CEO 96-16 -- August 29, 1996
CONFLICT OF INTEREST
CITY POLICE OFFICER EMPLOYED BY WORKERS COMPENSATION INSURER
To: (Name withheld at the person's request.)
SUMMARY:
No prohibited conflict of interest would be created under Section 112.313(7)(a), Florida Statutes, were a municipal police officer to conduct surveillance of workers compensation claimants for a workers compensation insurer. The insurer would not be subject to the regulation of or be doing business with the police department, the surveillance would be conducted during the officer's off-duty hours, and investigatory information needed to conduct the surveillance would be obtained via private, on-line services. CEO's 76-101, 78-29, 80-77, 91-22, and 94-35 are referenced.
QUESTION:
Would a prohibited conflict of interest be created were a municipal police officer to conduct surveillance of workers compensation claimants for a workers compensation insurer?
Under the scenario described in this opinion, your question is answered in the negative.
By your letter of inquiry and a June 10, 1996 letter from your Department's legal advisor, we are advised that . . . serves as a police officer for the City of Lakeland, currently performing routine patrol duties. Further, we are advised that the officer proposes to conduct surveillance of workers compensation claimants for a workers compensation third-party administrator (hereinafter "insurer")[[1]]. We are advised that the officer's work for the insurer would be performed while he is off-duty, would not take place within the City, and would be limited to investigation of workers compensation claims (consisting primarily of conducting surveillance of workers compensation claimants and reporting the results of the surveillance to the insurer). Further, we are advised that the officer would be prohibited from using City property (including firearms, vehicles, uniforms, badges, etc.) in the course of his secondary employment. Also, we are advised that the officer would be prohibited from using City Police Department computer systems (including FCIC/NCIC) and would be granted no greater access to Police Department records and information than a member of the general public, in performing his secondary employment. In conducting his secondary employment, we are advised, the officer would be licensed as a private investigator under Chapter 493, Florida Statutes, and neither the Police Department nor its officers investigate workers compensation claimants as part of their public duties[[2]].
Generally, we are advised, when a workers compensation insurer discovers fraud by a claimant, it stops paying benefits to the claimant and takes no further action. But in extreme cases the insurer might turn the matter over to the Department of Insurance, requesting that the Department seek prosecution by the local State Attorney (probably for theft under Section 812.014, Florida Statutes). In the unlikely event of a prosecution arising out of workers compensation fraud, we are advised, the interests of the insurer and the State's prosecutorial/law enforcement authorities would be consistent with one another, the insurer's interests being to pay benefits only to those claimants legally entitled to benefits and to deter fraudulent claims. The interests of the State's prosecutorial/law enforcement authorities, you advise, is to punish and deter criminal conduct, possibly including restitution to insurers of improperly-paid benefits.
Your legal advisor informs us that it is likely that the insurer is serving clients located within the City, but that the insurer does not do business with the City, the City utilizing a different insurer (third-party administrator).
Regarding information needed to monitor the locations and affairs of workers compensation claimants in carrying out his private work, we are advised that the officer would rely upon private, on-line computer services, from which, we are advised further, more information on claimants (including criminal histories) is available than is available through the Police Department's computers. Thus, your legal advisor states that it is his view that access to law enforcement information would not benefit or give a "competitive edge" to the officer in his private work, since he will be utilizing private, on-line services to gather his private investigatory information.
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 or she 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 or her private interests and the performance of his or her public duties, or that would impede the full and faithful discharge of his or her public duties. [Section 112.313(7)(a), Florida Statutes.]
We find that a prohibited conflict of interest would not be created under the first part of this statute were the officer to work for the insurer as set forth above because the facts as represented by you show that the insurer is not doing business with the City; nor is there any indication that the insurer is being regulated by the Police Department[[3]] or by any other entity of the City. Regulatory authority over entities such as the insurer would appear to reside in the Department of Insurance or the Division of Workers Compensation of the Department of Labor and Employment Security.
