OPINION NUMBER - 016

ADOPTED - 1978/07/12

SUBJECT - Conflict of Interest; County Board contracting with an employee of the county for services outside the scope of his duties as an employee of the county assessor.

REQUESTED BY: Willard Weinhold, Dawson County Attorney

QUESTION

1. Whether the employment of a county employee for additional services is a "contract" as contemplated by section 49-14,102, R.S.Supp., 1976 requiring the same to be awarded through an open and public process which includes prior public notice and subsequent availability for public inspection during the regular office hours of the contracting governmental body of the proposals considered and the contract awarded?

2. If it is considered to be such a contract may the individual highway projects for which such employee would make appraisals be considered as separate contracts in determining whether he has entered into a contract valued at $2,000 or more in any one year?

CONCLUSION

We are advised that in the construction of a highway which involves federal cost sharing, the County Board is required to appoint a qualified appraiser to appraise any land involved in right-of-way acquisition. The former and desired future practice of the county is to appoint a person on the county assessor's staff who is qualified appraiser. The appraising is done on a fee basis and outside of normal office hours with the appraiser receiving additional compensation. The compensation would not normally exceed $2,000 for any individual project, but could exceed $2,000 if several projects are done within one year.

Such a contract with the employee of the county assessor would not be subject to the provisions of section 49-14,102 by reason of the provisions of section 49-14,103(2) which provides that section 49-14,102 shall not apply to a contract for labor which is negotiated or is being negotiated pursuant to the laws of this state.

ANALYSIS

With respect to the foregoing language referring to a contract for labor which is negotiated or being negotiated pursuant to the laws of this state, the Commission notes the provisions of section 23-324.03 and 23-324.05, R.R.S., 1943, which specifically provide that competitive bidding shall not be required in purchasing unique or non-competitive articles or in the contracting for professional services, and takes the position that the words "contract for labor" include both contracts of employment as well as contracts with an independent contractor for personal services.

Section 49-14,102 provides that no public official or public employee shall enter into a contract valued at $2,000 or more, in any one year, with a governmental body unless the contract is awarded through an open and public process which includes prior public notice and subsequent availability for public inspection during the regular office hours of the contracting governmental body of the proposals considered and the contract awarded. It further provides that no contract may be divided for the purpose of evading the requirements of this section.

Section 49-14,102 provides that section 49-14,102 shall not apply to a contract for labor which is negotiated or being negotiated pursuant to the laws of this state.

Section 49-14,101(3) provides that no public employee shall use that person's public office or any confidental information received through the holding of a public office to obtain financial gain, other than compensation provided by law. And, subsection (4) thereof provides that no public employee shall use personnel, resources, property, or funds under that individual's official care and control, other than in accordance with the prescribed constitutional, statutory and regulatory procedures or use such items other than compensation provided by law for personal financial gain.

In view of the foregoing provisions, if the employment or independent contract to be entered into by the county and the county assessor's employee will be performed without the use of county personnel, property, or equipment, unless authorized by the county board, there would be no prohibition as far as the Nebraska Political Accountability and Disclosure Act is concerned to the entering into of such a contract on a fee basis regardless of the amount.

See Opinions of the Attorney General, 1957-1958, No. 11, as to when a person is not a county officer subject to the provisions of section 23-146, R.R.S., 1943, which provides that "no county officer shall in any manner, either directly or indirectly, be pecuniarily interested in or receive the benefit 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 in any one year, and no contract may be divided for the purpose of evading the requirements of this section."

See Opinion No. 69 of the Attorney General issued April 8, 1977 construing section 23-1114.08, R.R.S., 1943, which provides that when the same person occupies more than one "office" in the county, he shall receive only one minimum annual salary, to the effect that this section has reference only to those particular elected county officers whose salaries are specifically fixed in Chapter 13, Article 10, of the statutes and in those situations where one person by statute ex officio holds more than one such office.

See sections 23-104 and 23-105, R.R.S., 1943, as to the power of the county board to provide for the use of county property.

See section 23-117, R.R.S., 1943, as to the power of the county board to require clerks or assistants of any county officer to serve or assist without additional pay in any other county office than to which they were appointed whenever the county board may deem it advisable and expedient for the efficient and economical affairs of the county.