CEO 82-6 -- January 25, 1982

CONFLICT OF INTEREST

MUNICIPAL POLICE OFFICER CONDUCTING POLYGRAPH EXAMINATIONS FOR BANKS LOCATED WITHIN CITY

To: Frank A. Kreidler, City Attorney, Lake Worth

SUMMARY:

A prohibited conflict of interest would be created were a municipal police officer to conduct polygraph examinations privately for banks located within the city, unless a prior written waiver of confidentiality is obtained from his client in accordance with Section 493.32, Florida Statutes. In CEO 80-73, the Commission found that the Code of Ethics would be violated were a highway patrolman to conduct polygraph examinations privately, based upon the statutory requirement that polygraph licensees keep confidential information obtained as a result of their employment, unless waiver is obtained. This requirement of confidentiality would conflict with a law enforcement officer's sworn duty to uphold the law.

QUESTION:

Does a prohibited conflict of interest exist where a municipal police officer owns and operates a private polygraph examination service, licensed under Part II, Chapter 493, Florida Statutes, and provides such services for two banks located within the city?

Your question is answered in the affirmative.

In your letter of inquiry you advise that two police officers of the City of Lake Worth, Lieutenant Carl W. Ahauer and Lieutenant Marvin E. Jenne, Jr., during their off-duty hours operate a private polygraph examination service which is licensed under Part II, Chapter 493, Florida Statutes. You also advise that the officers provide private examinations pursuant to contracts with two banks located within the City. Thus, crimes discovered or occurring at these banks would fall within the jurisdiction and scope of investigation of the City police department. Under the contracts, you advise, the officers conduct pre-employment examinations as well as investigations following an alleged theft or shortage at the banks.

In a previous advisory opinion, CEO 80-73, we found that the Code of Ethics for Public Officers and Employees would be violated were a highway patrolman to conduct polygraph examinations privately. The basis for a finding of conflict of interest in that opinion, as well as in CEO 78-82, was that licensees under Chapter 493, Florida Statutes, are required by law to keep confidential information obtained as a result of their employment. Section 493.32, Florida Statutes.

As we noted in CEO 80-73, the confidentiality provisions of 493.32 may be waived under certain conditions by the prior written consent of the client or principal of the polygraph examiner. Should this prior consent be obtained by the subject police officers, they would not be bound to maintain the confidentiality of information obtained during the polygraph examination, and the possibility of a conflict of interest with their law enforcement duties would be obviated.

Accordingly, we find that a prohibited conflict of interest would be created were the subject municipal police officers to conduct polygraph examinations privately for banks located within the City, unless a prior written waiver of confidentiality is obtained from their clients in accordance with 493.32, Florida Statutes.