CEO 94-14 -- April 21, 1994
CONFLICT OF INTEREST
HIGHWAY PATROLMEN WORKING FOR COMPANY
PROVIDING PERSONAL PROTECTION SERVICES
To: Peter N. Stoumbelis, Assistant General Counsel, Department of Highway Safety and Motor Vehicles (Tallahassee)
No prohibited conflict of interest would be created under Section 112.313(7)(a), Florida Statutes, were members of the Florida Highway Patrol to work for a company providing bodyguard/personal protection services. Highway Patrol procedures regarding access to confidential law enforcement information coupled with the lack of need by the members (in their private employment) or the company for the type of information obtainable from law enforcement sources and the nature of the members' private duties (accompanying clients to ensure the clients' physical safety rather than actual private investigations) negate any conflict. CEO's 76-101, 77-79, 78-29, 78-82, 79-81, 80-77, 83-46, 87-15, 87-58, 88-59, 88-76, 89-43, 90-33, 91-56, 92-17, and 92-48 and AGO 90-61 are referenced.
Would a prohibited conflict of interest be created were members of the Florida Highway Patrol to perform "dignitary protection services" through a licensed private investigation company?
Under the facts of this opinion, your question is answered in the negative.
By your letter of inquiry, materials accompanying the letter, and other information provided to our staff, we are advised that the Florida Department of Highway Safety and Motor Vehicles, Division of Florida Highway Patrol (the "Patrol"), has received a request from a member of the Patrol to work outside of his regular public working hours for a private company. Members of the Patrol are sworn law enforcement officers.
The private work would be performed for a Florida corporation (the "company") licensed under State law as a private investigative agency, we are advised. However, materials accompanying your inquiry assert that the company primarily intends to provide protective/bodyguard services, rather than more traditional private investigative services, and that the company "recognizes the stigma associated with [the title of investigative agency] and would readily seek an alternative license if available." The materials advise us in part that:
. . . .[the company's] primary business objective is protective services. [The company] offers ancillary services which include physical security surveys, threat assessments, security consultations and conventional investigations. A clarification of conventional investigations is necessary at this point. [The company], as stated previously[,] does not desire or intend to become involved in "Sam Spade" type investigations. The types of conventional investigations that would be acceptable would be a request to conduct undercover operations in a corporate facility to determine whether or not a drug abuse, espionage or possibly a theft problem existed. These request[s] would be staffed by in-house personnel or contracted to another private investigations firm. Troopers would not be permitted to participate in these operations due to the conflict of interest consideration. An example of an unacceptable request would be from a jealous husband/wife attempting to determine if their spouse is engaged in an extra-martial [sic] affair.
We are advised further through the materials that:
With consideration to the conflict of interest violation, [the company] would require that a contract, i.e. an Off Duty request form, be completed and include a disclaimer that no Trooper would be requested or permitted to provide background information, criminal history information or conduct any type of investigative functions while in the employment of [the company]. The specific duties would be described as providing protective service and escort support to the individual contracted by [the company]. Each application would be reviewed by the proper level supervisor to ensure that a disclaimer is included on every application for off-duty employment. It is also intended that the ranks of Lieutenant and Captain be included in the protective service missions. This would provide an in house check and balance as well as first hand knowledge of the operations to ensure that the integrity of the disclaimer is maintained.
The additional information provided by you to our staff advises that the sole private job function of the troopers would be to accompany the client ("dignitary") and to provide for the physical safety of the client and his family; that troopers would engage in no investigative activities; that neither the company nor the troopers would be involved in gathering information of the kind available from confidential law enforcement sources, as "[t]he private company does not do background investigations, or similar investigations where law enforcement information would be valuable;" that troopers would not be engaged in any planning activities, such as determining where the dignitary should be housed or determining his route to and from events or meetings; and that "[a]ll additional or necessary training would be provided by or at the expense of the private employer." You advise that the company currently employs city police officers and deputy sheriffs.
Further, you advise that some of the training required for the troopers to serve as members of the FHP, obtained through public funds, facilities, or resources, may be beneficial to the troopers in their private employment. However, since the training is a requirement of their public position, it would be provided to them regardless of whether or not they hold private secondary employment.
