CEO 08-16--July 30, 2008

CONFLICT OF INTEREST

CITY POLICE OFFICER'S BUSINESS
LOCATING AND RECOVERING PROPERTY


To: Gregory Lariscy, Sergeant, Orange City Police Department


SUMMARY:

Under the circumstances presented, a prohibited conflict of interest would not be created under Section 112.313(7)(a), Florida Statutes, were a city police officer to own and operate a business locating items of property (collateral) for lenders or agents of lenders; nor would a prohibited conflict be created were the business to recover the property. The lack of need for law-enforcement-sourced information to locate the property, no use of law enforcement uniforms or equipment in conducting the business, the business's clients waiving confidentiality under Section 493.6119, Florida Statutes, to further the officer's duty to report crime if encountered via his business, and the business's not having clients who do business with or who have a relationship with the police department, all support a lack of conflict and harmonize the existing situation with prior Commission on Ethics opinions. CEO 96-16 and CEO 97-13 are referenced.1


QUESTION 1:

Would a prohibited conflict of interest be created were you, a member of a city police department, to own and operate a business which locates collateral (chattel property) for repossession by lenders?


Under the circumstances presented, this question is answered in the negative.


By your letter of inquiry and additional information provided via telephone communication between you and our staff, we are advised that you serve as a sworn law enforcement officer of the Police Department of the City of Orange City.2 In addition, we are advised that you are exploring the idea of establishing a business3 which would locate motor vehicles, watercraft, aircraft, farm equipment, industrial equipment, office equipment, and similar property on behalf of lending institutions, or on behalf of the institutions' agents, after a breach of a civil contract (e.g., failure to pay on a loan secured by the property, failure to obtain/maintain adequate insurance on the loan-securing property), regarding which the lender/agent needs to know the location of the property (collateral) in order to attempt a self-help repossession of the property. Further, you advise that your business would solicit customers only from within the ranks of lending and leasing institutions (or their agents) who desire to seek out property, and that it would not advertise to perform, and would not perform, general private investigative services available to the public, such as services concerning missing persons, spousal surveillance, background checks, and criminal investigations.


Regarding information used to locate the items of property, you advise that observation points would be determined using information provided by your business's clients, such as credit applications, credit bureau reports, notes from previous debt-collection activities, and client in-house "skip trace" information; that some records available to the public, such as public tow records from local tow-truck dispatching centers, postal forwarding orders, local utilities services records, records from government-owned airports and marinas, and public records from clerk of court offices might be used by your business to locate property; that information from private, on-line database services might be used by your business to locate property; but that criminal records and other confidential data often associated with law enforcement would not be beneficial to your business and would not provide your business with a "competitive edge."4 Also, you advise that the clients of your business often would be located outside Florida and that none of your clients would have a relationship with the City Police Department; that your work for the business would take place outside your working hours for the Police Department; that the business would not operate within the City limits; that the business would not provide private investigative services, of any kind, to the general public; and that your business will not use any City or government equipment in its operations, including City/government vehicles, weapons, law enforcement identification or badges, computers, law enforcement databases, or telephones.


Within the Code of Ethics, and relevant to your inquiry, is Section 112.313(7)(a), Florida Statutes, which 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.


In a number of situations, we have found that a prohibited conflict of interest would not be created under the statute were a sworn law enforcement officer to engage in private investigative work of a limited nature, provided that confidential law enforcement information available to the officer would not be of use to him in his private endeavor. That is, in several situations in which records or information available to the general public, in which paid, private, on-line sources of records or information, or in which other privately-provided records or information negated the historical potential use of law-enforcement-sourced information for a private investigative purpose, we have found that a prohibited conflict would not be created. See CEO 96-16, in which we found that no prohibited conflict would be created were a municipal police officer to conduct surveillance of workers compensation claimants for a workers compensation insurer. There, the surveillance was conducted during the officer's off-duty hours and the information needed to conduct the surveillance would be obtained via private, on-line services. And see CEO 97-13, in which we found that a prohibited conflict would not be created were a city police officer to work during his off-duty hours as a private process server using locator information from private sources.

Similarly, we find that a prohibited conflict would not be created under Section 112.313(7)(a) were your business to locate collateral for lenders or lenders' agents as described in your inquiry, provided your work is conducted outside your working hours for the Police Department and provided information used for the location is obtained from private, on-line sources, lender sources, or other non-law-enforcement sources.5


This question is answered accordingly.


QUESTION 2:

Would a prohibited conflict of interest be created were your business to recover (repossess) such collateral?


