CEO 85-1 -- January 24, 1985

CONFLICT OF INTEREST

GAME AND FRESH WATER FISH COMMISSION EMPLOYEES ENGAGING IN OUTSIDE EMPLOYMENT

To: Colonel Robert M. Brantly, Executive Director, Game and Fresh Water Fish Commission

SUMMARY:

A prohibited conflict of interest exists where a state wildlife officer accepts outside employment involving security patrol and wildlife law enforcement for a private landowner within the area to which he is assigned as an officer, and where the land is used for hunting by the landowner, his guests or associates. Employment of this type would present a continuing or frequently recurring conflict with the wildlife officer's public duties to check for compliance with the game laws and to arrest for violations. CEO's 78-29, 78-82, 79-23, and 81-67 are referenced. A prohibited conflict of interest exists where a wildlife biologist with the Commission is employed with a private hunting club to perform consulting work relating to deer populations on the club's land. As the employee's duties include advising landowners and hunting clubs regarding deer management and analyzing permits necessary to manage deer herds, this type of outside employment would impede the full and faithful discharge of his public duties in violation of Section 112.313(7), Florida Statutes. A prohibited conflict of interest would be created were a fisheries biologist supervisor with the Commission, whose position requires that he be involved in restoration of public lakes, to accept outside employment involving native aquatic plant transplanting on public lakes for riparian owners. However, the employee may accept outside employment involving restoration, management, and native aquatic plant transplanting on private lakes, as his public duties do not involve private lakes.

QUESTION 1:

Does a prohibited conflict of interest exist where a state wildlife officer accepts outside employment involving security patrol and wildlife law enforcement for a private landowner?

This question is answered in the affirmative.

In your letter of inquiry you advise that wildlife officer Kenneth F. Hensley of the Game and Fresh Water Fish Commission has accepted outside employment involving security patrol and wildlife law enforcement for a private landowner. In a telephone conversation with our staff, Captain David Starling of the Commission's Division of Law Enforcement advised that wildlife officers are authorized to patrol both public and private property and to arrest for the violation of any law, although they concentrate on enforcing the wildlife laws. He also advised that the subject wildlife officer, as well as other officers who have outside employment with private landowners or hunting clubs, primarily are responsible for securing the property against trespassers and preventing vandalism. If they find a violation of the wildlife laws, they are authorized to enforce those laws as they have the power to arrest while off-duty. Private landowners and hunting clubs are not required to obtain a license or a permit from the Commission, although in some cases they may apply for an antlerless deer permit, which would be issued by the Commission's Division of Wildlife without involvement by a wildlife officer.

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), Florida Statutes (1983).]

Under this provision, we generally have found no prohibited conflict of interest in a law enforcement officer's outside employment in security work. See CEO 78-29, CEO 78-82, and CEO 79-23. Our primary concern in these opinions has been the confidentiality which may be imposed upon private security businesses licensed under Chapter 493, Florida Statutes. The confidentiality requirement is not an issue here, as a wildlife officer employed by a landowner is not required to be licensed as a private security business.

It does not appear that the landowner who employs the subject wildlife officer would be considered to be doing business with the Commission. Nor do we consider law enforcement officers to be involved in regulatory activity within the contemplation of Section 112.313(7)(a) when they engage in enforcing criminal laws. See CEO 81-67.