The private work will be done in plain clothes, not in FHP uniform, but the troopers will be permitted to carry their primary service firearm and other individual equipment, and the Patrol will modify its off-duty employment policy to provide for the use of plain clothes, you advise. Further, you advise that troopers are sworn law enforcement officers and as such are expected to, and understand that they are to, take appropriate action regarding serious matters occurring in their presence, regardless of whether the occurrence is during their regular public working hours. In this regard, Section 321.05, Florida Statutes, provides in part:
The members of the Florida Highway Patrol are hereby declared to be conservators of the peace and law enforcement officers of the state, with the commonlaw right to arrest a person who, in the presence of the arresting officer, commits a felony or commits an affray or breach of the peace constituting a misdemeanor, with full power to bear arms; and they shall apprehend, without warrant, any person in the unlawful commission of any of the acts over which the members of the Florida Highway patrol are given jurisdiction as hereinafter set out . . . .
In addition, you advise that the collective bargaining agreement covering troopers requires that employees utilizing State equipment in an off-duty police employment are responsible for all insurance relative to such outside employment, including workers' compensation, liability, and vehicle insurance (at least $100,000/200,000 vehicle liability insurance and property damage coverage of $25,000), that presently troopers requesting to work outside of State government must provide proof of such insurance, and that the FHP Policy Manual (provision 5.19.04) provides that "State benefits and protections including liability insurance coverage and Workers' Compensation benefits for work related injuries or disability will not apply while the member is performing in off-duty police employment."
Generally, you advise, tort claims against the State and its agencies are governed by Section 768.28, Florida Statutes. Section 768.28 partially waives sovereign immunity and allows suit against the State or its agencies in tort for money damages for injury or loss of property, personal injury, or death caused by the negligent or wrongful act or omission of any employee of the agency while acting within the scope of his office or employment under circumstances in which the State or such agency, if a private person, would be liable to the claimant, up to $100,000 per person (not to exceed $200,000 per incident or occurrence). Section 768.28 does not allow for punitive damages or prejudgment interest; nor does it provide for liability for acts or omissions of a public officer or employee committed while acting outside the course and scope of his employment, committed in bad faith, committed with malicious purpose, or committed in a manner exhibiting wanton and willful disregard of human rights, safety, or property.
You advise that the Patrol has contracted pursuant to Section 112.24, Florida Statutes (titled "Intergovernmental transfer and interchange of public employees") with the various State universities to provide escort and protection services for football games (including escorting head coaches). You maintain that the dignitary protection work the troopers seek to engage in is very similar to the football game security/escort services. You also advise that the Patrol routinely authorizes off-duty employment for troopers who escort oversized vehicles, who maintain traffic control for highway construction and repairs, who provide security for private businesses, and who provide security at civic centers for sporting and other events. Further, you advise, compensation for off-duty work performed by troopers for private entities is paid directly from the entities to the troopers because the Patrol, unlike Sheriffs, does not possess statutory authority to administer or operate a program to provide private off-duty security service.
With regard to the Sheriffs, you advise, originally an opinion of the Attorney General (AGO 90-61) stated that while deputy sheriffs, independent of their official duties, may be allowed to perform private security services during their off-duty hours, sheriffs may not operate or administer an off-duty employment program involving contracts to provide law enforcement services to private persons or entities. In response, the Legislature enacted Chapter 91-174, Laws of Florida (currently codified at Section 30.2905, Florida Statutes), which provides in part:
(1) A sheriff may operate or administer a program to contract for the employment of sheriff's deputies, during off-duty hours, for public or private security services.
(2) Any such public or private employer of a deputy sheriff shall be responsible for the acts or omissions of the deputy sheriff while performing services for that employer while off duty, including workers' compensation benefits. However, for the workers' compensation purposes of this section, a deputy sheriff so employed who sustains an injury while enforcing the criminal, traffic, or penal laws of this state shall be regarded as working on duty.
(3) Deputy sheriffs employed during off-duty hours pursuant to the provisions of this section are exempt from the licensure requirements of chapter 493 for watchmen, guards, patrol services, or private investigators.
You advise that it is your understanding that Section 30.2905 has been implemented by various sheriffs' offices with private employers at times paying deputies directly for services rendered and at times the employers paying the public agency, with the deputies receiving pay in the form of additional "public" pay. You state that you know of no interpretation of Section 30.2905 or other legal directive or requirement that would preclude payment directly to deputies from private employers.
You mention Section 30.2905 because, you argue, its enactment by the Legislature, which presumably was aware of the ethics laws at the time of the enactment, demonstrates that the Legislature has endorsed the provision of private security services by deputy sheriffs working off-duty hours. Further, you maintain that a provision such as Section 30.2905 is not necessary for troopers (who, unlike deputy sheriffs, are entitled to collective bargaining) to engage in private security work during off-duty hours because State constitutional and statutory provisions concerning collective bargaining provide the basis for the administration of private security programs by the Patrol.
