CEO 77-30 -- March 9, 1977

CONFLICT OF INTEREST

INVESTIGATORS EMPLOYED BY OFFICE OF THE PUBLIC DEFENDER SERVING SUBPOENAS OR INVESTIGATING FOR CIVIL LITIGATION DURING OFF-DUTY HOURS

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

Prepared by: Phil Claypool

SUMMARY:

Reference is made to CEO 75-128, in which a conflict of interest was deemed to exist where employees of the office of a public defender privately engaged in the service of subpoenas. Although the law has been amended since issuance of that opinion, the language currently contained in s. 112.313(7)(a), F. S. 1975, prohibiting private employment which impedes the full and faithful discharge of public duty, is deemed applicable.

Based on the rationale contained in CEO 76-208, no conflict of interest is deemed to be created where investigators in the office of the public defender contract during off-duty hours to conduct investigations for purposes of civil litigation so long as the persons with whom they contract do not do business with the public defender's office and further provided that such investigation is not related in any manner to criminal litigation involving clients of the public defender's office.

QUESTIONS:

1. Would a prohibited conflict of interest exist were an investigator who is an employee of the office of the public defender to serve subpoenas during his off-duty hours?

2. Would a prohibited conflict of interest be created were an investigator who is an employee of the office of the public defender to contract to conduct investigations during his off-duty hours for purposes of civil litigation?

Question 1 is answered in the affirmative.

You have stated in your letter of inquiry that you are the Public Defender for the ____ and that persons who are employed by your office wish to engage in the private service of subpoenas during their off-duty hours.

In a previous opinion to you, CEO 75-128, we found that the Code of Ethics for Public Officers and Employees prohibited employees of the office of the public defender from owning a material interest in a private corporation that was engaged in the business of service of witness subpoenas. That opinion was based upon s. 112.313(5), F. S. (1974 Supp.), which reads as follows:

OTHER EMPLOYMENT. -- No public officer or employee of an agency shall accept other employment with any business entity subject to the regulation of, or doing business with, an agency of which he is an officer or employee, nor shall an officer or employee of an agency accept other employment that will create a conflict between his private interests and the performance of his public duties or impede the full and faithful discharge of his public duties...

You suggest that the subsequent amendment of the above-quoted provision, together with the fact that the subject employee merely would be serving subpoenas rather than forming a corporation to do so, warrants reconsideration of CEO 75-128.

The present Code of Ethics 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), F. S. 1975.]

This provision prohibits a public employee from having a contractual relationship that would impede the full and faithful discharge of his public duties.

Here, the subject employee would have a contractual relationship with the person for whom he would be serving subpoenas. We are of the opinion that the rationale to CEO 75-128 applies to the question you have presented and that neither the amendment to the Code of Ethics nor the fact that the subject employee would not be forming a corporation to serve subpoenas is sufficiently material to distinguish CEO 75-128 from the present question.

Accordingly, we find that the Code of Ethics for Public Officers and Employees prohibits an investigator who is employed by the office of the public defender from engaging in the service of subpoenas during his off-duty hours.

Question 2 is answered in the negative, subject to certain conditions that are specified in this opinion and that are substantially the same as those expressed in a previous opinion to you, CEO 76-208.

The Code of Ethics, in s. 112.313(7)(a), F. S. 1975, which has been quoted above, prohibits a public employee from having an employment or contractual relationship with a business entity which is doing business with the employee's agency or that will create a continuing or frequently recurring conflict between his private interests and the performance of his public duties.

Assuming that the attorney or firm employing the investigator does not do business with the office of the Public Defender for the ____, we find no prohibited conflict of interest pursuant to the first clause of s. 112.313(7)(a). We are unable to clarify the meaning of "doing business with" without the benefit of a concrete factual situation. Therefore, we stress that if the question arises in an individual case and the investigator wishes to know whether a specific contract would result in a prohibited conflict of interest, he should request another advisory opinion from this commission.

We do perceive, however, two situations in which the investigator's private employment or contractual relationship for purposes of investigating for civil litigation, although occurring only during off-duty hours, would create a frequently recurring conflict between his private interests and the performance of his public duties. The first of these situations would occur if the investigator were to contract to investigate a matter in civil litigation which stemmed from or related in any way to criminal litigation involving a client of your office. The second situation would occur if the investigator were to be hired to investigate a matter in civil litigation from which arose criminal charges against a person who later would be represented by your office.

Accordingly, subject to the above conditions, we find that the Code of Ethics does not prohibit an investigator who is employed by the office of the public defender from contracting to conduct investigations during his off-duty hours for purposes of civil litigation.