counties. Because of his access to confidential law enforcement information that may be of value to his clients, such private employment would present a continuing or frequently recurring conflict of interest or would impede the full and faithful discharge of his duties.
No prohibited conflict of interest would be created by the mere holding of a private investigator license because the holding of the license does not constitute employment or a contractual relationship. The giving of advice as to options available to a public officer holding a private investigator's license is beyond the scope of this Commission's authority.
Would a prohibited conflict of interest be created under Section 112.313(7)(a), Florida Statutes, were you, a police chief of a small municipality who holds an active private investigator's license, to conduct civil (slip and fall type) investigations on foreign flagged cruise ships returning from the Caribbean?
Your question is answered in the negative.
In your letter of inquiry you advise that you are employed as the Chief of Police for the Village of Biscayne Park in Dade County. You also advise that you are licensed as a private investigator pursuant to Chapter 493, Florida Statutes, that you have conducted and would like to continue to conduct civil (slip and fall type) investigations on foreign flagged cruise ships returning from the Caribbean, and that all your investigations are conducted on the ship. You advise that on occasion the cruise line will fly you out of the country to meet its ship either in the Bahamas, Mexico, or Grand Cayman and that you conduct your investigation on the way back to port in Florida, where you disembark and go through U.S. Customs with the other passengers. The only work left to do in Florida is the typing and mailing of your report. You advise that you never follow up on any of your investigations. Any further correspondence or follow-up is handled by the cruise line or its attorneys.
You also write that United States Customs has advised you that once you board a foreign flagged ship, you are no longer in the United States or the State of Florida and that you therefore, are subject only to the rules, regulations and laws of the "flag" country. This statement is only partially correct; however, for purposes of analyzing the question that you have asked, a discussion of maritime law or admiralty is unnecessary.
Section 112.313(7)(a), Florida Statutes, 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.
Under this provision, a public officer is prohibited from having any employment or contractual relationship which would present a continuing or frequently recurring conflict of interest or which would impede the full and faithful discharge of his public duties. We are of the opinion that this provision is not violated by your acting as a private investigator within the limitations that you have described.
For the purposes of the Code of Ethics, a "conflict of interest" is defined to mean "a situation in which regard for a private interest tends to lead to disregard of a public duty or interest." Section 112.312(6), Florida Statutes. Based upon this definition, an appellate court, in Zerwick v. State Commission on Ethics, 409 So.2d 57 (Fla. 4th DCA 1982), held that Section 112.313(7)(a) "establishes an objective standard which requires an examination of the nature and extent of the public officer's duties together with a review of his private employment to determine whether the two are compatible, separate and distinct or whether they coincide to create a situation which 'tempts dishonor.'"
Our concern, therefore, is whether the interests of a public officer's or employee's private employer and the nature of his private responsibilities could coincide with his public duties to "tempt dishonor," rather than with whether an officer or employee, through self-imposed limitations, could avoid succumbing to the temptation of using public resources for private benefit and thereby disregarding his public duties and the public interest.
In CEO 83-46, we determined that Section 112.313(7)(a) and Section 112.313(8), Florida Statutes, could be violated were a municipal police officer to be employed as a private investigator. As a basis for finding a conflict in CEO 83-46, we noted the police officer's access to information unavailable to the general public which would benefit his private employer. We also noted that our view of the situation was based upon the sensitivity of the judicial and law enforcement processes and the high degree of trust and respect which people place in these institutions, rather than upon a judgment of the officer's personal integrity.
The reasoning applied in CEO 83-46 was applied also in CEO 89-43, leading us to find that a prohibited conflict of interest would prevent a deputy sheriff from investigating matters concerning civil and criminal cases, missing persons, civil process, and pre-employment applications as a self-employed private investigator while also remaining employed as a deputy sheriff. Similarly, in CEO 89-2 we noted that the possibility that a police officer's access to confidential information in his department or through contacts with other law enforcement agencies could be used to the benefit of a private client gives the appearance of impropriety and the appearance that the police officer has an advantage over his private competitors by virtue of his public position. We noted, however, that occasional instances of outside employment as a private investigator, under certain circumstances, might not result in a prohibited conflict of interest. We opined that there would be no conflict if the officer only worked on cases outside the State.
Here, your client is a cruise line--a domestic or foreign company authorized to do a substantial amount of business in Florida. Typically, your client schedules the cruises which originate and terminate in Florida, selects the ports of call, establishes the prices to be charged, hires the personnel used aboard the ship, and retains control of all funds received from the sale of tickets. These substantial contacts with Florida enable a passenger to sue in either state or federal court for breach of the cruise line's duty to the passenger--a maritime tort.
We are of the opinion that ordinarily your investigation of a "slip and fall" type case would present no frequently recurring conflict between your private interests and your public duties; nor would it impede you in the full and faithful discharge of your public duties. First, unlike the situations in CEO 83-46, CEO 89-2, and CEO 89-43, the confidential information that you have access to would be of little benefit to the cruise line. Second, we do not believe that these "slip and fall" type investigations could have any influence upon any actions taken or investigations undertaken by you in your public capacity. We do caution you, however, against accepting any cases involving investigations of intentional maritime torts such as sexual assault or any other matter which would be a crime if committed in Florida.
