CEO 87-15 -- March 11, 1987

CONFLICT OF INTEREST

MARINE PATROL OFFICER OWNING CHARTER BOAT

To: Mr. Robert A. Pell, Assistant General Counsel, Florida Police Benevolent Association, Inc., Tallahassee

SUMMARY:

No prohibited conflict of interest would be created were a Florida Marine Patrol officer to own and operate a charter boat service. Section 112.313(7)(a), Florida Statutes, would not be violated as the officer's private business would not be regulated by, or doing business with, his public agency. CEO's 78-79, 79-81, and 78-93 are referenced.

QUESTION:

Would a prohibited conflict of interest be created were a Florida marine patrol officer to own and operate a charter boat service?

Your question is answered in the negative.

In your letter of inquiry you advise that Mr. T. R. Simpson is an officer with the Florida Marine Patrol, District 8. The Florida Marine Patrol, the law enforcement arm of the Department of Natural Resources, is charged primarily with upholding statutes pertaining to the State's marine resources, coastal environment, and boating. The Patrol further provides assistance in all natural disaster situations and is on call 24 hours a day to respond in the event of hurricanes, civil disorders, or any other threatening conditions that may endanger life or property. Patrol personnel are constituted State police officers and have full powers to investigate and arrest for any violation of the laws of Florida. See Section 370.021(5), Florida Statutes. They are also federally deputized, which enables them to enforce national, as well as State, endangered species laws.

You further advise that Mr. Simpson intends to be the sole owner of a charter boat service. He intends to function as the operator and guide of the boat, and will be strictly involved in recreational fishing off the east coast of Florida.

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 (1985).]

The first part of this provision prohibits a public employee from having an employment or contractual relationship with a business entity which is subject to the regulation of, or doing business with, his agency. In previous opinions, we have advised that ownership of a business constitutes employment or a contractual relationship with that entity. See CEO 78-93. The Florida Marine Patrol operates within the Department of Natural Resources' Division of Law Enforcement, which is created pursuant to Section 20.25(2)(c), Florida Statutes. Therefore, for purposes of the Code of Ethics, the subject officer's "agency" is the Division of Law Enforcement. See Section 112.312(2), Florida Statutes, defining the term "agency."

It is clear that the proposed recreational charter boat service would not be doing business with the Division of Law Enforcement. Furthermore, we are of the view that the charter boat service would not be regulated by the Division. In CEO 79-81, we found that the Florida Highway Patrol did not "regulate" persons or businesses by virtue of its duty and authority to enforce the criminal laws of this State which were generally applicable to everyone. We based our reasoning on the fact that any other result would prohibit all law enforcement officers from having any outside employment with any person or business. While in CEO 78-93 we found a prohibited conflict of interest where a police officer owned and operated a pawnshop, in that case the business was regulated by the officer's agency as the city code required all pawnbrokers to obtain a permit issued by the office of the Sheriff. The law further provided grounds and procedures by which the Sheriff could grant, deny, renew, suspend, and revoke permits, and required that every pawnbroker make a written report to the Sheriff of every article pawned or purchased by him. Here, the Division of Law Enforcement has no regulatory responsibilities at all; rather, it functions basically within the areas of equipment acquisition and maintenance, recordkeeping, communications, training, field operations, and special enforcement. Rule 16-6.004(6), Florida Administrative Code.

Section 112.313(7)(a), Florida Statutes, additionally prohibits a public employee from having any employment or contractual relationship that creates 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. We do not perceive that the Marine Patrol officer's proposed pursuit would create such a conflict so long as his private employment takes place during his off-duty hours.

Accordingly, we find that no prohibited conflict of interest would exist were a Florida Marine Patrol officer to own and operate a charter boat service.