Under the circumstances presented, this question is answered in the negative.


In addition to the information provided concerning Question 1, you advise that you are considering also conducting business recovering collateral, such as items described in Question 1, via a for-profit corporation which is the same as, or similar to, the corporation described in Question 1, and which would be owned and operated in the same or a similar manner. In essence, you advise, the recovery side of your business would be structured and licensed6 like the locator side of your business, including the business's obtaining statutorily-required waivers from its clients as to the contents of private investigative files, its not operating within the City limits, and its not making use of Police Department uniforms, information, or similar items.7 And you emphasize that recovery efforts would use non-law-enforcement information and would cease if a person contested a recovery.8


Section 112.313(7)(a) again is at issue. While we have not previously opined directly on a recovery (repossession) question such as that presented herein, our focus in the past, as in Question 1 above, having been more on the information/location/investigative nature of the inquiries, we find that recovery efforts by your business as described herein also would not create a prohibited conflict. In the situation described, we do not find that you would be tempted to use public resources, equipment, or status in the recovery, given, inter alia, that the location would be via private information, that you would not be using Police Department uniforms or other public equipment in the effort, and that you advise that any recovery effort would be abandoned if resistance is encountered.9


This question is answered accordingly.10


ORDERED by the State of Florida Commission on Ethics meeting in public session on July 25, 2008 and RENDERED this 30th day of July, 2008.

____________________________________

Albert P. Massey, III, Chairman

[1]For prior opinions of the Commission on Ethics, go to www.ethics.state.fl.us, go to Research, go to Advisory Opinions, and go to the particular year and opinion number.

[2]More particularly, you advise that in your police capacity, you are assigned to perform code enforcement duties, working normal hours (8:00 to 5:00, Mondays through Fridays), supervising one full-time sworn law enforcement officer (assigned to perform code enforcement duties) and approximately fifteen citizen volunteers, within the Police Department's Community Improvement Unit. Also, you advise that the primary mission of the Unit is to enforce municipal codes and manage the citizen patrol program, and that your position within the Unit is of a permanent nature (hired in October 2001 specifically for the Unit position, and not subject to rotation to other Departmental units such as patrol, traffic, or investigations units).

[3]You advise that the business would be organized as a for-profit, Florida corporation, statutorily required to hold a private investigative agency license; that all of your clients will provide a waiver to your business allowing release of information from a private "investigative file" under Section 493.6119, Florida Statutes; that you likely would own fifty percent of the corporation, with a friend of your brother's owning the other fifty percent; that you and your father-in-law likely will be the only workers of the business, with your father-in-law managing the day-to-day operations and you possibly working in the field occasionally.

[4]You advise that in the great majority of matters, the information provided to your business by the lender will be all that is needed to locate an item of property.

[5]Of course, our finding herein also depends upon none of your clients doing business with the Police Department or having a relationship with the Police Department, and depends upon your business not providing services to the Police Department or to the City. Further, our finding herein does not insulate you from a possible violation of Section 112.313(6) or Section 112.313(8), Florida Statutes, should information from law enforcement sources or other sources accessible to you through your public position actually be used by your business. Sections 112.313(6) and 112.313(8) provide, respectively:

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.


DISCLOSURE OR USE OF CERTAIN INFORMATION.-A current or former public officer, employee of an agency, or local government attorney may not disclose or use information not available to members of the general public and gained by reason of his or her official position, except for information relating exclusively to governmental practices, for his or her personal gain or benefit or for the personal gain or benefit of any other person or business entity.


[6]See Part IV, Chapter 493, Florida Statutes.

[7]You advise that as a municipal law enforcement officer for a municipal agency, you are not judicially tasked with the responsibility of service of writs of replevin, as is the case with sheriff's deputies.

[8]As to likely scenarios, you advise that when a locator shows up at a place where there is collateral, persons in residence typically state something to the effect of "it's out back, go ahead and take it," and that such persons rarely attempt resistance.
[9]Of course, as with Question 1, any actual use of public position or actual use of "inside information" could implicate Sections 112.313(6) and 112.313(8), Florida Statutes.

[10] Your obtaining a waiver of confidentiality from each client as to the contents of their investigative file, under Section 493.6119, Florida Statutes, is necessary to your business endeavor not being conflicting under Section 112.313(7)(a). Without such a waiver, an impermissible tension would exist between your duty as a law enforcement officer to report possible criminal activity whenever and wherever encountered, even if encountered in your private business capacity, and your duty under Section 493.6119 to keep certain information confidential. See CEO 96-16.