OPINION NUMBER - 074

ADOPTED - 1985/01/18

SUBJECT Conflicts of Interest; potential conflict where a mayor is engaged in the business of publishing a newspaper and secures contract for the publishing of legal notices required by law from the city in which he is elected.

REQUESTED BY: John E. Spiegel, Mayor of the City of Ravenna.

QUESTION: May a mayor who owns and is the editor of a newspaper and print shop, publish legal notices, proceedings and ordinances of the city, print letterhead and forms for various city agencies and publish advertising and informational notices for the city?

CONCLUSION

Yes. Under the circumstances outlined in the analysis.

FACTS

The request for an advisory opinion states that you are the editor and publisher of the Ravenna News and as such have in the past met all of the publication and a portion of the printing requirements of the City of Ravenna in that capacity. You state that the Ravenna News is a legal newspaper of general circulation in the city and that there is no other legal newspaper within the city. There are, however, three other newspapers which have circulation within the geographical area in which the City is located. You also indicate that as Mayor you do not compose the contents of the advertisement, legal notices, proceedings or ordinances in connection with their publication.

You have also indicated to us, an intention to comply with the provisions of Neb. Rev. Stat. Section 18-301.01 through Section 18-301.05.

ANALYSIS

The opinion in this case will be limited to the application of the Political Accountability and Disclosure Act to this situation. The relevant section with which we are concerned in this situation is Neb. Rev. Stat. Section 49-14,102. That section in part provides: {N}o public official . . . or business with which the individual is associated shall enter into a contract valued at two thousand dollars or more, in any one year, with a governmental body unless the contract is awarded through an open and public process which includes prior public notice and subsequent availability for public inspection during regular office hours of the contracting governmental body of the proposals considered and the contract awarded.

Thus, under Section 49-14,102, the public official is prohibited from entering into a contract valued at more than $2000 only in the absence of an open and public process. The $2000, of course, is a floor figure.

In these circumstances one must first analyze whether or not the process by which the contract is entered into is open and public. In arriving at the conclusion to that question, reference must be made to Section 18-301.01 through Section 18-301.05. Those sections in substance provide that an elected city official may enter into a contract if certain conditions are met. First that the interest of said public official be disclosed on the record to the governmental body responsible for approving the contract, second, that said public official does not vote on the contract, and third, that he/she does not act on behalf of the city as to inspection or performance under the contract. It is our understanding that you intend to comply with these provisions of law. We also note the provisions of Section 18-301.02.

For purposes of analyzing Section 49-14,102 questions, the open and public process is not specified with any clarity. However, it is the Commission's opinion that the provisions of Section 18-301 et seq., comply with the requirement of an open and public process for purposes of Section 49-14,102 determinations. It is, therefore, our opinion that on the facts presented, the open and public process provision has been met is compliance with Chapter 18, Article 3 requirements is accomplished. Section 49-14,101(3) of the Accountability and Disclosure Act provides: No public official or public employee shall use that person's public office or any confidential information received through the holding of a public office to obtain financial gain, other than compensation provided by law, for himself or herself, a member of his or her immediate family, or a business with which the individual is associated.

Compliance with this provision, of course, is mandatory for all public officials as defined within the Accountability and Disclosure Act. We refer you to the discretion of subsection 3 contained in Advisory Opinion #45, issued by the Commission on August 21, 1981. Of particular note for consideration here is that even where, as we pointed out in our prior opinions, the governmental actions are ministerial, if they were to be performed in a way giving the governmental employee an advantage over other interested parties, then a violation could occur.

It is, therefore, our opinion that your position as Mayor of the City of Ravenna would not prohibit you from engaging in the publishing of legal notices, ordinances, proceedings and other printing on behalf of the City of Ravenna as long as the process by which the business with which you are associated secures the City's business is open and public as provided for under Chapter 18, Article 3.