OPINION NUMBER - 069

ADOPTED - 1984/07/20

SUBJECT - Conflict of Interests; a state senator representing a client before the State Claims Board and acting on legislation appropriating funds for such claim.

REQUESTED BY: The Honorable Peter J. Hoagland, State Senator, 617 North 90th Street, Omaha, Nebraska 68114

QUESTION: 1. May a state senator, who is a lawyer, represent a client on a claim filed pursuant to the State Tort Claims Act before the State Claims Board?

2. What procedure governs the actions of a state senator in connection with legislation appropriating funds to satisfy such a claim?

CONCLUSION

1. The Accountability Act does not specifically prohibit such representation, but see analysis.

2. See analysis.

FACTS

The request for advisory opinion states that the processing of such a claim may entail an appearance on behalf of a client before the State Claims Board, filing suit against the State and legislation in connection with a settlement recommended by the Claims Board or a court judgement.

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 nonaction of the governmental body is a nonministerial nature, except in a matter of public record in a court of law, but his provision shall not apply to an official or employee acting in an official capacity."

This prohibition applies only to officials and employees of the executive branch of state government. It does not apply to a state senator. Therefore, there is no prohibition per se against a state senator appearing before the State Claims Board for a client in connection with a tort claim against the state.

However, section 49-14,101(3) prohibits the use of public office to obtain financial gain. Ordinarily, a violation of this section requires a government action or decision, or more specifically in this case, a legislative action or decision.

However, Craven v. State Ethics Commission, 454 N.E.2d 471 (Mass., 1983), involving similar but not identical statutes, indicates that undue influence or abuse of official position regardless of an official action or decision could be a violation. The Craven case held that there was sufficient evidence to support commission findings that a member of the Massachusetts House of Representatives violated a statute prohibiting a state employee from participating in a particular matter in which he or a member of his immediate family has a financial interest and a statute providing that no employee of the state shall use or attempt to use his official position to secure unwarranted privileges or exemptions for himself or others. Compare section 49-14,101(3). The Massachusetts Representative "strongly pressed" the staff of a state grant agency to award a certain grant to a corporation, which would rent a building from a trust in which his daughter had a 20% beneficial interest, and "indicated" that the budget of the agency, which was pending before the Ways and Means Committee, of which he was a member, "might be affected adversely if an award were not made."

2. As to the procedure governing the actions of a state senator in connection with appropriating funds for such a claim, section 49-1499 provides that certain public officials, including a state senator must file a statement of potential conflict if they are about to take a government action or make a government decision that may cause financial benefit or detriment to them, members of their immediate families or businesses with which they are associated, which is distinguishable from the effects of such action on the public generally or a broad segment of the public. The introduction of a bill to appropriate funds to satisfy such a claim and participation in debate, or voting on such a bill would constitute such a government action or decision.

If the public official in question were not a state senator, the public official would be required to take such steps as the Commission shall prescribe or advise to remove himself from influence over such actions and decisions. However, section 49-1499 (2) (a) provides that in the case of a state senator, he or she shall deliver a copy of his or her statement of potential conflict to the Commission and to the Speaker of the Legislature, who shall cause the statement to be filed with the Clerk of the Legislature. "He or she may abstain from voting, deliberating or taking other action on the matter on which the potential conflict exists, in which case he or she may have the reasons for the abstention recorded in the journal or minutes of the Legislature. Nothing in this section (Section 49-1499) shall be construed to prohibit any member of the Legislature from voting, deliberating, or taking other action on any matter that comes before the body; . . .." In addition, section 49-1499(1) provides that if the senator "will not abstain from voting, deliberating or taking other action on the matter, the statement shall state why, despite the potential conflict, he or she intends to vote or otherwise participate; . . .."

By reason of the language quoted above from section 49-1499(1) and (2)(a), the Commission took the position in a letter to Senator Loran Schmit on February 27, 1984, that section 49-14, 101(3) prohibiting a public official from using his public office to obtain financial gain, was not intended to apply to a state senator.

We have reconsidered our position as stated in that February 27, 1984 letter to Senator Schmit. We hereby withdraw the same and take the position that section 49-14,101(3) does apply to a state senator regardless of whether he is acting on a matter before the Legislature. Section 49-1499(1) contemplates his taking legislative action despite a potential conflict, not an actual conflict; i.e., a violation of section 49-14,101(3). Section 49-1499(2)(b) provides that nothing in section 49-1499 shall be construed to prohibit his taking a legislative action. It (Section 49-1499) does not state that other provisions of the Accountability Act shall be so construed. Section 49-14,101(3) applies to all public officials. Therefore, even though a senator does not have to abstain when he has a potential conflict and even though the Commission cannot order him to abstain, section 49-1499 does not permit, authorize or exempt a senator from violating section 49-14,101(3).

We concede that an actual conflict is sometimes included within the concept of potential conflict but, of course, depends on the circumstances, i.e., the actions taken by a senator which constitute an abuse of power or use of public office which is the proximate if not the direct cause of obtaining ascertainable financial gain. Under the circumstances in this case, if legal fees are to be paid to the senator or his law firm conditioned on funds appropriated by the legislature, legislative action on his part or "lobbying" such legislation among his fellow senators would be evidence of a violation of section 49-14,101(3). A vote on such legislation in a situation where only the minimum votes necessary for legislative action to be taken occurs would constitute a violation. See the concurring opinion of Judge Brodkey in Copple v. City of Lincoln, 202 Ne. 152(1979).

This opinion interprets only provisions of the Nebraska Political Accountability and Disclosure Act. The Nebraska Accountability and the Code of Professional Responsibility adopted by the Nebraska Supreme Court which may be applicable to a lawyer who holds public office.