A prohibited conflict of interest would not be created were an employee of a corporation providing computer applications that enable information sharing between police agencies to become a reserve deputy of a sheriff's office utilizing the applications. Under the circumstances presented, the "sole source" exemption of Section 112.313(12)(e), Florida Statutes, applies to negate conflicts under Sections 112.313(7)(a) and 112.313(3), Florida Statutes. CEO 92-28, CEO 88-30, and CEO 78-24 are referenced.1
Would a prohibited conflict of interest be created were the executive director of a corporation which provides computer applications that enable automated information sharing between police agencies to become a reserve deputy sheriff?
Under the circumstances presented, your question is answered in the negative.
By your letter of inquiry and additional information provided to our staff, we are advised that Mark Strobridge ("executive director") is retired from the Orange County Sheriff's Office, having actively served for twenty-seven and one-half years (more than ten of which as a senior sworn manager). Further, you advise that all of the duties and responsibilities of his active employment with the Sheriff's Office were turned over to others upon his departure from paid, active service (as of September 30, 2008, when he began terminal leave prior to his technical retirement or severance from active employment), and that his active duty service did not include any involvement with the development, selection, or approval of any software use regarding a corporation with which he currently is employed as its executive director.2 In addition, we are advised that he, depending on our decision herein, would like to become an unpaid, reserve deputy sheriff with the Orange County Sheriff's Office, "provid[ing] volunteer uncompensated services to the community."3
Continuing, you advise that the corporation is a nonprofit corporation formed by the University of Central Florida and members of the Florida Law Enforcement Data Sharing Consortium to consolidate the intellectual property and other resources associated with the Florida Integrated Network for Data Exchange and Retrieval ("FINDER"), and that FINDER is a set of computer applications that enable automated information sharing between police agencies. In addition, you advise that the Florida Department of Law Enforcement ("FDLE") and the United States Department of Homeland Security/Department of Justice have approved sole source funding requests for the corporation to provide computer automated information sharing for Region 5 of the Regional Domestic Security Task Force ("Region 5").4 In sum, you advise, the corporation is the sole source of supply vendor for Region 5 information sharing as approved by FDLE, and the Sheriff's Office administers the State/Federal grant funding on behalf of Region 5, resulting in the corporation's provision of FINDER to all Region 5 law enforcement agencies (including the Sheriff's Office) at no cost to the law enforcement agencies. Also, we are advised, in administering the funding, the Sheriff's Office has entered into a written agreement between itself and the corporation under which the Sheriff's Office is "acting as administrator of certain Law Enforcement Terrorism Prevention funds for the benefit of law enforcement agencies comprising Florida's Region 5 of the Regional Domestic Security Task Force . . . ." However, you emphasize that State and Federal agencies (rather than the Sheriff's Office or any other local agency) purchase FINDER from the corporation.
Section 112.313(7)(a), Florida Statutes,5 contains the Code of Ethics' prohibition most relevant to the executive director's situation, should he become a reserve deputy with the Sheriff's Office. Absent applicability of an express exemption or applicability of Section 112.316, Florida Statutes, a prohibited conflict would be created for the executive director under the statute were he to become a reserve deputy, inasmuch as he, a public officer (a reserve deputy, CEO 88-30) would hold employment with the corporation (a business entity) doing business with (by virtue of the administration agreement between the Sheriff's Office and the corporation) the Sheriff's Office (his public agency). However, we find that the "sole source" exemption of Section 112.313(12)(e), Florida Statutes, would be applicable to negate the conflict. The circumstances presented are analogous to those of CEO 92-28, in which we found that the exemption was applicable to the director and a teacher of a criminal justice training institute which was part of a public school district, who required the use of textbooks (which they authored and from which they received royalty payments) by students, reasoning that the books were the only books teaching the defensive tactics officially approved by the Florida Criminal Justice and Standards Training Commission. In the instant situation, similarly the corporation is the only source of supply for Region 5 information sharing as approved by FDLE6. Section 112.313(12)(e) provides:
(12) EXEMPTION.--. . . . no person shall be held in violation of subsection (3) or subsection (7) if:
(e) The business entity involved is the only source of supply within the political subdivision of the officer or employee and there is full disclosure by the officer or employee of his or her interest in the business entity to the governing body of the political subdivision prior to the purchase, rental, sale, leasing, or other business being transacted.
