CEO 97-13 -- May 29, 1997

CONFLICT OF INTEREST

CITY POLICE OFFICER WORKING

OFF-DUTY FOR PROCESS SERVICE FIRM

To: (Name withheld at person's request) (Stuart)

SUMMARY:

No prohibited conflict of interest exists under Section 112.313(7)(a), Florida Statutes, where a city police officer works as a private process server during his off-duty hours. The process service firm for which the officer works does not do business with the police department, the firm only serves process and does not engage in other investigative work, the officer would not serve process on the city or a member of the city's police department, and all information necessary to locate persons to be served would be obtained through private sources not necessitating access via the officer's public position. CEO's 76-101, 78-29, 80-77, 94-35, 96-16, and 97-12 are referenced, and CEO's 75-128 and 90-45 are distinguished.

QUESTION:

Does a prohibited conflict of interest exist where you, a city police officer, work for a private process service firm outside of your normal public working hours?

Under the circumstances set forth and the limitations noted in this opinion, your question is answered in the negative.

By your letter of inquiry, an additional letter (including attachments) from you to our staff, a letter to our staff from the proprietor of the process service firm with which you are connected, and a telephone conversation between you and our staff, we are advised that you have served as a police officer for seventeen years, thirteen of which have been with the City of Stuart, your current employer. In addition, you advise that you have worked part-time for the last eleven years as a process server/private investigator, after having obtained the approval of the Stuart Police Department. Upon the Department's approval, you advise, you acquired your private investigator license, process server certification, insurance, and bonding. Further, according to your representations, the process server certification you refer to consists of being placed annually on a list of approved process servers under a procedure begun in 1988 under administrative order of the chief judge of the 19th Judicial Circuit, which includes bonding and an FDLE background check; apparently there is no Department of State licensure, Department of Business and Professional Regulation licensure, or similar licensure necessary to merely serve process.

In addition, you advise that you work as a "contract labor employee" (receiving a federal 1099 tax statement) for a process service firm employing six part-time process servers and advise that the firm is a sole proprietorship in which you hold no ownership interest or managerial authority. The firm, we are advised, serves process received from a consortium of attorneys, other process service firms, banks, financial institutions, and small claims court actions. You advise that you serve papers primarily in St. Lucie and Indian River Counties, and that, on occasion (when there is a need for rushed service or when other firm servers are sick or on vacation), you serve process in Martin County (the County which contains Stuart, the City by which you are employed as a police officer). Further, we are advised that currently the firm only serves process, due to a "scaling back" of its former business occasioned by the illness of its proprietor. In the past, we are advised, the firm, in addition to serving process, conducted dissolution of marriage investigations, "skip trace investigations" (seeking delinquent renters and similar matters), workers compensation investigations, traffic accident reconstruction, retail loss prevention activities, and internal business fraud reviews.

You advise that any information necessary to locate persons upon whom to serve process is acquired by the firm's management via numerous on-line services, phone directories, clerk of court records, tax collector records, voter registration records, U.S. Postal Service information, and other publicly-available sources, prior to assigning the service to you. Further, you advise that although the firm could be called upon to serve process upon the City of Stuart or upon a City police officer, the firm's proprietor would assign such service to a process server other than yourself. You add that you have never been asked to serve the City or a City police officer. Also, you advise that you do have access to NCIC/FCIC data via your public position. In summing up matters relevant to your inquiry you state:

I have no need for resources from the police department. I have never mixed the two entities while serving in both capacities throughout the last eleven years (with the blessing of my police department and the circuit court.) The process service firm provides all the information that is required for individuals to be located and served. There are no confidential resources required. This is not a covert operation.

You advise that you have operated privately for eleven years without incident but that the Department, upon only recently becoming aware of our findings in CEO 90-45, has requested that you refrain from your part-time endeavor pending our consideration of your situation and inquiry.

The Code of Ethics for Public Officers and Employees provides in 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.]

In CEO 90-45, we found that a prohibited conflict of interest would be created under Section 112.313(7)(a) were police officers to be employed privately serving subpoenas and other forms of civil process, based upon the officers' access via their public capacity to information unavailable to the general public which would be helpful to them and their private employers in serving process and based upon concerns that the officers could be called upon to serve process on someone under investigation by or otherwise involved with the police department, thereby leading to the appearance of impropriety. However, both before and since the issuance of CEO 90-45, we have found no prohibited conflict of interest to exist in a variety of situations involving secondary employment by law enforcement officers. See, among others, CEO 76-101 (police officer running private security company), CEO 78-29 (police officer employed during off-duty hours as security director of corporation located within municipality), CEO 80-77 (FHP troopers privately teaching defensive driving courses), CEO 94-35 (FDLE agents providing private escort services), and CEO 96-16 (city police officer conducting surveillance of workers compensation claimants for insurer).

