CEO 75-128 -- June 23, 1975

CONFLICT OF INTEREST

PRIVATE INTERESTS OF ASSISTANT PUBLIC DEFENDER AND INVESTIGATOR IN CORPORATION ENGAGED IN BUSINESS OF SERVING WITNESS SUBPOENAS

To: (Name withheld at the person's request.)

Prepared by: Carol Ann Turner

SUMMARY:

Section 112.313(5), F. S. (1974 Supp.), provides that an employee of a state agency may not accept other employment that will create a conflict with his public duties. Should an employee of the public defender's office engage in the private business of serving witness subpoenas on behalf of private attorneys, the necessity for impartiality in the judicial process would be jeopardized. Conflicts contemplated by s. 112.313(5) would inhere in such private business, and it is therefore prohibited. The public defender himself is under an affirmative duty to see that his office is free from such conflicting situations.

QUESTIONS:

1. Does a conflict of interest exist where ____, as chief assistant public defender, and ____, as investigator-judiciary employed by me, as public defender, own a material interest in a private corporation presently engaged in the business of service of witness subpoenas (with the possibility of engaging in the future in service of process) where such corporation does no business with any public agency?

2. Do I, as public defender, have a conflict of interest where ____ as chief assistant public defender and ____ as investigator-judiciary, employed by me, engage in prohibited employment under s. 112.313, supra?

Question 1 is answered in the affirmative.

The Code of Ethics for Public Officers and Employees prohibits employees of governmental entities from owning a material interest in any business entity "doing business with the agency of which he is an officer or employee" unless such business is "contracted with full public competition and award is made to the lowest or best bidder . . . ." Section 112.313(2), F. S. (1974 Supp.). You have indicated that the office of public defender would not contract with the above- described corporation for the service of subpoenas. Therefore, there would be no conflict of interest under this provision.

The Code of Ethics further provides, however, that an employee of a state agency shall not accept other employment that "will create a conflict between his private interests and the performance of his public duties." Section 112.313(5), supra. Although the corporation would not contract with any public agency, we are of the opinion that the service of subpoenas or process on behalf of private attorneys by ____ might well conflict at times with their public duties as employees with your office. There is the distinct possibility, for example, that service would be to a person represented by the public defender's office. Such an instance would, at best, lend itself to the appearance of impropriety and, at worst, could prejudice a trial. The judicial process, as you know, is a very sensitive one, and we feel that in this particular instance it is vital to avoid even those conflicts of a marginal nature. We are therefore of the opinion that a conflict contemplated by s. 112.313(5), supra, would inhere in the type of private business you have described to us, and such business is therefore prohibited.

Question 2 is answered in the affirmative.

You are under an affirmative duty to see that your agency does not become involved in conflicts of the type prohibited by part III, Ch. 112. It is your responsibility to see that this conflict does not continue; otherwise you, yourself, may become entangled in a violation of the Code of Ethics. The oath of office which you took when you entered public service states in part:

. . . that I will support, protect, and defend the Constitution and Government of the United States and of the State of Florida . . . . [Section 5, Art. II, State Const.]

We feel that a part of your duty to support the government of this state is the duty to uphold the laws of Florida and to see that they are not violated by any persons over whom you have responsibility.