CEO 92-7 -- January 24, 1992
CONFLICT OF INTEREST
COURT INTERPRETER TRANSLATING INVESTIGATIVE TAPES
FOR STATE ATTORNEY=S OFFICE
To: Carol Lee Ortman, Seventeenth Judicial Circuit Trial Court Administrator (Fort Lauderdale)
A prohibited conflict of interest would not be created under Sections 112.313(3) or 112.313(7)(a), Florida Statutes, were a language interpreter employed by the Court Administrator's Office for the Seventeenth Judicial Circuit of Florida to contract with that Circuit's State Attorney to translate law enforcement investigative tapes. The employee would not be selling services to his agency nor to an agency subject to the regulation of or doing business with his agency, and the infrequent nature of courtroom testimony by the interpreter and the rule of witness sequestration negate any frequently recurring conflict or impediment to duty. CEO 88-43 and CEO 76-2 are referenced.
Would a prohibited conflict of interest be created were a full-time court interpreter, who is employed by the Court Administrator's Office, to translate tapes, for compensation, for the local State Attorney's Office?
Your question is answered in the negative.
By your letter of inquiry, accompanying materials, telephone conversation between our staff and an employee of your office, telephone conversation between our staff and an assistant state attorney, and other written submissions from your office, we are advised that Miguel Buch is employed full-time as a court interpreter for the Court Administrator's Office of the Seventeenth Judicial Circuit of the State of Florida. We are advised further that the State Attorney for the Seventeenth Judicial Circuit wishes to hire the interpreter to translate audio and video tapes made during law enforcement investigations from Spanish to English.
The interpreter's working hours for the Court Administrator's Office are 8:30 a.m. to 5:00 p.m., Monday through Friday. You relate further that the position of a court interpreter is one of "neutrality," thus allowing an interpreter to "work both sides of a case--prosecution and defense."
The work for the State Attorney would be performed by the interpreter after his working hours for the Court Administrator's Office. He would be paid by the State Attorney, using funds obtained from Broward County, at a rate that is represented to be substantially less than that which would be charged by a private translating service. It is anticipated that the State Attorney would need the interpreter's services ten to fifteen hours per month. The interpreter is sought to be utilized by the State Attorney because of "his particular expertise and his professional demeanor in front of a jury," and the State Attorney has an immediate need for his services, it is related.
The Seventeenth Circuit is composed of Broward County only. The Court Administrator's Office is funded by the Board of County Commissioners of Broward County; however, the Court Administrator reports to the Chief Judge of the Seventeenth Circuit and the State Courts Administrator. Employees of the Court Administrator's Office participate in County insurance coverage and the Office does its purchasing through the County. However, the hiring and termination practices of the Court Administrator's Office are separate from those of the County.
The interpreter's work includes criminal trials, hearings, and depositions. In court, the work primarily involves sitting next to a defendant and interpreting the proceedings for him. The work also involves translating a witness's testimony for the court participants as a whole, including the prosecutor, defense attorney, and judge.
The Court Administrator's Office views interpreters as hourly employees (rather than as employees who are paid to perform functions or duties regardless of the time involved) under the Fair Labor Standards Act. Previously, the interpreter had done some tape translations for the State Attorney during regular hours of employment as part of his public duties. However, the time consumed in performing the tape translations necessitated that the interpreter be paid overtime pay or given compensatory time, thereby resulting in extra expenses to the Court Administrator's Office for overtime pay and for hiring outside personnel to perform interpreter work not done due to the work hours expended translating the tapes. Although the funds to pay the interpreter would originate from County coffers, the interpreter would actually be contracting with or selling his services to the State Attorney's Office, you relate. The actual tape translation work consists of the interpreter listening to the tape and putting it into typewritten form. You relate further that the County's funding for the interpreter's translation of tapes for the State Attorney could be characterized as a "reimbursement."
The State Attorney legally would be able to hire the interpreter for tape translations with State funds, were those funds existent or available. The interpreter would not be in the position of working a trial or other matter in which he might be called as a witness involving his tape translations because, due to the rule of witness sequestration, he would not be allowed in the proceeding during the testimony of other witnesses. In addition, the assistant state attorney who is interested in using the interpreter for tape translation relates that in approximately the last eleven years the interpreter has been a potential witness only a few times and has actually testified approximately two times. The interpreter in his public position works hundreds of cases per year. The assistant state attorney relates that the reason the interpreter is involved as a witness in so few cases is that most of the defendants implicated by the tapes plea-bargain their cases to resolution after the translation.
The Code of Ethics for Public Officers and Employees provides in relevant part:
DOING BUSINESS WITH ONE'S AGENCY.--No employee of an agency acting in his official capacity as a purchasing agent, or public officer acting in his official capacity, shall either directly or indirectly purchase, rent, or lease any realty, goods, or services for his own agency from any business entity of which he or his spouse or child is an officer, partner, director, or proprietor or in which such officer or employee of his 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 his own agency, if he is a state officer or employee, or to any political subdivision or any agency thereof, if he 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. 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.
[Section 112.313(3), Florida Statutes.]
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.]
Section 112.313(3) would prohibit the interpreter from privately selling services to his agency, or to any agency of Broward County if he were deemed to be an employee of the County.
While employees of Circuit Court Administrators' offices in single-county circuits such as the Seventeenth might be considered employees of the County ("that political subdivision") for purposes of Section 112.313(3), such a possible finding is not necessary to our determination of whether the interpreter's provision of services under the above scenario would violate Section 112.313(3), because the services would be sold to the State Attorney for the Seventeenth Judicial Circuit--an officer or agency separate and distinct from the interpreter's public agency (the Court Administrator's Office) and not an agency of the political subdivision of Broward County. While the County would be contributing funds to the operation of the State Attorney's office, some of which would be used to pay the interpreter, we have not considered indirect business transactions to be prohibited by Section 112.313(3). See CEO 88-43 and others.
Section 112.313(7)(a) would prohibit the interpreter from privately selling his services to the State Attorney if the State Attorney were doing business with or subject to the regulation of the Court Administrator's Office, or if the interpreter's business relationship with the State Attorney will create a continuing or frequently recurring conflict between his private interests and the performance of his public duties or would impede the full and faithful discharge of his public duties.
While the State Attorney does benefit from support and services provided by the Court Administrator's Office, nevertheless, he holds an independent office of Constitutional magnitude which cannot (at least under the facts put forth in the scenario upon which this opinion is based) be said to be "subject to the regulation of" the Court Administrator's Office. In addition, revenue transfers or interlocal agreements between the Court Administrator's Office and the State Attorney or between the County and the State Attorney do not constitute "doing business" within the meaning of Section 112.313(7)(a). See CEO 76-2, Question 9. Further, due to the rule of witness sequestration which would preclude the interpreter's working in his employee capacity at a trial or matter in which he himself would be a witness based upon his translation for the State Attorney, the infrequent history and expectation of his actual use as a witness, and the lack of historical or expected burden his private translation work for the State Attorney would cause the Court Administrator's Office, we find that no continuing or frequently recurring conflict or impediment to duty would be created by his working, after regular employment hours, for the State Attorney.
Potential conflicts may arise should translation of investigative tapes for the State Attorney again become part of the interpreter's duties as a public employee, or should schedule changes of the employee necessitated by his involvement as a possible witness in matters due to his translation of tapes for the State Attorney burden his public employer. If any of these circumstances occurs, we suggest that another opinion should be sought.
Accordingly, we find that no prohibited conflict of interest would be created were the subject interpreter to translate investigative tapes for the State Attorney.