A prohibited conflict of interest would be created under Section 112.313(7)(a), Florida Statutes, were a Florida Department of Law Enforcement operations and management consultant manager who supervises the alcohol testing program to serve as an expert witness in litigation regarding blood and breath alcohol analyses and the pharmacology and toxicology of alcohol; and a prohibited conflict would be created were the manager to serve as an expert witness regarding drugs other than alcohol. However, a prohibited conflict would not be created were she to serve as an expert witness in cases arising entirely outside of Florida and having no connection with any legal proceeding within Florida, provided she adheres to conditions; and a prohibited conflict would not be created were she to serve as a trainer on the effects of alcohol and drugs. CEO 03-14 and CEO 94-32 are referenced.
Would a prohibited conflict of interest be created were a FDLE operations and management consultant manager who supervises the alcohol testing program to serve as an expert witness in litigation regarding blood and breath alcohol analyses and the pharmacology and toxicology of alcohol?
Your question is answered in the affirmative.
By your letter of inquiry and a subsequent letter from your legal staff to our legal staff, we are advised that ... ("Manager") is employed by the Florida Department of Law Enforcement ("FDLE" or "Department") as an Operations and Management Consultant Manager ("OMCM"), supervising the Alcohol Testing Program ("ATP"). In addition, we are advised that the Manager frequently is subpoenaed to testify in criminal and civil cases because of her expertise and that she is seeking approval to work part-time as an independent, self-employed expert on civil litigation matters regarding blood and breath alcohol analyses and the pharmacology and toxicology of alcohol and drugs. Further, we are advised that in her capacity as supervisor of the ATP, the Manager is responsible for assuring that the Program complies with statutory and regulatory requirements. The Manager's assurance of compliance, we are advised, involves review and approval of performance under contracts for breath testing solutions and blood alcohol proficiency samples, involves certification of all breath test operators, agency inspectors, and blood alcohol analysts within Florida, and involves creation and revision of breath test operator, agency inspector, and breath test instructor curricula for training and certification of applicants for these positions. We also are advised that her assurance of compliance involves assuring that certified technicians adhere to applicable statutes and rules, involves approval of alcohol reference solutions for use in testing equipment, involves preparation and dissemination of mouth alcohol solutions and acetone stock solutions to law enforcement agencies in Florida, and involves giving testimony in all criminal courts in Florida regarding breath and blood alcohol analysis, certification of technicians and operators, the pharmacology and toxicology of alcohol, retrograde extrapolation, alcohol reference solutions, forensic toxicology, and the characteristics and performance of blood and breath alcohol testing equipment.
Regarding private work, we are advised that the Manager is seeking to appear as an expert witness in civil cases where driver impairment due to alcohol or drugs is an issue, and, although no question has been raised as to her ability to testify impartially and fairly in any such proceeding, she would have occasion to testify as to the results of blood and breath alcohol tests and the use of reference solutions, which could mean that she would be reviewing work she had done or that was done by persons she had certified. Further, you state that in performing her private work, the Manager would not be gathering information or investigating, but rather would be rendering an opinion based upon information provided to her about an alcohol or drug test, under circumstances similar to those of CEO 94-32 and CEO 03-14. However, we are further advised that the Manager would be involved in civil cases having criminal antecedents (cases in which FDLE had been or could have been involved), but that the nature and content of the opinions she would be asked to give in a civil case would not vary from what she would have been asked to give in the course of her FDLE duties, regardless of the interests of the party engaging her services as an expert; and we are advised that she would not appear in a case where she would be asked to question or criticize the work done in a criminal case by FDLE or another law enforcement agency. Further, we are advised, because the Manager could be called upon to criticize the work or methods of law enforcement officers working for another agency, if an alcohol test had been improperly administered or was otherwise flawed, the Manager has agreed to restrict the cases in which she appears in her private capacity to those which do not involve or have the potential to involve (as a contested issue at trial) any questioning, criticism, or negative comments about forensic blood or breath alcohol testing by a law enforcement agency or the admissibility or validity of blood or breath alcohol testing results in a criminal case. Further, we are advised that the Manager maintains that her testimony is objective, based on uniform standards applicable in civil as well as criminal trials, and that no incentive to testify differently in a private capacity from a public capacity is discernable.
