OPINION NUMBER - 065

ADOPTED - 1984/04/20

SUBJECT - Conflicts of interests; potential conflict of a public official engaging in a business performing services which may be similar or related to his powers and duties as a public official.

REQUESTED BY: The Honorable James E. Pappas, State Senator, State Capitol Lincoln, Nebraska 68509

QUESTION: May a state senator engage in a business which does research and consulting with respect to legislative matters, political campaigns and which employs a lobbyist for the benefit of its subscribers or patrons?

CONCLUSION

See analysis.

FACTS

The request for advisory opinion states that the Senator intends to engage in rendering advisory and consulting services on a fee basis and specifies that his conduct of the business would be limited to a time when the Legislature was not in session. The business would mail newsletters, do mailing lists for small associations, do research and consulting in legislative and legal matters, financial and organizational consulting and advise political campaigns. He goes on to state that there may be times when the business would hire a lobbyist for its patrons or subscribers.

ANALYSIS

This opinion pertains solely to the application of the Nebraska Political Accountability and Disclosure Act to the circumstances as set forth above. It does not purport to advise with respect to matters which may require various forms of business or professional licensing.

The Nebraska Political Accountability and Disclosure Act does not prohibit a public official from engaging in a commercial enterprise. However, section 49-1499 does require certain public officials, including a state legislator, to file Statements of Potential Conflict when they are about to take a governmental action which would cause a financial benefit or detriment to themselves, a member of their immediate families or businesses with which they are associated. In the case of government officials other than state legislators, the Commission has the power to prescribe and advise the steps they must take to remove themselves from influence over governmental actions and decisions on such matters. In the case of a state legislator, nothing in section 49-1499 shall be construed to prohibit a senator from voting, deliberating, or taking other action on any matter that comes before the Legislature.

However, section 49-14,101 does prohibit public officials, including state senators, from taking government action if the government action they take or agree to take amounts to soliciting or accepting a bribe (section 49-14,101(2)), using their public offices, including confidential information received through the holding of a public office, to obtain financial gain for themselves, members of their immediate families or businesses with which they are associated (section 49-14,101(3)), and using government personnel, resources, property or funds under their care and control other than for a governmental purpose or pursuant to law (section 49-14,101(4)).

In other words, even though there is no prohibition to engaging in a commercial enterprise, there are certain situations in which the taking of a governmental action which would affect such enterprise is required to be disclosed or prohibited.

The request for advisory opinion is very sketchy and does not give details as to the conduct of the business in question. Publishing a newsletter based upon information which is otherwise public record in and of itself would not be prohibited. However, using government personnel, resources and property in order to do so is prohibited. Section 49-14,101 (4).

As to doing research and consulting on legislative matters, if the business performs any service which the senator otherwise performs or is required to perform by reason of his being a public official, violations of sections 49-14,101 (2) and 49-14,101 (3) may be involved.

For the sake of the foregoing analysis as well as further analysis, we call your attention to the provisions of section 49-1425 which defines immediate family as a child residing in a public official's household, his spouse, or an individual claimed by the public official or his spouse as a dependent for federal income tax purposes. Sections 49-1407 and 49-1408 define a business with which a public official is associated as a business, including self-employment or a proprietorship, in which that official is a partner, director, officer or employee or in which he or a member of his immediate family is a stockholder of closed corporation stock worth $1000 or more at fair market value or which represents more than a five percent equity interest or is a stockholder of publicly traded stock worth $10,000 or more at fair market value or which represents more than a ten percent equity interest. In other words, depending on the control or interest of the state senator in the business in question and the services it renders, he or his business or a member of his family may be performing services otherwise within the scope of his governmental duties. To be compensated therefor either directly or through his business interests could violate section 49-14,101.

With respect to the matter of the business hiring a lobbyist, we are informed that such a lobbyist would lobby for a patron or a subscriber of the business who would pay a fee to the business for such lobbying services. This involves several considerations. One consideration is that the lobbyist may have to be registered with the business in question as his principal. The lobbyist as well as the business would have to file reports accordingly. The business may have to be registered as a lobbyist for the subscriber or patron paying the fee, and the business and the subscriber or patron would have to file reports as a lobbyist and principal. Advisory Opinion #38.

The second consideration with regard to such lobbying services is section 49-1490. Section 49-1490 prohibits a public official or anyone on his behalf in the legislative or executive branch or a member of his staff or immediate family from soliciting or accepting a gift from a principal or lobbyist or anyone acting on behalf of either. This requires that the senator's business must render services of equal or greater value than the subscriptions or fees paid by patrons who are principals and principals and lobbyists and persons acting on behalf of either. In any case, the business may not be compensated for any service which the senator performs as a duty of his public office. Section 49-14,101.