CONFLICT OF INTEREST

CITY POLICE DEPARTMENT EMPLOYEES
CONTRACTING TO PROVIDE EQUESTRIAN SERVICES

To:        Robert J. Surette, Attorney for Police Department Employees (City of Clearwater

SUMMARY:

Under the circumstances presented, Section 112.316, Florida Statutes, would operate to negate a prohibited conflict of interest under Section 112.313(3), Florida Statutes, were two employees of a city police department to enter jointly into a contract under which the city would pay the employees for expenses related to provision of horses and equestrian services for an equestrian patrol unit within the police department. CEO 91-55 is referenced.¹

QUESTION:

Would a prohibited conflict of interest be created if two employees of the City of Clearwater who work in the police department were to contract with the City to provide equestrian services to the department's equestrian patrol unit?

Under the circumstances presented, your question is answered in the negative, due to application of Section 112.316, Florida Statutes.

In your letter of inquiry and communications with our staff, you state that you request this opinion on behalf of two employees ("Employees") of the City of Clearwater ("City") who work in the City police department and who propose to enter jointly into a contract with the City for the use of their horses and equestrian services by the police department's equestrian patrol unit. You relate that, under the contract, the two horses would be boarded on private property owned by one of the Employees and would be transported to police activities by the Employees. As members of the police department's equestrian patrol unit, the Employees would ride their horses without compensation for their time worked providing equestrian services during special events and field searches, assisting other agencies, and performing patrols in areas normally inaccessible to patrol officers. The Employees would receive from the City a designated monthly stipend to offset costs related to the care, feeding, and transport of the horses, plus a mileage reimbursement for transporting the horses in a vehicle owned by one of the Employees. The City also would reimburse the Employees for veterinary costs should one or both of the horses sustain injuries during police activities.

You state that the one of the Employees works in the police department as the AmeriCorps Clearwater coordinator and also serves as a volunteer reserve police officer. You relate that the other Employee works in the police department as a property-unit clerk. You state that the Employees have no authority to render or influence any decisions on behalf of the City or the police department as to the equestrian patrol unit.

The prohibition within the Code of Ethics for Public Officers and Employees (Part III, Chapter 112, Florida Statutes) most relevant to your inquiry provides:

DOING BUSINESS WITH ONE'S AGENCY.--No employee of an agency acting in his or her official capacity as a purchasing agent, or public officer acting in his or her official capacity, shall either directly or indirectly purchase, rent, or lease any realty, goods, or services for his or her own agency from any business entity of which the officer or employee or the officer's or employee's spouse or child is an officer, partner, director, or proprietor or in which such officer or employee or the officer's or employee's spouse or child, or any combination of them, has a material interest. Nor shall a public officer or employee, acting in a private capacity, rent, lease, or sell any realty, goods, or services to the officer's or employee's own agency, if he or she is a state officer or employee, or to any political subdivision or any agency thereof, if he or she is serving as an officer or employee of that political subdivision. [Section 112.313(3), Florida Statutes.]

If we were to consider Section 112.313(3) in isolation, we could find that a prohibited conflict would be created for the Employees were they to enter into a contract to provide equestrian services to the City. However, we believe it is not appropriate to consider Section 112.313(3) in isolation regarding this question, but, rather, to consider the statute in conjunction with Section 112.316, Florida Statutes, also a part of the Code of Ethics, which provides:

CONSTRUCTION.--It is not the intent of this part, nor shall it be construed, to prevent any officer or employee of a state agency, or county, city or other political subdivision of the state or any legislator or legislative employee from accepting other employment or following any pursuit which does not interfere with the full and faithful discharge by such officer, employee, legislator, or legislative employee of his duties to the state or the county city, or other political subdivision of the state involved.

In past opinions, we have found that Section 112.316 operated to negate conflicts in situations where public officers or employees did not have public duties which they would be tempted to compromise in favor of their private interests. See CEO 91-55. Here, the Employees work in positions in the police department in which they have no public capacity responsibility or authority to advise, recommend, or approve in any manner the City's decision to contract with them or to approve payment of expenses for horses they would ride as part of the equestrian patrol unit.

Accordingly, we find that Section 112.316, Florida Statutes, would apply to negate conflicts for the Employees arising under Section 112.313(3), Florida Statutes, were they to enter into the proposed contract to provide equestrian services to the City.

ORDERED by the State of Florida Commission on Ethics meeting in public session on June 6, 2014, and RENDERED this 11th day of June, 2014.

____________________________________

Morgan R. Bentley, Chairman

^[1] Opinions of the Commission on Ethics may be obtained from its website (www.ethics.state.fl.us).