CEO 90-33 -- April 26, 1990

CONFLICT OF INTEREST

MUNICIPAL POLICE OFFICER SEEKING TO WORK FOR LAW FIRMS IN COMMERCIAL MATTERS

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

SUMMARY:

No prohibited conflict of interest would be created were a municipal police officer to perform financial consulting and research for private law firms in commercial litigation where the officer's duties are confined to paralegal research using public records and business data sources and the firms do not practice criminal law or have any use for information to which the officer has access through his public duties. Under these circumstances, there is no conflict between the officer's public duties and private interests under Section 112.313(7)(a), Florida Statutes, and no opportunity for the officer to use confidential information acquired through his public position to benefit himself or others under Section 112.313(8), Florida Statutes.

QUESTION:

Would a prohibited conflict of interest be created were a municipal police officer to perform financial consulting and other services for law firms in commercial litigation, where the firms do not practice criminal law and his employment would be unrelated to criminal cases?

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

In your letter of inquiry, you have advised that Mr. Kenneth Hawkins is a police officer with the City of Fort Lauderdale. You advise that he is seeking to provide professional services for law firms which practice in the area of commercial litigation. These services include paralegal research, financial consulting regarding asset reconstruction, U.C.C. Title 3 and 4 matters, and aiding attorneys in case preparation. The officer would not be called upon in his private capacity to engage in service of process, criminal case investigation, domestic surveillance, personal injury interviews, or accident investigation and reconstruction. You further advise that the officer's private duties would not involve use of any information other than that available from public records and business data sources such as credit reporting services. Further, the law firms involved are not criminal defense firms, and the officer's private employment would be in no way related to criminal matters. You inquire whether this proposed employment would create a prohibited conflict of interest.

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.]

This section would preclude employment with a business entity which is regulated by or doing business with the municipal police department. Under the facts presented, there is no indication that this is the case. The second provision of this section would prohibit the proposed employment if it presented a continuing or frequently recurring conflict between private interests and public duties. In CEO 89-43, we advised that a deputy sheriff could not be employed as a private investigator where his access to confidential information through his public duties could create such a conflict. See also CEO 83-46 and CEO 90-1. These opinions were based on the premise that the officer's access to confidential information could be of benefit to the private employer, even if the officer's duties for that employer did not involve criminal matters or use of such information. In addition, in CEO 82-6, a police officer was permitted to conduct polygraph examinations within the jurisdiction of his agency where confidentiality required under statute was waived so that the officer could report instances of criminal misconduct discovered through his private business.

Under the facts presented we do not find that these types of conflicts would be present, based on your representation that the information to which the officer would have access would not be of use to the firms involved. In addition, the law firms by which the officer would be retained do not practice criminal law, and the duties of the officer for the firms do not involve criminal or confidential information. This determination is premised on the fact that the officer would function as a paralegal researcher using only public records and business data sources unrelated to his public duties and would in no way use, or have the opportunity to use, information acquired through his duties as a police officer. Further, the firms do not engage in any activity where criminal wrongdoing might be uncovered which the subject officer would be required to report as part of his public duties while having a private obligation not to disclose.

The Code of Ethics for Public Officers and Employees also provides at Section 112.313(8), Florida Statutes:

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.

This section would prohibit the subject officer from using information not available to members of the general public and gained by reason of his official position to benefit himself or others. In CEO 82-49, no conflict was found to exist where a chief of police sought to establish a business which would provide consulting services to law enforcement agencies outside the county. In that opinion, it was noted that there was no indication that the police chief would be disclosing or using information not available to members of the general public and gained by reason of his official position for his gain or benefit. Similarly, in the situation you present, there is no indication that the officer would be using such information in his private employment or that the firms retaining the officer have any interest in the type of confidential information to which he has access. This determination is based on the officer not disclosing any information to the firms acquired through his public position, whether in the course of his private duties or not.

Finally, we would caution the subject officer regarding Section 112.313(6), Florida Statutes, which provides:

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.

For purposes of this provision, the term "corruptly" is defined as follows:

'Corruptly' means done with a wrongful intent and for the purpose of obtaining, or compensating or receiving compensation for, any benefit resulting from some act or omission of a public servant which is inconsistent with the proper performance of his public duties. [Section 112.312(7), Florida Statutes.]

Any attempt by the officer to use his public position or any property or resource within his trust, including information acquired through his public position, potentially could violate this provision.

Accordingly, subject to the conditions noted, we find that no prohibited conflict of interest would be created were the subject municipal police officer to perform financial consulting and paralegal research for private law firms in commercial litigation.