CEO 97-12 -- April 17, 1997
CONFLICT OF INTEREST
DEPARTMENT OF CORRECTIONS CORRECTIONAL OFFICER
OWNING AND OPERATING PRIVATE INVESTIGATIVE BUSINESS
To: (Name withheld at person's request) (Avon Park)
No prohibited conflict of interest would be created under Section 112.313(7)(a), Florida Statutes, were a correctional officer employed at an institution of the Department of Corrections to own and operate a private investigative business, provided that matters pertaining to inmates or the families of inmates, matters in which material in the possession of inmates would be useful in private investigations, and matters in which a business entity or agency which is doing business with the correctional institution employing the officer are not handled. Unlike a law enforcement officer, a correctional officer employed at an institution does not have access to nonpublic information that would be useful for private investigative purposes; therefore, no temptation to access such information for private purposes via the officer's public position would exist. CEO's 76-101, 78-29, 80-77, 90-74, 94-35, and 96-16 are referenced.
Would a prohibited conflict of interest be created were a correctional officer employed at a State correctional facility to own and operate a private investigative business?
Under the factual scenario set forth herein and subject to the conditions noted herein, your question is answered in the negative.
By your letter of inquiry and an additional letter to our staff, we are advised that you are certified to work as a correctional officer, but that you are not currently employed in that capacity, having been terminated from such a position by the Florida Department of Corrections. As a correctional officer, you advise, your duties would primarily involve supervision of inmates (in the dorms, at meals, on the recreation field, etc.), including searching inmates and their property and making sure that inmates are accounted for.
In addition, you advise that you have applied for licensure as a private investigator, seeking to initially do business as a sole proprietorship. You advise further that you wish to handle cases involving lost heirs, missing relatives, marital or domestic partner surveillance, false injury/workers compensation claims, and delinquent child support, but that you are not currently considering handling cases involving personal protection or escort services, premises security, or process service.
You apparently recognize that we have found in previous advisory opinions that prohibited conflicts of interest exist (conflicts based primarily upon temptation to access confidential information for private use) where law enforcement officers sought to work in traditional private investigative activity of the kind you contemplate being involved in. Nevertheless, it is apparent that you make this inquiry hoping that our view will be different in regard to correctional officers, public employees who in your view (according to your representations set forth below) have very little or no access via their official position to "inside" information that would be useful in a private investigative context.
You advise that most correctional facilities have computerized records or information and that all facilities have vaults for inmate records, but that the computers are not readily accessible by correctional officers, that the vaults are not accessible to correctional officers (unless there is a designated emergency necessitating the "retrieval of civilian [personnel]"), and that, as far as you can remember, no correctional officer has access to NCIC, FCIC, MCIC, or any other intelligence information, other than information regarding particular investigations within the institution in which an officer has been specifically designated to receive such information. Further, you advise that under Departmental policy the only correctional institution personnel allowed to use computers or their files are classification staff, medical staff, clerks (all of whom are nonsecurity personnel/not correctional officers), and higher level employees (the institution's administration). Additionally, you advise that the institutions keep their records vaults locked, even though people work in the vaults, to prevent access by unauthorized staff and inmates; that most of the computer rooms or file rooms are kept locked to prevent unauthorized staff and inmates from entering; and that you think (but are not sure) that "approved passwords" are necessary to access the computers. Also, you advise that a correctional officer might access information that an inmate keeps in his cell, that such information could include prior disciplinary reports, corrective consultations, transfer requests, and classification material relative to the particular inmate; that inmate medical files are available only to institutional doctors and their staff; and that the foregoing information would not be of private investigative use, unless you were doing an investigation concerning the inmate or his family, and thus that "for general use or need it would not even be helpful." Further, you advise that any person, whether they are a correctional officer or not, could contact the Department's central office, but that they would only be allowed to obtain information that is public, and that you are not sure whether such obtainable information would contain any inmate information. In addition, you advise that you do not currently subscribe to any commercially available source of "on-line" information that would be of assistance in your investigative business, but that you are aware that several such sources are available through computer stores.
The Code of Ethics for Public Officers and Employees 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. [Section 112.313(7)(a), Florida Statutes.]
While we have yet to issue an opinion in response to an inquiry such as yours in a correctional officer context, in numerous opinions involving law enforcement officers we have found that a prohibited conflict of interest would exist under the second part of this statute were those officers to be involved in traditional private investigative activities or to have employment with or interests in firms or businesses involved in private investigative activities. However, we have not found a conflict to exist where the officers, their firms, or businesses only were involved in personal or premises security work. See 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), and CEO 94-35 (FDLE agents providing private escort services), among others.
