CEO 91-66 -- December 6, 1991

CONFLICT OF INTEREST

CITY POLICE OFFICERS ASSIGNED TO DEPARTMENT'S CODE

TEAM PERFORMING CONSULTING WORK AS EXPERT

WITNESSES IN BUILDING CODE MATTERS

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

SUMMARY:

No prohibited conflict of interest would be created were two municipal police officers assigned to their department's code team to perform consulting work as expert witnesses in building code matters outside the jurisdiction of the police department for law firms located outside the city which do not practice criminal law and are not representing any party to a case concerning matters that were subject to either the officers' investigation or investigation by the police department, even if the cases on which they were retained as consultants concern matters outside the jurisdiction of the police department. Additionally, the officers should not act as consultants on any case in which the builder, contractor, developer, or property owner may be the subject of an investigation by the police department. Under these circumstances, there is no conflict between the officers' public duties and their private interests under Section 112.313(7)(a), Florida Statutes, because any investigation undertaken by them in their official capacities would not be unduly influenced by the fact that one of their private clients has an interest in it, and because any access that they have to information unavailable to the general public would be of little benefit to their clients.

QUESTION:

Does a prohibited conflict of interest exist under the Code of Ethics for Public Officers and Employees where two municipal police officers assigned to their department's Code Team perform consulting work as expert witnesses for private law firms, which do not practice criminal law, in building code matters outside the jurisdictional area of the Police Department, and where the police officers' responsibilities as consultants are limited to use of public records?

Your question is answered in the negative, subject to the additional limitations noted.

In your letter of inquiry and your response to staff's questions, you advise that you, a Detective with the Ft. Lauderdale Police Department, and . . . . , also with the Police Department, are assigned to the Police Department's Code Team. The Code Team conducts on-site inspections of commercial and residential properties within the City of Ft. Lauderdale, collects demonstrative evidence of code violations, and testifies in court and before the Municipal Code Board. The position requires a working knowledge of state and local laws, ordinances, and regulations as they relate to code enforcement.

You advise that you and the Sergeant would like to perform consulting work as expert witnesses in building code matters outside the jurisdiction of the Police Department and for law firms also located outside the City of Ft. Lauderdale which do not practice criminal law. You advise that, as consultants, you and the Sergeant would be limited to the use of only public records and that there would be no need or requirement to have access to information through the National Crime Information Center (NCIC) Computer System, the Florida Crime Information Center (FCIC), or any other criminal files that you use while performing your duties for the Police Department. You advise that your testimony as experts would relate to "whether a violation of a building code is negligence per se under Florida Law."

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.]

Under this provision, a public officer or employee is prohibited from having any employment or contractual relationship which would present a continuing or frequently recurring conflict of interest or which would impede the full and faithful discharge of his public duties. We are of the opinion that this provision would not be violated by your acting as a consultant within the limitations noted below.

For purposes of the Code of Ethics, a "conflict of interest" is defined to mean "a situation in which regard for a private interest tends to lead to disregard of a public duty or interest." Section 112.312(6), Florida Statutes. Based upon this definition, the court in Zerwick v. State Commission on Ethics, 409 So.2d 57 (Fla. 4th DCA 1982), held that Section 112.313(7)(a) "establishes an objective standard which requires an examination of the nature and extent of the public officer's duties together with a review of his private employment to determine whether the two are compatible, separate and distinct or whether they coincide to create a situation which 'tempts dishonor.'"

Our concern, therefore, is whether the interests of a public officer's or employee's private employment and the nature of his private responsibilities could coincide with his public duties to "tempt dishonor," rather than with whether an officer or employee, through self-imposed limitations, could avoid succumbing to the temptation of using either public resources or position for private benefit and thereby disregarding his public duties and the public interest. See CEO 91-34.

In addition to limiting your private work as consultants to law firms that do not practice criminal law, we are of the opinion that no prohibited conflict of interest would exist as long as you are not retained as an expert witness or consultant in any case involving a developer, builder, property owner, or construction contractor who or which may be the subject of investigation by the Ft. Lauderdale Police Department, and as long as you are not retained as an expert witness or consultant in any case in which the law firm retaining you also represents a party to a matter that was subject to investigation by either you, in your official capacity as a police officer, or by the Police Department, even if the case in which you were retained as an expert witness or consultant relates to matters outside the jurisdiction of the Ft. Lauderdale Police Department. We believe that our reasoning in CEO 83-46 and CEO 88-59 applies here.

In CEO 83-46, we determined that Section 112.313(7)(a) and Section 112.313(8), Florida Statutes, could be violated were a municipal police officer to be employed as a private investigator for an attorney. As a basis for finding a conflict, we noted that the information concerning criminal complaints and investigations by the Police Department to which the police officer had access could be very helpful to the attorney and, thereby, lead to a situation where the full regard of the officer's private interests as an investigator for the attorney would tend to lead to disregard of his public responsibilities on a frequently recurring basis and would impede the full and faithful discharge of his public duties. We also noted that our view of the situation was based upon the sensitivity of the judicial and law enforcement processes and the high degree of trust and respect which people place in these institutions, rather than upon a judgment of the officer's personal integrity.

Likewise, in CEO 88-59, we found that a prohibited conflict of interest would be created under Section 112.313(7), Florida Statutes, were two municipal fire department employees assigned to the arson section of the fire prevention bureau to operate a private fire investigation business in their off-duty capacities. We reasoned that 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. We also opined:

[T]he 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 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 are of the opinion that the conflicts noted in CEO 83-46 and CEO 88-59 can be avoided if you and the Sergeant perform your consulting work within the limitations noted above because any investigation made by you in your official capacities would not be unduly influenced by the fact that one of your private clients or client of a client has an interest in it. We would caution you, also, regarding the following provisions 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.]

MISUSE OF PUBLIC POSITION.--No public officer or employee of an agency shall corruptly use or attempt to use his official position or any property or resource which may be within his trust, or perform his official duties, to secure a special privilege, benefit, or exemption for himself or others. This section shall not be construed to conflict with s. 104.31. [Section 112.313(6), Florida Statutes.]

Any attempt by you to use your position as a police officer or any property or resource within your trust, including information acquired through your public position, potentially could violate these provisions.

Accordingly, we find that no prohibited conflict of interest would be created were you and the Sergeant to perform consulting work as expert witnesses in building code matters within the limitations set forth above.