CEO 87-92 -- December 10, 1987

CONFLICT OF INTEREST

PUBLIC DEFENDER'S CHIEF INVESTIGATOR LICENSED AS BAIL BONDSMAN

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

SUMMARY:

No prohibited conflict of interest would be created under Section 112.313(7), Florida Statutes, were the chief investigator of the office of a public defender to be licensed and to work as a bail bondsman, as long as he does not provide bail bonds for clients of the public defender's office. Were he to provide bonds for clients of that office, his private employment would create a continuing or frequently recurring conflict of interest or would impede the full and faithful discharge of his public duties, as he would be in a position to solicit business from clients of the office and as problems arising out of the relationship between a defendant and a bondsman could affect the relationship between the defendant and the public defender's office.

QUESTION:

Would a prohibited conflict of interest be created were the chief investigator of the office of a public defender to be licensed and to work as a bail bondsman?

Subject to the limitation expressed below, your question is answered in the negative.

In your letter of inquiry you advise that .... is employed as the Chief Investigator of the Office of the Public Defender, Twentieth Judicial Circuit. You also advise that he wishes to be licensed as a bail bondsman. As Chief Investigator, his duties include supervising and directing the activities of the other investigators in the office and case investigation, supervision, and review, among other responsibilities.

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 employee from having any employment or contractual relationship with a business entity which is doing business with or is subject to the regulation of his agency. Further, this provision prohibits a public employee from having any employment or contractual relationship that will create a continuing or frequently recurring conflict of interest or that would impede the full and faithful discharge of his public duties.

Were the Chief Investigator to engage in business as a bail bondsman, he would not have any employment or contractual relationship with a business entity doing business with or subject to the regulation of the Office of Public Defender. Bail bondsmen are regulated by the Department of Insurance and the Bail Bond Regulatory Board, as provided in Chapter 648, Florida Statutes. Nor would we consider criminal defendants to be business entities which are doing business with or regulated by the Public Defender's office. However, we are of the opinion that were the Chief Investigator to be permitted to provide bonds for clients of the Public Defender's office, his outside employment would create a continuing or frequently recurring conflict or would impede the full and faithful discharge of his public duties.

In a telephone conversation with our staff, you advised that approximately 90 percent of the clients of the Public Defender's office, especially those charged with felony offenses, are indigent and are not likely to be able to obtain bail bonds. You estimated that in the remaining 10 percent of cases family or friends of the defendant might be able to pay for a bond. You advised that normally the Court sets the amount of bond at first appearance, unless the defendant already has bonded out based upon a bond schedule previously set by the Court for the particular offense. You also advised that the Public Defender's office is appointed to represent clients at the time of their first appearance. Assistant public defenders and other staff of the office do discuss bail with clients, you advised. Finally, you stated that you do not perceive a negative impact on the Public Defender's office if someone in that office were available to provide bonds.

In our view, however, the Chief Investigator would be in a position to solicit business from defendants represented by the Public Defender's office, although we do not mean to intimate that he would do so. Further, it appears to us that any problems created in the relationship between a defendant represented by the Public Defender and a bondsman who is employed by the Public Defender's office could affect the relationship between the defendant and the Public Defender, who has a duty under the law to represent the defendant.

Finally, we note that under Section 648.44(1)(f), Florida Statutes, a bail bondsman is prohibited from representing as an attorney one on whose bond he is a surety, a policy which we believe would be furthered by not permitting an employee of the Public Defender's office to provide bonds for clients of the Public Defender's office. On the other hand, we see no reason to believe that permitting the Chief Investigator to provide bonds for defendants who are not clients of the Public Defender's office would create such a substantial conflict of interest as would be prohibited by Section 112.313(7)(a), Florida Statutes.

Accordingly, we find that no prohibited conflict of interest would be created were the Chief Investigator of the Office of a Public Defender to be licensed and to work as a bail bondsman, so long as he does not provide bonds for clients of the that office.