Accordingly, under the circumstances presented, we find that a prohibited conflict of interest under Section 112.313(7)(a), Florida Statutes,7 would not be created for the executive director of a corporation providing computer applications for use by local law enforcement agencies were he to become a reserve deputy sheriff with one of the local agencies, which agency also administers the provision of the computer applications, due to application of the "sole source" exemption of Section 112.313(12)(e), Florida Statutes8.
ORDERED by the State of Florida Commission on Ethics meeting in public session on July 16, 2010 and RENDERED this 21st day of July, 2010.
Prior opinions of the Commission on Ethics may be obtained from its website (www.ethics.state.fl.us) or may be obtained directly from the Commission.
The reserve deputy is not an officer, partner, or director of the corporation, you advise.
You advise that reserve deputies do not have administrative authority within the Sheriff's Office, that reserve deputies are bonded and covered in case of an injury, but that they are not in positions that allow them the ability or responsibility to approve the use or purchase of goods or services.
You advise that Region 5 is comprised of eighty central Florida law enforcement agencies and, as with all the other Regions in Florida, was developed by FDLE; that each Region typically is co-chaired by FDLE and a local law enforcement executive; that Region 5 is co-chaired by the Osceola County Sheriff and the FDLE Orlando Region Special Agent-in-Charge; and that any one of the law enforcement agencies in Region 5 could serve as the pass-through FINDER grant funding agency, if it had the necessary administrative resources.
Section 112.313(7)(a) provides:
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.
In so finding, we are not unaware that in the instant situation, it is the State and Federal governments who are making grant-funded purchases from the corporation, and not the Sheriff's Office or the other local government agencies comprising Region 5. However, we find our application of the exemption here, under the particular circumstances presented, to be in accord with the legislative purpose of the exemption: to alleviate the hardships which otherwise would be imposed by the Code of Ethics upon political subdivisions where an agency might have to forego some services or might have to purchase goods at additional cost in order to avoid creating conflicts of interest for its officers or employees. CEO 78-24, CEO 92-28.
The instant situation does not seem to present an issue under Section 112.313(3), Florida Statutes, in that it does not indicate that the executive director of the corporation, in his additional status as a reserve deputy, would be acting as a purchasing agent for the Sheriff's Office to purchase anything from the corporation, and in that it does not indicate that he would be acting in a private capacity for the corporation to sell anything to the Sheriff's Office (as opposed to the State or Federal governments). However, assuming arguendo that such an issue is presented, the "sole source" exemption also negates conflicts arising under Section 112.313(3). Section 112.313(3) provides:
DOING BUSINESS WITH ONE’S AGENCY.—No employee of an agency acting in his or her official capacity as a purchasing agent, or public officer acting in his or her official capacity, shall either directly or indirectly purchase, rent, or lease any realty, goods, or services for his or her own agency from any business entity of which the officer or employee or the officer’s or employee’s spouse or child is an officer, partner, director, or proprietor or in which such officer or employee or the officer’s or employee’s spouse or child, or any combination of them, has a material interest. Nor shall a public officer or employee, acting in a private capacity, rent, lease, or sell any realty, goods, or services to the officer’s or employee’s own agency, if he or she is a state officer or employee, or to any political subdivision or any agency thereof, if he or she is serving as an officer or employee of that political subdivision. The foregoing shall not apply to district offices maintained by legislators when such offices are located in the legislator’s place of business or when such offices are on property wholly or partially owned by the legislator. This subsection shall not affect or be construed to prohibit contracts entered into prior to:
(a) October 1, 1975.
(b) Qualification for elective office.
(c) Appointment to public office.
(d) Beginning public employment.
Note that applicability of the exemption requires disclosure of the executive director's/reserve deputy's relationship with the corporation, via our CE Form 4A, to be filed with the Orange County Commission prior to the Sheriff's Office's entry into any new administration agreements (or memoranda of understanding) with the corporation. The current agreement or any current MOU apparently are "grandfathered" from possible conflicts arising under Section 112.313(7)(a) or Section 112.313(3), due to the executive director's not yet having become a reserve deputy.