OPINION NUMBER - 071
ADOPTED - 1984/10/26
SUBJECT - Conflict of Interests; performing appraisal services for a government body while being employed by another government body to render similar and sometimes related services.
REQUESTED BY: Richard D. Kennedy, 6115 Franklin Street, Lincoln, NE 68506
QUESTION: Whether an appraiser employed by a state agency may do, and be compensated for, similar work for another government entity on his own time?
Yes, unless he will perform similar work as a state employee on the same project.
The person requesting this advisory opinion is an employee of the Nebraska Natural Resources Commission (NRC). One of his responsibilities as a NRC employee is to review appraisals submitted by Natural Resources Districts and recommend partial state funding for land acquisitions. He has contracted with and intends to continue to contract with a Natural Resources District (NRD) to be a reviewing appraiser for certain projects to be federally funded. However, in order to have the federal funding, the NRD must base its land acquisitions on appraisal reports subject to review. He will be the reviewing appraiser under such circumstances. In those cases where the NRD does not seek state funding for land acquisition, no NRC appraisal review is required. He advises that his appraisal review services for the NRD are rendered on his own time. We assume this means not during his basic work week as an employee of the NRC. See Sections 84-1001 seq., RRS, 1943.
There is nothing per se in the Nebraska Political Accountability and Disclosure Act which prohibits a state employee from working for another government body.
Under Section 49-1499 of the Accountability Act a public official or employee in the executive branch of state government who in the discharge of his or her official duties would be required to take an action or make a decision that may cause distinct financial benefit or detriment to him, a member his immediate family or business with which he is associated must disclose such potential conflict to the Accountability Commission and deliver a copy of his disclosure to his immediate superior. See Section 49-1499(2)(b). His superior must assign the matter to another employee or handle it himself.
The person requesting the advisory opinion is a public employee in the executive branch of state government. See Sections 49-1436 and 49-1442.
If the NRC employee were about to review an appraisal of the NRD for which he also works, he would have to file a Statement of Potential Conflict describing the situation pursuant to Section 49-1499. His superior in the NRC would have to handle the appraisal review himself or assign it to another employee. The employee's NRC appraisal review and funding recommendation (even if informal and not in writing as indicated in his request for advisory opinion) could cause financial benefit or detriment to him by reason of his relationship with the NRD. It is these circumstances that make for a potential conflict and the requirement to file a Statement of Potential Conflict as indicated above.
Regardless of the disclosure (Statement of Potential Conflict) that might be required by Section 49-1499, the NRC employee is also subject to the provisions of Sections 49-14,101(3) and (4). He may not use his position as a NRC employee to obtain financial gain for himself from the NRD, nor may he be permitted to use NRC time, property, funds, personnel or resources to do his NRD work. This does not mean that he may not contract with the NRD. It assumes that such contract is by reason of his being a qualified appraiser under federal regulations and not because of an abuse of his NRC or NRD positions. See Craven v. State Ethics Commission, 454 N.E.2d 471(Mass., 1983).
This opinion only interprets provisions of the Nebraska Political Accountability and Disclosure Act. It does not construe other statutes and rules and regulations administered by the Department of Personnel nor the personnel policies of the NRC or the NRD.