Neither of the parties submitted proposed findings of fact and conclusions of law. References to the transcript of the hearing are denoted by the letter "T" followed by the page number(s); references to the Advocate's exhibits are made as "AE", followed by the exhibit number and page number, if applicable.

FINDINGS OF FACT

From the evidence presented at the hearing, the undersigned Hearing Officer finds as follows:

1. At all times material to this complaint the Respondent, Steven Rubino, served as a Deputy Sheriff for the Broward County Sheriff's Department. T 10.

2. The Respondent was charged by sworn complaint with the violation of Section 112.313(7), Florida Statutes, by Samuel Price, legal counsel for the Sheriff of Broward County. T 10-11.

3. The Executive Director of the Commission on Ethics determined that the complaint was legally sufficient. The Commission, after preliminary investigation, entered an order finding there was probable cause to believe the Respondent, as a Deputy Sheriff for the Broward County Sheriff's Department, violated Section 112.313(7)(a), Florida Statutes, by holding a private investigator's license and associating himself with a corporation which was formed to conduct private investigations. T 11.

4. In January of 1989, the Respondent transferred $7,500 to Martin Woodside for the purpose of starting an investigative business which would primarily operate in Broward and Dade Counties. T 11. The Respondent and Martin Woodside were and are best friends. T 11, 40, 62.

5. On January 27, 1989, the Respondent signed the articles of incorporation of this new investigative business, which was named Woodside, Rubino and Associates, Inc. T 11-12. The Respondent was listed as the registered agent, one of two directors, and one of the two incorporators. T 12; AE 4.

6. On February 28, 1989, the Respondent applied for a private investigator's license issued by the Florida Department of State. T 12. He received that private investigator's license on May 9, 1989. T 12; AE 3. The Respondent stated that he sought this license because at the time he was contemplating leaving the Sheriff's Department and wanted the option of doing private investigative work, whether with Woodside or with another private agency. T 45.

7. Mr. Woodside intended Woodside, Rubino and Associates, Inc. to do business under the name of Southeast Investigative Services. T 12; 64. However, when he found out that the name would not be protected, he filed papers for a new corporation under that name. T 12; 64.

8. On April 20, 1989, the articles of incorporation of Southeast Investigative Services, Inc. were signed by Martin Woodside and the Respondent. T 12. The Respondent again was listed as the registered agent, one of two directors, and one of the incorporators. T 12; AE 5. Woodside, Rubino and Associates was dissolved later. T 12; 65.

9. On May 22, 1989, at the suggestion of Captain Richard Barrett of the Sheriff's Department, the Respondent filed with the Sheriff's Department an outside employment request. T 12, 41-42; AE 2. The name of the outside employer was listed as Southeast Investigative Services. T 12-13; AE 2. The Respondent attached an explanatory note to this request, which provided:

It should be noted that my only participation in this company is that of a minor shareholder and figurehead only. All work will be conducted by my partner and major shareholder. At no time will I become directly or indirectly involved in any of the business end of the company. [Emphasis in original.] T 13; AE 2.

10. On May 25, 1989, the Respondent's request for outside employment was denied. T 13, AE 2.

11. Subsequently, after suggestions from Department representatives that he get his name off of the corporate papers, the Respondent had his name removed from the corporate documents; this apparently was accomplished, except insofar as he was listed as registered agent. T 34-35, 43, 56-57, 65. Later, when Woodside sent in the annual report for the corporation, he substituted his name for the Respondent's as registered agent. T 65.

12. After having his name removed from the corporate records, the Respondent sought legal advice about protecting his interests, and a promissory note was created. T 43-44. The August 25, 1989 note from Martin Woodside to the Respondent reflects a principal amount of $7,500, with interest at the rate of 10% per annum, and is due no later than August 24, 1992. AE 1.

13. The Respondent stated that he associated himself with Woodside, Rubino and Associates, Inc. and later with Southeast Investigative Services in order to protect his financial interest. T 13, 40. According to Mr. Woodside and the Respondent, the $7,500 was a loan to Mr. Woodside as start-up capital for the investigative business. T 11, 55-56, 62.

