OPINION NUMBER - 057

ADOPTED - 1983/06/17

SUBJECT - Requirements to file Statements of Financial Interests - Members and employees of the Nebraska Investment Finance Authority

REQUESTED BY: Patricia Schuett Peterson, Kutak, Rock & Huie The Omaha Building, 1650 Farnam Street, Omaha, Nebraska 68102

QUESTION: Whether the members and employees of the Nebraska Investment

Finance Authority are required to file Statements of Financial Interests?

CONCLUSION

No.

ANALYSIS

The Nebraska Investment Finance Authority is created by LB 626, which will become effective August 26, 1983. Pursuant to the provisions of LB 626, the Nebraska Investment Finance Authority will be the successor to the Nebraska Mortgage Finance Fund, the Nebraska Agricultural Development Corporation and the Nebraska Development Finance Fund. Those three Funds will be dissolved and all of their rights and duties, on the effective date of the Act, will belong to the Nebraska Investment Finance Authority.

Section 26 of the Act defines the Authority as "a body politic and corporate, not a state agency, but an independent instrumentality exercising essential public functions." The Authority is created to assist in the financing of the certain residential, agricultural, industrial/manufacturing/commercial and health-care projects.

The Authority will have nine members, including the Director of Economic Development, the Chairperson of the Nebraska Investment Council and the Director of Agriculture ex officio.

Section 39 of the bill specifically provides that the Authority may sue and be sued in its own name. And, section 55 provides that the bonds issued by the Authority shall not constitute a debt, liability or general obligation of the state or a pledge of the faith and credit of the state.

Section 35 provides that members and employees of the Authority must disclose interests in transactions with the Authority and upon such disclosure must not participate in any action by the Authority authorizing such a transaction similar to Section 49-1499 and Section 49-14,101 (3) of the Accountability Act.

The issues to be resolved by this advisory opinion, as they were in Advisory Opinion #29 with respect the members and employees of the Nebraska Mortgage Finance Fund, are whether the members of the Authority are subject to the provisions of Section 49-1493, subdivision (7), which requires a member of a board or commission of the state or any county which examines or licenses a business, trade or profession, or which determines rates or otherwise regulates a business to file a Statement of Financial Interest, or subdivision (11), formerly subdivision (10), of Section 49-1493, which requires such a filing from an official or employee of the state designated by rules and regulations of the Commission, who is responsible for taking or recommending official action of a nonministerial nature with regard to certain powers.

Subdivision (7) refers to a member of any board or commission of the state, and subdivision (11) refers to an official or employee of the state.

Section 26 of LB 626 (Laws, 1983) states that the Authority is not a state agency, but an independent instrumentality. It is not a board or commission of the state. See State ex rel. Douglas v. NMFF, 204 Neb. 445. Therefore, its members, except the ex officio members who are required to file Statements of Financial Interests by reason of the other state offices they hold, are not members of a board or commission of the state required to file Statements of Financial Interests by reason of the provisions of subdivision (7) of Section 49-1493.

As far as subdivision (11) of Section 49-1493 (LB 214, Laws 1983) is concerned, Commission Rule 2, last amended in October, 1979, obviously does not include the members of the Authority nor its employees as officials or employees of the state. Unless Rule 2 is further amended, after hearing, to specify that the members and employees of the Authority are required to file Statements of Financial Interest, there is no obligation to do so under this subdivision of Section 49-1493. This opinion does not purport to determine whether the Authority's members and employees are officials and employees of the state who could be designated by rule to file Statements of Financial Interests pursuant to subdivision (11), formerly subdivision (10), of Section 49-1493.