In the previous opinions, our concern has primarily been that a law enforcement officer, having access to confidential investigative information or other data not available to the public, would be tempted utilize such information in his private investigative endeavor. Thus, our concern has been two-pronged: (1)Whether the public officer or employee 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 employee, or his clients or firm, in his private endeavor.
Under the facts of your situation as represented by you and subject to conditions, we find that a prohibited conflict of interest would not be created under Section 112.313(7)(a) were you to own and operate a private investigative business, inasmuch as you as a correctional officer (unlike a law enforcement officer who has ready access via his official capacity to NCIC/FCIC computer data, ongoing criminal investigative files, and other "inside" information) would have little or no access to nonpublic information that would be of use in your private investigative activity.
However, we caution that any actual disclosure or use of information not available to the public and gained by virtue of your official position, for the benefit of any person or business entity, or any attempted or consummated use of your official position or an attribute thereof for the private benefit of yourself or another, would be violative of the following statutes:
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. [Section 112.313(8), Florida Statutes.]
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. [Section 112.313(6), Florida Statutes.]
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 foregoing scenario and under the foregoing conditions, we find that a prohibited conflict of interest would not be created under Section 112.313(7)(a), Florida Statutes, were you to be employed as a correctional officer at an institution of the Department of Corrections while owning and operating a private investigative business.
ORDERED by the State of Florida Commission on Ethics meeting in public session on April 17, 1997, and RENDERED this 21st day of April, 1997.
Mary Alice Phelan
 You advise that you are seeking reinstatement with the Department and that your termination was based on your alleged failure to pass on information concerning an inmate's status, resulting in his allegedly being sexually assaulted; that the person accused of the assault was found not guilty; that no criminal charges have been filed against you relative to the matter; and that FDLE has not sought to affect your certification as a correctional officer because of the matter.
 Based upon your representations that inmates may have some of their records pertaining to their status as inmates in their possession and based upon the frequent interaction between inmates and correctional officers, we find that a prohibited conflict would be created under the second part of Section 112.313(7)(a) were you or your business to handle private cases concerning inmates or their families or to handle cases in which information obtainable from the possession or quarters of inmates would be useful. Also, we find that a prohibited conflict would be created were you or your sole proprietorship to work for business entities or agencies that are doing business with your correctional institution (your "agency," see CEO 90-74), as such a situation would constitute your holding employment with a business entity or agency that is doing business with your agency, a situation violative of the first part of Section 112.313(7)(a).
 In addition to these practical realities, we note that correctional officers and law enforcement officers are distinguished from one another under Chapter 943, Florida Statutes, which addresses, among other topics, certification of law enforcement officers and correctional officers. Section 943.10, Florida Statutes, provides in part:
(1) 'Law enforcement officer' means any person who is elected, appointed, or employed full time by any municipality or the state or any political subdivision thereof; who is vested with authority to bear arms and make arrests; and whose primary responsibility is the prevention and detection of crime or the enforcement of the penal, criminal, traffic, or highway laws of the state. This definition includes all certified supervisory and command personnel whose duties include, in whole or in part, the supervision, training, guidance, and management responsibilities of full-time law enforcement officers, part-time law enforcement officers, or auxiliary law enforcement officers but does not include support personnel employed by the employing agency.
(2) 'Correctional officer' means any person who is appointed or employed full time by the state or any political subdivision thereof, or by any private entity which has contracted with the state or county, and whose primary responsibility is the supervision, protection, care, custody, and control, or investigation, of inmates within a correctional institution; however, the term 'correctional officer' does not include any secretarial, clerical, or professionally trained personnel.
 Also, we recently found (see CEO 96-16) that a police officer would not have a prohibited conflict under Section 112.313(7)(a) were he to work privately engaging in surveillance of workers compensation claimants (a limited type of private investigative work), notwithstanding that he had access to and could make private use of information obtained via his official capacity, reasoning that the same information was available to him through a private, on-line, commercial source.
 A misuse of position under Section 112.313(6) would include, but would not be limited to, preparing private investigative reports for clients during on-duty time as a correctional officer.
 It is not within our jurisdiction to address the effect, if any, of correctional officer employment on you private investigative licensure, or to address the effect, if any, of private investigative licensure upon your correctional officer certification. Any concerns you may have regarding these subjects should be addressed to the Department of State and the Department of Law Enforcement/Criminal Justice Standards and Training Commission, respectively.