CEO 80-73 -- October 30, 1980
CONFLICT OF INTEREST
HIGHWAY PATROLMAN PRIVATELY OFFERING SERVICES AS LICENSED POLYGRAPH EXAMINER
To: (Name withheld at the person's request.)
Prepared by: Phil Claypool
Reference is made to CEO 78-82, in which it was found that s. 112.313(7)(a), F. S., would be violated were a municipal police officer to manage a private security business licensed under ch. 493 because his responsibility under that chapter to keep confidential any information received during the course of his business is inconsistent with the proper performance of a police officer's sworn responsibility to uphold the law. The same conflict would be created were a highway patrolman privately to engage in polygraph examinations in his off-duty hours, based on a similar confidentiality requirement of polygraph examiners contained in s. 493.021, with the exception of those instances when confidentiality is waived by the client or principal via prior written consent, as provided in that section of the law. There would be no conflict of interest, however, were the highway patrolman to conduct, privately, polygraph examinations for a sheriff's office or other law enforcement agency, as opposed to private individuals or businesses.
1. Would a prohibited conflict of interest be created were a highway patrolman to conduct polygraph examinations privately during his off-duty hours as a polygraph examiner licensed under part II, ch. 493, F. S.?
2. Would a prohibited conflict of interest be created were a highway patrolman to conduct polygraph examinations for a sheriff's office in his private capacity as a licensed polygraph examiner?
Question 1 is answered in the affirmative, except under certain circumstances described below.
In your letter of inquiry you advise that ____ is a Florida Highway Patrolman who has become licensed to conduct polygraph examinations under part II of ch. 493, F. S. You further advise that, pursuant to s. 321.05, F. S., members of the highway patrol are conservators of the peace and law enforcement officers of the state, with the same protections and immunities afforded other police officers. That section also grants broad arrest and other law enforcement powers to members of the highway patrol.
In a previous advisory opinion, CEO 78-82, we found that were a city police officer to manage a private security business licensed under ch. 493, F. S., he would have an employment that would create a frequently recurring conflict between his private interests and the performance of his public duties and that would impede the full and faithful discharge of his public duties, in violation of s. 112.313(7)(a), F. S. The basis for that finding was that a licensee's statutory responsibility to keep confidential any information received during the course of his business, see s. 493.19, F. S. 1979, is inconsistent with the proper performance of a police officer's sworn responsibility to uphold the law.
Similarly, ch. 493, as amended by ch. 80-268, Laws of Florida, provides for the confidentiality of information acquired by a polygraph (detection of deception) examiner. Declaratory Statement DS 80-4A, issued by the Department of State, August 25, 1980. Section 493.32, F. S., now provides:
Divulging information, false reports prohibited; penalty. -- Except as otherwise provided by law, no licensee or any employee of a licensee shall divulge or release to any person, other than to his principal or his employer, any information acquired as a result of any investigation, surveillance, or other act performed by the licensee or employee in the course of his employment. However, the provisions of this section shall not apply to an employer who is also the holder of a license issued pursuant to this part and who has the prior written consent of the client or principal to divulge or release any information falling within the terms of this section; further, the provisions of this section will not apply to the taking of testimony or the receiving of evidence in any judicial proceeding. Any person violating this section or any employee who shall willfully make a false report to his employer concerning his employment or work is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
Thus, the subject highway patrolman would be presented with the same conflict of interest as the police officer referenced in CEO 78-82, should he acquire information indicating that the person taking the polygraph examination is, for example, a wanted felon.
On this basis, we are of the opinion that s. 112.313(7)(a), F. S., would be violated were the subject highway patrolman to conduct polygraph examinations privately. We note that the confidentiality provision of s. 493.32 may be waived under certain conditions by the prior written consent of the client or principal of the polygraph examiner. Of course, should this prior consent be obtained by the subject highway patrolman, he would not be bound to maintain the confidentiality of the information to be obtained during the polygraph examination, and the possibility of a conflict of interest with his law enforcement duties would be obviated.
Accordingly, we find that no prohibited conflict of interest would be created were a highway patrolman to conduct polygraph examinations privately during his off-duty hours as a polygraph examiner licensed under part II, ch. 493, F. S., so long as a prior written waiver of confidentiality is obtained from the private client or principal in accordance with s. 493.32.
Question 2 is answered in the negative.
In your letter of inquiry you advise that the Florida Highway Patrol works closely with the various sheriffs of the state concerning the investigation of matters affecting the agencies' responsibilities, such as crimes, accidents, and other incidents involving both agencies.
Section 112.313(7)(a), F. S., prohibits a public officer or employee from having any contractual relationship or employment with an agency which is doing business with his agency. However, we are of the opinion that the phrase "doing business with" was not intended to encompass close cooperation between two governmental agencies, or the exchange of the performance of governmental services, as opposed to the granting of funds from one agency to the other. See CEO's 76-2, Question 9; 76-77; and 77-65.