CEO 94-35 -- September 1, 1994

CONFLICT OF INTEREST

DEPARTMENT OF LAW ENFORCEMENT AGENTS

ENGAGING IN SECONDARY EMPLOYMENT INVOLVING

BODYGUARD AND SECURITY SERVICES

To: John P. Booth, Assistant General Counsel, Florida Department of Law Enforcement (Tallahassee)

SUMMARY:

A prohibited conflict of interest would not be created under Section 112.313(7)(a), Florida Statutes, were agents of the Florida Department of Law Enforcement to privately engage in dignitary protection (bodyguard) services, structure security, or retail security. The agents would not be involved in traditional private investigative activity in which nonpublic law enforcement information would be of private use and the agents would be no more likely than other law enforcement officers to be tempted to violate laws or policies regarding access to any nonpublic information which might be of use in escorting clients. However, any actual disclosure or use of such information for private purposes would violate Section 112.313(8), Florida Statutes, and any actual misuse of public position would violate Section 112.313(6), Florida Statutes. CEO's 94-32, 94-14, 92-48, 92-17, 91-66, 91-34, 89-2, 88-59, 83-46, 81-67, 77-79, 76-101 are referenced.

QUESTION:

Would a prohibited conflict of interest be created were special agents of the Florida Department of Law Enforcement to engage in secondary employment providing bodyguard services, structure security, and theft prevention and detection?

Your question is answered in the negative.

By your letter of inquiry, other correspondence, and your provision of other written information, we are advised that the Department desires to know whether its special agents can perform various secondary work without violating the Code of Ethics for Public Officers and Employees. The several endeavors, you advise further, would consist of security or protection services for individuals (bodyguard services), physical security for structures such as buildings or warehouses, and retail security intended to detect and prevent theft. In addition, from your correspondence it is apparent that the emphasis of your inquiry involves the bodyguard services, also known as "dignitary protection services."

You advise that the secondary employments would not involve private investigative work, in any form, by FDLE employees or by anyone associated with them in a common enterprise, and that the secondary work would be performed as an employee of a private business entity, as an independent contractor working for an individual or a business entity, or via "[a]n agent or agent's spouse forming a company, incorporated or otherwise, for the purpose of rendering such services."

Additionally, you advise that FDLE agents generally have greater and readier access to criminal investigative and intelligence information than do Florida Highway Patrol troopers or other law enforcement officers and that they are called upon, on a routine and regular basis, to access active criminal investigative and intelligence information. Your correspondence states:

By virtue of their official position, all FDLE Agents have direct, unmediated access to FDLE-generated investigative and intelligence reports. These could potentially include information gathered on any group or individual reasonably believed to have engaged in or to have the intent to engage in criminal activity, whether motivated by political, nationalistic, terroristic, racist, or other ideological fixations, as well as more traditional criminal behaviors.

By channeling the request through an analyst, and FDLE Agent can obtain information from other intelligence sources, such as the FBI, DEA, BATF, Customs, State Department, and Interpol. A telephone call by an FDLE agent to another law enforcement agency could also be expected to yield criminal intelligence from that agency's files.

Because FDLE Agents are known to investigate organized and international crime, and are charged by law with providing protection for the Governor and other officials, including visitors, [see] Section 281.20, F.S., an FDLE Agent's request for intelligence information relating to dignitary protection would not arouse suspicion. An officer whose duties did not normally extend to such concerns, such as a highway patrol trooper, would not enjoy the same ease of access.

Again, the broaching of this issue is not meant to suggest that FDLE Agents, any more than any other law enforcement officers, would compromise their reputation and endanger their career by improperly accessing nonpublic information. Rather, the Commission is asked to consider that FDLE Special Agents are in a unique position not simply to obtain intelligence which could be useful in providing personal security, but are routinely expected to gather, record, and request such information as part of their duties.

In addition, you advise that agents engaged in law enforcement-related secondary employment are encouraged to obtain liability insurance and warned of the risk to which they expose themselves if they do not, but that the Department does not require proof of such insurance coverage as a precondition to approval of secondary employment. We note that the Department's dual employment policy (FDLE Directive 9.20) allows for the use of certain State equipment during secondary employment, including issued and approved firearms, and excludes private investigative services (other than dignitary protection) from acceptable types of secondary employment.

Additional information supplied by you to our staff states:

For purposes of responding to emergencies, all law enforcement officers may be said to be "on duty" at all times. However, treating a law enforcement officer as on-duty in contemplation of law when he or she responds to a sudden, unexpected contingency (e.g., enters a convenience store and discovers a robbery in progress), should be distinguished from the agency's managerial decision to recall an officer to duty when he or she is off-duty. In the latter situation, the officer is expected to immediately discontinue all off-duty activities and report to a different location for a particular assignment. Unlike uniformed agencies, such as sheriff's offices and police departments, FDLE does not work round-the-clock shifts, with officers on duty (i.e., in uniform) at all times. Should FDLE have need of its Agents after hours (i.e., evenings, nights, early mornings), a 'call out' is the only way FDLE can 'muster its troops.'

Section 112.313(7)(a), Florida Statutes, is the provision of the Code of Ethics for Public Officers and Employees that is most relevant to your inquiry. It provides:

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.

The first clause of this provision does not bear on your inquiry as your scenario does not indicate that the agents would hold secondary employment with business entities or agencies which are subject to the regulation of or are doing business with the Department. Generally, we have found that law enforcement does not constitute "regulation" for the purposes of Section 112.313(7)(a). See, for example, CEO 81-67.

