CEO 98-10 -- May 28, 1998

CONFLICT OF INTEREST

CITY POLICE DEPARTMENT COMMANDER EMPLOYED PART-TIME

AS DIRECTOR OF SECURITY FOR PRIVATE COLLEGE

LOCATED WITHIN THE CITY

To: Name Withheld At Person=s Request (Daytona Beach)

SUMMARY:

In view of a private college=s employment of City police officers in an Aoutside detail@ capacity during a number of College-sponsored sporting and special events for which the College reimburses the City its costs, including the cost of salaries which are paid by the City, a violation of the first part of Section 112.313(7)(a), Florida Statutes, would be created by the College=s employment of the Commander of the City Police Department=s Criminal Investigation Division as Director of Security for the college which is located within the jurisdiction of the Police Department. The Commander would have an employment or contractual relationship with a business entity which is doing business with his agency.

Furthermore, as a result of the inevitable interactions between the College and the Police Department due to crimes, accidents, and special events both on and off campus, the security and other practices and or polices of the College will come under the scrutiny of the Police Department, thereby also creating a continuing or frequently recurring conflict between the Commander=s private interests and the performance of his public duties or an impediment to the full and faithful discharge of his public duties in violation of the second part of Section 112.313(7)(a), Florida Statutes.

As one of the top managers in the Police Department, the Commander cannot avoid these conflicts if he also is employed part-time as the Director of Security for the College.

QUESTION:

Would a prohibited conflict of interest be created were a City Police Department Commander to accept outside employment as Director of Security for a college located in the City?

Your question is answered in the affirmative.

In your letter of inquiry, you ask whether a prohibited conflict of interest would be created if the Commander of the Criminal Investigation Division (Detective Bureau) of the Daytona Beach Police Department, W. J. Anderson (hereinafter referred to as ACommander@), were to accept outside employment as Director of Security for Bethune-Cookman College in Daytona Beach. You advise that the Commander, who is a certified law enforcement officer under Chapter 493, Florida Statutes, has been offered employment as Director of Security for the private College. Although public streets, which are patrolled by Daytona Beach police, run through the campus, the City does not regulate any aspect of College government, College student life, or the College itself, you write.

You advise that the Commander of the Criminal Investigation Division is the administrator of the Adetective@ aspect of criminal law enforcement in the Police Department. His division handles investigation of crimes occurring in the City, including conducting follow-up investigations of some arrests by the Patrol Division and initiating investigations where warranted in such areas as narcotics, thefts, homicide, robbery, sex crimes, and other serious offenses. According to the written description of duties of a Police Commander provided by you to our staff, included within the Commander=s duties and responsibilities are the following:

C Planning, directing, and exercising supervision over the work of the entire division under his charge;

C Directing the work of subordinate supervisors and their subordinates by monitoring subordinate supervisors, and establishing and evaluating goals and objectives;

C Studying performance records through field observations, examination of complaints and issues for the purpose of evaluating effectiveness of police operations;

C Identifying operational and administrative deficiencies and unilaterally implementing change or submitting written or oral recommendations commensurate with a Police captains=s authority; and

C Representing the department at various community meetings, functioning as liaison between the community and the Police Department.

You also advise that Bethune-Cookman College maintains a private security force of approximately 30 persons--the Director of Security, uniformed security officers, telecommunicators, a secretary, and a courier. The security personnel, we are advised, concentrate on safety and security of campus property, students, and employees, and enforce Ahouse@ rules. We also are advised that the College=s Safety and Security Department is organized into five main areas: uniform patrol, parking control, communications, access control, and administrative investigations. Campus security has no arrest powers and does not conduct criminal investigations, you write. If a crime occurs on campus, a law enforcement authority (usually the City Police Department) is summoned.

Among the written duties and responsibilities that the College has listed for the Director of Security are the following:

C Directing the planning and implementation of all aspects of the campus security program;

C Overseeing the administration and enforcement of campus parking and traffic, and coordinating campus transportation;

C Maintaining responsibility for security, traffic, and crowd control for special events on-campus;

C Maintaining responsibility for the education of the campus community in matters of crime prevention;

C Supervising the staff of the Safety and Security Department and maintaining responsibility for developing and training Department staff;

C Meeting weekly and coordinating activities with the Vice President for Student Affairs and other college officials; and

C Maintaining responsibility for the management and enforcement of campus rules and regulations.

You advise that the City Police Department investigates crimes that occur on the campus, and responds to and handles calls for service on the campus. In response to questions by our staff, you advised that in 1996, there were 45 reported crimes on campus--27 were Part One type crimes, that is, crimes that fall within the following categories: murder, sex crimes, burglary, auto theft, arson, armed robbery, and aggravated assault, and 18 were Part Two type crimes, that is, all other crimes not in the Part One categories. In 1997, you advise, 44 crimes were reported on campus--31 were Part One type crimes and 13 were Part Two type crimes. The City Police Department also provides traffic enforcement and investigates traffic accidents that occur on and around the campus.

