CEO 76-208 -- December 16, 1976

CONFLICT OF INTEREST

INVESTIGATOR FOR PUBLIC DEFENDER OPERATING PRIVATE POLYGRAPH BUSINESS

To: (Name withheld at the person's request.)

Prepared by: Phil Claypool

SUMMARY:

Subject to certain conditions, s. 112.313(7), F. S. 1975, would not be violated in an investigator with a public defender's office privately operating a polygraph or psychological stress evaluator service during his off-duty hours. That provision of the law prohibits a public employee from holding employment or a contractual relationship with a business entity or agency subject to the regulation of, or doing business with, his public agency. Without the benefit of a concrete factual situation, it is not possible to clarify the meaning of "doing business with." Accordingly, the investigator is urged to seek subsequent advisory opinions if and when he is in doubt as to whether or not a specific contract would pose a conflict. Conflicts would exist, for example, were the investigator to contract with a private attorney to conduct examinations of a client who is or may be a codefendant or witness in a criminal prosecution involving a client of the public defender, or were persons examined who might subsequently be represented by the office of the public defender. It is assumed that the investigator will conduct examinations during off-duty hours, that he will not testify to the results of such examinations without taking personal leave to do so, and that he will not conduct private examinations for the office of the public defender in violation of s. 112.313(3).

QUESTION:

Would a prohibited conflict of interest be created were an investigator with the office of the public defender to operate a stress evaluation or polygraph service during off-duty hours?

Your question is answered in the negative, subject to certain conditions that are specified in this opinion.

Your letter of inquiry states that your office uses both the polygraph and the psychological stress evaluator (PSE) in the investigation and representation of indigent criminal defendants and that three of your investigators are trained in the use of the polygraph and/or the PSE. One of these investigators has purchased his own PSE machine and would like to start a private business conducting examinations for private attorneys and commercial business establishments on his own time.

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. 1975.]

The first clause of the above provision does not prohibit your investigator from conducting polygraph or PSE examinations on behalf of private attorneys and commercial business establishments, except insofar as he contracts with attorneys or establishments which are subject to the regulation of or which are doing business with your office. It is our understanding that the office of public defender has no regulatory powers over either private attorneys or commercial business establishments. Thus, the applicability of the above provision turns on the identity of the investigator's private clients and whether they are "doing business" with your office.

Assuming that the investigator's clients do not do business with the office of the Public Defender for the ____, we find no prohibited conflict of interest under the first clause of s. 112.313(7)(a). We are unable to clarify the meaning of "doing business with" without the benefit of a concrete factual situation. Therefore, we stress that if the question arises in an individual case and the investigator wishes to know whether a specific contract would result in a prohibited conflict of interest, he should request another advisory opinion from this commission.

We do perceive, however, two situations in which the investigator's private employment or contractual relationship, although occurring only during off-duty hours, would create a frequently recurring conflict between his private interests and the performance of his public duties. The first of these situations would occur if the investigator were to contract with a private attorney to conduct an examination of a client who is or may be a codefendant or witness in a criminal prosecution involving a client of the public defender. The second situation would occur if the investigator contracted with a business to examine employees suspected of larceny or embezzlement from that business, because of the possibility that one of the employees examined might later be represented by the public defender in a matter related to the examination. Accordingly, the investigator is prohibited by s. 112.313(7)(a), F. S. 1975, from entering into a contract which would involve him in either of the two situations described above.

We are assuming that the investigator will conduct polygraph or PSE examinations only during off-duty hours, that he will not testify to the results of such examinations without taking personal leave to do so, and that he will not contract in his private capacity to conduct examinations for your office, which otherwise would violate s. 112.313(3). Subject to the above-specified conditions, we find no prohibited conflict of interest if an investigator from your office were to operate a stress evaluation or polygraph service during his off-duty hours.