Regarding the statute's second part, we have not viewed it as prohibiting all outside employment by law enforcement officers, as we have found no conflict in a variety of situations, including CEO 76-101 (police officer running private security company), CEO 78-29 (police officer employed during off-duty hours as security director of corporation located within municipality), CEO 80-77 (FHP troopers privately teaching defensive driving courses), and CEO 94-35 (FDLE agents providing private escort services). Rather, in situations in which we have found a conflict, we have been concerned with whether the secondary employment involved investigative work, our focus being on (1) whether the law enforcement officer had access in his public capacity to information not available to the general public and (2) whether the law enforcement officer, his private employer, or other private interests associated with him would benefit from that information in their private endeavors (see CEO 94-35 and our opinions cited therein), recognizing the temptation that would exist to access the information to carry out private business or to achieve an advantage over one's private competitors.
We do not view this case as involving the same considerations as one in which a police officer seeks to do private investigative work. The work here is limited to only one employer and to only one type of case; also, the officer would be doing confidential surveillance work, rather than more general investigative work. However, in the instant situation, confidential information would exist via Police Department sources, and such information would be of use to the officer and the insurer in their private surveillance of workers compensation claimants. Therefore, the proposed employment presents a possible conflict of interest, were it not for an additional factor which you represent to us, a factor which we apparently have not considered before: the ability of the officer/insurer to access the needed investigatory information via private on-line services.
We believe that this factor sufficiently negates a temptation to access the Police Department's information because, as is represented, needed investigatory information will be obtained via a private[[4]], on-line source utilized by the officer/insurer and thus any advantage over the competition would result from private, paid, on-line access and not via public resources unavailable to competitors.
Additionally, in past opinions (see, for example CEO 84-111) we have recognized that a conflict could be created under Section 112.313(7)(a) because of the possible tension between a police officer's duty to make known to law enforcement/prosecutorial authorities information gained in his private work which relates to possible criminal activity (in the instant matter, theft or other crimes arising out of workers compensation fraud) and his duty as a licensed private investigator under Section 493.6119(1), Florida Statutes, not to release to anyone, absent a waiver from his client or employer, the contents of an investigative file acquired in the course of licensed investigative activity. Therefore, we also find that the police officer must obtain such a waiver from the insurer in order for there to be no prohibited conflict under Section 112.313(7)(a).
Accordingly, under the representations made in requesting this opinion, we find that no prohibited conflict of interest would be created[[5]] were the officer to conduct surveillance of workers compensation claimants for the insurer.
ORDERED by the State of Florida Commission on Ethics meeting in public session on August 29, 1996, and RENDERED this 3rd day of September, 1996.
______________________________
Mary Alice Phelan
Chair
[1] Your legal advisor states that it is his belief that groups of employers pool money for workers compensation purposes, creating a "fund," which the insurer then administers, in turn charging the fund a fee for its services.
[2] We are advised that the insurer deals almost exclusively with workers compensation coverage, that it is unlikely that the officer would be called upon to investigate (in his public capacity) an incident involving the insurer or one of its insureds, that the officer would have little, if any, contact with attorneys in the course of his private endeavor, and that his private work would be limited to workers compensation cases.
[3] We are of the view that the enforcement of criminal laws of general applicability does not constitute "regulation." See, for example, CEO 91-22.
[4] It might be argued that the officer still would be tempted to access the information via public, law enforcement sources in order not to incur charges for private access. However, this possibility does not change our finding of no conflict, as many items necessary for off-duty work by law enforcement personnel which are obtained from private sources would be subject to being obtained without charge (stolen) from public sources (i.e., gasoline for private vehicles obtained from police fuel sources, meals obtained via police credit cards, folders, writing pads, etc. obtained from police supply rooms), regardless of whether or not the private work was investigatory or merely involved premises or personal security.
[5] Nevertheless, we caution that any actual use of information from law enforcement sources for private purposes by the officer would be violative of Sections 112.313(8) and 112.313(6), Florida Statutes.