You relate that students and employees of the College have been victims of, and suspects in, criminal offenses that occurred in the City this year. The College also has been the victim of crimes during the past twelve months. The City=s Police Department was the primary law enforcement agency responsible for investigating all of these incidents, you advise.

We also are advised that during any given year, the College hosts a number of sporting and other special events. The college employs City police officers in an Aoutside detail@ capacity during these events, that is, police officers who work in uniform are paid by the City; however, the College reimburses the costs of the Aoutside detail@ to the City. During these events, the officers receive instructions and directions from the Director of Security or his staff, you advise.

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, excluding those organizations and their officers who, when acting in their official capacity, enter into or negotiate a collective bargaining contract with the state or any municipality, county, or other political subdivision of the state; 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.]

The first part of this provision prohibits the Commander from having an employment or contractual relationship with a business entity, such as the College, which is regulated by or is doing business with the Police Department, his agency.

Basing our reasoning on the fact that any other result would prohibit all law enforcement officers from having any outside employment with any person or business, we repeatedly have stated that law enforcement agencies do not Aregulate@ persons or businesses by virtue of their duty to enforce the criminal laws of the State, which are generally applicable to everyone. See CEO 79-81 and CEO 87-58. Therefore, if the Commander became Director of Security for Bethune-Cookman College, we find that he would not have an employment or contractual relationship with a business entity or an agency which is regulated by his agency, the Police Department. However, in view of the College=s employment of Daytona Beach Police Officers in an Aoutside detail@ capacity during a number of sporting and other special events for which the College reimburses the City its costs, including the cost of salaries which are paid by the City, he would have an employment or contractual relationship with a business entity which is doing business with his agency in violation of the first part of Section 112.313(7)(a).

We acknowledged in CEO 94-14 that the Legislature through its enactment of Section 30.2905, Florida Statutes, authorized a sheriff to operate or administer a program to contract for the employment of sheriff=s deputies during off-duty hours, for public or private security services. The Legislature apparently took this step with respect to sheriffs= offices, rather than with, for example, Florida Highway Patrol Officers, because Florida Highway Patrol Officers and, we presume, city police officers, as well, are entitled to collective bargaining agreements, whereas deputy sheriffs ordinarily are not. Consequently, constitutional and statutory provisions concerning collective bargaining agreements provide the basis for the administration of private security programs by such law enforcement officers. See CEO 94-14.

We also are of the view that Section 112.316, Florida Statutes, ordinarily would apply to negate any conflict under the first part of Section 112.313(7)(a), with respect to most law enforcement officers in non-command positions providing security services during their off-duty hours. Section 112.316, Florida Statutes, provides as follows:

CONSTRUCTION.--It is not the intent of this part, nor shall it be construed, to prevent any officer or employee of a state agency, or county, city or other political subdivision of the state or any legislator or legislative employee from accepting other employment or following any pursuit which does not interfere with the full and faithful discharge by such officer, employee, legislator, or legislative employee of his duties to the state or the county city, or other political subdivision of the state involved.

This provision requires that the Code of Ethics not be interpreted to preclude private employment which does not interfere with the full and faithful discharge of a public employee's duties. See CEO 92-30 and CEO 86-30.

In CEO 93-26, we observed that because one of the central purposes of Section 112.313(7)(a) is to prohibit those situations in which a public officer or employee obtains preferential treatment from, or awards public business to, a business with which he or she is associated, we consistently have interpreted Section 112.316 to apply to situations in which an employee is not in a position to give advice or recommendations regarding any business transacted between his or her agency and business entity. In CEO 83-92, for example, we applied Section 112.316 to find that outside employment by a State employee with a private entity doing business with his agency was permissible where the employee=s responsibilities had no involvement with the private entity. Typically, other than carrying out his or her normal law enforcement duties, including enforcement of law and investigation of crimes committed on campus, a Daytona Beach City Police Officer would have no other involvement with the College. However, the same cannot be said of the Commander. Thus, we do not find that Section 112.316, Florida Statutes, would apply to his situation.

The second part of Section 112.313(7)(a) also prohibits the Commander from having an employment or contractual relationship which creates a continuing or frequently recurring conflict between his private interests and the performance of his public duties, or which impedes the full and faithful discharge of his public duties. We are of the opinion that this provision also would be violated by the Commander=s working as Director of Security for the College.

For purposes of the Code of Ethics, a Aconflict of interest@ is defined to mean Aa situation in which regard for a private interest tends to lead to disregard of a public duty or interest. Section 112.312(8), Florida Statutes. Based on 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) Aestablishes an objective standard which requires an examination of the nature and extent of the public officer's [or employee=s] duties together with a review of his [or her] private employment to determine whether the two are compatible, separate and distinct or whether they coincide to create a situation which 'tempts dishonor.'" Therefore, we need to determine whether the Commander=s interests and his private responsibilities, as Director of Security for the College, could coincide with his public duties, as Commander of the Criminal Investigation Division of the Police Department, to "tempt dishonor," rather than with whether, through self-imposed limitations, he could avoid succumbing to the temptation of using his position for private benefit and thereby disregarding his public duties and the public interest. See CEO 98-1, CEO 92-30, and CEO 91-34.

