CEO 83-46 -- July 28, 1983

CONFLICT OF INTEREST

CITY POLICE OFFICER EMPLOYED BY ATTORNEY TO CONDUCT CIVIL AND CRIMINAL INVESTIGATIONS

To: Captain Craig E. Richardson, Commander, Operations Bureau, City of Lake Worth Police Department

SUMMARY:

A prohibited conflict of interest would be created were a municipal police officer to work as an investigator for a private attorney in civil and criminal cases outside the municipality. Such employment would present a continuing or frequently recurring conflict of interest or would impede the full and faithful discharge of his public duties in violation of Section 112.313(7)(a), Florida Statutes, because of the officer's access to confidential information and the anticipated effect of the use of such information on the officer's relationships with other law enforcement personnel, as well as the police department's relationship with other law enforcement agencies.

QUESTION:

Would a prohibited conflict of interest be created were a municipal police officer to work as an investigator for a private attorney in civil and criminal cases outside the municipality?

Your question is answered in the affirmative.

In your letter of inquiry you advise that Officer Perry Shaver, a certified Police Officer with the City of Lake Worth Police Department, has submitted a written request seeking permission to work as an investigator for a private attorney. The attorney's office is located in a neighboring city. You also advise that the Officer's employment would involve conducting civil investigations, criminal investigations, and background checks for the attorney. The Officer advises that these activities would be performed in geographical areas outside of the City.

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), Florida Statutes (1981).]

This provision prohibits a public officer or employee from having any employment 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 of the Code of Ethics would prohibit the subject Officer's proposed employment.

In a previous advisory opinion, CEO 75-128, we advised that an assistant public defender and a public defender investigator should not be engaged in the business of serving witness subpoenas, noting that the judicial process is a sensitive one and that in that context conflicts of interest of even a marginal nature should be avoided. As the Officer's proposed employment arises in the context not only of the judicial process but also of law enforcement activities, we believe that the geographical limitations on a Police Officer's authority are not nearly so important as the nature of the attorney's work and the anticipated effects of the Officer's proposed employment.

You have advised that the attorney handles or will handle criminal or civil cases in which the Police Department has been or may be involved, as well as cases involving the City. In fact, you advise, the attorney is representing a defendant in a case in which the Police Department is seeking forfeiture of the defendant's vehicle.

You also advise that the Officer has access to almost all information concerning criminal complaints and investigations conducted by the Police Department and could obtain the information should he desire to do so. Because of his long standing as a Police Officer and the various positions he has held throughout the Department and the many contacts he has made in the law enforcement community, it is reasonable to believe that he could obtain otherwise confidential information from other police agencies simply by personally requesting it. Much of the information he has access to from both the Police Department and other Police agencies is confidential and not otherwise known by persons outside law enforcement. Although it is not known to what extent such information would aid a defense attorney, it is believed that knowledge of such information could be helpful.

Finally, you advise that there is a definite possibility that information gained in confidence and then used in a manner which would betray that confidence, such as to attack a Department and State Attorney's prosecution, would compromise, if not completely undermine, the Department's standing with other law enforcement agencies. Faith and trust play strong roles in relationships between agencies and between members of an agency, you advise.

The term "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. In our view, the full regard of the Officer's private interests as an investigator for the attorney would tend to lead to disregard of his public responsibilities on a frequently recurring basis, and would impede the full and faithful discharge of his public duties. Clearly, a Police Officer should not be in a position in a private capacity to reinvestigate cases in which his Department was involved. Moreover, the ramifications you have described involving not only the Officer's relationship with other law enforcement personnel, but also the Department's relationship with other law enforcement agencies, would indicate the conflict of interest inherent in the Officer's proposed employment.

The Code of Ethics also provides:

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. [Section 112.313(8), Florida Statutes (1981).]

In finding a frequently recurring conflict of interest in the Officer's proposed employment, we are especially concerned with the Officer's access to confidential information not available to members of the general public. As you have noted, this information could be gained by reason of the Officer's official position for the gain or benefit of his private employer.

Our remarks should not be taken as reflecting on the subject Officer's integrity or as any indication that we believe that the subject Officer would use his position in an attempt to assist a private employer. Rather, our view of the situation is based upon the sensitivity of the judicial and law enforcement processes and the high degree of trust and respect which the people repose in these institutions. As noted by the Court in Zerweck v. State Commission on Ethics, 409 So.2d 57 (Fla. 4th DCA 1982), the statute which we are interpreting is directed at situations which "tempt dishonor." It is our view that such a situation would be created by the subject Officer's proposed employment.

Accordingly, we find that a prohibited conflict of interest would be created were the subject Police Officer to be employed by a private attorney to conduct civil investigations, criminal investigations, and background checks.