14. Although the Respondent and Woodside testified that the $7,500 simply was a loan, the preponderance of the evidence indicates that the Respondent had a financial interest in the nature of a minority shareholder in the two corporations and that this was more than simply a debtor/creditor relationship, for the following reasons. First, the Respondent was listed as an incorporator of both entities. AE 4, AE 5. Secondly, the Respondent's name was part of the original name of the corporation (Woodside, Rubino & Associates, Inc.), which must have been intended to indicate to others outside the corporation that the Respondent was a principal in the business. Southeast Investigative Services, Inc. was formed, not to remove the Respondent's name from the business, but instead to enable the investigative business to operate under that name. T 56-57, 64-65. Thirdly, the Respondent represented himself as a "minor shareholder" on the outside employment form (AE 2), and testified that he understood that a shareholder is, "Someone that's involved in the corporation." T 54. Finally, both the Respondent and Woodside testified that the Respondent's name was on the corporate papers to protect his financial interest by allowing the Respondent to have some control and be able to get back his money in the event that something happened to Woodside, such as bankruptcy, disappearance, or death. T 40-41, 57-58, 62-64. Similarly, the Respondent testified, he was designated as registered agent in order to keep him advised if Woodside were sued, filed bankruptcy, etc. T 44. The fact that both wanted the Respondent to have some degree of control indicates an intent that the Respondent have a greater interest in the affairs of the corporations than that of a creditor.

15. Neither the Respondent nor Woodside were issued shares of stock. T 67. The Respondent testified that he didn't get any profits and Woodside testified that the Respondent didn't buy an interest in the company to share in the profits. T 55-56, 62. The Respondent argues from this testimony that he had no ownership interest in the corporations. However, under the circumstances, this may only indicate that they didn't expect any profits to be made in the near future or intend for any dividends to be declared.

16. There is no evidence that Respondent conducted any private investigative services or in any way was involved in the operations of either of the two private corporations for which he was listed as an officer during the first half of 1989. T 13.

17. The Respondent, as a Deputy Sheriff, had access to confidential criminal investigative information during the period of time he was associated in the above-described manner with the two corporations. T 13, 30. In addition, it was possible that, as a Deputy Sheriff, the Respondent could have used his influence as a law enforcement officer to go to another agency and receive from that agency information not available to the general public. T 30. However, there was no evidence that the Respondent used his position to secure confidential information for the benefit of Woodside or the corporations. T 31-32; 38-39; 44.

APPLICABLE STATUTES

Section 112.313(7)(a), Florida Statutes, provides as follows:

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, 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 private interests and the performance of his public duties or that would impede the full and faithful discharge of his public duties.

CONCLUSIONS OF LAW

Based on the foregoing findings of fact, the undersigned Hearing Officer recommends that the Commission on Ethics make the following conclusions of law:

1. The Respondent, Steven Rubino, in his capacity as Deputy Sheriff for the Broward County Sheriff's Department, was subject to the provisions of the Code of Ethics for Public Officers and Employees, Part III, Chapter 112, Florida Statutes. The Respondent is subject to the continuing jurisdiction of the State of Florida Commission on Ethics.

2. Section 112.313(7)(a), Florida Statues, prohibits a public officer or employee from having or holding any employment or contractual relationship that creates a continuing or frequently recurring conflict between his private interests and the performance of his public duties or that impedes the full and faithful discharge of his public duties.

3. In Zerweck v. State Commission on Ethics, 409 So. 2d 57 (Fla. 4th DCA 1982), a case involving the employment of a city mayor, the Court stated 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.' [Id., at p. 61.]

4. The Commission on Ethics previously has concluded that simply holding a professional or occupational license from the State does not constitute an employment or contractual relationship that could form the basis of a conflict of interest prohibited by Section 112.313(7)(a). See CEO 80-16 (real estate license). Therefore, the Respondent was not prohibited by Section 112.313(7)(a) from holding his license from the Department of State as a private investigator.

