OPINION NUMBER - 067

ADOPTED - 1984/05/18

SUBJECT - Conflict of Interests; temporary employment of a member of a public official's immediate family who is not directly compensated by public funds.

REQUESTED BY: John H. Skavdahl, County Attorney, Sioux County, Nebraska

QUESTION: May a county official employ a member of his immediate family for his private business which is also his county office when such family member's primary duties are not county business and she is not directly compensated by public funds?

CONCLUSION

Yes.

FACTS

The person requesting the advisory opinion is a county attorney who intends to employ his daughter as a temporary and part-time secretary during the summer months for his private law practice. The office of County Attorney is his private law firm. His Deputy County Attorney is his partner in private practice. The law firm employs two full-time secretaries. His daughter would be a temporary replacement for one of those secretaries who will be on vacation. Neither secretary is paid, nor will his daughter be paid, as an employee of the county. However, the county does pay $850.00 annually to the County Attorney or his law firm for secretarial expenses. His daughter is to be paid on an hourly basis and will work only when needed based on the volume of the firm's private business. She will, however, from time to time, depending on circumstances, have to perform some services related to the duties of the County Attorney.

The request for advisory opinion presents two questions. One is whether the county official must file a Statement of Potential Conflict pursuant to the provisions of Section 49-1499. The second question is whether the employment of his daughter violates Section 49-14,101(3).

ANALYSIS

As to the question involving Section 49-14,101(3), we are of the opinion that the employment of the daughter would not violate this section.

Section 49-14,101(3) provides that no public official shall use his public office to obtain financial gain for himself, a member of his immediate family or a business with which he is associated.

In Advisory Opinion #59, we stated that the test for violation of Section 49-14,101(3) is whether the public official has abused his discretion which in turn depends on whether he has acted arbitrarily and capriciously in connection with employing a member of his immediate family. That opinion involved a fact situation where the member of the immediate family was to be a county employee and receive a government salary. In this situation, the daughter is to be an employee of the law firm and will not receive a direct government salary. In addition, her primary duties of employment will not be for county business.

In view of the foregoing, we are of the opinion that the employment in question is not government employment, and therefore the county official would not be taking a government action and thus not using his public office to obtain a financial gain for a member of his immediate family.

As to the question involving Section 49-1499, in Advisory Opinion #64 we took the position that initial employment or any action contemplated by a public official which would materially affect the terms and conditions of employment of a member of his immediate family would require the filing of a Statement of Potential Conflict.

Section 49-1499, in effect, provides that when a public official is about to take a government action or make a government decision that may cause financial benefit or detriment to him, a member of his immediate family or a business with which he is associated, which is distinguishable from the effects of such action on the public generally or a broad segment of the public, he shall not only make the disclosure discussed above but shall take such steps as the Commission shall prescribe or advise to remove himself from influence over action and decision on the matter.

As indicated above, the employment in this case is not public employment. The public official's daughter is not to be a county employee but an employee of his law firm. The payment by the county for secretarial services is not directly related to services, if any, his daughter may perform for the county. Under the circumstances, we take the position that the employment in question is not a government action or decision which may cause financial benefit or detriment to a member of a public official's immediate family, and therefore a Statement of Potential Conflict, pursuant to Section 49-1499(1), need not be filed.