CEO 90-70 -- October 19, 1990

CONFLICT OF INTEREST

COUNTY SHERIFF=S DEPARTMENT EMPLOYEES SERVING AS JAIL CONTRACT MONITORS

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

SUMMARY:

No prohibited conflict of interest would be created were two sheriff's office employees to function as jail contract monitors in addition to their present responsibilities, with additional pay. Under the circumstances presented their new duties would not constitute "acting in a private capacity" to sell their services to the county, as prohibited by Section 112.313(3), Florida Statutes. Rather, it would be a matter of adding responsibilities to work performed in a public capacity.

QUESTION:

Would a prohibited conflict of interest be created were you, as the Sheriff's General Counsel, and another Sheriff's office employee to function as jail contract monitor in addition to your present duties?

Under the circumstances presented, your question is answered in the negative.

In your letter of inquiry and subsequent correspondence, you advise that you are the General Counsel for the Monroe County Sheriff and that Captain Charles S. Casey is the Commander of the Bureau of Support Services for the Sheriff's office. You advise that you serve as the in-house corporate counsel advising the Sheriff and his office. You further advise that your duties include, but are not limited to, filing and defending lawsuits regarding contracts, negligence, labor law, and other matters, legal training for all deputies, the operation of the forfeiture unit and prosecution of civil forfeiture cases, responsibility for the Civil Process Division, and representation of the Sheriff at inter-agency meetings and other functions. Additionally, you advise that the Captain is responsible for the Human Resources and Crime Laboratory Divisions. You state that both you and the Captain report directly to the Sheriff.

You advise that in accordance with Section 951.062, Florida Statutes, Monroe County contracted with a private corporation to operate its County detention facilities beginning February 14, 1990. You further advise that Section 951.062(7), F.S., requires a county which has hired a private entity to run its jail to appoint a jail contract monitor who is responsible for documenting adherence to the contract and compliance with rules, policies, procedures, and performance standards established by the county commission.

You advise that the Board of County Commissioners and the Sheriff are interested in appointing the two of you as jail contract monitor, the duties of which would be in addition to your present job responsibilities. You further advise that each of you would be compensated for these new duties by receiving additional compensation from the Sheriff's budget.

Section 112.313(3), Florida Statutes, provides in part:

Nor shall a public officer or employee, acting in a private capacity, rent, lease, or sell any realty, goods, or services to his own agency, if he is a state officer or employee, or to any political subdivision or any agency thereof, if he is serving as an officer or employee of that political subdivision.

This provision generally prohibits a public employee from acting in a private capacity to sell services to the political subdivision which he serves. However, the circumstances you describe seem simply to be a matter of adding duties to those already performed by staff members and increasing your salaries commensurately. We have never concluded that performing additional duties, in what essentially would become a new public position, would constitute "acting in a private capacity." Rather, this would appear to be a matter of adding responsibilities to work performed in a public capacity.

Accordingly, we find that no prohibited conflict of interest would be created were you and another employee of the Sheriff's office to assume duties as jail contract monitor in addition to your current responsibilities.