CEO 90-1 -- January 24, 1990

CONFLICT OF INTEREST

CITY FIRE DEPARTMENT EMPLOYEES OPERATING

PRIVATE FIRE CONSULTATION SERVICE

To: Mr. C. H. Duke, Chief, Director of Fire, Rescue, and Inspection Services Department, City of Miami

SUMMARY:

A prohibited conflict of interest would be created under Section 112.313(7), Florida Statutes, were an arson investigator in the fire prevention bureau of a municipal fire department to operate a private business providing fire consultation and expert witness services relating to incidents occurring outside the city. The potential for clients of the business to have interests in other cases within the city, and the further potential for the subject employee to use information obtained through his public duties for the benefit of private clients, would present a continuing and frequently recurring conflict between his private interests and his public duties. No prohibited conflict of interest would be created were a personnel officer in the management services division of the fire department to engage in such a business. Such private activities would not present a conflict with his public duties, inasmuch as he would not conduct arson investigations or be in a position to obtain information through his public position which could be used for private benefit. CEO 88-59 is referenced.

QUESTION:

Would a prohibited conflict of interest exist were an arson investigator and a personnel officer with a city fire department to operate a private fire consultation and expert witness service in areas outside the city?

Your question is answered in the affirmative with regard to the arson investigator and in the negative with regard to the personnel officer.

In your letter of inquiry, you advise that Fire Lieutenant John C. Gilbert and Fire Fighter Lawrence Weintraub are employed by the City of Miami Fire, Rescue, and Inspection Services Department in the Management Services Division and Fire Prevention Bureau Division, respectively. You advise that these individuals wish to be employed by a company which provides consultation and expert witness services with regard to the causes and origins of fires occurring outside the City.

Previously, we advised in CEO 88-59 that these individuals could not be employed by a company which conducted investigations of fires outside the City while serving as arson investigators for the Department. The rationale for that opinion generally was that the need for confidentiality of information in the fire investigation process could have been jeopardized where these individuals had clients outside the City who also had interests in cases inside the City. In that situation, confidential information to which the individuals had access could have been of use to the private client. In addition, we were concerned that an investigation undertaken in their public capacities could have been unduly influenced by the fact that one of their private clients had an interest in it. Finally, we were concerned that through their public positions these individuals had access to information through other fire fighting agencies which could have been used to benefit their private clients.

In this case, you advise that the subject Department employees would not conduct any private fire investigations. Rather, their business would be confined to providing consultation and expert witness opinions. All investigation would be conducted at the client's discretion, and the business would not provide these services. Unlike the situation presented in the previous opinion, they would have no contact with other government entities in the course of their private business. You advise that it cannot be determined to what extent clients of their private business also may have interests in cases or claims within the City.

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 the subject employees from holding employment which would create a continuing or frequently recurring conflict between their private interests and the performance of their public duties or that would impede the full and faithful discharge of their public duties. In our previous opinion, we held that such a conflict did exist due to the employees' public duty to conduct arson investigations while also conducting investigations for private clients.

We do not see that the new duties of the proposed business would affect the rationale of that opinion. Under the facts presented, the firm's clients still may have interests in cases within the City, where access to confidential information could potentially benefit the client. In addition, the potential exists that investigations undertaken in a public capacity may be influenced where they involve clients of the private firm. Finally, access to confidential information through other fire fighting agencies still could present the opportunity to misuse such information to benefit private clients. The fact that the firm may be representing clients' interests in ways other than private investigation does not change the nature of those interests or the potential to benefit private clients through use of public position. See CEO 88-59 and opinions cited therein.

However, we do see a distinction in the instant situation based on the fact that one of the subject employees no longer is conducting arson investigations as part of his public duties. Rather, he is now employed as a Personnel Officer in the Management Services Division of the Department. In this position, he presumably would not have access to the type of confidential information referenced above. Also, his public duties would not have the potential to be influenced by the private interests of clients of the firm. Under these circumstances, his involvement with the private business described would not present the same conflict between his public duties and his private interests.

Accordingly, we find that a prohibited conflict of interest would exist were the subject arson investigator with the Fire Department to operate a private fire consultation and expert witness business relating to incidents occurring outside the City. No such conflict would be present, however, were the subject Personnel Officer in the Management Services Division of the Department to operate such a business.