However, we are of the opinion that where a wildlife officer accepts outside employment involving security patrol and wildlife law enforcement for a private landowner, where the land he will be patrolling is within the area to which he is assigned as an officer, and where the land will be used for hunting by the landowner, his guests or associates, outside employment of this type would present a continuing or frequently recurring conflict of interest and would impede the full and faithful discharge of his public duties. The General Counsel of the Commission has advised our staff that wildlife officers generally are assigned to work in a particular county, although their powers run statewide and are not limited to the boundaries of the county. He also advised that wildlife officers do not simply respond to apparent violations of the wildlife laws, but have an affirmative duty to check for permits, licenses, and violations of the wildlife laws on the part of those they may encounter while on duty. The Code of Ethics defines a "conflict of interest" as "a situation in which regard for a private interest tends to lead to disregard of a public duty or interest." Section 112.312(6), Florida Statutes. A landowner, his guests, and associates who engage in hunting are required to obtain the appropriate licenses and permits; their hunting and activities are subject to the tight restrictions of the wildlife laws and the rules and regulations of the Commission (Chapter 39, F.A.C.). Where an on- duty wildlife officer regularly is required to patrol land owned by his private employer and used by his employer for hunting, the officer has an affirmative duty to check his employer and his employer's guests and associates to ensure that they have the appropriate permits and licenses and otherwise are in compliance with the game laws. In our view, the officer's private employment in this situation creates an impediment to the full and faithful discharge of his public duties, as regard for his continuing employment and his employer's interests would tend to lead to disregard of his affirmative duties to check for compliance with the game laws and to arrest for violations. We therefore conclude that the wildlife officer's public duties and his private employment under these circumstances are not compatible, separate and distinct, but rather coincide to create a situation which "tempts dishonor." See Zerwick v. State Commission on Ethics, 409 So.2d 57 (Fla. 4th DCA 1982). In reaching this conclusion we do not intend to imply that a law enforcement officer may not have outside employment which is related to law enforcement, for example, as a security guard at a retail store. That type of employment differs from the employment under consideration here because although a law enforcement officer has a general responsibility to enforce the criminal laws against his private employer just as against any member of the general public, he does not have the same affirmative duty to check his employer on a continuing basis to ensure his compliance with the rules and regulations of his agency.

Accordingly, we find that a prohibited conflict of interest exists where a wildlife officer accepts outside employment involving security patrol and wildlife law enforcement for a private landowner within the area to which he is assigned as an officer, and where the land is used for hunting by the landowner, his guests, or associates.

QUESTION 2:

Does a prohibited conflict of interest exist where a wildlife biologist with the Game and Fresh Water Fish Commission has accepted private employment with a private hunting club to perform consulting work relating to deer populations on the club's land?

This question is answered in the affirmative.

In your letter of inquiry you advise that Mr. Steven K. Stafford is employed as a Biological Scientist Supervisor and that Mr. Charles L. McKelvy is employed as a Biologist in the Bureau of Wildlife Resources of the Game and Fresh Water Fish Commission's Division of Wildlife. In a telephone conversation with our staff, the Chief of the Bureau of Wildlife Resources advised that these employees offer technical expertise regarding wildlife management to private landowners who request those services. Because of the large number of hunting clubs and landowners who contact the Commission for technical deer management assistance, the employees are only able to do a cursory habitat assessment to estimate carrying capacity and to advise clubs and landowners how to conduct a deer census and to collect biological data from deer. The employees then analyze and evaluate the data and make recommendations concerning the management of the deer herd. In addition, the employees' duties include analyzing and making recommendations on applications for antlerless deer permits, which generally are required to reduce the number of does in a herd.

Some hunting clubs employ private biologists to provide more detailed deer management assistance than is provided by the Commission. The subject employees have been hired by a private hunting club to provide these types of services, which include habitat analysis, population census, the collection and analysis of biological data, and the preparation of technical reports regarding herd status and management strategies.

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

We are of the opinion that the employment of the subject biologists by a private hunting club to perform consulting work relating to deer populations would impede the full and faithful discharge of their public duties.

The biologists are responsible for providing recommendations to private landowners and hunting clubs regarding deer management and are responsible for analyzing and making recommendations on permits which are required in order to take antlerless deer. The Chief of the Bureau of Wildlife Resources has advised that the hunting club which employs the subject biologists has applied for these permits, and he also has advised that proper herd management usually requires harvesting antlerless deer at some time. This places the employees in the position of reviewing their private work in order to make recommendations to the Commission on whether to grant the requested permits. In addition, we are of the view that allowing these employees to engage in this type of outside work could give rise to the appearance of a misuse of public position. As in CEO 80-21, we envision a situation in which a private landowner or club contacts an employee for assistance and is told that the Commission cannot provide all the services requested, but is informed that the employee will do it privately for a fee.

