CEO 89-9 -- March 2, 1989

CONFLICT OF INTEREST

COUNTY PROBATION OFFICER SERVING AS VOLUNTEER

UNDERCOVER AGENT FOR MUNICIPAL POLICE DEPARTMENT

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

SUMMARY:

No prohibited conflict of interest would be created under the Code of Ethics for Public Officers and Employees were a county probation officer to serve as a volunteer undercover agent for a municipal police department which is located within the county. Section 112.313(7)(a), Florida Statutes, is not violated as a person who is not paid for her services does not have an employment or contractual relationship which could give rise to a prohibited conflict of interest.

QUESTION:

Would a prohibited conflict of interest be created were a County Probation Officer to serve as a volunteer undercover agent for a municipal police department which is located within the County?

Your question is answered in the negative.

In your letter of inquiry you advise that . . . is employed by Brevard County as a Probation Officer. In this position she is responsible for supervising misdemeanant probationers and for reporting probation violations to County judges. You further advise that the Probation Officer would like to serve as an unpaid volunteer during her off-duty hours with a municipal police department located within the County. Her duties with the department would involve working as an undercover prostitute.

If criminal charges were filed in a particular case in which the Probation Officer had served as an undercover prostitute, it is likely that she would be deposed and required to testify against the defendant at trial. Since solicitation for prostitution constitutes a misdemeanor pursuant to Section 796.07, Florida Statutes, the possibility exists that the Probation Officer could be assigned to supervise an individual after she was instrumental in that person's arrest and prosecution. You note that the County employs other probation officers who could be asked to supervise an individual if such a situation occurred. 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.

This provision prohibits a public employee from having an employment or contractual relationship with a business entity or agency which is subject to the regulation of, or doing business with, her agency. Under this provision a public employee also is prohibited from having any employment or contractual relationship that would impede the full and faithful discharge of her public duties.

We previously have advised that a person who is not paid for her services by an agency is not employed by or under a contractual relationship with that agency for purposes of this statute. See CEO 76-21. Although no other provision exists within the Code of Ethics which would prohibit the Probation Officer's proposed activity, as a practical matter it would seem advisable for her to refrain from supervising individuals whom she had assisted in convicting in order to avoid the appearance of a conflict on her part, and to prevent situations which would hinder her effectiveness as a County employee.

Accordingly, we find that no prohibited conflict of interest would be created were the subject County Probation Officer to work as a nonpaid volunteer with a municipal police department during her off-duty hours.