OPINION NUMBER - 008

ADOPTED - 1978/02/13

SUBJECT - Conflict of Interest

REQUESTED BY: Robert H. Conner, Saline County Attorney

QUESTION: Must a county commissioner, engaged in a business that has transactions with other firms, which may have contracts with the county, disclose those firms with which he does business in his Statement of Financial Interests or in Statements of Potential Conflict of Interests?

CONCLUSIONS:

1. Such other firms need not be disclosed in the Statement of Financial Interests of the county commissioner.

2. Potential conflicts of interest may have to be disclosed under certain circumstances.

ANALYSIS

1. In the county commissioner's Statement of Financial Interests, the names of the firms with which he does business need not be disclosed if he is not a proprietor, partner, director, officer or employee thereof or he or a member of his immediate family is not a stockholder in any such firm. See sections 49-1407, 49-1408, 49-1425, and 49-1496(2)(a).

Section 49-1496(2)(b) requires the disclosure of the name, address and nature of business of any person from whom any income of $1000 or more was received during the preceding year and the nature of the services rendered. It also provides that if income results from employment by, operation of or participation in a proprietorship or partnership . . . or business. . . or other person, the proprietorship or partnership . . . or business . . . or other person, must be disclosed as the source of such income but not the patrons or customers of such proprietorship, partnership or business.

2. Pursuant to the provisions of section 49-1499, if the commissioner knows that he will have, or already has, a contract with a firm, which is about to have a contract awarded to it by the county, he may be required to take an action such as voting on the awarding of the contract that would provide him, a member of his immediate family or a business with which he is associated financial benefits of more than a de minimus nature which are distinguishable from the benefits to the public or a broad segment of the public. In such a case he should file a Statement of Potential Conflict of Interest with the Commission as soon as he is aware of such circumstances.

Purusant to subdivision (2) of section 49-1499, the commissioner is not prevented from making or participating in the making of a governmental decision to the extent that his participation is legally required for the action or decision to be made, but in such event the commissioner is required to report the occurrence to the Nebraska Accountability and Disclosure Commission.

Since the commissioner does not have an immediate superior, he is required to take such steps as the Nebraska Accountability and Disclosure Commission shall prescribe or advise to remove himself from influence over actions and decisions on the matter. The prescribed advice of the Commission in such situations is as follows:

a. The commissioner may be counted if necessary to constitute a quorum of the board.

b. The commissioner should abstain from voting to award a contract to such a firm if he, a member of his immediate family or a business with which he is associated already has a contractual relationship with such firm or he knows that there will be such a contractual relationship and should disclose for the minutes of the county board meeting that he is abstaining from voting by reason of a potential conflict of interest including an explanation thereof, which may be accomplished by filing a copy of NADC Form C-2 with the county clerk or otherwise at the meeting of the county board. Such form should also be filed as soon as possible with the Commission.

c. If the vote of the commissioner is required in order for the contract to be awarded, a similar disclosure of that fact should be made for the minutes of the board meeting, and the commissioner should file NADC Form C-2 with the Nebraska Accountability and Disclosure Commission disclosing that he voted under such circumstances.

Notwithstanding the foregoing, section 23-146 R.S.Supp., 1976, provides that no county officer shall in any manner, either directly or indirectly be pecuniarily interested in or receive the benefits of any contracts executed by the county for the furnishing of supplies or any other purpose when the consideration of the same is in an amount in excess of $5,000.00 in any one year. However, see Opinions of the Attorney General 1969-1970, No. 63, which construes the dollar limitation of section 23-146 as having reference to the amount of pecuniary interest of the county board member or any business with which it is associated rather than the consideration set forth in the contract between the county and the firm having the direct contractual agreement with the county.