Accordingly, because of the subject employees' involvement in providing deer management assistance and in reviewing permit applications, we find that a prohibited conflict of interest exists in their private employment with a hunting club to perform consulting work relating to deer populations.

QUESTION 3:

Would a prohibited conflict of interest be created were a Fisheries Biologist Supervisor with the Game and Fresh Water Fish Commission, whose position requires that he be involved in restoration of public lakes, to accept outside employment involving restoration and management of private lakes, native aquatic plant transplanting on private lakes, and native aquatic plant transplanting on public lakes for individual riparian owners?

This question is answered in the affirmative with respect to activities involving public lakes, but in the negative with respect to activities involving private lakes.

In your letter of inquiry you advise that Vincent P. Williams is employed as a Biological Administrator in the Bureau of Fish Management of the Game and Fresh Water Fish Commission's Division of Fisheries. In a telephone conversation with our staff, the Chief of the Bureau of Fish Management advised that as head of the Resource Restoration Section of the Bureau, the subject employee is responsible for Commission projects to restore public lakes to provide a healthy habitat for fishing and other recreational uses. The subject employee has inquired whether he may accept outside employment involving native aquatic plant transplanting on public lakes for individual riparian owners.

Section 112.313(7)(a), quoted above in response to your earlier questions, prohibits a public employee from having a contractual relationship with a business entity which is subject to the regulation of his agency. However, the Chief of the Bureau of Fish Management has advised that the Commission does not have any regulatory authority over transplanting aquatic plants, a matter which requires permitting by the Department of Natural Resources. Although the Commission may review and comment on permit applications, that function is the responsibility of the Aquatic Plant Management Section of the Bureau rather than the Restoration Section in which the subject employee works.

Nevertheless, we do find that employment with riparian owners in connection with public lakes would impede the full and faithful discharge of the subject employee's public duties. The Commission does become involved in the restoration of public lakes; that is the function of the employee's Section. Although the Commission does not have the resources to work with all public lakes, according to the Bureau Chief, and the employee's private work would concern only those lakes which the Commission is not involved with, the employee does have a leadership role in identifying and selecting those lakes with which the Commission will become involved. Therefore, although we do not perceive a conflict between the employee's proposed private work and his restoration activities, we find that his proposed employment would conflict with his responsibilities in identifying and selecting lakes for the Commission's attention.

With respect to private lakes, the employee has asked whether he may accept outside employment involving restoration and management of private lakes and native aquatic plant transplanting on private lakes. The Chief of the Bureau of Fish Management has advised that the Commission does not undertake any restoration activities on private lakes. However, he advised that the Commission does provide technical advice to private lake owners on restoration, management, and plant transplanting through another section of the Bureau which consists of five regional biologist teams. In essence, he advised, the employee questions whether he may provide in a private capacity services which are similar to those provided by a section of the Bureau for private lake owners.

We are of the opinion that the employee's proposed outside employment with respect to private lakes would not conflict with his public responsibilities. As noted above, the employee does not play a role in reviewing or commenting on aquatic plant permits, which are granted by the Department of Natural Resources. Also, we note that the employee's duties concern public lake restoration activities and do not include advising private lake owners on restoration matters, unlike other employees within the Bureau. However, we would caution the employee that the Code of Ethics does not permit a public employee to use his position to obtain information from his agency as to which persons need assistance, which information could be supplied by his private consultations. See CEO 80-21 and CEO 79-47 for examples of this type of conduct.

Accordingly, we find that a prohibited conflict of interest would be created were the subject employee to accept employment involving aquatic plant transplanting on public lakes for individual riparian owners, but that no prohibited conflict of interest would be created were he to accept outside employment involving restoration, management, and aquatic plant transplanting on private lakes.