CEO 94-19 -- April 21, 1994

CONFLICT OF INTEREST

CITY POLICE OFFICERS RECEIVING RENT REDUCTION

IN EXCHANGE FOR PROVIDING SECURITY SERVICES

To: Peter R. Giroux, Assistant City Attorney, City of Pinellas Park

SUMMARY:

No prohibited conflict of interest exists where city police officers receive rent reductions or similar things of value in exchange for providing security services to their landlords. There is no indication that the reductions were given in order to influence the official actions of the officers, which could violate Section 112.313(2) or 112.313(4), Florida Statutes, and the rent reduction/security arrangements do not constitute a conflicting employment or contractual relationship under Section 112.313(7)(a), Florida Statutes, or a prohibited sale of services to the city under Section 112.313(3), Florida Statutes. CEO's 76-38, 81-67, and 83-75 are referenced.

QUESTION:

Does a prohibited conflict of interest exist where city police officers receive rent reductions or similar things of value in exchange for providing security services to their landlords?

Under the factual scenario set forth in this opinion, your question is answered in the negative.

By your letter of inquiry, we are advised that several police officers of the City of Pinellas Park are residing in various local apartment complexes and receiving either a rent reduction or a rent-free apartment in exchange for providing security and reporting maintenance and other problems to the management at the complex at which they reside. In one case, you advise, an officer provides the security/maintenance-reporting function in exchange for a designated sum of money per month rather than a reduced rent or rent-free apartment, but his rent is the same amount as the sum that he receives and he reports the earnings to the IRS. In at least two other cases, the City and a local school each allow an officer to place his or her mobile home in a public park or on school grounds, free of ground rent, with the officers receiving water and sewer services at no charge.

Typically, you advise, the security services provided include locking up facilities nightly and patrolling the grounds. The officers do not wear their uniforms, do not openly carry a firearm, and do not make arrests at the complex as part of their provision of security services, and they do not take their police cars home to the complex, you advise. Instead, you advise, "the officer notifies the police that there is a problem and another on-duty police officer handles the situation from that point forward."

Apparently, you advise, the managements of these apartment complexes feel that the presence of a police officer acts as a deterrent to potential problems. In addition, you advise that the managements offer the part-time employment to the officers because they are City police officers, and that to the best of the City's knowledge reduced rent or rent-free apartments are not offered to members of the general public. You also advise that the few police officers who provide these services maintain that the provision of the services is merely part-time employment, that City regulations permit part-time employment, that the officers notify the City of the employment, and that the arrangement has been a longstanding, common practice among police officers throughout the area and possibly the State.

You advise that City regulations do permit part-time employment so long as the City is notified of the employment and so long as the employment does not adversely affect the officer's position with the City. In the event that there is any conflict between the two positions, you advise, the position with the City is to have priority at all times.

The Code of Ethics for Public Officers and Employees provides:

SOLICITATION OR ACCEPTANCE OF GIFTS.--No public officer, employee of an agency, or candidate for nomination or election shall solicit or accept anything of value to the recipient, including a gift, loan, reward, promise of future employment, favor, or service, based upon any understanding that the vote, official action, or judgment of the public officer, employee, or candidate would be influenced thereby. [Section 112.313(2), Florida Statutes.]

UNAUTHORIZED COMPENSATION.--No public officer or employee of an agency or his spouse or minor child shall, at any time, accept any compensation, payment, or thing of value when such public officer or employee knows, or, with the exercise of reasonable care, should know, that it was given to influence a vote or other action in which the officer or employee was expected to participate in his official capacity. [Section 112.313(4), 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.]

The facts presented by you are substantially similar to the scenario in CEO 83-75. In that opinion, we found that a prohibited conflict of interest would not be created under Sections 112.313(2) and 112.313(4) were a city police officer to accept a rent-free apartment for himself and his family, opining that it did not appear that the free use of the apartment would be given based upon any understanding that the official action of the police officer would be influenced and finding that it did not appear that the officer knew, or with the exercise of reasonable care should have known, that the apartment was being provided to influence some action in which he was expected to participate in his official capacity. Apparently, under the facts of CEO 83-75, the complex managers felt that having a police officer and his family reside in the complex would help deter vandalism and other criminal activity.

Under the scenario you present, there likewise appears to be an exchange of services (i.e., rental benefits for the police officers in exchange for security services for the landlords) which mitigates against the arrangements being viewed as attempts to influence the official conduct of the police officers. As was the case in CEO 83-75, you have presented no circumstances indicating that the landlords are involved in other activity that might require closer police scrutiny.

A prohibited conflict of interests could exist under the first clause of Section 112.313(7)(a) if the landlords are subject to the regulation of, or are doing business with, the police officers' public agency. We see no indication that any business is being conducted between the landlords and the police department. Further, we see no indication that the landlords are subject to the regulation of the police department. The enforcement of the criminal laws of the State does not constitute "regulation" under Section 112.313(7)(a). See, for example, CEO 81-67.

Regarding the second clause of Section 112.313(7)(a), we fail to see how the landlords could benefit from confidential law enforcement information available to the officers or how the rent/security arrangements could interfere with the workings of law enforcement agencies. In contrast, see CEO 89-43, where we opined that a deputy sheriff should not be employed as a private investigator. Therefore, we conclude that no continuing or frequently recurring conflict or impediment to the full and faithful discharge of the officers' public duties would exist.

In addition, the rental/security arrangement involving the City park must be examined under Section 112.313(3), Florida Statutes, which provides:

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 or 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 of 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 or when such offices are on property wholly or partially owned by the legislator. 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.

This statute would appear to prohibit the police officer from furnishing security services to any entity of the City in exchange for free "ground rent" from the City at one of its public parks. However, Section 112.313(3) must be read in light of Section 112.316, Florida Statutes, which provides:

CONSTRUCTION.--It is not the intent of this part, nor shall it be construed, to prevent any officer or employee of a state agency or county, city, or other political subdivision of the state or any legislator or legislative employee from accepting other employment or following any pursuit which does not interfere with the full and faithful discharge by such officer, employee, legislator, or legislative employee of his duties to the state or the county, city, or other political subdivision of the state involved.

You have not indicated to us that the police officer who resides at the City park site recommends, supervises, or approves (in his public capacity) the procurement of security services for the park on behalf of the City. Therefore, assuming he in fact has no public duties regarding obtaining security services for the park, he could not be tempted to compromise the same in order to, in effect, hire himself to provide the security via the free rent arrangement. See, for example, CEO 76-38. Therefore, we do not find a prohibited conflict under Section 112.313(3).

Accordingly, within the facts of this opinion, we find that no prohibited conflict of interest exists where police officers of the City of Pinellas Park receive apartments or ground space at reduced rates or for no charge in exchange for providing security services.