CEO 92-17 -- April 24, 1992

CONFLICT OF INTEREST

DEPARTMENT OF NATURAL RESOURCES MARINE PATROL OFFICER

OWNING AND OPERATING CHARTER BOAT AND HOLDING

SALTWATER PRODUCTS LICENSE

To: Virginia B. Wetherell, Executive Director, Florida Department of Natural Resources (Tallahassee)

SUMMARY:

No prohibited conflict of interest would be created were a Florida Marine Patrol Officer to own and operate a charter boat service or hold a saltwater products license. The Officer would be engaged in law enforcement, which does not constitute "regulation" within the meaning of Section 112.313(7)(a), Florida Statutes; no frequently recurring conflict or impediment to duty would be created; and the mere holding of a saltwater products license does not constitute an employment or contractual relationship within the meaning of that statutory section. CEO's 78-93, 87-15, and 91-34 are referenced.

QUESTION 1:

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.

By your letter of inquiry and the submission of additional information and written materials from your staff, we are advised that this question was answered by us in the negative in CEO 87-15. You further advise that since we rendered that advisory opinion, the Legislature enacted the provisions contained in Section 370.0605, Florida Statutes, pertaining to saltwater fishing licenses. Section 370.0605 requires a license from the Department of Natural Resources (Department) in order for a person to operate any vessel wherein a fee is paid either directly or indirectly for the purpose of taking, attempting to take, or possessing any marine fish for noncommercial purposes (charter fishing boat). The tax collectors of the State are the agents of the Department for the purpose of issuing licenses and collecting fees pursuant to Section 370.0605. The Saltwater Licenses and Permits Section, Bureau of Licenses, Titles, and Permits, of the Department's Division of Law Enforcement (Division), is the "bulk issuer" of licenses to the tax collectors, who return to the Section revenues generated from license sales.

Marine Patrol Officers (Officers) are assigned to districts which are divided into zones. The districts are under the Bureau of Field Operations of the Department's Division of Law Enforcement. Officers enforce laws concerning various saltwater harvesting or taking licenses, including those applicable to operators of charter fishing boats. Officers also are responsible for enforcement of the laws of the State generally, and they are federally-deputized for the enforcement of federal laws.

Section 112.313(7)(a), Florida Statutes, is the provision of the Code of Ethics for Public Officers and Employees which is applicable to your inquiry. That section 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 a public officer or employee from having or holding any employment or contractual relationship with any business entity which is subject to the regulation of, or is doing business with, his agency. It also prohibits the having or holding of 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.

The ownership of a business constitutes employment or a contractual relationship with that entity. See, for example, CEO 78-93. In addition, a charter boat owner's relationship with the boat's paying customers would constitute an employment or contractual relationship between the owner and the customers. It is clear from your scenario that the Officers' charter boat businesses would not be doing business with the Department or with any part of the Department. Therefore, our analysis under the first prohibition of Section 112.313(7)(a) focuses on whether the charter boat businesses are subject to the regulation of the Officers' agency.

In our earlier opinion, CEO 87-15, we found that the Officers' enforcement of laws did not constitute "regulation," and 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. The enactment of the provisions found in Section 370.0605 subsequent to the rendering of CEO 87-15, while it apparently creates new provisions of law for enforcement by the Officers, does not change our view that the Officers' role is one of "law enforcement" rather than "regulation." Further, we view the Division's Bureau of Licenses, Titles, and Permits to be a separate and distinct "agency" from its Bureau of Field Operations (the bureau in which the Officers operate), such that the "regulation" of charter boats, if any, being done by the Bureau of Licenses, Titles, and Permits would not be by the Officers' agency. Section 112.312(2), Florida Statutes, provides the applicable definition of agency:

'Agency' means 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.

Additionally, as long as the Officers' charter boat work takes place outside of the normal working hours for their public employment, we do not perceive that their owning and operating such businesses would constitute a continuing or frequently recurring conflict or impede the full and faithful discharge of their public duties contrary to the second prohibition of Section 112.313(7)(a). While we can assume that the Officers would be tempted and even actively engaged in an effort to secure successful fishing for the customers of their charter boats within the bounds of the law, we do not find that they necessarily would be tempted to disregard fishing laws and other marine laws in an effort to satisfy the recreational appetites of those customers.

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.

QUESTION 2:

Would a prohibited conflict of interest be created were a Florida Marine Patrol Officer to hold a saltwater products license?

This question is answered in the negative.

We are advised further that Section 370.06, Florida Statutes, provides for the issuance of saltwater products licenses (SPL). SPL's are available to the public for a fee of $50 and allow the holder to catch and sell saltwater products in excess of the daily bag limit for certain species, provided that the species has not been declared a restricted species by the Marine Fisheries Commission.

We find that the mere holding of a saltwater products license by the Officers would not violate the first or second prohibitions of Section 112.313(7)(a), because holding a license does not constitute an employment or contractual relationship. See CEO 91-34, Question 3. Further, we do not find that the active use of such a license by a charter boat would necessarily increase the possibility of a continuing or frequently recurring conflict or impediment to the full and faithful discharge of public duties under the second prohibition of Section 112.313(7), as discussed in our response to Question 1, and might even make such a conflict or impediment less likely because the holding of a SPL increases the amount of certain species that can be legally taken.

This question is answered accordingly.