To: Ms. Elizabeth T. McBride, Assistant City Attorney, City of West Palm Beach

SUMMARY:

A prohibited conflict of interest would be created under Section 112.313(7), Florida Statutes, were a city police officer responsible for accident and fatality investigations to accept outside employment providing accident reconstruction and consultation services to attorneys and insurance companies. Because of the police officer's access to confidential department information, such private employment would present a continuing or frequently recurring conflict of interest or would impede the full and faithful discharge of his public duties. CEO 83-46 is referenced.

QUESTION:

Would a prohibited conflict of interest be created were a municipal police officer responsible for accident and fatality investigations to accept outside employment providing accident reconstruction and consultation services to attorneys and insurance companies?

Your question is answered in the affirmative, under the circumstances presented.

In your letter of inquiry you advise that Louis Berry is employed as a Police Officer by the City of West Palm Beach Police Department. In this position he primarily is responsible for accident and traffic fatality investigations. You further advise that he is seeking outside employment providing accident reconstruction and consultation services to attorneys and insurance companies. He proposes to limit his accident reconstruction services to civil actions. Also, he does not intend to provide services relating to any actions filed against the City or the Police Department, or perform accident reconstruction on cases investigated by the Police Department or where another law enforcement agency is the defendant.

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).]

Under this provision a public officer or employee is prohibited from having any employment or contractual relationship which would present a continuing or frequently recurring conflict of interest or which would impede the full and faithful discharge of his public duties. We are of the opinion that this provision would be violated by the subject Officer's proposed employment, notwithstanding the limitations he has placed upon his work.

For the purposes of the Code of Ethics, a "conflict of interest" is defined to mean "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. Based upon this definition, the court in Zerweck v. State Commission on Ethics, 409 So. 2d 57 (Fla. 4th DCA 1982), held that Section 112.313(7)(a)

establishes an objective standard which requires an examination of the nature and extent of the public officer's duties together with a review of his private employment to determine whether the two are compatible, separate and distinct or whether they coincide to create a situation which 'tempts dishonor.'

Our concern, therefore, is with whether the interests of a public officer's or employee's private employer and the nature of his private responsibilities could coincide with his public duties to "tempt dishonor," rather than with whether an officer or employee, through self-imposed limitations, could avoid succumbing to the temptation of using public resources for private benefit, thereby disregarding his public duties and the public interest.

We previously found a prohibited conflict of interest where a municipal police officer sought to be employed by an attorney to conduct civil and criminal investigations outside the city. See CEO 83-46. In that situation there was a possibility that the attorney would handle cases in which the police department would be involved, as well as cases involving the City. We based our decision on the fact that the police officer had access to confidential department information, and could obtain otherwise confidential information from various police agencies simply by personally requesting it due to his contacts within the law enforcement community. We noted that our view of the situation was based upon the sensitivity of the judicial and law enforcement processes and the high degree of trust and respect which people place in these institutions, rather than upon a judgment of the officer's personal integrity.

Here, the Police Officer's private clientele may be providing legal services or insurance coverage to clients within the City, in which case any confidential information within his possession may be of interest to them. Also, investigations undertaken by the Officer in his public capacity may be influenced by the fact of a private client's involvement. We also note that the possibility that a police officer's access to confidential information in his department or through contacts with other law enforcement agencies could be used to the benefit of a private client gives the appearance of impropriety and the appearance that the police officer has an advantage over his private competitors by virtue of his public position.

We are of the opinion that occasional instances of outside employment of this type, under certain circumstances, might not result in a prohibited conflict of interest. There would be no conflict, for example, if the Officer worked only on cases from outside the State. However, we are unable to advise whether a particular employment would result in a prohibited conflict in the absence of specific information concerning that employer, the nature and extent of the employer's interests and relationships, and the exact nature of the services to be provided to that employer. Therefore, a decision as to whether a particular private employment would be prohibited by the Code of Ethics must be made on a case-by-case basis.

Accordingly, under the circumstances presented, as a general matter we find that a prohibited conflict of interest would exist were the subject Police Officer to accept outside employment providing accident reconstruction and consultation services to attorneys and insurance companies.