CEO 92-48 -- October 15, 1992

CONFLICT OF INTEREST

DEPARTMENT OF TRANSPORTATION MOTOR CARRIER COMPLIANCE

OFFICERS EMPLOYED BY ROAD-CONSTRUCTION FIRMS

To: Gene "Hal" Johnson, General Counsel, Florida Police Benevolent Association, Inc. (Tallahassee)

SUMMARY:

No prohibited conflict of interest would be created under Section 112.313(7)(a), Florida Statutes, were officers of the Motor Carrier Compliance Bureau of the Department of Transportation to be privately employed by road-construction firms contracting with the Department. The firms would not be doing business with the Bureau (the officers' public agency), the officers' public duties constitute "law enforcement" rather than "regulation," and no frequently recurring conflict or impediment to duty would be present. In addition, the competitive bid exemption of Section 112.313(12)(b), Florida Statutes, is of possible use in negating conflicts under Section 112.313(7)(a). CEO's 79-81, 81-67, 85-22, 87-15, 87-58, 91-22, and 92-17 are referenced.

QUESTION:

Would a prohibited conflict of interest be created were law enforcement officers of the Motor Carrier Compliance Bureau of the Department of Transportation to be employed privately by road-construction firms contracting with the Department?

Under the circumstances presented, your question is answered in the negative.

By your letter of inquiry, other written materials received from you and your assistant general counsel, and by telephone conversation between you and your assistant general counsel and our staff, we are advised that you are requesting this opinion on behalf of . . . . and forty-one other persons who serve as Law Enforcement Officers in the Bureau of Motor Carrier Compliance, Division of Facilities and Systems, State Department of Transportation. The Officers are required to meet qualifications as established by the Florida Criminal Justice Standards and Training Commission under Chapter 943, Florida Statutes, and theirresponsibilities include, but are not limited to, enforcing the provisions of weight, load, size, fuel tax, and vehicle registration laws, pursuant to Chapters 316, 320, and 207, Florida Statutes.

The Officers desire to work part-time for road-construction firms contracting with the Department. The private work performed by the Officers would consist of protecting road-construction equipment, facilitating safety of road crew personnel, traffic control, and related duties. The Bureau does not monitor the construction work done by the firms. The private employment relationships of the Officers would be with the general contractors, although the actual work done could be for or benefit the subcontractors as well.

Approximately seventy-five percent of the Officers' public position work involves enforcing laws through roving patrol methods and the remainder primarily involves working at fixed weigh station checkpoints. You advise further that there is generally no expectation that the Officers be responsible for enforcing the laws primarily associated with their public positions, while they are off-duty and working for the private companies, except, for example, were there an apparent offense involving a possible felony. While on-duty, the officers might have occasion to cite a vehicle of their private employers for possible violations. You advise further that to your knowledge the Bureau does not issue fuel permits, oversize load permits, or other permits for vehicles.

You advise that it is anticipated that the general contractors would be the business entities doing business with the Department, and they would be doing business with the Department as a whole and not with the Bureau of Motor Carrier Compliance. The business between the general contractors and the Department would be by sealed, competitive bid. We are advised that the Officers do not participate in the bidding process or monitor the construction; the construction companies would be "regulated by these officers only as they regulate any other citizen or entity." We are advised that the Department has not allowed the Officers to work for the construction firms due to the possibility of a "conflict of interest," and that the Department has not articulated any theory or basis for a conflict, other than citing or referring to Sections 112.313(7) and 334.195, Florida Statutes, and Sections 14-17 [especially Section 14-17.011] and 22A-16.003(1), Florida Administrative Code.

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.]

'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. [Section 112.312(2), Florida Statutes.]

The first part of Section 112.313(7)(a) prohibits a public officer or public employee from having or holding any employment or contractual relationship with any business entity which is subject to the regulation of, or which is doing business with, his public agency. The second part prohibits the having or holding of an 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.

It is apparent from your scenario that the construction firms which would employ the Officers privately would not be doing business with the Bureau of Motor Carrier Compliance (the Officers' public "agency"), but, rather, the firms would be doing business with the Department of Transportation as a whole. See the definition of "agency" above. In addition, while it might appear that the construction firms (at least their vehicles) are "regulated" by the Officers, our previous opinions find that public duties such as those of the Officers constitute "law enforcement" rather than "regulation." See, for example, CEO 79-81, CEO 81-67, CEO 85-22, CEO 87-15, CEO 87-58, CEO 91-22, and CEO 92-17.

Even though a prohibited conflict may not be present under the first part of Section 112.313(7)(a), due to the definition of "agency," the second part of that section is a separate prohibition that acts independently to prohibit certain conflicts of interest. Therefore, having determined that the proposed private employment of the Officers is not prohibited by the first part of Section 112.313(7)(a), we must analyze your scenario to determine whether the proposed employment would create a continuing or frequently recurring conflict or impediment to duty. In CEO 79-81, we did not find a prohibited conflict where a Florida Highway Patrol trooper privately sought to provide escort for oversized loads on the State's highways. Similarly, we recently have found that no continuing or frequently recurring conflict or impediment to duty would be present were a Florida Marine Patrol officer to own and operate a charter boat service. See CEO 92-17. In that opinion, we reasoned that though 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 did not find that "they necessarily would be tempted to disregard fishing laws and other marine laws in a effort to satisfy the recreational appetites of those customers." Following that precedent, we likewise find that though the Bureau of Motor Carrier Compliance Officers could be expected to zealously perform their private functions for the construction firms, we do not find that they necessarily would be tempted to disregard traffic laws and other laws in an effort to curry favor with their private employers.

In addition, Section 112.313(12)(b), Florida Statutes, provides an exemption for conflicts of interest otherwise, prohibited under Section 112.313(7)(a). This would serve as a basis for finding no conflict under the question you ask, provided all of the requirements of that exemption, including the requirements of paragraphs "1," "2," and "3," of that statutory section are met.

Section 334.195, Florida Statutes, and the rules that you relate were cited by the Department as the basis of a conflict of interest are collateral to or are not controlling on our interpretation of the Code of Ethics under this particular factual scenario. However, please note that rules or policies of the Department, statutes outside of the Code of Ethics, or other applicable law outside of our jurisdiction may affect, limit, or prohibit such private employment as the Officers wish to accept.

Accordingly, under the factual scenario set forth in this opinion, we find that no prohibited conflict of interest would be created were officers of the Motor Carrier Compliance Bureau of the Department of Transportation to be privately employed by road construction firms.