CONFLICT OF INTEREST

CITY POLICE OFFICER CONDUCTING SURVEILLANCE OF
UNFAITHFUL SPOUSES AND EMPLOYEES STEALING FROM BUSINESSES

To:        Name withheld at person's request (Miami Gardens)

SUMMARY:

A prohibited conflict of interest would be created under Section 112.313(7)(a), Florida Statutes, were a municipal police officer to own and operate a private investigative firm which, in part, conducts surveillance in "unfaithful spouse" cases. Although it does not appear that this type of case will require the officer to access confidential information available in his capacity as a police officer, it is possible that these cases could influence criminal investigations in which the officer might become involved. Moreover, a prohibited conflict of interest will also exist were the officer's firm to conduct surveillance of employees suspected of stealing from their businesses. Because the officer has access to confidential information that may prove valuable to the client in such cases, agreeing to conduct this type of surveillance will create a continuing or frequently recurring conflict of interest. Referenced are CEOs 08-16, 98-10, 97-13, 96-16, 92-48, 91-34, 89-02, and 81-76.

QUESTION:

Would a prohibited conflict of interest be created under Section 112.313(7)(a), Florida Statutes, were you, a municipal police officer, to own and operate a private investigation firm which will be conducting targeted surveillance of "unfaithful spouses" and employees suspected of stealing from their businesses?

Under the circumstances presented, your question is answered as set forth below.

In your letter of inquiry and additional information provided via email exchanges between you and our staff, we are advised that you seek to own and operate a private security and investigative firm while remaining employed as a certified police officer within the State of Florida. You emphasize you will not be personally performing any private investigative work, but will be employing other individuals to perform those services.

You indicate that part of the investigative services which your firm plans to perform involves surveillance of allegedly unfaithful spouses, as well as surveillance of employees suspected by their employers of stealing from their businesses. Regarding these surveillance activities, you state there would be no need to check the background or history of the subject using confidential information accessible to you as a police officer. Rather, you indicate your investigators would obtain all the information required from the clients, including information on each subject's location, place of employment, phone number, and home address.¹ You state the investigators would then observe the subjects and report any findings to the clients. You also indicate your firm will not conduct any surveillance activities in the City where you are employed as a police officer. Given this context, you inquire whether you would face a prohibited conflict of interest under any provision of the Code of Ethics if your firm conducts these types of surveillances.

Initially, we emphasize that the following analysis only pertains to whether conducting these surveillances will violate provisions in the Code of Ethics. Please note that rules or policies of your municipal police department, statutes outside of the Code of Ethics, or other applicable law outside of our jurisdiction may also affect, limit, or prohibit these surveillance activities. However, irrespective of the application of other such laws or policies, we find that conducting these types of surveillances would create a prohibited conflict of interest under Section 112.313(7)(a), Florida Statutes.

Section 112.313(7)(a), 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.

It does not appear that a prohibited conflict of interest will arise under the first part of the statute because the facts as indicated by you show that your firm will not be doing business with the City where you are employed; nor is there any indication that you will be regulated by the City. Under the second part of the statute, a public officer or employee-such as a police officer-is prohibited from having any employment or contractual relationships which would create a continuing or frequently recurring conflict of interest or which would impede the full and faithful discharge of his or her public duties. We are of the opinion that you will be faced with a conflict under this portion of Section 112.313(7)(a) if your firm conducts surveillance on either "unfaithful spouses" or employees suspected of theft, despite the limitations which you intend to place upon the work.

In the past, when considering whether a public officer will have a conflict of interest under the second part of Section 112.313(7)(a), we have cited Zerweck v. State Commission on Ethics, 409 So. 2d 57, 61 (Fla. 4th DCA 1982), which states a conflict of interest is created when a public officer's duties coincide with his private employment "to create a situation which 'tempts dishonor.'" See, generally, CEO 98-10. Our precedent has found at least two types of situations where a police officer's secondary employment would create such temptation.

