CEO 91-56 -- October 25, 1991

CONFLICT OF INTEREST

HIGHWAY PATROL OFFICERS AND EMPLOYEES

TEACHING DRIVER IMPROVEMENT COURSES

To: Leonard R. Mellon, Executive Director, Florida Department of Highway Safety and Motor Vehicles (Tallahassee)

SUMMARY:

No prohibited conflict of interest exists under Section 112.313(7)(a), Florida Statutes, where certain employees of the Florida Department of Highway Safety and Motor Vehicles teach driver improvement courses, and where the Department's Bureau of Driver Improvement has been designated as the exclusive entity within the Department responsible for approving driver improvement courses. The employees in question would not teach the course for a business entity or agency which is regulated by their agencies. Nor could they make referrals to courses or reveal information which is confidential and not readily available to the general public, prohibited pursuant to Section 112.313(8), Florida Statutes. CEO's 88-10, 82-75, and 80-77, are referenced.

QUESTION:

Does a prohibited conflict of interest exist when members of the Florida Highway Patrol, auxiliary members of the Florida Highway Patrol, or employees of the Divisions of Administrative Services, Motor Vehicles, or Driver Licenses, teach for compensation during off-duty hours driver improvement courses where the Bureau of Driver Improvement, Division of Drivers Licenses, has been designated to regulate driver improvement courses pursuant to Chapter 91-200, Laws of Florida?

Your question is answered in the negative.

In your letter you advise that Chapter 91-200, Laws of Florida, has transferred the regulatory authority for driver improvement courses from the Traffic Court Review Committee of the Florida Supreme Court to the Department of Highway Safety and Motor Vehicles. You further advise that the Bureau of Driver Improvement, Division of Driver Licenses, has been designated as the exclusive entity within the Department to implement the statutory changes. You relate that no other division within the Department or any other bureau within the Division will have any regulatory functions regarding driver improvement schools.

You question whether certain officers and employees of the Department may teach for compensation at schools which the Department's Bureau of Driver Improvement has approved pursuant to Section 318.1451, Florida Statutes, as created by Chapter 91-200, Laws of Florida (1991). In a similar question, we previously have advised that officers and employees of the Department of Highway Safety and Motor Vehicles could teach driver improvement schools where the Traffic Court Review Committee had first approved the school. See CEO 80-77. However, you have asked us to revisit this issue as Chapter 91-200, Laws of Florida, transfers the authority to approve driver improvement schools to the Department.

The applicable provision of the Code of Ethics for Public Officers and Employees is Section 112.313(7)(a), Florida Statutes, which 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.

This provision prohibits an employee of a state agency from having an employment or contractual relationship with a business entity which is regulated by or doing business with the agency of which he is an employee. It also prohibits a public employee from having a contractual relationship that will create a continuing or frequently recurring conflict of interest or that would impede the full and faithful discharge of his public responsibilities.

Section 112.312(2), Florida Statutes, defines "agency," as it is used in the Code of Ethics for Public Officers and Employees, as

any state, regional, county, local, or municipal government entity of this state, whether executive, judicial, or legislative; any department, division, bureau, commission, authority, or political subdivision of this state therein; or any public school, community college, or state university.

We previously have opined that by this definition the Legislature intended to define a state employee's agency as the lowest departmental unit within which his influence might reasonably be considered to extend. See, for example, CEO 82-75. As the Bureau of Driver Improvement within the Division of Driver Licenses is the sole entity within the Department with any responsibility concerning driver improvement courses, it is our opinion that employees from this bureau would have a prohibited conflict of interest under the first portion of Section 112.313(7)(a), Florida Statutes, because they would have an employment or contractual relationship with a business entity which is regulated by their agency, the Bureau of Driver Improvement. Similarly, employees within the Division of Driver Licenses and within the Department who are responsible for the Bureau's operations would have the same conflict of interest.

The issue then is whether employees from other bureaus, either within the Division of Driver Licenses or in any of the Department's other three divisions, have employment or contractual relationships which create continuing or frequently recurring conflicts between their private interests and the performance of their public duties, or which impede the full and faithful discharge of their public duties, where they teach driver improvement courses during their off-duty hours for compensation. In CEO 88-10, we opined that this provision would not be violated were a city police chief to teach a defensive driving course because neither he nor the other police officers in his department were in a position to refer individuals to a particular class. Nor did it appear that the police chief would 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, which would have been prohibited by Section 112.313(8), Florida Statutes. A similar conclusion was reached in CEO 82-75, where an employee of the Crime Laboratory Bureau in the Florida Department of Law Enforcement sought to teach a course on handwriting analysis at a community college. As a division totally separate from the employee's approved such courses, we did not believe that teaching such a course would present a continuing or frequently recurring conflict or impediment to that employee's public duties, as long as he did not reveal confidential information proscribed by Section 112.313(8), Florida Statutes.

With regard to the employees of the Florida Department of Highway Safety and Motor Vehicles, you advise that employees would not be authorized or permitted to refer individuals to driver improvement courses approved by the Bureau of Driver Improvement. Additionally, you relate that your employees do not have access to information which is confidential or not readily available to the general public that could be imparted while teaching driver improvement courses. Therefore, we find no basis to conclude that those employees would have a continuing or frequently recurring conflict between their private interests and the performance of their public duties, or which would pose an impediment to the full and faithful discharge of their public duties.

Accordingly, we find that where the Bureau of Driver Improvement within the Division of Driver Licenses, Department of Highway Safety and Motor Vehicles, has sole responsibility for approving driver improvement courses pursuant to Section 318.1451, Florida Statutes, no prohibited conflict of interest exists where employees of the Division of Highway Patrol, Division of Motor Vehicles, Division of Administrative Services, or Division of Driver Licenses (other than those within or responsible for the Bureau of Driver Improvement) teach driver improvement courses for compensation during their off-duty hours.