CEO 87-58 -- July 30, 1987

CONFLICT OF INTEREST

MARINE PATROL OFFICER WORKING AS SHELLFISH RELAYING MONITOR

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

SUMMARY:

No prohibited conflict of interest would be created were a Florida Marine Patrol officer to work as a shellfish relaying monitor during his off-duty hours. Section 112.313(7)(a), Florida Statutes, would not be violated as the seafood dealers who would employ the patrol officer would not be subject to the regulation of his public agency. Furthermore, such private employment would not present a continuing or frequently recurring conflict with the patrol officer's public duties.

QUESTION:

Would a prohibited conflict of interest be created were a Florida Marine Patrol officer to work as a shellfish relaying monitor during his off-duty hours?

Your question is answered in the negative.

In your letter of inquiry you advise that .... is an officer with the Florida Marine Patrol. The Florida Marine Patrol is organized within the Division of Law Enforcement of the Department of Natural Resources (DNR). This Division, the law enforcement arm of DNR, is charged primarily with upholding state statutes pertaining to marine resources, coastal environment, and boating. Marine Patrol personnel are constituted as state police officers and have full powers to investigate and arrest for any violation of the laws of Florida. You question whether a prohibited conflict of interest would be created were a Florida Marine Patrol officer to serve as a shellfish relaying monitor during his off-duty hours.

A shellfish relaying monitor is a function which is provided for by DNR Rule 16R-7.012(4)(a), F.A.C. The need for the monitor arises when a commercial processor of shellfish, such as clams or oysters, wishes to harvest shellfish from water areas which have been closed as a result of pollution, runoff, or other health-associated reasons. Shellfish may be lawfully harvested from such areas if they are transported immediately after harvesting to a cleansing or "depuration" processing plant. A shellfish relay monitor is assigned to monitor the actual harvesting of the shellfish in the water, to supervise the unloading of the harvested shellfish from the harvesting boats, and to accompany the shellfish to the depuration plant. The purpose of the shellfish relay monitor is to assure that shellfish harvested from closed areas are not placed on the open market immediately after harvesting but actually reach the depuration plant for proper processing. Section 16-R-7.012(4)(a), F.A.C., specifically provides that

[s]hellfish relaying shall be conducted only during daylight hours under approved law enforcement or licensed security guard monitoring.

Thus, the rule contemplates that shellfish relaying monitors shall be either approved law enforcement officers or licensed security guards. The monitors are paid by the licensed seafood dealers who are subject to the monitoring.

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 (1985).]

This provision prohibits a public officer or employee from being employed by or having a contractual relationship with a business entity which is subject to the regulation of his agency and from having an employment or contractual relationship that will create a continuing or frequently recurring conflict between his private interests and the performance of his public duties. For the purpose of the Code of Ethics, a Florida Marine Patrol officer's agency is the Division of Law Enforcement. See Section 112.312(2), Florida Statutes, defining the term "agency."

In CEO 79-81 we found that the Florida Highway Patrol did not "regulate" persons or businesses by virtue of its duty and authority to enforce the criminal laws of the state which were generally applicable to everyone. We based our reasoning on the fact that any other result would prohibit all law enforcement officers from having any outside employment with any person or business. Therefore, we advised that no conflict of interest would be created were a highway patrol trooper to privately engage in providing escort services for the movement of oversized loads on Florida highways.

However, there are situations in which a law enforcement officer would be deemed to be privately employed by a business which is regulated by his law enforcement agency. For example, in CEO 78-93 we found a prohibited conflict of interest where a police officer owned and operated a pawn shop. In that case, the business was regulated by the officer's agency, as the city code required all pawnbrokers to obtain a permit issued by the office of the sheriff. The law further provided grounds and procedures by which the sheriff could grant, deny, renew, suspend, and revoke permits, and required that every pawnbroker make a written report to the sheriff of every article pawned or purchased by him.

Circumstances also may exist where certain private employment creates a continuing or frequently recurring conflict with a law enforcement officer's public duties. In CEO 85-1, we found a prohibited conflict of interest existed where a state wildlife officer accepted outside employment involving security patrol and wildlife law enforcement for a private landowner within the area to which he was assigned as an officer. There, the on-duty wildlife officer had an affirmative duty to check his employer and his employer's guests and associates to ensure that they had the appropriate permits and licenses and otherwise were in compliance with the game laws. We advised that the officer's private employment created 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 a disregard of his affirmative duties to check for compliance with game laws and to arrest for violations.

In this case, we are of the opinion that the patrol officer's proposed outside employment would not conflict with his public duties. Here, the DNR Division of Marine Resources, rather than the Division of Law Enforcement, regulates shellfish harvesting activities. See Chapter 16R, F.A.C. Also, you advised in a telephone conversation with our staff that while on-duty patrol officers enforce all laws applying to shellfish relaying, this responsibility is only part of their overall patrol responsibilities. Thus, the patrol officer would have only the same general responsibility to enforce such laws against his private employer as he would against any member of the general public, rather than an affirmative duty to continually check his employer for compliance.

Accordingly, we find that no prohibited conflict of interest would be created were a Florida Marine Patrol officer to be employed as a shellfish relaying monitor during his off-duty hours.