OPINION NUMBER - 063

ADOPTED - 1984/03/16

SUBJECT - Conflicts of Interest; public official as a paid private lobbyist.

REQUESTED BY: Gary Goldberg, Rural Route 1, Box 229, Kearney, NE 68847

QUESTION: May a member of the Nebraska Gasohol Committee be a compensated lobbyist for a firm that is not subject to the powers and duties of said Committee?

CONCLUSION

Yes, so long as such lobbying is not related to his public office.

FACTS

The person requesting the advisory opinion is a member of the Nebraska Gasohol Committee. He expects to be hired as a paid lobbyist for a firm that, according to the request, has nothing to do with the Gasohol Committee. He further states that such lobbying will in no way benefit or be detrimental to the Committee or anyone associated with the Committee. He does not set forth facts as to the nature of the lobbying he would do.

ANALYSIS

Section 49-14,104 provides that "An official or full-time employee of the executive branch of state government shall not represent a person or act as an expert witness for compensation before a governmental body when the action or non-action of the governmental body is of a nonministerial nature, except in a matter of public record in a court of law, but this prohibition shall not apply to an official or employee acting in an official capacity." Section 49-1424 defines a government body to include a . . . committee, . . . legislative body, or other agency in the legislative branch of state government. Section 49-1433 defines lobbying as the practice of promoting or opposing for another person the introduction or enactment of legislation or resolutions before the Legislature or the committees or the members thereof and executive approval of legislation or resolutions. A lobbyist is a person who is authorized to lobby for a principal. Section 49-1434 (2). A principal is a person who authorizes a lobbyist to lobby in its behalf. Section 49-1434(1).

Section 49-1436 defines an official in the executive branch of state government to include a member of any state board or commission.

Section 66-468 provides for the establishment of the Nebraska Gasohol Committee, which consists of seven members appointed by the Governor subject to confirmation by the Legislature. It is required to meet at least once annually. Section 66-469. Its duty is to administer the Agricultural Alcohol Tax Fund pursuant to Section 66-467, which provides for how the fund is to be used.

In our opinion the Nebraska Gasohol Committee is a state board or commission, a member of the Nebraska Gasohol Committee is an official in the executive branch of state government, and a paid lobbyist is one who represents a person for compensation before a governmental body.

The remaining issue in this case is whether a public official who is not a full-time public official and who as a matter of public policy is expected to have private pursuits other than his or her public office is prohibited from representing another for pay before a governmental body on matters unrelated to his or her public office. Note that a part-time public employee is not so restricted. And, since the words used are "official or full-time employee," it may be inferred that the officials referred to are full-time. In addition, it may well be a denial of equal protection and due process to apply Section 49-14,104 to a public official who serves on a per diem or similar part-time basis as a member of a state board or commission from lobbying for compensation on matters not related to his public office. See Redman v. Carter, 247 NW2d 268 (Iowa, 1976). See also Crowley Firemen v. Crowley, 280 So.2d 897 (La.,1973) and the National Municipal League's Model State Conflict of Interest Financial Disclosure Law, Section 11 (b) through (e) and Section 12(a) with commentaries.

Section 49-1403 provides that unless the context of the Accountability Act otherwise requires, the definitions found in the Accountability Act shall be used. As indicated above, the definition of official in the executive branch of state government includes a member of a state board or commission. However, in view of the public policy considerations involved, the inference that the officials referred to in Section 49-14,104 are full-time and the constitutional issue involved, we believe that Section 49-14,104 was not intended to apply to a part-time member of a state board or commission and that the context of the Act requires that the definition found in Section 49-1436 not be used.

We, therefore, hold that a member of the Nebraska Gasohol Committee may be a compensated lobbyist for a firm having no relationship to the powers and duties of said Committee so long as such lobbying is not related to his public office.