OPINION NUMBER - 025

ADOPTED - 1979/01/15

SUBJECT - Conflict of Interest: A full-time employee of the University of Nebraska serving as a member of the Nebraska Power Review Board

REQUESTED BY: Gary Gustafson, Executive Secretary, Nebraska Power Review Board.

QUESTION: May a person who is a member of the Nebraska Power Review Board continue to serve in such capacity since being employed by the University of Nebraska as its General Counsel?

CONCLUSION

Yes.

ANALYSIS

The Nebraska Power Review Board is a statutory agency created by the Legislature to regulate certain aspects of public power in Nebraska.

The Nebraska Power Review Board is assigned the duty of creating service areas, approving certain generation and transmission facilities, regulating certain areas of wheeling electrical energy over transmission lines, and the settlement of disputes between various utilities and in some instances between the utilities and their customers.

Membership on the Nebraska Power Review Board is by appointment by the Governor and confirmation by the Legislature. Whenever engaged in activities for the Nebraska Power Review Board, the members receive $60.00 per diem plus their expenses. Under the Nebraska Statutes, the board is made up of an accountant, an engineer, an attorney, and two lay members.

Recently, the attorney member of the Nebraska Power Review Board was employed by the University of Nebraska as its General Counsel. As such he is a full-time employee of the University of Nebraska.

We find no prohibition to such member remaining as a member of the Power Review Board or as General Counsel for the University of Nebraska similar to Nebraska Const. Art. IV Sec. 2, which provides that none of the appointive officers mentioned in (Art. IV of the Constitution) shall be eligible to any other state office during the period for which they have been appointed, or to Section 81-108, R.R.S. 1943, which provides that each head of one of the departments for the civil administration of the laws of the state vested in the governor, except when such head of a department is a board or commission, and each appointee in each department shall (1) devote his entire time to the duties of his office and (2) hold no other office or position of profit. Officers of the University of Nebraska are not state officers, and the General Counsel of the University of Nebraska is not the head of an executive department. See Neemann v. Nebraska Natural Resources Commission, 191 Neb. 672, 676 (1974) and State ex rel. Howard v. Marsh, 146 Neb. 750 (1946).

Further, we find no prohibition in the by-laws of the Board of Regents to the employees of the University being otherwise employed by or holding positions as officials of the State of Nebraska.

The by-laws of the Board of Regents do provide, however, in Section 3.4.5, that staff members employed by the University shall be encouraged to engage in professional activities outside the University as a means of broadening their experience and keeping them abreast of the latest developments in their specialized fields; provided such activities do not interfere with their regular duties at the University or represent a conflict of interest. Section 3.4.5 goes on to provide that specific approval of the Board of Regents is required before members of the full-time professional staff may provide professional services for remuneration to departments or agencies of state government.

The situation here is not a case of the attorney member of the Nebraska Power Review Board functioning as legal counsel to the Power Review Board nor the General Counsel of the University giving legal advise to the Power Review Board. We are therefore not dealing with the professional services of a member of the full-time staff of the University. Under these circumstances as well as under constitutional and statutory provisions, we can say, as far as Section 49-14,104(4) is concerned, that there is certainly no prohibition to the funds of the Nebraska Power Review Board being used to pay one of its members his per diem, which member also happens to be the General Counsel of the University of Nebraska.

Section 49-14,101(4) provides that no public official or public employee may use personnel, resources, property or funds under that individual's official care and control other than in accordance with prescribed constitutional, statutory and regulatory procedures. We have dealt with this concept before and our basic concern has been and is that funds not be expended if there is a specific prohibition regardless of whether or not there is a specific authorization other than the general appropriation of funds for the particular expenditure involved--in this case, payment of per diem to Power Review Board members.

Under these circumstances, the matter would be clear and complete as far as section 49-14,104(4) is concerned, if the matter of its General Counsel continuing as a member of the Nebraska Power Review Board were called to its attention, if the same has not already been done, and the Board of Regents adopted a resolution approving his being a member of the Power Review Board for the remuneration provided by law, or in any case did not adopt a resolution prohibiting him from serving as a member of the Power Review Board and being paid therefore.

The mere fact of being a public official of one agency of the State of Nebraska and being employed by another does not in and of itself constitute a conflict of interest pursuant to the provisions of the Nebraska Political Accountability and Disclosure Act. Pursuant to 49-1499, a conflict of interest exists only when the official or the employee must take a governmental action which will result in financial benefit to him, a member of his immediate family, or a business with which he is associated, in which case he must disclose the same and either abstain from acting thereon or otherwise be guided by the advice of the Nebraska Accountability and Disclosure Commission.