In short, we are advised that the Manager intends to abide by a number of conditions or safeguards against a conflict of interest, but that if the reasoning of CEO 94-32 and CEO 03-14 (regarding a public officer's or employee's not working on matters occurring within his or her jurisdiction and regarding not working for law firms with offices in his or her jurisdiction) is extended to her that she will be severely limited in her potential private work, given that her "jurisdiction" (and that of FDLE) is the entire State of Florida. Further, it is represented to us that the Manager's situation differs from that of the law enforcement officers in the cited opinions, chiefly because in her FDLE capacity she would not be called upon to respond to the scene of an accident or incident or become directly involved with a criminal investigation.
Section 112.313(7)(a), Florida Statutes, the portion of the Code of Ethics for Public Officers and Employees at issue regarding your inquiry, 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.
Notwithstanding that we recognize that the Manager and FDLE would take a number of steps (as recited herein and/or in your letter of inquiry) to achieve factual bases which would guard against conflict occasioned by her private, civil, expert witness work, save the "jurisdictional" aspects of not working for firms with offices within the State and not working on matters occurring within the State, we find that a prohibited conflict of interest would be created under the second part of the statute. Law enforcement (of which FDLE is a lead agency) is becoming more and more complex, as is civil litigation and the accompanying demand for expert (opinion) witnesses. Thus, experts who also hold positions as employees of law enforcement agencies will thereby have their expert status and marketability supported or enhanced. And the relationships developed between such expert witness and law firms, insurance companies, or others involved in civil litigation will undermine a public employee's public duty to always testify objectively, a duty he or she could be tempted or conditioned to disregard due to, for example, testifying in behalf of interested civil parties.
Accordingly, we find that a prohibited conflict of interest would be created were the Manager to work privately as a civil, expert witness, unless conditions analogous to those of CEO 94-32 and CEO 03-14 (including the conditions that the Manager not work for law firms with offices in Florida and not work on matters occurring in Florida) are adhered to.
Would a prohibited conflict of interest be created were the Manager to serve as an expert witness in litigation involving the ingestion of drugs other than alcohol?
This question is answered in the affirmative.
In a letter submitted after our staff’s initial production of a draft opinion in this matter, you clarified or emphasized that, unlike her FDLE duties regarding the ATP, the Manager has no oversight/administrative role regarding tests or programs to determine the presence or effects of drugs other than alcohol. And, against this clarification or emphasis, you particularly inquire of us as to whether a prohibited conflict would be created were the Manager to serve as an expert witness in litigation regarding drugs other than alcohol. In other words, you ask whether the Manager (an FDLE employee), stripped of her oversight/administrative role regarding a program concerning the substances at issue, would be precluded from engaging in such private work.
Again, the statute at issue is Section 112.313(7)(a), set forth and emphasized above under Question 1. Similar to our finding regarding deputy sheriffs working as traffic reconstruction experts in civil cases (our decision in CEO 03-14), we find that a prohibited conflict of interest would be created were the Manager to serve as an expert in civil litigation involving drugs other than alcohol. Notwithstanding her lack of an oversight/administrative role regarding testing or programs for drugs other than alcohol, the Manager remains an employee of FDLE (a lead agency of law enforcement), and law enforcement and civil litigation (with litigation's accompanying demand for expert witnesses) are becoming more and more complex. Thus, experts who also hold positions as employees of law enforcement agencies (regardless of whether they hold program oversight/administrative roles in their public capacities) will thereby have their expert status and marketability supported or enhanced. And the relationships developed between such expert witness and law firms, insurance companies, or others involved in civil litigation will undermine a public employee’s public duty to always testify objectively, a duty he or she could be tempted or conditioned to disregard due to, for example, testifying in behalf of interested civil parties.
Your question is answered accordingly.
Accordingly, we find that a prohibited conflict would be created under Section 112.313(7)(a), Florida Statutes, were the Manager to work privately as a civil, expert witness regarding drugs other than alcohol, unless conditions analogous to those referenced regarding Question 1 above (conditions analogous to the conditions of CEO 03-14) are adhered to.
