OPINION NUMBER - 042

ADOPTED - 1981/04/15

SUBJECT - Conflict of Interest; Statement of Financial Interests

REQUESTED BY: Herbert J. Duis, Commissioner, Nebraska Liquor Control Commission, P.O. Box 95046, State Capitol, Lincoln, Nebraska 68509

QUESTION: 1) May a public official assign the use of his name for consideration to a person who will solicit business in such name from, among others, persons licensed by the Board or Commission of which such public official is a member, without being in violation of the Nebraska Political Accountability and Disclosure Act? 2) What are the required disclosures in connection with such a transaction?

CONCLUSION

1) Yes, if the consideration for the assignment is not contingent upon sales to licensees of his Commission.

2) If the consideration to the public official constituted income of $1,000 or more during the preceeding calendar year, disclosure of the name and address and nature of the business of the payor and the nature of the services rendered would be required in the public official's next annual Statement of Financial Interests.

FACTS

In the request for advisory opinion, it is stated that four years ago the public official and his wife sold their stock in a corporation known as Duis & Company and presently have no ownership in any form in this corporation.

The present owner of this corporation has in turn sold a portion of the business to an individual who wishes to use the name "Duis Insurance Agency" as his trade name. The public official has no objection to the utilization of this name, but he is interested in learning whether his wife and he together, or his wife, might be compensated by this individual for the use of this name given the fact that he is a Nebraska Liquor Control Commissioner and this insurance agency will no doubt conduct business with individuals licensed by the Liquor Commission.

We are further informed that Duis has been licensed as an insurance agent for many years and has engaged in insurance transactions in the Gothenburg area in connection with his real estate business.

ANALYSIS

Section 49-14,101(3) provides that no public official shall use his public office . . . to obtain financial gain, other than compensation provided by law, for himself or herself, a member of his or her immediate family, or a business with which the individual is associated.

It appears that there is a business value to the name other than to influence the sale of insurance to licensees of the Liquor Commission. And, even if the name were to influence the sale of insurance to some licensees, a violation of section 49-14,101(3) would not be involved unless the Liquor Commissioner were to use the power or authority of his office to obtain the financial gain envisioned by such a transaction. Unless the consideration to be paid to him were contingent upon sales to such licensees, particularly sales of bonds required as a condition of licensing, such power or authority would not be involved. We therefore conclude that if the consideration for the assignment were not contingent upon sales to Liquor Commission licensees, the transaction would not violate the Accountability Act.

This advisory opinion pertains only to the rights and duties of the public official requesting the same under the Nebraska Political Accountability and Disclosure Act as applied to the specific factual situation set forth in his request. It does not constitute advice with respect to the Nebraska Liquor Control Act or other legal matters.