CEO 86-81 -- December 11, 1986

CONFLICT OF INTEREST

CITY ATTORNEY'S SECRETARY EMPLOYED AS ADMINISTRATOR OF CITY POLICE PENSION TRUST FUND

To: Mr. Andrew DeGraffenreidt, III, City Attorney, City of Hollywood

SUMMARY:

A prohibited conflict of interest exists where a secretary in a city attorney's office is employed part- time as the administrator of the city's police pension trust fund and where the city and the pension board have been and in the future may be in litigation. Because of the secretary's access to confidential information in the city attorney's office, her employment as administrator of the pension board would present a continuing or frequently recurring conflict of interest prohibited by Section 112.313(7)(a), Florida Statutes.

Whether a public employee should be precluded from outside employment on the basis of the amount of time required by the outside employment is a matter for the discretion of the public employer and is not addressed by the Code of Ethics. Whether a public employee's outside employment will result in a conflict of interest will turn on the nature of the interests of both employers, rather than on whether the employee has adequate time to properly perform the responsibilities of both jobs.

QUESTION:

Does a prohibited conflict of interest exist where a secretary in a city attorney's office is employed part- time as the administrator of the city's police pension trust fund, where there has been and may be in the future litigation between the city and the trust fund?

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

Through your letter of inquiry and telephone conversations with our staff, we have been advised that you serve as the City Attorney of Hollywood and that Ms. Cheryl Winton is employed on your staff as the secretary to the Police Legal Advisor. Your staff consists of four attorneys and three legal secretaries who work out of your office in City Hall, as well as the Police Legal Advisor and his secretary, who are stationed at the Police Department. Your office is responsible for giving advice to various officials and employees and for instituting and defending lawsuits in behalf of the City. In this respect, your office and its employees are entrusted with confidential information and work product which are not for publication or exposure.

You further advise that the City Police Department has its own pension system which is administered by the Police Pension Trust Fund Board of Trustees, a wholly autonomous Board of the City. The City has no right to control the fund's actions but is required to fund any shortfall in pension funds on an annual basis. Under Section 185.05, Florida Statutes, a municipal police officers' retirement trust fund board of trustees is composed of the mayor, the police chief, two policemen of the municipality, and one resident of the municipality.

The City and the Pension Board have been involved in ongoing litigation since 1981, with the City being represented by your office and the Pension Fund retaining its own counsel. At the present time, the City has prevailed in this litigation, and the case is pending for the purpose of enforcing a circuit court order requiring the Board to deduct certain monies from future pension checks. The Secretary to the Police Legal Advisor also is employed part-time by the Pension Board on an annual salary as its Administrator. The job was taken with the understanding that it would be accomplished at night, on weekends, or during vacation time. You have two reservations concerning this outside employment.

First, the Pension Board meets on a monthly basis during regular City work hours, requiring the secretary to combine her lunch hour, breaks, and whatever vacation and compensatory time she has in order to attend the meetings. As Administrator, she must communicate with the Board's legal counsel, police officers, physicians, therapists, hospitals, actuaries, pension fund specialists, and insurance companies, among others. Most of these entities also operate only during regular City work hours. The employee has been instructed that she may not utilize City time to accomplish Pension Board duties.

Secondly, you are concerned whether this arrangement would foster a conflict of loyalty. As a legal secretary, she is privy to confidential information which might be useful to the Pension Board in an adversarial stance. For example, the City may sue the Pension Board regarding its interpretation and application of the pension ordinances. In her capacity as legal secretary, the employee could obtain information which would aid the Pension Board during litigation. In a telephone conversation with our staff, you advised that the Police Legal Advisor has not participated in the pension litigation and that the secretary does not have immediate access to files relating to that litigation because her office is at a different location. Her access to confidential information would come only through conversations with the Police Legal Advisor, who would be familiar with any pension litigation.

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 (1985).]

As it is relevant to this situation, Section 112.313(7)(a) prohibits a public employee from having any employment that would create a continuing or frequently recurring conflict of interest or that would impede the full and faithful discharge of her public duties.

We are of the opinion that this provision does not limit a public employee's outside employment on the basis of the amount of time required by the secondary employment. Section 112.312(6), Florida Statutes, defines "conflict of interest" as "a situation in which regard for a private interest tends to lead to disregard of a public duty or interest." In this light, Section 112.313(7)

establishes an objective standard which requires an examination of the nature and extent of the public officer's duties together with a review of his private employment to determine whether the two are compatible, separate and distinct or whether they coincide to create a situation which 'tempts dishonor.' [Zerweck v. State Commission on Ethics, 409 So.2d 57 (Fla. 4th DCA 1982).]

Whether a public employee's outside employment will result in a conflict of interest will turn on the nature of the interests of both employers, rather than on whether the employee has adequate time to properly perform the responsibilities of both jobs. Further, we are not in a position to judge whether the time demands of secondary employment would restrict an employee's ability to perform the duties of the primary employment. In the final analysis, the decisions of whether to allow accommodations in an employee's work schedule and when an employee may use accrued leave rest with the discretion of the employer and are not governed by the statute.

With respect to your second concern, the Code of Ethics specifically addresses the disclosure or use of "inside" information as follows:

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 (1985)].

This provision clearly would prohibit the secretary from actually disclosing or using confidential information gained through her position, but the question you have raised asks whether she may maintain her dual employment, given her potential access to confidential information. Therefore, our consideration focuses on whether her employment with the Pension Board would create a continuing or frequently recurring conflict of interest or would impede the full and faithful discharge of her duties as secretary within the City Attorney's office.

Regarding an employee's access to confidential information, we advised in CEO 79-8 that a deputy clerk of the circuit court in charge of county recording should not be associated with a local real estate firm. There, the deputy clerk had access to information of potentially great benefit to the real estate firm, including information regarding property sales, foreclosures, probate matters, and other matters in litigation, available to the deputy clerk immediately upon its filing and before any other member of the public would be aware of it.

As a practical matter, we believe that the Pension Board Administrator's position as a secretary in the City Attorney's office gives her access to confidential information regarding matters being handled by that office. You have advised that one case between the City and the Pension Board has been litigated and is pending and that there is a possibility of future litigation between the two. Although it may be possible for an individual to perform the responsibilities of both of these positions without compromising either, as recognized by the court in the Zerweck decision, that is not the test set forth by the law. Rather, the question is whether the two positions are "compatible, separate and distinct or whether they coincide to create a situation which 'tempts dishonor.'" In our view, under the circumstances presented the responsibilities of these two positions do present a continuing or frequently recurring conflict of interest that is prohibited by Section 112.313(7)(a), Florida Statutes.

Accordingly, under the circumstances presented, we find that a prohibited conflict of interest exists where the secretary to the Police Legal Advisor of your office is employed as Administrator of the Police Pension Trust Fund.