CEO 98-18 -- October 22, 1998
CONFLICT OF INTEREST
MARINE PATROL OFFICERS WORKING PART-TIME FOR
GAMBLING CRUISE TO NOWHERE
To: H. M. Mickey Watson, Director, Division of Law Enforcement, Florida Department of Environmental Protection (Tallahassee)
A prohibited conflict of interest is created under Section 112.313(7)(a), Florida Statutes, where Florida Marine Patrol officers work part-time directing parking for a cruise line operating a gambling Acruise to nowhere that originates in State waters. Due to the officers' affirmative duty to enforce the laws, rules, and regulations under the jurisdiction of the Department of Environmental Protection, and due to the close, ongoing scrutiny of gambling cruise operations by State regulators, working for the cruise line under these circumstances would create a continuing and frequently recurring conflict between their part-time jobs with the cruise line and their positions with the Marine Patrol and also impede the full and faithful discharge of their public duties.
Is a prohibited conflict of interest created where Florida Marine Patrol officers work part-time for a cruise line operating a gambling cruise to nowhere?
Your question is answered in the affirmative.
From your letter of inquiry and other materials provided in conjunction with your opinion request, we are advised that this opinion is sought on behalf of eight named Florida Marine Patrol officers employed by the Department of Environmental Protection in its Division of Law Enforcement. They are identified as Lieutenant Humberto Navarro, Officer Jackey Angelis, Officer Michael Dunnigan, Officer Ward Jackson, Officer Scott Jones, Officer Albert Maxwell, Officer Timothy Meacham, and Officer Glenn Young. These individuals are sworn law enforcement officers with full power to investigate and arrest for any violation of the laws of the State and the statutes, rules, and regulations under the jurisdiction of the Department of Environmental Protection. You further advise that these individuals work part-time for a cruise line that operates a gambling Acruise to nowhere. Their part-time, off-duty work for the cruise line entails parking lot security at the marina from which the cruise originates. They evidently wear their uniforms and firearms while performing these off-duty services, in accordance with their bargaining unit agreement. You relate that in this off-duty capacity they never board the ship or perform any on-board duties.
We are further advised that this particular cruise line is involved in litigation with the Department for unauthorized use of and damages to State-owned lands, and for causing water quality violations in State waters. Marine Patrol officers have issued criminal citations to the cruise line and have responded to calls for service and investigated various citizen complaints, including sewage disposal, boat accidents, and prop dredging. You also relate that Marine Patrol officers have been involved in multi-agency task force investigations of various gambling cruise boat operations. They were the lead investigators and affiants in a recent long-term investigation of a local cruise vessel, which resulted in the execution of a search warrant, seizure of assets, and the physical arrest of three of the vessel's captains for operating a gambling house within the state.
You question whether these circumstances create a conflict of interest prohibited by the Code of Ethics for Public Officers and Employees.
The applicable standard of conduct is contained in Section 112.313(7)(a), Florida Statutes, and 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 (1997).]
Section 112.313(7)(a) prohibits a public employee from having an employment relationship with a business entity which is regulated by his agency. It also prohibits the employee from having an employment relationship which creates a continuing or frequently recurring conflict between his private interests and the performance of his public duties, or which impedes the full and faithful discharge of his public duties.
In a large number of opinions, we have examined whether, and under what circumstances, law enforcement officers can engage in off-duty employment. Generally, we have concluded that law enforcement officers are not regulating persons within the contemplation of Section 112.313(7)(a) when they are enforcing criminal laws. See CEO 79-81, which permitted state troopers to escort oversized loads; CEO 92-48, which allowed DOT motor carrier compliance officers to work for road construction firms; and CEO 87-15 and CEO 92-17, which permitted Marine Patrol officers to own charter fishing boats.
In another line of opinions involving law enforcement officers, we have examined their access to and potential use of confidential information. In CEO 94-14 and CEO 94-35, we concluded that this issue would not create a prohibited conflict of interest where FHP and FDLE officers provided personal security services; and in CEO 97-12, where a state correctional officer operated a private investigative business.
Conflicts have been found to exist, however, in other opinions. In CEO 78-93, we concluded that a prohibited conflict of interest would be created where a city police officer owned a pawn shop, since the police department regulated pawn shops. In CEO 85-1 and CEO 88-76, we recognized that a prohibited conflict of interest would be created where game and fish commission officers provided security services to private landowners and hunting clubs within the geographical area they were assigned to, since the officers had an affirmative duty to check their employer and the employer's guests and associates to determine whether they had the appropriate licenses and permits and whether they were otherwise in compliance with applicable hunting laws. These two opinions also provided the rationale for finding a conflict in CEO 95-3, where a Marine Patrol officer's ownership of a marina and campground was found to be a conflict under the second part of Section 112.313(7)(a), Florida Statutes.
Examining this precedent, it is clear that the rationale of CEO 85-1, CEO 88-76, and CEO 95-3, controls our response to the Marine Patrol officers who work during their off-duty hours for the cruise line. As with those opinions, these officers are assigned to the same geographic region from which the cruise originates. They routinely make arrests and file charges for violations of navigation rules and other laws which govern safety equipment and operation of vessels in state waters. The officers also routinely assist DEP regulators with the investigation and monitoring of water quality violations allegedly committed by the various cruise lines, and they apparently have issued citations to the employing cruise line and responded to calls for service where citizens have complained about infractions committed by its operator. In our view, working part-time for gambling cruise lines while also involved in close, ongoing scrutiny of their operations as Marine Patrol officers creates a continuing or frequently recurring conflict of interest and impedes the full and faithful discharge of the Marine Patrol officers' public duties. We therefore conclude, that the officers' public duties and private employment under the circumstances outlined are not compatible, separate, and distinct, but rather coincide to create a situation which "tempts dishonor." See Zerweck v. State Commission on Ethics, 409 So.2d 57 (Fla. 4th DCA 1982). This is not to suggest that the Marine Patrol officers would Alook the other way if they observed violations by the cruise line operator while they were either on duty as Marine Patrol officers or off-duty directing parking for the operator. However, protection of Florida=s natural resources, as well as public policy concerns about effectively regulating gambling operations within the state, demand that the Marine Patrol officers give full allegiance to their agency and its efforts to effectively regulate these operations. Accordingly, a prohibited conflict of interest is created where Marine Patrol officers work part-time for a cruise line operating a gambling cruise to nowhere.
ORDERED by the State of Florida Commission on Ethics meeting in public session on October 22, 1998 and RENDERED this 27th day of October, 1998.
Charles A. Stampelos