CEO 88-30 -- April 28, 1988

CODE OF ETHICS

APPLICABILITY OF CODE OF ETHICS TO

MEMBERS OF HIGHWAY PATROL AUXILIARY

To: Colonel Bobby R. Burkett, Director, Florida Highway Patrol, Department of Highway Safety and Motor Vehicles (Tallahassee)

SUMMARY:

No prohibited conflict of interest exists under Section 112.313(7), Florida Statutes, were a private investigator licensed under Chapter 493, Florida Statutes, to become a member of the Florida Highway Patrol Auxiliary. Members of the Auxiliary are neither public officers nor public employees subject to the Code of Ethics for Public Officers and Employees. CEO 86-45 is referenced.

QUESTION:

Would a prohibited conflict of interest be created under Section 112.313(7), Florida Statutes, if a private investigator licensed under Chapter 493, Florida Statutes, were to become a member of the Florida Highway Patrol Auxiliary?

Your question is answered in the negative, as we find that members of the Auxiliary are neither public officers nor public employees subject to the Code of Ethics for Public Officers and Employees.

Through your letter of inquiry and subsequent correspondence we have been advised that the Florida Highway Patrol has denied .... admission into the Highway Patrol Auxiliary because of his status as a private investigator licensed under Chapter 493, Florida Statutes. You question whether a prohibited conflict of interest would be created under Section 112.313(7), Florida Statutes, were a private investigator to become a member of the Highway Patrol Auxiliary.

The Highway Patrol Auxiliary has been created pursuant to Section 321.24, Florida Statutes. Members serve as volunteers under the direct supervision of a Highway Patrol trooper. The statute expressly provides that members of the Auxiliary serve without compensation, have no arrest authority, but have the same protection and immunities afforded regularly employed highway patrolmen. Members are certified as auxiliary law enforcement officers by the Department of Law Enforcement under Section 943.09(7), Florida Statutes, you have advised.

In a previous opinion, CEO 86-45, we concluded that the Code of Ethics for Public Officers and Employees would not apply to an auxiliary deputy sheriff serving as a member of the sheriff's emergency search and rescue squad, as the auxiliary deputy would not be a public officer or public employee. There, the auxiliary deputy served without compensation, was not covered by workers' compensation, and had no arrest powers. In our view, members of the Highway Patrol Auxiliary similarly are not public officers or employees subject to the Code of Ethics.

Section 110.502, Florida Statutes, authorizes State agencies to accept the services of volunteers -- persons who provide goods or services to a State agency with no monetary or material compensation. Section 110.501(1), Florida Statutes. Under these laws, volunteers are not "subject to any provision of law relating to State employment," subject to collective bargaining agreements, or subject to any laws regarding hours of work, rates of compensation, and employee benefits. Volunteers are not entitled to unemployment compensation but are to be covered by State liability protection and by workers' compensation. Sections 110.502(4) and 110.504, Florida Statutes. The workers' compensation law generally excludes volunteers from coverage, except for volunteer workers for governmental entities. Section 440.02(11)(d)3, Florida Statutes.

In the case of Wright v. State Commission on Ethics, 389 So. 2d 662, 663 (Fla. 1st DCA 1980), the Court used the following definition of "employee" for purposes of applying Section 112.313(10), Florida Statutes:

An employee is one who for a consideration agrees to work subject to the orders and direction of another, usually for regular wages but not necessarily so, and, further agrees to subject himself at all times during the period of service to the lawful orders and directions of the other in respect to the work to be done. [Citations omitted.]

Members of the Auxiliary serve without compensation, in a status identical to those of other volunteers working with State agencies. Those volunteers expressly are not "subject to any provisions of law relating to State employment . . . ." Section 110.502(2), Florida Statutes. For these reasons, we conclude that members of the Highway Patrol Auxiliary should not be considered to be public employees subject to the provisions of the Code of Ethics for Public Officers and Employees.

In AGO 077-63, the Attorney General advised that since a police officer is a "public officer," particularly because of the power to arrest, a certified reserved police officer with the power to arrest would be a "public officer" for purposes of the dual office-holding prohibition of Article II, Section 5(a), Florida Constitution. Here, however, because members of the Auxiliary have no arrest powers, we doubt that they should be considered to be "public officers."

Accordingly, we find that no prohibited conflict of interest would be created under the Code of Ethics for Public Officers and Employees were a private investigator to become a member of the Florida Highway Patrol Auxiliary. However, we are aware of no reason why the Department could not restrict membership in the Auxiliary on the basis of an applicant's private employment creating the potential for a conflict of interest.