To: Ms. Alyce J. Parmer, Chief, Bureau of Human Resource Services, Department of Environmental Protection (Tallahassee)
SUMMARY:
A continuing or frequently recurring conflict of interest or an impediment to the full and faithful discharge of public duty exists under Section 112.313(7)(a), Florida Statutes, where a Marine Patrol officer works for a business that operates a marina, general store, and recreational vehicle park. The officer's public duty to check patrons of the business for fishing licenses, boat registrations, and compliance with fishing and other laws and regulations coincides with the private interests of the business and its patrons to create a situation which tempts dishonor. CEO's 92-48, 92-17, 91-22, 88-76, 85-1, and 83-61
QUESTION:
By your letter of inquiry, materials accompanying the letter, and telephone conversations between our staff and personnel of your office, we are advised that Paul Davis (hereinafter "the officer") serves as an officer of the Florida Marine Patrol. According to your materials, "[the officer] lives and works in a relatively remote area of Walton County" and his patrols start from his home, which is located at the intersection of Black Creek and County Road (highway) 394. In addition, you advise that the officer fits within the Department's organizational structure as follows:
In addition, the officer is engaged in the operation of a business (a marina/general store/rv park) which is located at his home, on Black Creek.
. . . the business is located on a parcel of property owned by my parents, in which we all live on. [sic] The business is owned by my family and leases the portion of the property that it uses from my parents.
I believe the [r].[v]. [p]ark is self explanatory in it's function. The [m]arina operates and includes the repair of boats and motors on and off premises, the sale of new and used boats and motors, and a boat launch in fresh water. We are now in the process of trying to obtain the proper equipment and permits to pump fuel over fresh water into recreation vessels as a part of our [m]arina services. The [b]oat [r]entals include the renting of small fishing boats and canoes for the sole use [sic] in fresh water. The [g]eneral [s]tore includes a small convenience store with a variety of groceries and drinks, bait (crickets and worms) and tackle, all hunting and fishing licenses, tobacco products, homemade crafts, and antiques.
Basically, my job duties include the upkeep and maintenance of the grounds and equipment, repair of boats and motors, and the rigging of new boats for sale. I am the employer and not the employee of this business.
Further, you advise that Marine Patrol officers have general law enforcement powers, that they enforce various laws, including laws relating to waterborne recreation and boating safety, and that their jurisdiction includes salt, brackish, and fresh waters.
The Department closely regulates and inspects boat rental operations for compliance with [Chapter] 327[,] F.S.
The Department of Environmental Protection Titling and Registrations records [sic] indicate that [the officer] is the applicant for several commercial registrations on rental boats. He has stated he handles the livery and rental of the boats to the public. It is our belief that a conflict exists wherein he would be enforcing laws against himself or the people to whom he is renting. It is possible he would be responsible for search and rescue of his own property.
The Department issues, inspects, regulates and enforces statutes, rules and regulations regarding bait, licenses, fuel and pollution. Law enforcement officers are State enforcement agents and charged with enforcing all resource and license violations, wherever they occur. [The officer] admits his business sells fishing licenses. As a law enforcement officer he is charged with enforcement of the law regulating the sale of license[s]. The Department permits or regulates the sale of bait and fuel[,] which again would be a direct conflict. The operation of a marina that dispenses fuel is subject to permitting, investigation of spills enforcement and cleanup actions.
The Department has established off-duty policies that regulate off-duty employment, specifically the type of employment and number of hours that may be worked in any one week.
[The officer] lives and works in a relatively remote area of Walton County. His patrol starts at his home, which is the business site, at the intersection of Black Creek and County Road 394. This location is within a boat idle speed zone. This translates to the potential requirement of enforcing the law around his own place of business. His routine patrol area includes the Choctawhatchee River up to the Highway 20 bridge at the town of Ebro. At this point the area and its tributaries are entirely fresh water. The situation of [the officer] engaged in the marina business places him in direct competition with other persons that he routinely inspects, regulates and enforces laws against.
In addition, via telephone, personnel of your office stated that the officer has an affirmative duty as part of his public employment to check persons fishing and boating in Black Creek and the Choctawhatchee River in and around the business for fishing licenses, compliance with boat registration/numbering laws, and compliance with other laws and regulations.
Also, by telephone, personnel of your office advise that the Department and the business recently entered into a settlement concerning alleged unpermitted alterations of the area in and around the business.
The first part of this statute would prohibit the officer's holding employment or a contractual relationship with the business if it is subject to the regulation of or is doing business with the officer's public agency. The facts supplied to us by you do not indicate that the business is doing business with the Bureau of Marine Patrol or with any other agency of the Department. In addition, it does not appear that the officer's agency (the Bureau of Marine Patrol) is "regulating" the business. Any such regulation (such as dock permitting and application for and issuance of vessel registrations) is handled by Departmental divisions or bureaus separate and distinct from the officer's agency. The Code of Ethics defines "agency"
We have adhered to the view that a public employee's agency is the lowest level in a department or governmental organization in which the employee functions. See, for example, CEO 83-61 and CEO 92-48. In the officer's situation, his agency would be the Bureau of Marine Patrol and not other bureaus of the Department which handle dock permitting, dredge and fill permitting, vessel titling/registration or other matters. Further, while the officer certainly is engaging in patrolling, checking licenses, checking for illegal dredging and filling, etc., we have considered such activities to constitute law enforcement rather than regulation. See, for example, CEO 92-48, 92-17, and 91-22
However, an examination of the officer's situation under the first clause of Section 112.313(7)(a) does not end our inquiry.
CEO 88-76 and CEO 85-1 are our precedent which are most analogous to the officer's situation. In those opinions, we found that a prohibited conflict of interest would be created under the second clause of Section 112.313(7)(a) were officers of the Florida Game and Fresh Water Fish Commission (GFC) to work privately providing security for hunting clubs whose lands they had a duty to patrol in their public capacities, noting and reasoning that "wildlife officers do not act solely in response to apparent violations of the wildlife laws, but have an affirmative duty to check for permits, licenses, and violations of the wildlife laws on the part of those encountered while on duty," that "an officer's private employment under those circumstances impeded the full and faithful discharge of his public duties, as regard for his continuing employment and his employer's interests would tend to lead to disregard of his duty to check for compliance with game laws and to arrest for violations," and that "where an on-duty wildlife officer is required to patrol land owned by his employer, the officer would have an affirmative duty to check his employer and his employer's guests and associates to ensure that they had the appropriate permits and licenses and otherwise were in compliance with the game laws."
Similarly, the officer here patrols the area in and around the business and has an affirmative duty to check fishermen, boaters, and other users of the waterways (including those obtaining goods or services from his business) for appropriate licenses, boat registrations, and compliance with fishing and boating laws and regulations.
CEO 92-17 (marine patrol officer owning and operating charter boat) is distinguishable from the officer's situation and from the GFC opinions discussed above. In CEO 92-17
However, even though the exact nature of the officer's private employment or contractual relationship with the business cannot be determined from your materials, it appears from the totality of the circumstances presented that he is not merely a volunteer or one who is gratuitously and occasionally assisting his parents with their business endeavors.
ORDERED by the State of Florida Commission on Ethics meeting in public session on January 26, 1995, and RENDERED
Chairman