CEO 95-3 -- January 30, 1995
CONFLICT OF INTEREST
DEPARTMENT OF ENVIRONMENTAL PROTECTION MARINE PATROL
OFFICER OPERATING MARINA, GENERAL STORE, AND CAMPGROUND
To: Ms. Alyce J. Parmer, Chief, Bureau of Human Resource Services, Department of Environmental Protection (Tallahassee)
A continuing or frequently recurring conflict of interest or an impediment to the full and faithful discharge of public duty exists under Section 112.313(7)(a), Florida Statutes, where a Marine Patrol officer works for a business that operates a marina, general store, and recreational vehicle park. The officer's public duty to check patrons of the business for fishing licenses, boat registrations, and compliance with fishing and other laws and regulations coincides with the private interests of the business and its patrons to create a situation which tempts dishonor. CEO's 92-48, 92-17, 91-22, 88-76, 85-1, and 83-61 are referenced.
Does a prohibited conflict of interest exist under Section 112.313(7)(a), Florida Statutes, where an officer of the Florida Marine Patrol operates a marina, general store, and recreational vehicle park?
Under the circumstances of this opinion, your question is answered in the affirmative.
By your letter of inquiry, materials accompanying the letter, and telephone conversations between our staff and personnel of your office, we are advised that Paul Davis (hereinafter "the officer") serves as an officer of the Florida Marine Patrol. According to your materials, "[the officer] lives and works in a relatively remote area of Walton County" and his patrols start from his home, which is located at the intersection of Black Creek and County Road (highway) 394. In addition, you advise that the officer fits within the Department's organizational structure as follows: Department of Environmental Protection, Division of Law Enforcement, Bureau of Marine Patrol, assigned to District One.
In addition, the officer is engaged in the operation of a business (a marina/general store/rv park) which is located at his home, on Black Creek. The organization and nature of the business are described by the officer in the materials provided by you as follows:
. . . the business is located on a parcel of property owned by my parents, in which we all live on. [sic] The business is owned by my family and leases the portion of the property that it uses from my parents. The business operates an [r].[v]. [p]ark, [m]arina, [b]oat [r]entals, and [g]eneral [s]tore.
I believe the [r].[v]. [p]ark is self explanatory in it's function. The [m]arina operates and includes the repair of boats and motors on and off premises, the sale of new and used boats and motors, and a boat launch in fresh water. We are now in the process of trying to obtain the proper equipment and permits to pump fuel over fresh water into recreation vessels as a part of our [m]arina services. The [b]oat [r]entals include the renting of small fishing boats and canoes for the sole use [sic] in fresh water. The [g]eneral [s]tore includes a small convenience store with a variety of groceries and drinks, bait (crickets and worms) and tackle, all hunting and fishing licenses, tobacco products, homemade crafts, and antiques. We do not sell any alcoholic beverages in accordance with Florida Statutes that prohibit a law enforcement officer from having any interest in such business.
Further, the officer describes his duties with the business as follows:
Basically, my job duties include the upkeep and maintenance of the grounds and equipment, repair of boats and motors, and the rigging of new boats for sale. I am the employer and not the employee of this business. Occasionally [sic], I am required to work in the store, where I would be involved in the sale of hunting and fishing licenses and the renting of boats and canoes.
Further, you advise that Marine Patrol officers have general law enforcement powers, that they enforce various laws, including laws relating to waterborne recreation and boating safety, and that their jurisdiction includes salt, brackish, and fresh waters. In addition, the materials included with your letter of inquiry set forth the Department's views as to why it believes the officer's situation is conflicting:
The Department closely regulates and inspects boat rental operations for compliance with [Chapter] 327[,] F.S. Law enforcement officers issue citations to liveries not in compliance with laws relating to boat numbering, registrations, safety equipment, accident reporting or overdue situations.
The Department of Environmental Protection Titling and Registrations records [sic] indicate that [the officer] is the applicant for several commercial registrations on rental boats. He has stated he handles the livery and rental of the boats to the public. It is our belief that a conflict exists wherein he would be enforcing laws against himself or the people to whom he is renting. It is possible he would be responsible for search and rescue of his own property. His law enforcement duties also require the enforcement of boat safety equipment, registration and numbering laws.
The Department issues, inspects, regulates and enforces statutes, rules and regulations regarding bait, licenses, fuel and pollution. Law enforcement officers are State enforcement agents and charged with enforcing all resource and license violations, wherever they occur. [The officer] admits his business sells fishing licenses. As a law enforcement officer he is charged with enforcement of the law regulating the sale of license[s]. The Department permits or regulates the sale of bait and fuel[,] which again would be a direct conflict. The operation of a marina that dispenses fuel is subject to permitting, investigation of spills enforcement and cleanup actions. [The officer] would be charged with monitoring, reporting and investigation of pollution incidents for which he himself may be responsible.
The Department has established off-duty policies that regulate off-duty employment, specifically the type of employment and number of hours that may be worked in any one week. As the owner of his own business, it would be difficult to verify the number of hours worked for audit purposes.
[The officer] lives and works in a relatively remote area of Walton County. His patrol starts at his home, which is the business site, at the intersection of Black Creek and County Road 394. This location is within a boat idle speed zone. This translates to the potential requirement of enforcing the law around his own place of business. His routine patrol area includes the Choctawhatchee River up to the Highway 20 bridge at the town of Ebro. At this point the area and its tributaries are entirely fresh water. The situation of [the officer] engaged in the marina business places him in direct competition with other persons that he routinely inspects, regulates and enforces laws against. The current Department responsibilities on fuel and oil spills as well as the other Florida Statutes, include the entire state of Florida, and do not terminate at the fresh water line.
