CEO 96-28 -- December 3, 1996
CONFLICT OF INTEREST
COUNTY PROBATION OFFICER EMPLOYED BY
ENTITIES PROVIDING SERVICES TO PROBATIONERS
To: Mr. Thomas D. Hutson, Seminole County Probation Manager (Sanford)
A continuing or frequently recurring conflict or impediment to the full and faithful discharge of public duty exists under the second part of Section 112.313(7)(a), Florida Statutes, where a county probation officer is employed by providers of services to county probationers. The officer would be tempted to influence the probationers= choice of providers in favor of the providers employing the officer, the officer is involved in his public capacity in determining whether probationers successfully complete programs offered by the providers, and the officer has public responsibility for recommending whether or not probationers repeat programs offered by the providers.
Does a prohibited conflict of interest exist where a county probation officer is employed by entities that provide services to county probationers?
Under the scenario set forth herein, your question is answered in the affirmative.
By your letter of inquiry, materials accompanying your letter of inquiry, and additional information provided by you to our staff, we are advised that Mr. James McCall is employed by Seminole County=s Probation Division, serving as a Probation Officer I. Probation Officers, we are advised, directly supervise criminal defendants placed on probation by County Judges, under terms which frequently include special conditions such as anger management classes, batterers intervention programs, and substance abuse/treatment counseling programs.
We are advised that the officer is secondarily employed by two entities which provide services to probationers: one provides court-ordered counseling sessions for domestic violence and spouse abuse offenders and the other provides driving school for traffic violators. Neither of these entities, we are advised, does business with the County, as there is no buying and selling of services between either provider and the County. Further, we are advised that neither provider is subject to the regulation of the Division.
We are advised that the Officer had no input in his public capacity in creating the current situation in which probationers receive services from the entities; that he has no public duties regarding monitoring, auditing, or evaluating performance by the entities or other providers; that Officers do not recommend to the court for or against probationers utilizing certain providers; and that Officers do not play any role in a probationer=s choice of a provider. However, you advise that the Officer is responsible for evaluating whether probationers have successfully completed all standard and special conditions of probation (including programs provided by the two entities for whom he works and other providers), and that the Officer is responsible for bringing probationers before the court for noncompliance with conditions.
Additionally, we are advised that the entity which provides schooling for traffic offenders is Athe only provider of this type of service in the area@ and that A[t]here is no acceptable alternative available from other sources within the [C]ounty.@
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 or she 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 or her private interests and the performance of his or her public duties, or that would impede the full and faithful discharge of his or her public duties. [Section 112.313(7)(a), Florida Statutes.]
The first part of this statute prohibits a public officer or employee from holding employment with a business entity that is subject to the regulation of or that is doing business with his public agency. The second part of this statute prohibits any employment, whether or not the employment is with a business entity that is regulated by or that is doing business with the officer=s or employee=s public agency, if the employment would create a continuing or frequently recurring conflict between the officer=s or employee=s private interests and his public duties or would impede the full and faithful discharge of his public duties.
It appears from your representations that the entities with which the Officer is secondarily employed are neither subject to the regulation of the Division nor doing business with the Division. Therefore, we find that a prohibited conflict does not exist under the first part of the statute by virtue of the secondary employment.
However, we do find that a prohibited conflict exists under the second part of the statute. We believe that the Officer, due to his private employment with particular providers, would be tempted to influence probationers into choosing a provider for whom he works privately, over other providers. Further, and perhaps more importantly, the Officer, as part of his public duties, is responsible for determining whether a probationer has successfully completed a program mandated by a special condition of probation. Such a situation is inherently compromising of the objectivity of the officer in performing his public duty in that he would be tempted to determine that a probationer had made a success of a program of a provider for whom the Officer works privately to avoid subjecting that provider=s program to qualitative scrutiny, or in that he would be tempted to view the probationer=s participation in the program as unsuccessful, thereby subjecting the probationer to a possible repeat of the program and the provider for whom the Officer works privately to a possible repeat of the probationer=s business.
Accordingly, we find that a prohibited conflict of interests exists where the Probation Officer works privately for providers of services to probationers.
ORDERED by the State of Florida Commission on Ethics meeting in public session on December 3, 1996 and RENDERED this 5th day of December, 1996.
Mary Alice Phelan
 Also, we are advised that the County itself would not have a duty to provide probationers with the services that the entities provide were they not being provided by the entities; that the probationers themselves choose the provider (entity) from which they will obtain court-ordered services and that the probationers are responsible for paying for these services; that the County does not extend any grants to either provider; and that the only Ain-kind@ provision by the County to either of the entities consists of office space for counseling sessions provided by the County Mental Health Department (a separate County department from the County Judicial Services Department which contains the County Probation Division) to the entity which serves domestic violence and spouse abuse offenders.
 You advised our staff by telephone that probation officers have the authority to recommend to the court that probationers who do not successfully complete special conditions of probation repeat the special condition, but that the officers do not have the authority to specify which provider the probationer will utilize for repeat of the special condition.
 As to the traffic school provider, we recognize that there would be no temptation to influence probationers into choosing the particular provider for whom the officer works privately, your representation to us being that the provider is the only source in the area for this schooling. However, the Asole source@ exemption to conflicts arising under Section 112.313(7)(a), contained in Section 112.313(12)(e), Florida Statutes, is not available to negate a conflict here, as that exemption only applies to situations where a governmental entity is seeking to purchase goods, services, or realty, and not to situations where individuals (probationers) are making purchases themselves.
 The information submitted to us via Mr. McCall=s November 4, 1996 letter to our staff does not persuade us that a County probation officer has no public duties that he would be tempted to compromise in favor of his private employment or private employer. We note, especially, that probation officers are involved in the process of determining whether or not probationers have successfully completed conditions of probation, including conditions involving services of providers such as those by whom Mr. McCall is privately employed.