The statute's second clause would prohibit secondary employment if the private endeavor is one that will create a continuing or frequently recurring conflict between an agent's private interests and the performance of his public duties or that would impede the full and faithful discharge of his public duties. Recognizing, as you also do, that at least some of the issues raised in your inquiry are "complex and somewhat elusive," possible prohibited conflicts under your scenario would appear to us to be identifiable as follows: first, an agent's possible temptation to obtain nonpublic information via his public position in order to benefit himself, his business, his employer, or his clients; secondly, an agent's possible temptation (due to his private interests) to disregard his public duty to promptly report for assignment pursuant to a "call out;" and thirdly, an agent's possible temptation to conduct himself during and in relation to incidents occurring while he is engaged in secondary employment such that his actions would later be deemed by courts or other reviewing authorities to constitute actions taken in his capacity as a law enforcement officer rather than as actions taken in a private capacity, in order to protect his private interests for purposes of tort or personal injury law.

The first concern, temptation to obtain nonpublic information for private use, traditionally has been of concern to us, as is apparent from our previous consideration of it. See, for example, CEO 94-32, CEO 91-66, CEO 91-34, CEO 89-2, CEO 88-59, and CEO 83-46. That concern primarily is grounded in two factors -- the access a public employee has to such information and the private use, if any, he or other private interests associated with him would have for the information. You state in your correspondence that FDLE agents have easy and ready access to law enforcement or nonpublic information, including intelligence and interagency information that may not be available, or not as readily available, to other law enforcement officers. Under our precedent, we have found a prohibited conflict based upon temptation to obtain nonpublic information only in situations in which the secondary employment involved services which were traditionally investigative in nature (i.e., civil process service, missing persons), as opposed to situations in which security services were conducted under an investigative label. Therefore, we find that the FDLE agents' secondary employments as to structure and retail security are not sufficiently distinguishable from the facts of our previous opinions such that a prohibited conflict would be present based upon a temptation to access nonpublic information triggered by a private use or need for such information. See, for example, CEO 76-101 (police officer running private security company) and CEO 77-79 (police officer working off-duty hours as security guard).

Additionally, since the agents would not be engaged in traditional investigative activities, we find that the agents' employment in bodyguard services would not create a prohibited conflict based upon their temptation to obtain nonpublic information in order to assist themselves, their businesses, their employers, and/or their clients. Knowledge of the whereabouts, identities, appearances, tactics, motivations, etc. of various criminals or would-be perpetrators could privately benefit the bodyguard businesses, their workers, and their clients by aiding in the actual performance of the personal security function and by possibly giving the businesses utilizing FDLE agents an advantage over security businesses not utilizing FDLE agents. In addition, such a situation could lead to reluctance among law enforcement agencies to share information with FDLE agents out of fear that the information might be going to private use, thus impeding the public function of the agents, and might create in the mind of the public and fellow law enforcement officers the perception that the agents were using their public positions for private gain and advantage. However, the same could be said of any situation wherein law enforcement officers provide bodyguard services and have access, direct or indirect, to nonpublic information. Further, the FDLE agents' access to more sophisticated or wide-ranging information due to the Department's interaction with a variety of Federal and international law enforcement agencies would appear to be of limited private use unless the agents' clients actually are diplomats, officials, or dignitaries subject to possible terrorist or unusual threats, as opposed to being vacationers or others exposed to usual threats to their persons. We find that your situation is not materially distinguishable from that of the FHP troopers in CEO 94-14. In that very recent opinion, we found that a prohibited conflict would not be created were the troopers to provide dignitary protection services.

Further, we do not find that the agents' secondary employments, including the bodyguard services, would be conflicting based upon a concern that they might be tempted not to promptly respond when formally called to duty. The temptation to be tardy or to deal with private clients, their safety, or convenience would seem to be present in many, if not all, instances in which law enforcement officers are formally asked to report for duty by their superiors or are by circumstances (i.e., coming upon a robbery or other crime in progress while performing private work) called to the performance of their public duties.

In addition, we do not find that a prohibited conflict would exist based upon the concern that the agents might be tempted to conduct themselves, either during an incident while secondarily employed or during a civil trial or other post-incident proceedings, in a manner that disregards their public duties in favor of their private interests. As you point out in your correspondence, the issue of whether a secondarily-employed law enforcement officer is acting within the scope of his public employment for purposes of tort or personal injury matters is a complicated question, many times turning on specific facts and individual jury verdicts. Obviously, unlike a court, it is not within our jurisdiction to make substantive pronouncements regarding the civil law applicable in this State. However, ethically speaking, we are not persuaded that an FDLE agent, any more than any other law enforcement officer, would be tempted to forsake proper actions during the course of an incident or color the facts to his private benefit regarding a possible, hypothetical tort case. See, for example, CEO 92-17, where we found that a Marine Patrol officer would not be tempted to disregard fishing laws and other marine laws in order to satisfy the recreational appetites of his charter boat customers and CEO 92-48 where we found that DOT motor carrier compliance officers would not be tempted to ignore traffic infractions of road construction firms for whom they worked privately.

However, please be advised that any actual disclosure or use by the agents of nonpublic law enforcement information for private purposes would violate Section 112.313(8), Florida Statutes, and any actual misuse of public position by the agents would violate Section 112.313(6), Florida Statutes.

Your question is answered accordingly.