Would a prohibited conflict of interest be created were the Manager to work as an expert witness in civil cases arising outside Florida and having no connection with any legal proceeding within Florida?
This question is answered in the negative, provided conditions analogous to all of the conditions of CEO 03-14 are adhered to.
Would a prohibited conflict of interest be created were the Manager to privately provide training for restaurants and bars (located in Florida) on the effects of alcohol and drugs?
This question is answered in the negative.
In addition, via the letter from your legal staff to ours, we are advised that the Manager also would like to work privately for restaurants and bars, providing training on the effects of alcohol and drugs. We are advised that the training involves teaching persons who serve alcoholic beverages to the public to recognize the signs and symptoms of intoxication, in furtherance of the avoidance of liability. In addition, we are advised that FDLE does not regulate, review, approve, or have any involvement with the training, that no government agency has a regulatory or prescriptive role in the delivery of the training, and that the Manager is not subject to licensure or regulation regarding the training.
Regarding this question, Section 112.313(7)(a) again is at issue. However, unlike our finding as to Questions 1 and 2, we find that the Manager's private provision of the training would not create a prohibited conflict under the statute. Concerning the first part of the statute, the facts presented do not indicate that the restaurants and bars would be subject to the regulation of FDLE or that they would be doing business with FDLE. Regarding the second part of the statute (the part of the statute primarily at issue regarding Questions 1 and 2), we do not view the factual underpinnings of her private work (situations in which she would be providing preventive advice to establishments serving alcoholic beverages—advice or training likely to lessen intoxication, accidents, and litigation) to be laden with the conflicting dynamics of court testimony/expert witness work in the context of specific, contested, civil litigation. Rather, the dynamic underlying the Manager's private work under this question appears to be the dissemination of baseline information and training outside the context of a specific, adversary controversy. Also, and perhaps most importantly, the situation presented regarding this question, unlike the situation regarding Question 1, does not indicate public capacity involvement by the Manager regarding the restaurants and bars similar to her public capacity role regarding testing, certification, and other matters under the ATP.
This question is answered accordingly.
Richard L. Spears, Chairman
 Prior opinions of the Commission on Ethics are viewable on its website: www.ethics.state.fl.us.
 See Sections 316.1932(1)(a)2, 322.63(3), and 327.352(1)(b)3, Florida Statutes; and Chapter 11D-8, Florida Administrative Code.
 Previous opinions of ours concerning "noninvestigative" expert witness work by public officers or employees.
 We find that the thrust of your inquiry goes to the second part of the statute. However, we also find that a prohibited conflict would be created under the first part of the statute, absent the applicability of an exemption under Section 112.313(12), Florida Statutes, and absent the applicability of Section 112.316, Florida Statutes, were the Manager to work for a business entity or another agency doing business with FDLE, regardless of whether or not FDLE "cleared" such work. See the third paragraph from the bottom of page 4 of your letter of inquiry.
 We note that a distinction has been sought to be made between the Manager and the law enforcement officers who are the subject of the cited ethics opinions, vis-à-vis the argument that the Manager does not respond to accident scenes or become directly involved in criminal investigations in her public job capacity. However, we do not find a material distinction, inasmuch as the officers in the earlier opinions were not privately working cases that they or their agencies had handled publicly.
 In reference to the discussion in the second paragraph from the bottom of the last page of your letter of inquiry (the discussion regarding "other [FDLE] laboratory analysts and technicians who request approval to testify as experts in civil cases"), we decline to render an opinion because their situations are not before us in any detail. However, suffice it to say that while you/they are welcome to make inquiry regarding their particular situations, it appears from our reasoning herein that private work by them also might be closely scrutinized under Section 112.313(7)(a).
Our answer to this Question renders "moot" two other questions posed or suggested in your most recent letter: (A)whether the Manager could testify privately for an insured party or an insurance company and (B)whether the Manager could testify privately in a case where blood is taken by a hospital at the direction of a physician (a situation where the Manager's FDLE oversight/administrative role is not at issue).
 In making our determination, we do not find that the Manager would be precluded from testifying under subpoena or other process in situations where any witness fee is paid to the State (as mentioned in your most recent letter). Such situations are readily distinguishable from those in which the Manager would be retained/compensated by or on behalf of a private litigant.