First, we have recognized temptation when a police officer's secondary employment could incite him to obtain and use nonpublic information for the benefit of a private employer. See CEO 91-34. This temptation arises when: (1) the law enforcement officer has access in his or her public capacity to information not available to the general public; and (2) the information could provide a benefit to the law enforcement officer or a private employer (e.g., a client) in a private endeavor. See CEOs 96-16 and 91-34. The concern in such situations is whether the private interests of the law enforcement officer will be contrary to his or her public duties, thereby "tempting dishonor," rather than with whether the officer, through self-imposed restrictions, can avoid succumbing to the temptation of using public resources for his or her private benefit. See CEOs 98-10 and 89-02.

However, our precedent has found this temptation can be alleviated so long as the confidential information relevant to the officer's secondary employment may be learned from a separate, publicly available source. For example, in CEO 96-16, we determined that no conflict of interest would be created if a municipal police officer conducted private surveillance of workers' compensation claimants for an insurer, because in that situation, any investigatory information that could be accessed via police department sources would be obtained via a private, on-line service. We concluded the public/commercial availability of this information removed any temptation for the officer to access information from his police department, and, therefore, alleviated any conflict of interest under the second part of Section 112.313(7)(a). See, also, CEO 08-16 (police officer could own and operate a business locating items of property on behalf of lending institutions so long as the information required for such work was obtained from private, on-line sources, lender sources, or other non-law-enforcement sources); CEO 97-13 (police officer seeking secondary employment as process server would have no conflict of interest as the information needed to locate the individual to be served would be obtained from a private source, negating any need for the officer to access the information via his public position).

Turning to the second type of situation, we have recognized that an officer "tempts dishonor" when his private, secondary employment could influence activities that he may be called upon to perform in his public capacity. In such instances, we have recognized a conflict of interest as the officer's private activities may influence how he performs his public responsibilities. Weighing such concerns has required us to look at the nature and subject matter of the type of private investigative activity in question. If the particular activity involved was likely to influence the officer's public responsibilities, we found it would constitute a conflict of interest for the purposes of Section 112.313(7)(a).

For example, in CEO 91-34, we addressed a situation where a municipal police chief inquired whether he could investigate-in his private capacity-various "slip and fall" cases for cruise lines. We found this type of investigation presented no conflict of interest under Section 11.2313(7)(a), although we cautioned the police chief about accepting employment regarding other subject matters:

[W]e do not believe that these "slip and fall" type investigations could have any influence upon any actions taken or investigations undertaken by you in your public capacity. We do caution you, however, against accepting any cases involving investigations of intentional maritime torts such as sexual assault or any other matter which would be a crime if committed in Florida.

In such cases your access to confidential information would be of value to the cruise line. A conflict could also exist between your private responsibilities to the cruise line and your public duties by virtue of the extension of Florida's special maritime criminal jurisdiction under certain limited circumstances pursuant to Section 910.006, Florida Statutes.

Therefore, the nature and subject matter of the officer's secondary employment is critical and must be carefully considered. CEO 91-34 is but one example of situations where we have considered the subject matter of a particular investigative activity when determining whether it would "tempt dishonor" for an officer to conduct it. See, for example, CEO 98-10 (conflict of interest would be created for the commander of a municipal police department to accept secondary employment as director of security at a private college because the frequent interface between the police department and campus security could influence or compromise the commander's public duties); and CEO 89-02 (conflict of interest would be created if a police officer accepted outside employment providing accident reconstruction and consultation services to insurers and attorneys because, in part, the officer might be called upon to investigate the same accidents in his public capacity).²

To summarize, when determining if a particular type of investigative activity will "tempt" an officer's dishonor-thereby creating a conflict of interest under the second part of Section 112.313(7)(a)-we must consider: (1) whether the officer by virtue of his public position has access to confidential information which could provide a benefit to his private employer; and (2) whether the nature and subject matter of the secondary employment could influence the officer's performance of his public duties. Given these criteria, it appears a conflict of interest may arise if your investigative firm conducts either of the surveillance activities which you propose.

