OPINION NUMBER - 072
ADOPTED - 1984/11/28
SUBJECT - Conflicts of Interest; potential conflict of a public official engaging in rental businesses through membership in a partnership or ownership of corporate stocks.
REQUESTED BY: Dan Nolte, Lancaster County Register of Deeds, 555 South 10th Street, Lincoln, Nebraska 68508
QUESTION: May a register of deeds purchase and own real property for rental purposes either individually, as a member of a partnership or as an owner of stock in a corporation.
The request for an advisory opinion states that you have purchased in connection with five other individuals rental property and that you expect to form either a corporation or partnership to own the real rental property. The property was purchased through a real estate agent. In the future, you and your friends, either through the corporation or partnership to be formed, expect to purchase additional real property for rental purposes, probably utilizing the services of a realtor.
This opinion relates solely to the application of the Nebraska Political Accountability and Disclosure Act to the circumstances set forth above. It does not purport to relate to any matters which may involve various forms of business or professional licensure or organization laws. The Nebraska Political Accountability and Disclosure Act does not prohibit a public official from engaging in commercial enterprises. It does, of course, require certain disclosure to be made by specified public officials, including a Register of Deeds, under Section 49-1496.
That section includes the name, address and nature of the relationship with a business the official is associated with, a description and location of real property, excluding a personal residence, where the fair market value exceeds $1000, and certain other information as required by the rules and regulations of this commission. See, Section 49-1496.
We have examined the pertinent statutes and found no statute prohibiting a register of deeds from owning real property, either personally or in conjunction with others, for personal use or for commercial purposes.
While not specifically on point, we would direct your attention to Advisory Opinion No. 65, April 20, 1984. In that opinion we concluded that a state senator, under appropriate circumstances, could engage in certain research and consulting services with respect to legislative matters and political campaigns. Further, in that opinion we stated, "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." We, in that opinion, had reference to Section 49-14,101 which prohibits public officials from taking governmental action which amounts to the soliciting or accepting of a bribe, using their public offices or confidential information received through the public office to obtain financial gain for themselves, members of their immediate family or businesses with which they are associated or using government personnel, resources, property or funds for any purpose other than governmental use.
While you have not in any detail specified the exact nature of the business you intend to engage in or the manner of its operation, we have been able to conceive of only one sort of information that might come into your possession as a part of your duties which could in any way colorably be argued to relate to a conflict of interest. That information is the disclosure required under Section 76-214 of the actual nature of the financial consequences of a transaction involving real estate. From our examination, this information, while confidential, does not appear to give you any significant information due to your position, which would assist you in transacting business connected with real estate. The Documentary Tax Stamp Act, Section 76-901, requires deeds relating to real estate to contain documentary tax stamps of 55 cents per $500 of value in the transaction. A simple calculation will allow one to determine the price paid for real property to within $500. It therefore appears that the financial disclosure statement is not likely to in any way provide you with any information as a part of your official duties that would significantly assist you in real estate matters.
Given the facts as contained above and the caveat with respect to the real estate disclosure statement required to be filed, it is therefore our opinion that your position as Register of Deeds for Lancaster County would not prohibit you from engaging in the business of owning real estate for rental, either individually, as a member of a partnership or as the owner of the stock of a corporation conducting such businesses.