CEO 88-76 -- December 1, 1988

CONFLICT OF INTEREST

GAME AND FRESH WATER FISH COMMISSION WILDLIFE OFFICERS

PROVIDING SECURITY SERVICES

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

SUMMARY:

A prohibited conflict of interest would be created under Section 112.313(7)(a), Florida Statutes, were state wildlife officers to accept outside employment providing security services to private landowners and hunting clubs. Such private employment would present a continuing or frequently recurring conflict with the wildlife officer's public duties. CEO's 81-67 and 85-1 are referenced.

QUESTION:

Would a prohibited conflict of interest be created were wildlife officers with the Game and Fresh Water Fish Commission to accept outside employment providing security services for private landowners and hunting clubs on property within their areas of assignment as law enforcement officers?

Your question is answered in the affirmative.

In your letter of inquiry you advise that .... and .... are Wildlife Officers for the Game and Fresh Water Fish Commission. As Wildlife Officers, they are authorized to patrol both public and private property and to arrest for the violation of any law. They are responsible for the enforcement of all State, federal, and local laws relating to the protection of the environment and ecology of the land and fresh waters of the State as well as providing an element of general police protection for citizens and landowners of rural areas where city police, deputy sheriffs, and troopers rarely visit.

You question whether a prohibited conflict of interest would be created were these employees to accept outside employment providing security services for private landowners or hunting clubs on property within their areas of assignment as law enforcement officers. In these positions, they primarily would be responsible for securing property against trespassers and preventing vandalism. If they found a violation of any law, they would be authorized to enforce that law, as they have the power to arrest while off-duty.

In a previous advisory opinion, CEO 85-1, we advised that a prohibited conflict of interest would be created were a wildlife officer to accept outside employment involving security patrol and wildlife law enforcement for a private landowner where the land to be patrolled was within the area to which he was assigned as an officer, and where the land was used for hunting by the landowner, his guests, or associates. There, we considered the fact 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. We opined 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.

You indicate that in recent years the Game and Fresh Water Fish Commission has changed its supervisory structure and has experienced an expansion in overall responsibilities. Previously, Commission wildlife officers were supervised by one individual. These officers now receive additional supervision as they are supervised by a sergeant as well as a lieutenant. The legal adviser for the Commission's Division of Law Enforcement advised in a telephone conversation with our staff that generally an officer is assigned to a particular county, while each sergeant and lieutenant is responsible for the supervision of several counties. Budgetary restraints and restrictions pertaining to the overtime provisions of the Fair Labor Standards Act imposed by the United States Supreme Court in Garcia v. San Antonio Metropolitan Transit Authority, 105 S.Ct. 1005 (1985), have limited the number of Commission officers and the hours these officers can work for the agency. The result is that officers are no longer on call 24-hours a day and that staffing is such that at any particular time officers may not be on duty within numerous counties throughout the State. Officers often must travel into other areas to respond to complaints and to assist other officers. They have no particular allegiance to, or territorial hold on, a particular county, and their statewide jurisdiction and complete police powers call for them to act in many situations and in many different areas.

Also, you advise that as public and private landowners are experiencing encroachment on their land by trespassers, litterers, vandals, and marijuana growers, the demand of these landowners for law enforcement in rural areas has increased out of concern for their property and the protection of wildlife. You believe that this increased concern for the land and resources on the part of landowners reduces the possibility that the Wildlife Officers' proposed outside employment would present a continuing or frequently recurring conflict of interest or would impede the full and faithful discharge of their public duties.

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 (1987).]

This provision prohibits a public officer or employee from having an employment or contractual relationship with a business entity which is subject to the regulation of or doing business with his agency, or that would create a continuing or frequently recurring conflict between his private interests and the performance of his public duties or would impede the full and faithful discharge of his public duties. We previously have advised that we do not consider law enforcement officers to be involved in regulatory activity within the contemplation of Section 112.313(7)(a) when they engage in enforcing criminal laws. See CEO 81-67. Also, it does not appear that a landowner or hunting club which employs a wildlife officer would be considered to be doing business with the Commission.

However, we remain of the opinion that outside employment of this type would present a continuing or frequently recurring conflict of interest or would impede the full and faithful discharge of the subject Wildlife Officers' public duties. The Code of Ethics defines a "conflict of interest" as "a situation in which regard for a private interest tends to lead to disregard of a public duty or interest". Section 112.312(6), Florida Statutes. As was the case in CEO 85-1, in an instance where an on-duty wildlife officer is required to patrol land owned by his private 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. While you state that the majority of hunting violations are perpetrated by persons who are trespassers, we recognize that for the most part any particular property would be used for hunting by the private landowners, hunting club members, and their guests and associates. We therefore conclude, as before, that a wildlife officer's public duties and his private employment under these circumstances are not compatible, separate, and distinct, but rather coincide to create a situation which "tempts dishonor." See Zerweck v. State Commission on Ethics, 409 So. 2d 57 (Fla. 4th DCA 1982). We also note that an officer's regard for his continuing private employment and his employer's interests could be even more significant at the present time, considering the restrictions placed on overtime work for his public employer.

In reaching this conclusion we do not intend to imply that an officer may not have any outside employment which is related to law enforcement, for example, as a security guard at a retail store. That type of employment differs from the employment under consideration here because he would not have the same affirmative duty to check his employer on a continuing basis to ensure his compliance with the rules and regulations of his agency.

Accordingly, we find that a prohibited conflict of interest would be created were the subject Wildlife Officers to be privately employed by private landowners and hunting clubs to provide security services.