CEO 88-59 -- September 8, 1988

CONFLICT OF INTEREST

CITY FIRE DEPARTMENT EMPLOYEES OPERATING

PRIVATE FIRE INVESTIGATION SERVICE

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

SUMMARY:

A prohibited conflict of interest would be created under Section 112.313(7), Florida Statutes, were municipal fire department employees working in the arson section of the department's fire prevention bureau to operate a private fire investigation business in their off-duty capacity. Because of the sensitivity of the fire investigation process and the need to maintain the public's confidence in the impartial determination of the cause and origin of fires, such a dual-employment situation would create a continuing or frequently recurring conflict of interest between the employees' private interests and the performance of their public duties. CEO 83-46 is referenced.

QUESTION:

Would a prohibited conflict of interest exist were two city fire department employees, whose main function is to determine the cause and origin of fires occurring within the City, to operate a private fire investigation service to determine the cause and origin of fires occurring in areas outside of the city?

Your question is answered in the affirmative.

In your letter of inquiry, you advise that .... and .... currently are employed by the City of Miami Fire Department in the Arson Section of the Fire Prevention Bureau. Their main function in the Department is to determine the cause and origin of fires.

In 1980, the employees submitted outside employment forms to the City indicating that they were to be employed in an off-duty capacity as president and vice-president of a business which would investigate the cause and origin of fires. The company's clientele consisted of insurance companies and attorneys, with no investigations taking place within the City limits. The outside employment continued until April of 1988, at which time the employees were ordered by the City Fire Marshal to discontinue their work in Dade, Broward, and Monroe Counties.

One of the employees stated in telephone conversation with our staff that approximately 80 percent of the company's clients consisted of insurance companies seeking a second opinion of the cause and origin of a fire affecting one of its insureds. The usual procedure for the company, once hired, would be to notify the responsible governmental fire protection agency of its interest in the subject fire, to conduct their independent investigation, and to hold a discussion with the governmental agency concerning each entity's findings. The company was given no access to confidential information acquired by the local agency. In the event that the two investigating agencies would reach different conclusions as to the cause and origin of the fire, subsequent litigation concerning the client could require them to testify. Lieutenant Gilbert stated the remainder of the company's work involved serving as experts in criminal and civil litigation, such as arson or product liability cases.

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 (1987).]

Under this provision, the subject Fire Department employees are prohibited from engaging in employment that creates 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. We are of the opinion that this provision would be violated through the employment situation contemplated, notwithstanding the fact that the private fire investigation company would limit its work to areas outside of the City. We find the situation addressed in CEO 83-46 to be analogous to this one.

CEO 83-46 involved a municipal police officer who wished to work as a private investigator for a private attorney in civil and criminal cases outside of the municipality. The attorney also was handling civil and criminal cases within the municipality, as well as cases involving the city itself. The officer had access to almost all information concerning criminal complaints and investigations conducted by the Police Department, and because of his long standing in the Department had developed many contacts within the law enforcement community--contacts through whom it would be reasonable to believe he could obtain confidential information by merely requesting it. Noting that the use of such confidential information in a manner which would betray that confidence would compromise, if not completely undermine, the Department's standing with other law enforcement agencies, we concluded that the police officer should not accept employment as an investigator for the attorney.

"Conflict of interest," as defined in Section 112.312(6), Florida Statutes, "means a situation in which regard for a private interest tends to lead to disregard of a public duty or interest." Of additional concern in CEO 83-46 and here is the following provision of the Code of Ethics:

DISCLOSURE OR USE OF CERTAIN INFORMATION. -- No public officer or employee of an agency shall disclose or use information not available to members of the general public and gained by reason of his official position for his personal gain or benefit or for the personal gain or benefit of any other person or business entity. [Section 112.313(8), Florida Statutes (1987).]

We are of the opinion that the dangers of abuse of confidential information and disruption of the fire investigation process in the tri-county area require the City Fire Department employees to give up their private investigative business. Although the private work is to be limited to areas outside of the City, the company's clientele may be providing insurance coverage or legal services to clients within the City of Miami, in which case confidential information to which the employees may be privy could be of some use. In addition, investigations undertaken by them in their public capacities may be unduly influenced by the fact that one of their private clients has an interest in it. Finally, the two employees may be able to gain access to confidential information compiled by other fire protection agencies through contacts and working relationships developed over their many years of service with the Fire Department. We believe the need for impartiality in the investigation of fires and the safeguarding of confidential information gained by way of such governmental investigations is unduly compromised when dual employment roles have such conflicting aims.

This opinion is not in any way to be viewed as an adverse commentary upon the integrity and motives of the two fire investigators in their private pursuits. We base our opinion on the sensitivity of the fire prevention process and the need for maintaining public and interagency respect in governmental fire investigations. Only through the security of confidential information and the impartial investigation of fires can this process be protected. The statute which we are interpreting here was noted by the court in Zerwick v. State Commission on Ethics, 409 So.2d 57 (Fla. 4th DCA 1982), as being directed at situations which "tempt dishonor." A resumption of the two employees' private employment would create such a situation.

Accordingly, we find that a prohibited conflict of interest would exist were the subject Fire Department employees to operate a private fire investigation service in areas outside of the City.