CEO 80-77 -- October 30, 1980

CONFLICT OF INTEREST

HIGHWAY PATROL MEMBERS AND EMPLOYEES OF DIVISION OF DRIVER LICENSES TEACHING DEFENSIVE DRIVING COURSES

To: Chester F. Blakemore, Executive Director, Department of Highway Safety and Motor Vehicles, Tallahassee

Prepared by: Phil Claypool

SUMMARY:

The Code of Ethics for Public Officers and Employees prohibits a public employee from being employed by or having a contractual relationship with a business entity which is subject to the regulation of his agency. Section 112.313(7)(a), F. S. This provision is not violated when members of the Florida Highway Patrol and employees of the Division of Driver Licenses, both within the Department of Highway Safety and Motor Vehicles, teach for compensation during off-duty hours a defensive driving course presented by local, nonprofit safety councils because the councils are not subject to the regulation of the department. Section 112.313(7)(a) also prohibits a public employee from having any contractual relationship or employment that will create a frequently recurring conflict of interest or that would impede the full and faithful discharge of his public duties. No such conflict is perceived in this situation inasmuch as the councils' course is the only one approved for purposes of driver training and alcohol education necessary for restoration of driving privileges; thus, there can be no possibility of misuse of position by an employee in, for example, favoring the course which privately employs him over other courses.

QUESTION:

Does a prohibited conflict of interest exist when members of the Florida Highway Patrol and hearing officers and driver's license examiners of the Division of Driver Licenses, Department of Highway Safety and Motor Vehicles, teach during off-duty hours a defensive driving course presented by local, nonprofit safety councils and receive compensation for their services?

Your question is answered in the negative.

In your letter of inquiry you advise that the National Safety Council has adopted and provides materials for a defensive driving course which is taught through local, nonprofit safety councils in the state. This course has been approved, and is the only course submitted for approval, by the department under ss. 322.271 and 322.291, F. S., which permit the department to require completion of an approved driver training or alcohol education course before restoring driving privileges on a restricted basis or before reinstatement of driving privileges.

You also advise that members of the Florida Highway Patrol have the powers and duties listed in s. 321.05, F. S., which include the authority to enforce traffic laws. In addition, some members are troop safety education officers who give defensive driving instruction as part of their regular duties, pursuant to s. 321.071(1)(a), F. S. These officers, you advise, are not permitted to accept compensation for teaching during their regular working day, but are permitted to do so on their days off.

Driver's license examiners, you advise, are employees of the department's Division of Driver Licenses who conduct driver's license examinations and enforce all driver's license laws and suspension, revocation, and cancellation orders pursuant to s. 322.13, F. S. Under s. 322.271, F. S., the division also employs hearing officers who hold hearings and enter recommended orders on petitions for restoration of driving privileges on a restricted basis or on requests for hearings upon the suspension, cancellation, or revocation of a license.

The Code of Ethics for Public Officers and Employees provides in relevant part:

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), F. S.]

This provision prohibits a public employee from being employed by or having a contractual relationship with a business entity which is subject to the regulation of his agency. Although the defensive driving course taught by the local safety councils has been approved by the department pursuant to ss. 322.271 and 322.291, F. S., we are of the opinion that the councils are not subject to the regulation of the department. In a telephone conversation with our staff, the department's general counsel advised that the department has promulgated no rules which would regulate either the content of such defensive driving courses or the local safety councils which sponsor the course. Instead, he advised, the department "approved" the course because of its designation under the Florida Rules of Practice and Procedure for Traffic Courts, Rule 6.110. That rule provides as follows:

Driver Improvement, Student Traffic Safety Council, and DWI Counter Attack Schools

(a) In those areas where traffic law violators are sentenced or are allowed to elect to attend a driver improvement school or student traffic safety council school or are sentenced to a DWI Counter Attack School, the chief judge of the circuit shall issue an administrative order designating the schools to which attendance is required. No DWI Counter Attack School shall be approved by the chief judges until approval is first granted by the DWI Schools Coordinator or the Traffic Court Review Committee.

(b) Any school not designated by the chief judge may seek approval by petition to the Traffic Court Review Committee.

(c) Any schools designated to serve an area of the state are subject to the inspection and supervision of the DWI Schools Coordinator or the Traffic Court Review Committee.

Thus, he explained, the department merely approved the defensive driving course because it had already been approved by the judicial traffic court review committee.

Section 112.313(7)(a) also prohibits a public employee from having any contractual relationship or employment that will create a frequently recurring conflict of interest or that would impede the full and faithful discharge of his public duties. We do not perceive such a conflict of interest when highway patrol members, department examiners, or hearing officers teach an approved defensive driving course for compensation while they are off duty, especially since there is only one course approved by the department. Thus, there can be no possibility of misuse of position by an employee in, for example, favoring the course which privately employs him over other courses.

Accordingly, under the facts presented in this opinion, we find that no prohibited conflict of interest is created when members of the Florida Highway Patrol and Department of Highway Safety and Motor Vehicles hearing officers and driver's license examiners teach during off-duty hours a defensive driving course presented by local, nonprofit safety councils and receive compensation for their services. The department's general counsel has advised us that additional courses may be approved by the department and that the department may adopt rules regulating the content of such courses in the future. We do not intend to address these circumstances in this opinion; should they arise, we urge you to seek another opinion.