In these opinions, our primary concern has been that a law enforcement officer, having access to confidential investigative information or other data not available to the public, would be tempted to utilize such information in his private investigative work or for the benefit of his private employer. Thus, our concern has been two-pronged: (1)Whether the officer has access via his official capacity to information not available to the public and (2)whether such information would be of use to the officer or his firm, in their private business. Consequently, under the facts of CEO 96-16, we found that a prohibited conflict of interest would not be created under Section 112.313(7)(a) were a city police officer to conduct surveillance of workers compensation claimants, because the information necessary for him to locate and observe the claimants would be obtained from commercial on-line sources or other sources not dependent on his access through his public position to "inside" information. Also, see CEO 97-12 in which we most recently found that no prohibited conflict of interest would exist under Section 112.313(7)(a) were a DOC correctional officer to own and operate a private investigative business.

Likewise, under your scenario, neither you nor your firm would be dependent on nonpublic, law enforcement information to serve process because, as you represent, the information necessary to locate persons to be served would be obtained from nonconfidential sources. See CEO 96-16. Therefore, we find that no prohibited conflict exists in your situation, under Section 112.313(7)(a), based upon temptation to access information via your public capacity which would be useful in your private investigative endeavor. Further, we find that a conflict based upon "the appearance of impropriety" alluded to in CEO 75-128 is not present in your situation. CEO 75-128 involved the distinct possibility that a process service firm owned by an assistant public defender and a public defender's investigator would serve process on a public defender client, whereas your situation is distinguishable in that you have no ownership interest in the firm and the firm's owner will not have you serve process on the City or a City police officer, should such City/City police officer process ever be received by the firm for service. In addition, we observe that any conflict found in CEO 90-45 which is ostensibly based upon an actual violation of Section 112.313(8), Florida Statutes, via disclosing or using "inside information," as opposed to a violation under Section 112.313(7)(a) which is based upon temptation to violate Section 112.313(8), would not appear to be well grounded in the law, inasmuch as a violation of Section 112.313(8) requires consummated disclosure or use of "inside information" and not mere temptation to disclose or use such information. Section 112.313(8), with emphasis supplied, provides:

DISCLOSURE OR USE OF CERTAIN INFORMATION.--No public officer, employee of an agency, or local government attorney shall disclose or use information not available to members of the general public and gained by reason of his or her official position for his or her personal gain or benefit or for the personal gain or benefit of any other person or business entity.

However, please note that our opinion herein is based upon the facts represented in or apparent from your inquiry, especially the fact that neither you nor the firm will be engaged in any investigative activities beyond service of process and the fact that the firm is not doing business with the City Police Department. Therefore, if you or the firm engage in other investigative work without your first obtaining another favorable opinion from us as to the ethical propriety of the other work, or if the firm does business with the Police Department, you risk violating the Code of Ethics.

In addition, we caution you that any actual disclosure or use of "inside information" for the benefit of yourself, the firm, or any other person or business entity would be violative of Section 112.313(8) and of Section 112.313(6), Florida Statutes, which provides:

MISUSE OF PUBLIC POSITION.--No public officer, employee of an agency, or local government attorney shall corruptly use or attempt to use his or her official position or any property or resource which may be within his or her trust, or perform his or her official duties, to secure a special privilege, benefit, or exemption for himself, herself, or others. This section shall not be construed to conflict with s. 104.31.

For purposes of this provision, the term "corruptly" is defined as follows:

'Corruptly' means done with a wrongful intent and for the purpose of obtaining, or compensating or receiving compensation for, any benefit resulting from some act or omission of a public servant which is inconsistent with the proper performance of his or her public duties. [Section 112.312(9), Florida Statutes.]

Accordingly, under the scenario and limitations set forth or noted above, we find that a prohibited conflict of interest does not exist where you, a police officer for the City of Stuart, serve process during your off-duty hours.

ORDERED by the State of Florida Commission on Ethics meeting in public session on May 29, 1997 and RENDERED this 3rd day of June, 1997.

__________________________

Mary Alice Phelan

Chair