CEO 91-40 -- July 19, 1991

CONFLICT OF INTEREST

CITY POLICE OFFICER INSTALLING BURGLAR

ALARMS WHILE OFF DUTY

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

SUMMARY:

A prohibited conflict of interest is created where a city police officer installs home burglar alarm systems during his off-duty hours for a home burglar alarm business which he co-owns. Under Section 112.313(7)(a), Florida Statutes, a temptation to dishonor is present due to the tension between the officer's interest in promoting and protecting his products, services, and customers and the performance of his public duties in enforcing a burglar alarm ordinance. CEO 91-22, CEO 85-22, CEO 82-23, CEO 81-76, and CEO 81-67 are referenced.

QUESTION:

Is a prohibited conflict of interest created by a city police officer installing home burglar alarm systems during his off-duty hours for a home burglar alarm business which he co-owns?

Your question is answered in the affirmative subject to the condition noted below.

In your letter of inquiry, telephone conversation with our staff, and other written materials transmitted to our staff, you advise that you seek this opinion on behalf of . . . . , who is employed as a law enforcement officer for the City of Coral Springs in the patrol division of the police department. He works as a regular uniformed officer, enforcing laws and ordinances, responding to citizen complaints and possible crime scenes, etc. He does not do home security lectures or presentations as part of his official duties. You further advise that . . . . works during his off-duty hours installing home burglar alarm systems, within and outside the City, for a home burglar alarm system business which he co-owns. The business is not doing business with the City or any agency of the City. The City does not license installers of home burglar alarm systems, except for revenue-raising occupationallicense taxing which is applicable to all City businesses. The City has an ordinance addressing burglar alarms which provides in relevant part :

'Alarm system' shall mean any mechanical or electrical device sold or installed, which is designed for use for the detection of any unauthorized entry into a building, structure, facility or enclosed area, or for alerting others of unauthorized entry, or any other crime or fire emergency and which emits sound or transmits a signal or message when activated.

'Alarm user' shall mean the owner of the premises on which the alarm system is maintained, or the lessee of the premises if the lessee is legally responsible for the operation and maintenance of the alarm system.

'False alarm' shall mean the activation of any alarm system for any reason other than an unauthorized entry, such as mechanical failure, malfunction, improper installation, or an action or omission of the owner or lessee of an alarm system or of his employees or agents.

'Response fee' shall mean those expenses incurred by the city whenever the city dispatches personnel and equipment to the premises of a false alarm.

Whenever an alarm is activated in the city, thereby requiring a response to the location by the police department and/or the fire department, a law enforcement officer and/or fire official on the scene of the activated alarm system shall inspect the premises protected by the system and shall determine whether the city's response was due to a false alarm.

In making said determination, the investigating officer or fire official shall presume that the alarm was a false alarm when there is no sign or physical evidence of an unauthorized entry or an attempted unauthorized entry or where there is no sign or physical evidence of a fire.

If the law enforcement officer and/or fire official at the scene determines the alarm is false, said officer shall file a written report to the chief of police. After the second report in a twelve-month period, notice shall be provided to the alarm user either by first class mail, return receipt requested, or by personal service. If by mail, there shall be a presumption of receipt within three (3) calendar days of posting.

This notice shall include copies of the prior false alarm reports and a warning to the alarm user that in the event of a third false alarm within the twelve-month period, at the same location, the alarm user shall be required to reimburse the city for the cost of city's response to said false alarm.

The city shall maintain continuous records for all false alarms. In the event of a third false alarm within a twelve-month period, the alarm user shall be responsible to the city for the cost of the third and each succeeding false alarm within a twelve-month period according to the following schedule:

(1) Police department: Twenty-five dollars ($25.00) for third false alarm and any subsequent false alarms within a twelve-month period.

(2) Fire department: One hundred dollars ($100.00) for third false alarm and any subsequent false alarms within a twelve-month period.

Response fees shall be paid within thirty (30) calendar days from date of receipt thereof. Failure to make payment within thirty (30) calendar days from date of receipt shall constitute a separate offense against the city. The penalty for this violation shall be a fine of not more than five hundred dollars ($500.00).

The ordinance further provides in relevant part:

It shall be unlawful for any person, natural or corporate, to maintain or operate any form or type of alarm or system in any place or on any premises being so placed and operated that sounds can be heard for fifteen (15) minutes or longer in a residential district and thirty (30) minutes or longer in a business and/or industrial district from any neighboring property, whether public or private. This restriction shall apply whether the sound is continuous or repeated over the respective fifteen and/or thirty-minute period.

When an audible alarm has sounded for fifteen (15) minutes or longer in a residential district and thirty (30) minutes or longer in a business and/or industrial district and every reasonable effort has been made to contact persons authorized to enter the premises to deactivate the alarm, or if the contacted person has failed to appear within the respective fifteen-or thirty-minute period, the law enforcement officer at the scene shall take the necessary steps to disconnect the system or alarm.

All costs that may be incurred by the City of Coral Springs shall be paid by the alarm user. The alarm user shall also assume all liabilities that may arise from the entry to the premises and the disconnection.

It shall be unlawful for any person to refuse or fail to pay any cost assessed for deactivating an alarm pursuant to this section. The refusal or failure to pay within a reasonable time shall constitute a separate offense against the City of Coral Springs. The penalty for this violation shall be a fine of not more than five hundred dollars ($500.00).

Section 112.313(7)(a), Florida Statutes, is applicable to the situation you describe. It provides:

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 officer from having or holding an employment or a contractual relationship with an agency or a business entity which is doing business with or which is subject to the regulation of his agency, and it prohibits his having or holding an employment or a contractual relationship, with a business entity or an individual, 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.

Under the situation you present, the first prohibition of Section 112.313(7)(a) is not violated, because the officer's alarm business is not doing business with his agency and because any action of the police department taken under the City's occupational license or alarm ordinances would be law enforcement and, as such, would not constitute "regulation" within the meaning of the first part of that section. See CEO 91-22, CEO 85-22, and CEO 81-67.

Nevertheless, the sale and installation of burglar alarms (a contractual relationship involving the officer, his business, and the purchaser of an alarm system) within the City does create a prohibited conflict of interest under the second prohibition of Section 112.313(7)(a). A frequently recurring conflict or impediment to duty is not predicated upon any assumption of wrongdoing by the officer, but rather upon the situation being one which tempts dishonor (a situation which might cause one to put his private interests ahead of his public duties). See Zerweck v. State Commission on Ethics, 409 So.2d 57 (Fla. 4th DCA 1982). Under the facts you present, the officer, in answering and handling a home burglar alarm call involving a possible false alarm of a system acquired from his business, might be tempted not to report, or not accurately report, the incident in an effort to put his work and product in the best possible light or to avoid his customer's being fined under the City ordinance which he has a duty to enforce. Similarly, he might be tempted to handle responses to and reports of possible false alarms of a competitor's system in a manner beneficial to him rather than beneficial to the public. Also, his response to burglar alarm calls would constitute a situation where his private interest in making a sales pitch for his system to replace a competitor's system would conflict with his public duty to objectively handle the call on behalf of the police department. See CEO 81-76 and CEO 82-23.

However, because the officer's area of police work and response is within the City, his installing and profiting from the sale of home burglar alarm systems outside of the City would not overlap with his public duties. Therefore, this activity does not constitute a prohibited conflict of interest.

Accordingly, we find that a prohibited conflict of interest is created where a city police officer installs home burglar alarm systems within the city for a home burglar alarm business which he co-owns.