5. Commission opinion CEO 83-46 involved a municipal police officer who wished to work as a private investigator for a private attorney in civil and criminal cases outside of the municipality. The officer had access to almost all information concerning criminal complaints and investigations conducted by the Police Department and, because of his position with the Department, had contacts within the law enforcement community through whom it was reasonable to believe he could obtain confidential information by merely requesting it. Based on these factors, the Commission concluded that Section 112.313(7)(a), Florida Statutes, prohibited the police officer from accepting employment as an investigator for the attorney, as that employment would create a frequently recurring conflict of interest and would impede the full and faithful discharge of public duties.

6. In CEO 89-43, the Commission found that these same factors led to the conclusion that Section 112.313(7)(a) prohibited a Deputy Sheriff from becoming self-employed as a private investigator while continuing his employment with the Sheriff's Office. In that opinion, the Commission found that the dual employment proposed could place the Deputy in a situation which "tempts dishonor," sufficient to create a prohibited conflict of interest.

7. Similar considerations led to the conclusion in CEO 88-59 and CEO 90-1 that an arson investigator for a city fire department should not operate a private fire investigation service that would seek to determine the cause and origin of fires occurring in areas outside of the city or that would provide consultation and expert witness services regarding the causes and origins of fires outside of the city.

8. The present situation lies midway between these precedents. On the one hand, the Respondent did more than simply acquire a private investigative license, but on the other hand there was no evidence that he actively engaged in private investigative activities or was involved in the activities of the corporations. Rather, the Respondent's association with the two corporations took the form of having a financial interest in the nature of a minority shareholder. Further, the Respondent's testimony indicated that he wanted the option of possibly doing private investigative work with Woodside.

9. The question presented is whether the Respondent's public position as a Deputy Sheriff and his financial interest in the private investigative entities are compatible, separate and distinct, or whether they coincide to create a situation which "tempts dishonor." As a Deputy Sheriff, he had access to confidential criminal investigative information and it was possible that he could have used his influence as a law enforcement officer to receive from another law enforcement agency information not available to the general public. With respect to his private association with the investigative entities, under the circumstances presented, the Respondent clearly had an interest in the success of the private investigative work of the corporations. These are the same areas of conflict that led the Commission to conclude in CEO 89-43 that a deputy sheriff should not engage in business as a private investigator.

10. The issue here is not whether the Respondent in fact misused his public position to benefit the private investigative corporations with which he was associated. As found above, there is no evidence that he did so. Rather, the issue is whether any individual in the Respondent's situation has placed himself in a position where his private interests are not compatible, separate and distinct from his public duties, but rather coincide to create a situation which "tempts dishonor."

11. Accordingly, it is found that the Respondent violated Section 112.313(7)(a), Florida Statutes.

RECOMMENDED PENALTY

Having concluded that the Respondent has violated the Code of Ethics for Public Officers and Employees, it is necessary to consider an appropriate penalty for the violation. The Respondent has ended his financial interest in the one corporation that remains. It does not appear that he benefited financially from his association with the corporations, so restitution would not be appropriate.

The Respondent understood that actively working as a private investigator would be prohibited, but that simply holding a private investigative license was permissible. In fairness to him, it must be noted that this is the first time that the Commission on Ethics has considered the question of whether or what involvement with a private investigative firm, short of actually engaging in investigative work, would be prohibited. Therefore, under the circumstances presented, it is recommended that the Respondent be given a reprimand.

RECOMMENDED FINAL ACTION

Based upon the foregoing findings of fact and conclusions of law, the undersigned Hearing Officer recommends that the Commission on Ethics enter a final order and public report finding that the Respondent, Steven Rubino, has violated Section 112.313(7)(a), Florida Statutes, and recommending that he be reprimanded.

ENTERED and respectfully submitted this _____ day of December, 1990.

__________________________

John L. Kalajian

Hearing Officer and Member

Commission on Ethics

Copies furnished to:

Mr. Anthony J. Alfero,

Attorney for Respondent

Mr. Craig B. Willis,

Commission Advocate

INTRODUCTION

FINDINGS OF FACT

APPLICABLE STATUTES

RECOMMENDED PENALTY

RECOMMENDED FINAL ACTION