CEO 94-32 -- July 14, 1994

CONFLICT OF INTEREST

CITY POLICE OFFICER SERVING AS EXPERT

WITNESS IN CIVIL, TRAFFIC ACCIDENT CASES

To: Troy S. Schaaf, Police Officer, City of Lake Worth

SUMMARY:

No prohibited conflict of interest would be created under Section 112.313(7)(a), Florida Statutes, were a city police officer assigned to his department's traffic unit to serve as an expert witness in civil, traffic accident cases, within certain limitations. The fact that the accidents did not occur within the city, that the officer's department had no involvement in investigating the accidents, that no services will be provided to law firms which are representing a party to any incident which the officer's department investigated or assisted in investigating, that no services will be provided regarding any matter in which an active criminal investigation exists, and the fact that the law firms employing the officer would have little use for what confidential information would be potentially available through the officer, guard against the officer's being tempted to place private interests ahead of his public duties. CEO's 83-46, 88-59, 89-2, 91-34, and 91-66 are referenced.

QUESTION:

Would a prohibited conflict of interest be created were you, a municipal police officer assigned to your department's traffic unit, to provide expert witness testimony in the field of traffic accidents, in civil cases, by the use of your training and experience as an accident reconstructionist?

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

By your letter of inquiry, we are advised that you are a police officer serving in the Traffic Unit of the Lake Worth Police Department and that your primary job responsibilities are speed enforcement and accident investigations.

Through your public position, you advise, you have access to information that is not available to the general public, including names of juvenile offenders, names of sex offense victims, and active investigations generated by the Traffic Unit, and that your access is "indirect" (via the Department's dispatch center). Further, you advise, all information other than that noted above, including records of criminal convictions that would be useful in impeaching the credibility of opposing witnesses, is available through public records or other legitimate sources and would not be accessible only through your public position.

You relate that you would provide expert witness services only in cases in which the accident did not occur within the City of Lake Worth and in which your department had no involvement, and that you will not provide services to law firms which are representing a party to any incident which your Department investigated or assisted in investigating. In addition, you maintain that you will provide services only to law firms practicing civil law, located outside of the City of Lake Worth; that you will not be on a retainer with the firms but will work only on a case-by-case basis; that you will not provide "investigative services of any kind"; that you will not provide services to any law firm that is involved in any case in which your department was in any way involved; that you will not provide services on any case where there is an active criminal investigation; and that you will not provide services to insurance companies or to a law firm representing an insurance company involved in a particular case.

You inquire whether your proposed endeavor as an expert witness would violate the Code of Ethics for Public Officers and Employees. You maintain that your situation is distinguishable from CEO 83-46, CEO 88-59, CEO 89-2 and CEO 91-34, and that it is analogous to that found in CEO 91-66.

Section 112.313(7)(a), Florida Statutes, is the portion of the Code of Ethics directly applicable to your inquiry. It provides:

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.

While in some of our past opinions we have been concerned with a law enforcement officer's temptation to abuse his public position in favor of his private employment interests, particularly in regard to temptation to access confidential law enforcement information for his own private benefit or that of his private employer, your particular circumstances allay our concerns in that regard. For example, in CEO 83-46 (an opinion in which we found that a prohibited conflict would be created were a police officer to work for a private attorney performing civil investigations, criminal investigations, and background checks) we were concerned that the officer might be tempted to access information that would be used to undermine the State's prosecution of a criminal case, thereby compromising or undermining his department's standing with other law enforcement agencies, that some of the attorney's cases involved the officer's own department, and that essentially the officer would be "reinvestigating" his department's cases in a private role. Your situation is different in that you would not so much be gathering information ("investigating") but rather would be rendering an expert opinion based upon information about an accident provided to you or gathered by you from legitimate sources available to the public, you would not be involved in criminal cases, and you would not be involved in cases in which your department is involved.

Your situation is also distinguishable from CEO 88-59 and CEO 89-2. These two opinions restated our concerns voiced in CEO 83-46 and added the additional concern that the police officer's private clientele might have been providing legal services or insurance coverage to clients within the city in which the officer was publicly employed and that therefore confidential information within the officer's possession might have been of interest to the firms and companies. In your situation, the law firms with which you would work privately appear to be sufficiently divorced from matters involving your department or your city such that the concerns of CEO 89-2 would not be present. This finding is consistent with CEO 89-2 in that we implied therein that particular private employments might not result in prohibited conflicts, depending on specific information concerning the employer, the nature and extent of the employer's interests and relationships, and the exact nature of the services to be provided to that employer.

The finding of a prohibited conflict found in CEO 91-34 (under Question 2 of that opinion) was based upon our concerns voiced in CEO 83-46, an opinion with a factual situation distinguishable from your own.

We find that your situation is more akin to that present in CEO 91-66 and that your proposed private endeavor therefore would create no prohibited conflicts so long as it is conducted within the limitations set forth in that opinion. In CEO 91-66 we found that no prohibited conflict of interest would be created were municipal police officers assigned to their department's code team to perform consulting work as expert witnesses in building code matters outside the jurisdiction of the police department for law firms located outside the city which did not practice criminal law and were not representing any party to a case concerning matters that were subject to either the officers' investigation or investigation by the police department.

However, please be aware that any actual misuse of your public position or its attributes, such as performing private work during public working hours or performing private work utilizing public equipment without proper authorization, or any actual use or disclosure of information not available to the public and gained through your official position for your private benefit or that of another, would still be violative of Sections 112.313(6) or 112.313(8), Florida Statutes, which provide respectively:

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.

DISCLOSURE OR USE OF CERTAIN INFORMATION.--No public officer or employee of an agency shall disclose or use information not available to members of the general public and gained by reason of his official position for his personal gain or benefit or for the personal gain or benefit of any other person or business entity.

Accordingly, under the particular situation presented by you, we find that no prohibited conflict of interest would be created were you to provide services as an expert witness within the limitations noted herein.