We have not viewed the second part of Section 112.313(7)(a) as prohibiting all outside employment by law enforcement officer. As we noted in CEO 96-16, 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 a community), 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 information to carry out private business or to achieve an advantage over one=s private competitors.

Here, we find that regardless of the Commander=s agreement not to use his official position to gain confidential information not otherwise available to the College for the benefit of the College, he still has the same access to such criminal intelligence information that concerned us in the above-cited opinions and was the basis of our finding conflicts. Such information, as you noted, may relate to criminal investigations involving students, faculty members, or staff of the College or it may include confidential information concerning individuals or businesses that interact or do business with the College. Due to the College=s strict code of conduct for students, information available to the Commander may also be valuable to the College in its administrative investigations, which the Director of Security and/or his Campus Security Department may be involved in, or in disciplining students who fail to meet the requirements of the code.

Alternatively, as Director of Security, the Commander may have access to confidential information regarding students and/or student activity, i.e., drug use, which may not be in the College=s interests to be made known by the Police Department for its investigative or criminal intelligence gathering purposes or to be disseminated by the Police Department to inquiring students= parents or to inquiring prospective students= parents. The Commander might find himself in a situation of having to testify, as a Police Commander, in a proceeding against the College regarding the adequacy of security measures taken by the College or the adequacy of its security officers= handling of and preliminary investigation of crimes or crime scenes before the Police Department arrived.

Furthermore, as Commander of Criminal Investigation Division, the Commander is in a position to determine the amount of limited Police Department resources that will be devoted to investigating criminal activity occurring on campus against a student or the College itself, as opposed to resources devoted to investigations required elsewhere in the City. He also, according to the College=s written description of the duties and responsibilities of the Director of Security, is responsible for security, traffic, and crowd control at special events sponsored by the College and for coordinating the employment of police officers in an outside detail. These are times where the interests of the City in traffic and crowd control and the promotion of special events and the College=s interests may not be identical. Yet, the Commander as Director of Security would be in the conflicting position of having to coordinate and direct the Aoutside detail@ of police officers in a way that furthers the College=s interests.

We are concerned here, as we were in CEO 93-31 with respect to the employment of a county department of public safety battalion chief as chief of operations of a private ambulance company, with possible conflicts between the Commander=s public responsibilities of scheduling and assigning personnel in order to provide adequate coverage for the Police Department=s investigations, etc., and his responsibility to the College to assure that adequate coverage is maintained. We also are concerned that the Commander=s supervisory, disciplinary, and investigatory responsibilities, as well as his responsibilities to participate in the evaluation of supervisors and police officers, may be influenced or compromised by his responsibilities to the College and the supervisors= and police officers= interaction with the College. Further, we are concerned that the Commander=s responsibilities to the College, as Director of Security, might overshadow his responsibilities, as Commander of the Criminal Investigation Division, to assure that unbiased investigations of criminal activity and accidents occurring on campus are undertaken and to function as liaison between the community, including the College, and the Police Department.

The most analogous case we have dealt with is In re: Philip Lee Sullivan, Complaint No. 94-71, Final Order No. COE 96-05, wherein we found that the private security and risk management services provided by a city=s police chief to private clients located within the jurisdiction of the police department and his performance of background checks coincided with his duties, as chief of police, to create a situation which tempted dishonor contrary to Section 112.313(7)(a), Florida Statutes. We found that the services that he provided to businesses created a continuing or frequently recurring conflict with his public duties due to the nature of the business conducted by his clients and the great likelihood of interactions between the businesses and the police department, whereby inevitably, due to a crime or accident, the security practices of the businesses would come under the scrutiny of the police department. Similarly, as we have suggested above, due to the inevitable interactions between the College and the Police Department, due to crimes, accidents, and special events both on and off campus, the security and other practices and policies of the College will come under the scrutiny of the Police Department. As one of the top managers in the Police Department, the Commander cannot avoid these conflicts if he also is employed part-time as the Director of Security for the College.

We do not mean to imply by this opinion that the Commander intentionally would misuse his public position or the resources within his trust. However, as in our past opinions, we find that his employment as Director of Security for the College could place him in a situation which "tempts dishonor," and such a situation is sufficient to create a prohibited conflict of interest within the intent of Section 112.313(7)(a), Florida Statutes.

Accordingly, we find that the Commander=s proposed employment as Director of Security for Bethune-Cookman College 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.

ORDERED by the State of Florida Commission on Ethics meeting in public session on May 28, 1998 and RENDERED this 2nd day of June, 1998.

__________________________

Kathy Chinoy

Chair