In such cases your access to confidential information would be of value to the cruise line. A conflict also could exist between your private responsibilities to the cruise line and your public duties by virtue of the extension of Florida's special maritime criminal jurisdiction under certain limited circumstances pursuant to Section 910.006, Florida Statutes. Assuming that you do not investigate these types of cases, our opinion is that no prohibited conflict of interest exists.
We would caution you, also, regarding Section 112.313(6), Florida Statutes, which provides:
MISUSE OF PUBLIC POSITION.--No public officer or employee of an agency shall corruptly use or attempt to use his official position or any property or resource which may be within his trust, or perform his official duties, to secure a special privilege, benefit, or exemption for himself or others. This section shall not be construed to conflict with s. 104.31.
For purposes of this provision, the term "corruptly" is defined as follows:
'Corruptly' means done with a wrongful intent and for the purpose of obtaining, or compensating or receiving compensation for, any benefit resulting from some act or omission of a public servant which is inconsistent with the proper performance of his public duties. [Section 112.312(7), Florida Statutes (1989).]
Any attempt by you to use your public position or any property or resource within your trust, including information acquired through your public position, potentially could violate this provision.
Accordingly, subject to the conditions noted, we find that no prohibited conflict of interest would be created were you to perform private investigative services for cruise lines within the limitations set forth above.
Would a prohibited conflict of interest be created were a Police Chief with an active private investigator license to investigate traffic accidents occurring outside the jurisdiction of his police department and outside the county where his police department is located?
Your question is answered in the affirmative.
In your letter of inquiry, you advise that Biscayne Park is a small residential community with a police force consisting of a Police Chief, two sergeants, four patrolmen, and six reserve officers. You advise that the crime rate is negligible and that you do not have any computer terminals hooked up to the Florida Crime Information Center (FCIC) or the National Crime Information Center (NCIC) Computer System. You advise that you have only one in-house computer that you recently acquired for the purpose of data processing, replacing paper filing cards typically used for incident reports, statistics, etc.
You also advise that your private investigations are strictly civil in nature. They consist of traffic accident reconstruction, including small boating accidents in the intercoastal waterway or connecting canals which involve injury or death. All of your investigations are conducted in Broward or Palm Beach Counties and on rare occasions in Central and Northern Florida.
You advise that your investigations typically consist of measuring, photographing, and reconstructing what happened. You speak to the parties involved and to any witnesses. Any documents pertaining to driving records or civil court proceedings are obtained by the attorney's office through normal public records request channels. You advise that accident reports, traffic accident surveys, license and lien information, and the like are obtained by you by following proper public records request procedures. You advise that upon completion of your investigation, you file your report with the attorney for whom you are conducting the investigation.
We are of the opinion that the same factors discussed in CEO 83-46 would prohibit you from being employed both as a Police Chief and as a private investigator in these types of cases. These factors include your access to confidential information that could be of benefit to your private employer even if your duties for that employer do not involve criminal matters or the use of such information. The fact that your police department does not have direct computer terminal access to the confidential information is of no consequence because of your access to this same information through other law enforcement agencies by virtue of your position, as well as your police department's relationship with other law enforcement agencies. Such access would create a continuing and frequently recurring conflict between your public duties and private interests and would impede you in the full and faithful discharge of your public duties.
In making this determination, we are not implying that you intentionally would misuse your public position or resources within your trust as a public officer. As in past opinions, we find that the dual employment you propose could place you in a situation which "tempts dishonor" and that such a situation is sufficient to create a prohibited conflict of interest within the intent of Section 112.313(7)(a), Florida Statutes. See CEO 83-46 and CEO 89-2.
Accordingly, we find that a prohibited conflict of interest would be created were you to remain a Police Chief while becoming self-employed as a private investigator providing accident reconstruction and investigation services to attorneys.
If the Commission finds that a prohibited conflict of interest exists under Questions 1 and 2 above, would a prohibited conflict of interest be created were you to hold an active private investigator license without actively engaging in private investigative work?
Your question is answered in the negative.
The first part of Section 112.313(7)(a) set forth in the answer to Question 1 prohibits a public employee from having an employment or a contractual relationship with a business entity which is subject to the regulation of, or doing business with, his agency. However, in our view, this provision does not apply.
We previously have concluded that Section 112.313(7)(a) does not prohibit a sworn law enforcement officer from holding a license from the Department of State as a private investigator, Complaint No. 89-57 (Final Order 1/28/91). This is because the mere holding of such a license would not constitute employment or a contractual relationship. Therefore, Section 112.313(7)(a) does not require you to surrender your license.
We already have discussed the application of the second part of Section 112.313(7)(a) with reference to the facts that you provided with Questions 1 and 2. It would be beyond the scope of the authority conferred on this Commission by Section 112.322(3)(a) for us to attempt to advise you of any other options that you might have available to you with respect to your license. We therefore decline to do so.
Your question is answered accordingly.