You advise that troopers, to begin their public work shifts, usually go to their areas of patrol from their homes and, at the end of their shifts, go to their homes from their areas of patrol; they do not frequent the Patrol's computer information access areas. In addition, you advise that a member of the Patrol may obtain criminal history information from the Florida Crime Information Center, National Crime Information Center or any similar agency for lawful purposes; that "a trooper must radio the duty officer to obtain criminal history information about an individual; that, generally, a trooper is not privy to information concerning ongoing criminal investigations and is not routinely provided such information; and that some troopers, such as investigators, may be authorized to directly access the criminal information networks, but, ordinarily, troopers and supervisors are not so designated. Further, you advise that there are statutory and FHP Policy provisions against release of any criminal information outside the agency except for law enforcement use and that if a violation of this policy occurs, a trooper would subject himself or herself to discipline up to and including dismissal. You also advise that while a trooper may be privy to information such as DUI and driver license checkpoints, accident scenes, and other impediments to travel, so as to facilitate the travel and convenience of company clients, this information is subject to public records laws and is available to anybody, that case law requires all DUI and driver license checkpoints to be released in advance to electronic and print media, and that, thus, there is no advantage by the trooper over that of a knowledgeable citizen.
The Code of Ethics 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. [Section 112.313(7)(a), Florida Statutes.]
In previous opinions, we have found this provision to prohibit a law enforcement officer from working privately in an investigative capacity, reasoning that such a private endeavor creates a continuing or frequently recurring conflict between a law enforcement officer's private interests and the performance of his public duties or impedes the full and faithful discharge of his private duties. See, for example, CEO 78-82, CEO 83-46, and CEO 89-43. In those opinions, we were concerned that the officer would be tempted to access information available through his public position in order to benefit his private employer, that his duty under private investigative statutes to keep confidential information learned in the course of his private employment would conflict with his sworn duty to uphold the general law of the State, and that the perception among other law enforcement agencies and personnel that he was accessing, via his public job, confidential information for private use or was gaining advantage in his private endeavor due to his public position might undermine smooth functioning and cooperation between law enforcement agencies.
These opinions dealt primarily with situations involving traditional or conventional private investigative functions (civil process service, missing persons, etc.) and not the protective/bodyguard functions described here. Therefore, as described below, the same concerns are not present here.
Regarding confidential information, the Patrol's procedures for law enforcement information access coupled with the company's and the troopers' lack of need for such information for private use serve to guard against temptation on the part of the troopers to violate Patrol policies and risk dismissal from their public positions to access such information for private use. These factors also limit any appearance that the troopers are gaining a private advantage form their public positions. Further, much information that conceivably could be of use to the company to facilitate the escort of clients (the location and timing of roadblocks, driver license checks, D.U.I. checkpoints, or other impediments to travel) is published in advance for public consumption and therefore would create no advantage for the company.
In addition, we find that our concerns about private investigative work involving the possible tension between a statutory duty to keep confidential information learned via private investigative work and the duty of a sworn law enforcement officer to enforce the law, duties that might conflict if effective law enforcement required disclosure to prevent a crime, effect an arrest, or prevent harm to someone are not present under your scenario. The troopers would not be performing background checks, looking for missing persons, compiling investigative files, or engaging in other similar traditional investigative activities but, rather, would be acting as bodyguards working to ensure the physical safety of the clients whom they escort. Further, the company, as represented in your materials, "does not do background investigations, or similar investigations." Section 493.32, Florida Statutes, was the provision which led to our concern in the previous opinions. That provision essentially was replaced by the addition of Section 493.6119(1), Florida Statutes. See Chapter 90-364, Laws of Florida. Section 493.32 provided and Section 493.6119(1) provides, respectively:
Except as otherwise provided by law, no licensee or any employee of a licensee shall divulge or release to any person, other than to his principal or his employer, any information acquired as a result of any investigation, surveillance, or other act performed by the licensee or employee in the course of his employment. However, the provisions of this section shall not apply to an employer who is also the holder of a license issued pursuant to this chapter and who has the prior written consent of the client or principal to divulge or release any information falling within the terms of this section. Any person violating this section or any employee who shall willfully make a false report to his employer concerning his employment or work is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775..084.
