OPINION NUMBER - 052

ADOPTED - 1982/09/07

SUBJECT

REQUESTED BY: Lloyd W. Kilmer, 682 South 84th Street, Omaha, NE 68114

ANALYSIS

Dear Mr. Kilmer:

This letter is in response to your letter of August 18, 1982 to Ms. Dannie Trautwein, Political Accountability Commission, for an opinion concerning whether you as a public official have a prohibited conflict of interest under the circumstances spelled out in that letter and the following additional facts:

That you will not receive a brokerage fee or commission for selling Mortgage Finance Fund bonds to the Investment Council. That you may receive a fee from the Fund for getting lending institutions to commit to use the proceeds from the sale of the bonds. That the lending institutions will pay commitment fees to the Mortgage Finance Fund, out of which the Mortgage Finance Fund could pay you, which would not be determined until the whole of the transaction were agreed upon.

Under these circumstances, so long as no governmental action is taken or required of you in your capacity as chairman or member of the Nebraska Public Employees Retirement Board, you need not file a disclosure of a potential conflict pursuant to Section 49-1499, and you would not be in violation of Section 49-14,101(3) and (4) pertaining to use of government office for personal gain or use of government funds other than in accordance with law.

If your appearances before the Fund or the Investment Council involved your representing another, such as a lending institution or institutions or a home builder or builders or even the Nebraska Mortgage Finance Fund itself, in the case of your appearance before the Investment Council, and you are compensated by the entity you represent in making such an appearance, a violation of Section 49-14,104 would be involved.

Section 49-14,104 provides that an "official . . . of the executive branch of state government shall not represent a person . . . for compensation before a governmental body when the action . . . of the governmental body is of a nonministerial nature, . . ." Pursuant to Section 49-1436, you are an official in the executive branch of state government by reason of being a member of a state board or commission.

As we understand the situation at this time, you have not and will not represent another before the Fund or the Investment Council, and compensation, if any, is neither fixed nor contingent, but depends upon services yet to be rendered and an agreement for compensation yet to be negotiated. Under these circumstances, there would be no violation of Section 49-14,104 by reason of your appearances before the Investment Council or the Fund.

A resolution was adopted by the Commission on August 27th to the effect that so long as the Nebraska Mortgage Finance Fund was not a governmental entity and that any fee received is from funds paid by the lending institutions to the Nebraska Mortgage Finance Fund, you would not be in violation of the Accountability Act.

The Fund is a governmental body or entity although not a state agency. State ex rel. Douglas V. Nebraska Mortgage Finance Fund, 204 Neb. 445, at page 454. This situation, however, would not prohibit your appearances if your compensation, if any, is for services unrelated to your appearances and not out of the proceeds of the sale of the bonds.