In addition, via telephone, personnel of your office stated that the officer has an affirmative duty as part of his public employment to check persons fishing and boating in Black Creek and the Choctawhatchee River in and around the business for fishing licenses, compliance with boat registration/numbering laws, and compliance with other laws and regulations. Further, we are advised that applications for commercial registrations for rental boats are handled by the local tax collectors and by bureaus of the Department distinct from the officer's bureau.
Also, by telephone, personnel of your office advise that the Department and the business recently entered into a settlement concerning alleged unpermitted alterations of the area in and around the business. The alleged alterations included unpermitted docks, stormwater matters, dredging, bulkheads, and improvement of a pond-to-Creek connection.
Further, according to personnel of your office, a saltwater products license is not required in order for a business to sell bait of a nonmarine origin, such as crickets and worms.
Section 112.313(7)(a), Florida Statutes, 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 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.
The first part of this statute would prohibit the officer's holding employment or a contractual relationship with the business if it is subject to the regulation of or is doing business with the officer's public agency. The facts supplied to us by you do not indicate that the business is doing business with the Bureau of Marine Patrol or with any other agency of the Department. In addition, it does not appear that the officer's agency (the Bureau of Marine Patrol) is "regulating" the business. Any such regulation (such as dock permitting and application for and issuance of vessel registrations) is handled by Departmental divisions or bureaus separate and distinct from the officer's agency. The Code of Ethics defines "agency" to mean
any state, regional, county, local or municipal government entity of this state, whether executive, judicial, or legislative; any department, division, bureau, commission, authority, or political subdivision of this state therein; or any public school, community college, or state university.
We have adhered to the view that a public employee's agency is the lowest level in a department or governmental organization in which the employee functions. See, for example, CEO 83-61 and CEO 92-48. In the officer's situation, his agency would be the Bureau of Marine Patrol and not other bureaus of the Department which handle dock permitting, dredge and fill permitting, vessel titling/registration or other matters. Further, while the officer certainly is engaging in patrolling, checking licenses, checking for illegal dredging and filling, etc., we have considered such activities to constitute law enforcement rather than regulation. See, for example, CEO 92-48, 92-17, and 91-22.
However, an examination of the officer's situation under the first clause of Section 112.313(7)(a) does not end our inquiry. We must go further and determine whether his employment or contractual relationship with the business creates a continuing or frequently recurring conflict between his private interests and the performance of his public duties or impedes the full and faithful discharge of his public duties.
CEO 88-76 and CEO 85-1 are our precedent which are most analogous to the officer's situation. In those opinions, we found that a prohibited conflict of interest would be created under the second clause of Section 112.313(7)(a) were officers of the Florida Game and Fresh Water Fish Commission (GFC) to work privately providing security for hunting clubs whose lands they had a duty to patrol in their public capacities, noting and reasoning that "wildlife officers do not act solely in response to apparent violations of the wildlife laws, but have an affirmative duty to check for permits, licenses, and violations of the wildlife laws on the part of those encountered while on duty," that "an officer's private employment under those circumstances impeded the full and faithful discharge of his public duties, as regard for his continuing employment and his employer's interests would tend to lead to disregard of his duty to check for compliance with game laws and to arrest for violations," and that "where an on-duty wildlife officer is required to patrol land owned by his employer, the officer would have an affirmative duty to check his employer and his employer's guests and associates to ensure that they had the appropriate permits and licenses and otherwise were in compliance with the game laws."
Similarly, the officer here patrols the area in and around the business and has an affirmative duty to check fishermen, boaters, and other users of the waterways (including those obtaining goods or services from his business) for appropriate licenses, boat registrations, and compliance with fishing and boating laws and regulations. Thus, the officer would be faced with the same type of conflict or temptation as the GFC officers to disregard the objective performance of his public duties in order to privately benefit guests or patrons of the business or the business itself.
CEO 92-17 (marine patrol officer owning and operating charter boat) is distinguishable from the officer's situation and from the GFC opinions discussed above. In CEO 92-17, the officer had no affirmative duty to check patrons of his boat for compliance with fishing license laws or regulations (since charter boat customers are not required to purchase fishing licenses) or other laws or regulations.
However, even though the exact nature of the officer's private employment or contractual relationship with the business cannot be determined from your materials, it appears from the totality of the circumstances presented that he is not merely a volunteer or one who is gratuitously and occasionally assisting his parents with their business endeavors. Nevertheless, since a violation of Section 112.313(7)(a) is dependent on one holding employment or a contractual relationship, if the officer's situation were to change such that he holds no employment or contractual relationship with the business (a situation in which the officer has no real, personal economic tie to the business but rather is merely gratuitously assisting his parents without actual or in-kind compensation or promise or expectation of tangible reward for his work and efforts), he should seek further advice from us as to whether his then-existent situation would be conflicting.
Accordingly, we find that a prohibited conflict of interest exists under Section 112.313(7)(a), Florida Statutes, where the officer works for a business operating a marina, general store, and campground.
ORDERED by the State of Florida Commission on Ethics meeting in public session on January 26, 1995, and RENDERED this _____ day of January, 1995.
R. Terry Rigsby