Except as otherwise provided by this chapter or other law, no licensee, or any employee of a licensee or licensed agency shall divulge or release to anyone other than his client or employer the contents of an investigative file acquired in the course of licensed investigative activity. However, the prohibition of this section shall not apply when the client for whom the information was acquired, or his lawful representative, has alleged a violation of this chapter by the licensee, licensed agency, or any employee, or when the prior written consent of the client to divulge or release such information has been obtained.
Understanding that it is not our role to interpret statutory provisions outside of the Code of Ethics, we nevertheless recognize that Section 493.6119(1) does use the terms "the contents of an investigative file acquired in the course of licensed investigative activity," in describing the information that is to be kept confidential by the licensee, whereas the previous statute described "any information acquired as a result of any investigation, surveillance, or other act performed by the licensee or employee in the course of his employment." In contrast to the repealed language, the current language could be seen as descriptive more of traditional private investigative activity than of bodyguard/escort services than was the repealed language. In addition, you point out that the confidentiality under both the current and previous provisions is qualified by the language "except as provided by law," and that the qualifying language could be read to mean that troopers working in a private capacity subject to Chapter 493 would be mandated by other law (the general criminal law of the State and laws requiring their enforcement of the law) to appropriately disclose such confidential information to facilitate effective law enforcement.
In CEO 90-33 we found that no prohibited conflict would be created were a police officer to perform financial consulting and other services for law firms in commercial litigation. In that opinion, we noted that the officer would not have access through his official position to the type of information that would be of use to the law firms. Your situation is similar in that you have represented that the company which would employ the troopers does not do investigations where law enforcement information would be valuable.
We find that the situation you present also is more akin to our opinions dealing with situations in which law enforcement officers, including FHP troopers, have been found to have no prohibited conflict of interest when they performed escort services or services which involved the protection of life and property than it is to our opinions involving law enforcement officers which found a prohibited conflict. Examples of situations in which no prohibited conflict was found are: CEO 76-101 (police officer running private security company), CEO 77-79 (police officer working off-duty hours as security guard), CEO 78-29 (police officer employed during off-duty hours as security director of corporation located within municipality), CEO 79-81 (FHP trooper escorting oversized loads), CEO 80-77 (FHP troopers privately teaching defensive driving courses), CEO 91-56 (FHP troopers privately teaching driver improvement courses), CEO 87-15 (Marine Patrol officer owning and operating charter fishing boat), CEO 87-58 (Marine Patrol officer working as shellfish relaying monitor), CEO 92-17 (Marine Patrol officer owning and operating charter boat and holding saltwater products license), and CEO 92-48 (DOT motor carrier compliance officers employed by road-construction firms).
We note that CEO 76-101 and CEO 77-79 were revoked by CEO 78-82 to the extent of any inconsistency. The finding of a continuing or frequently recurring conflict or impediment to duty under CEO 78-82 was based upon two factors: first, that the statutory duty to keep private investigative information confidential conflicted with a law enforcement officer's duty to uphold the law; and, secondly, that the police officer had access to confidential information that could be used to benefit a private client. For the reasons discussed earlier in this opinion, we do not find those concerns to be present here.
Also, we believe that CEO 88-59 (fire department employees operating private fire investigation service) and CEO 88-76 (GFWFC wildlife officers providing security to private landowners and hunting clubs), which found prohibited conflicts under the second clause of Section 112.313(7)(a), are distinguishable. In CEO 88-59, we were concerned with the possible abuse of confidential information by the employees for the benefit of their insurance company and attorney clients for whom they were investigating the causes and origins of fires. As discussed earlier, under your scenario the troopers substantively would not be conducting investigations even though they would be operating under "investigative licensing," and the dignitary protection company would not have use for confidential information. In CEO 88-76, the wildlife officers had an affirmative duty to check their employers and their employers' guests and associates to ensure that they had the appropriate permits and licenses and otherwise were in compliance with the game laws. Under your scenario, there does not appear to be any similar requirement for permits or licenses primarily monitored by your public agency.
Inasmuch as our authority to issue advisory opinions is limited to inquiries regarding the standard of public duty in a particular factual context [see Section 112.322(3)(a), Florida Statutes], should the situation you present for consideration in this opinion change in a material way, another opinion should be requested from us in regard to the new situation.
Accordingly, under the circumstances of this opinion, we find that a prohibited conflict of interest would not be created were the Patrol members to work for a company providing dignitary protection services.