OPINION NUMBER - 073

ADOPTED - 1985/01/18

SUBJECT - Conflicts of Interests; contracts with governmental bodies; potential conflict of a public official engaging in retail transactions as an owner of a business with the public body upon whose advisory board he serves.

REQUESTED BY: Robert Roy, a member of the Board of Park Commissioners of the City of Ravenna.

QUESTION: May a member of the Board of Park Commissioners, established under the Ravenna Municipal Code, consisting of three members, appointed by the City Council serving without compensation, sell at retail, hardware items to Ravenna's street, water, sewer and other municipal departments?

CONCLUSION

Yes, see analysis.

FACTS

The request for an advisory opinion states that you own Roy's True Value Hardware and Farm Supply, Inc., operating in Ravenna, Nebraska, and that from time to time, employees of the street, water, sewer and other municipal departments, purchase hardware items and tools of nominal value from your business. Also that on occasion you have submitted bids to the Council on larger items. We are further informed that under the municipal code, the Board of Park Commissioners is made up of three members who are appointed by the City Council and serve without compensation; that the Park Commissioners have the duty to take charge of all parks and recreational facilities belonging to the municipality and to establish rules and regulations for the management, use and operation of those facilities. We are also informed that all actions of the Board are subject to review and control by the City Council.

ANALYSIS

This opinion relates solely to the applicability of the Nebraska Political Accountability and Disclosure Act of the circumstances set forth above. It is also important to note that this question was presented in connection with the similar question regarding the Mayor of the City of Ravenna who publishes a newspaper within Ravenna. See, Opinion #74.

The applicable provision in connection with the contracts entered into by public officials is Section 49-14,102. It prohibits such officials from entering into contracts valued at $2000 or more, unless the contract is awarded through an open and public process. As we understand your situation, there are occasional purchases of various tools or hardware items of nominal value from your store by employees or various city departments or agencies while in the performance of their municipal duties. These departments are not subject to your control or jurisdiction as a member of the Park Board. We also understand that you have submitted bids from time to time on items when such bids have been solicited by the City Council of Ravenna.

Obviously, the purchase by municipal employees of items of nominal value from stores with which a particular official may be concerned, has the potential of abuse. We have been provided information which indicates that for the period of August, 1983 to August, 1984, a total of $3,445.33 worth of purchases were made from your store by various city entities. We are, however, from the information provided unable, to tell whether this total amounted to incidental and irregular purchases or from bids. However, since we are issuing this opinion prospectively, we do not consider that to be important.

As we pointed out in our opinion to the Mayor of the City of Ravenna, #74, to the extent that you comply with an open and public process such as a bid solicitation by the City Council, there is no prohibition contained within Section 49-14,102 which would prohibit your continuing to do business with the City of Ravenna on a bid basis.

To the extent that you are selling items of nominal value on an irregular basis to the city and are complying with the provisions of Section 18-301.01 through Section 18-301.05, particularly with respect to the open account purchases in Section 18-301.03, you are not violating Section 49-14,102.

We also wish to add the caveat with respect to the provisions of Section 49-14,101(3) relating to the use of a public position and confidential information secured therein. See our Opinion to the Mayor of Ravenna and Opinion #45 referred to therein.

Given the facts as set forth above, it is, therefore, our opinion that your position as Park Commissioner would not prohibit you from engaging in competitive bidding for contracts with the city or from conducting an open account relationship with the city as long as both the open and public bidding process is followed and, where applicable, the provisions of Section 18-301.01 et seq., are met.