No prohibited conflict of interest exists under Section 112.313(7)(a), Florida Statutes, where members of a sheriff'svehicular homicide unit serve as expert witnesses in civil, traffic accident cases, within limitations.  CEO 94-32 is referenced.^[1]

QUESTION:

Does a prohibited conflict of interest exist where a deputy sheriff assigned to the sheriff's vehicle homicide unit serves as an expert witness in civil, traffic accident cases?^[2]

Your question is answered in the negative, under the conditions noted below.

By your memorandum of inquiry (and an attachment), a letter from the Sheriff's legal advisor to our staff (and an enclosure), and a subsequent written communication from you, we are advised that you serve as a member of the Palm Beach County Sheriff's vehicle homicide unit.  Further, you advise that for the past two years you sought and were granted written permission from the Sheriff's administration to work privately as an expert witness in the field of accident reconstruction, doing so via an incorporated business entity.  The staple of your company’s services, you advise, is the forensic mapping of accident scenes, using survey equipment, resulting in the gathered data and/or materials supplied to your company by its clients (i.e., civil attorneys) being used to formulate expert opinions in civil litigation.  Thus, you stress, your company’s services "are based upon analysis and opinion and are not investigative in nature." In addition, you advise that all equipment used in your private work is privately owned, that no public equipment is used, and that all work is accomplished outside of your public-position working hours.

Further, you advise that your 2003 request for renewal of permission for your outside employment was denied by the Sheriff's administration for conflict of interest reasons, based upon the Sheriff's legal advisor's application of a previous opinion of ours (CEO 94-32) to your circumstances, resulting in your instant inquiry.^[3]

Section 112.313(7)(a), Florida Statutes, specifically the second part of the statute, is at issue regarding your inquiry, and provides, with emphasis supplied:

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.

In CEO 94-32,^[4] we found that the statute would not be violated were a city^[5] police officer serving in his department’s traffic unit to work privately as an expert witness in civil, traffic accident cases, within limitations or conditions.  In applying CEO 94-32 to you, the legal advisor gleaned from the opinion thirteen conditions or limitations with which you would need to comply in order to secure the Sheriff's renewal of permission for your private work.  Of the conditions, you take issue with the following two:  that your private work not involve any accident occurring within Palm Beach County, irrespective of whether an agency other than the Sheriff investigated the accident (numbered by the legal advisor as condition "1") and that you would provide services only to firms practicing civil law and located outside Palm Beach County (numbered by the legal advisor as condition "6").  You argue that the two conditions, originated in the context of a municipal police officer who had close and ready access to accidents/cases/and law firms outside his city, should not control your situation due to the immensity of Palm Beach County both as to geography and as to the number of cases available for your private work which were not investigated by the Sheriff's Office.^[6]

We find that a prohibited conflict of interest does not exist under Section 112.313(7)(a) due to your private expert witness work, provided you adhere to the conditions noted in CEO 94-32, including conditions 1 and 6.  Thus, we decline your invitation to “relax” our interpretation or position as set forth in CEO 94-32.  We find that all of the conditions noted in CEO 94-32, including but not limited to the condition that the accident did not occur within the County you serve as a deputy and the condition that the law firms you would be providing services to be located outside the County, must be met in order to avoid a prohibited conflict under the statute.  In other words, we find that working for firms located in the County or working on accidents that occurred within the County would create a continuing or frequently recurring conflict between your private interests (and those of your private employers) and your public duties as a County law enforcement officer or would impede the full and faithful discharge of your public duties; and we find that limiting your work to cases "occurring outside your jurisdiction" provides a meaningful buffer to such conflict or impediment.^[7]

Accordingly, we find that a prohibited conflict of interest does not exist under Section 112.313(7)(a), Florida Statutes, where you work privately as an expert witness reconstructing accidents in civil, traffic accident cases, within the conditions noted herein.

ORDERED by the State of Florida Commission on Ethics meeting in public session on October 21, 2003 and RENDERED this 21st day of October, 2003.

__________________________

Richard L. Spears

Chair