CEO 88-36 -- June 9, 1988

CONFLICT OF INTEREST

DEPARTMENT OF BANKING AND FINANCE, DIVISION OF FINANCE,

EMPLOYEE PARTICIPATING IN DEPARTMENT OF LAW ENFORCEMENT

AUXILIARY SPECIAL AGENT PROGRAM

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

SUMMARY:

No prohibited conflict of interest would be created were a Financial Examiner Supervisor with the Department of Banking and Finance, Division of Finance, to participate in the Department of Law Enforcement Auxiliary Special Agent Program. Because the position with FDLE would carry with it the power to make arrests, it would be considered a public office for purposes of the Code of Ethics. As a holder of a public office, the auxiliary special agent would be prohibited from having a conflicting employment relationship pursuant to Section 112.313(7)(a), Florida Statutes. Since the Division of Finance is neither subject to the regulation of, nor doing business with, the Department of Law Enforcement, and there appears to be nothing in the employment relationship with the Division of Finance that would create a continuing or frequently recurring conflict of interest or that would impede the full and faithful discharge of his public duties as an auxiliary special agent, the Code of Ethics would not prevent a Division of Finance employee from becoming an auxiliary special agent. CEO's 85-22, 81-67, 84-18, and 81-5 are referenced.

QUESTION:

Would a prohibited conflict of interest be created were you, a Financial Examiner Supervisor with the Division of Finance, Department of Banking and Finance, to hold a position as a Department of Law Enforcement Auxiliary Special Agent?

Your question is answered in the negative.

In your letter of inquiry and subsequent telephone conversation with our staff, you have advised that you are a career service employee with the Division of Finance in the position of Financial Examiner Supervisor. Your position requires you to plan workloads, workflows, deadlines, work objectives, and time utilization for the employees under your supervision. You state that you are interested in participating as an uncompensated special agent in the Florida Department of Law Enforcement's (FDLE) Auxiliary Special Agent Program. If accepted into the program, you would be required to complete a training program after which you would work a minimum of eight hours per month doing investigative and surveillance work.

In order to analyze your situation under the Code of Ethics, we first must determine whether the positions of Financial Examiner Supervisor and FDLE Auxiliary Special Agent are public office or public employment. Section 112.313(1), Florida Statutes, defines an officer as "any person elected or appointed to hold office in any agency." As your Supervisor position is neither an elected nor appointed one, we consider you to be a public employee of the Division of Finance. However, using prior Attorney General opinions as precedent, we believe an auxiliary law enforcement officer is a public officer for purposes of the Code of Ethics. In AGO 86-84 and AGO 77-63, the Attorney General found auxiliary law enforcement officers to be public officers, using as the basis for his rationale the Florida Supreme Court opinion in State ex rel Holloway v. Sheats, 83 So. 508, 509 (Fla. 1919). There the Court said that the term office "implies a delegation of a portion of the sovereign power to, and the possession of it by, the person filling the office, while an 'employment' does not comprehend a delegation of any part of the sovereign authority." The authority to make arrests is deemed to be a delegation of the sovereign power sufficient to consider a person holding such authority to be a public officer. In a previous Commission opinion, CEO 88-30, we found that a member of the Florida Highway Patrol Auxiliary was not a public officer on the basis of his lack of authority to make arrests. We find that opinion to be inapposite here, as Section 943.10(8), Florida Statutes, confers upon FDLE Auxiliary officers the powers to arrest and to perform law enforcement functions. Therefore, we find that a FDLE Auxiliary Special Agent position is a public office.

Because your participation in the Special Agent Program could involve a possible conflict with your public employment, we look to the following Code of Ethics provision:

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), Florida Statutes (1987).]

We conclude that no prohibited conflict of interest would exist under this provision. Although it may be argued that FDLE would have regulatory authority over the Division of Finance by reason of its enforcement of criminal laws, in the past we have found such enforcement not to be the type of regulatory activity contemplated by this Code provision. See CEO 85-22 and CEO 81-67. We also do not find that FDLE and the Division of Finance would be "doing business" so as to create a conflict of interest. Past advisory opinions have found that intergovernmental relationships are not encompassed by this provision. See CEO 84-18 and CEO 81-5. The second part of Section 112.313(7)(a) prohibits situations which would create a continuing or frequently recurring conflict between a public officer's private interests and the performance of his public duties or that would impede the full and faithful discharge of a public officer's duties. Because we see no apparent conflict between the nature of your duties in both positions, we find no prohibition under this part of Section 112.313(7)(a).

Accordingly, we find that no prohibited conflict of interest under the Code of Ethics would be created were you to work as a Financial Examiner Supervisor with the Division of Finance and to participate the FDLE Auxiliary Special Agent Program.