Considering the surveillance regarding alleged spousal infidelity, you indicate such surveillance will not require your firm to access any confidential information available in your status as a police officer. You indicate your investigators can gather all information required to conduct such surveillances directly from your clients. In this respect, your firm's surveillance of alleged spousal infidelity is akin to the surveillance of workers' compensation claimants as addressed in CEO 96-16. As previously discussed, we found in CEO 96-16 that no conflict of interest was presented as any confidential information necessary to conduct the surveillance was publicly available from an outside source.³

However, given the subject matter involved, your firm's surveillance of allegedly unfaithful spouses could coincide with your public responsibilities as a law enforcement officer. Isolated instances of illicit sexual activity are not considered crimes under the State's adultery statute. See Purvis v. State, 377 So. 2d 674, 676 (Fla. 1979). Still, it is not unreasonable to assume that, in certain instances, the discovery of marital infidelity may lead to actions which could be the subject of criminal investigations (e.g., aggravated battery, manslaughter, and even homicide). While you indicate that your firm's surveillances of alleged spousal infidelity-and, therefore, any subsequent police investigations-would not occur in your municipality, your participation likely would be required if any such investigation were to arise. Your cooperation in such investigations-which is your public responsibility as a police officer-may or may not be in keeping with the wishes of the private employer who hired your firm for such surveillances, and we can envision circumstances where the two would diverge. Therefore, because the possibility exists that this type of surveillance could coincide with and influence your public responsibilities, we find a prohibited conflict of interest would be created under Section 112.313(7)(a) for your firm to engage in private surveillance of allegedly unfaithful spouses.

Considering the proposed surveillance of employees suspected of stealing from their businesses, we also find a conflict of interest under Section 112.313(7)(a). Although you emphasize this type of surveillance does not require consulting the confidential information available to you as a police officer, the subject matter of such investigations involves potential criminal activity, and, therefore, your access to confidential information could be of benefit to your employer. Moreover, we can envision situations where your public responsibility as a police officer to cooperate in a criminal investigation concerning the suspected theft could conflict with the wishes of your employer, thereby creating tension between your private employment and your public responsibilities. Therefore, we find your firm's surveillance of suspected employee theft would also create a prohibited conflict of interest under Section 112.313(7)(a).⁴

Your question is answered accordingly.

ORDERED by the State of Florida Commission on Ethics meeting in public session on October 25, 2013, and RENDERED this 30th day of October, 2013.

____________________________________

Morgan R. Bentley, Chairman

^[1] You also emphasize that, prior to accepting this type of surveillance work, you will require your clients to sign and initial a form indicating an understanding that, in the event a background check is required, it will be conducted based only upon publicly-accessible information or information from a paid commercial source

^[2]It may be argued that the Commission on Ethics is not the agency best suited to deciding which types of investigative activities are likely to influence an officer's public responsibilities. However, to ignore this consideration means the only factor left for us to weigh is whether the officer will be tempted to access confidential information available to him in his status as a law enforcement officer. Given the increasing volume of online information, we are fast approaching a point where an officer may claim that all useful law-enforcement-related information may be obtained from publicly available on-line sources, thereby avoiding all conflict of interest concerns. See, for example, 96-16. This would enable an officer to accept private employment even if there is the chance that such employment may influence his public duties. For this reason, it is essential for us to continue to consider the subject matter of each investigative activity in question to determine whether it could coincide with the officer's public duties.

^[3]We recognize that even if a police officer assures us that he will only obtain such information from a separate and publicly available source, the more expedient option for that officer may still be to simply access the information via his public capacity. Such actions likely would constitute a misuse of the officer's public position under Section 112.313(6), Florida Statutes. However, in past opinions, we have declined to presume that an officer would misuse his position in such a manner when evaluating if a conflict of interest exists under Section 112.313(7)(a). See CEOs 96-16, footnote 4, and 92-48.

^[4]In reaching this decision, we do not imply that you would intentionally misuse your public position or the resources available to you as a public officer. We simply are finding that-in surveillances involving allegedly unfaithful spouses or employees allegedly stealing from their businesses-you will be placed in a situation which could "tempt dishonor." Section 112.313(7)(a) is prophylactic in nature, and as we stated in CEO 81-76, is intended to prevent situations in which private economic considerations may override the faithful discharge of public responsibilities.