OPINION NUMBER - 075
ADOPTED - 1985/02/15
SUBJECT - Conflict of interest; city councilman who is a salesman for a company in which he has no proprietary interest, selling products to the municipality.
REQUESTED BY: James R. Brown, Fitzgerald, Brown, Leahy, Strom, Schorr and Barmettler on behalf of the City of LaVista.
QUESTION: May a city councilman solicit purchase orders and contracts with city contracts with city departments on behalf of the business for which he works?
Yes, provided the amount does not exceed $2000 in a calendar year. (See analysis)
The request for advisory opinion states that a recently elected member of the La Vista city council is a salesman for a company in which he has no proprietary interest. One of the councilman's accounts as a salesman for the company has been the City. The salesman/councilman calls upon the procurement officer of three City departments, Public Works, Park and Recreation and the Fire Department. He orally inquires of the Department representative as to which products made by his company the department needs and the quantities thereof. After receiving the information, the salesman/councilman states a bid price for the product of the company he represents. If the bid price is acceptable, the salesman (and the company) are given a purchase order. Based on the year 1983, the salesman/councilman procured such purchase orders from the City for the company's products in an amount of approximately $4,000.00.
Section 49-14,102 of the Accountability and Disclosure Act provides that "Except as otherwise provided by law, no public official or public employee, a member of that individual's family, or a business 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 the regular office hours of the contracting governmental body of the proposals considered and the contract awarded."
The purchase orders and the procedure leading thereto would be a "contract valued at $2000.00 or more" and subject to the provisions of Section 49-14,102. From the facts provided, it would appear that the procedures followed do not provide for an "open and public process." Consequently, the councilman/salesman may do business up to $2000.00 a year with the city of LaVista.
The city may otherwise contract with the company through other salesmen for sums in excess of $2000.00 so long as the councilman who is an employee of the company does not in any way represent either party in the transaction. See Advisory Opinions #9 and #43.
Under Section 49-14,101(3), the councilman in question, even in soliciting business within the $2000.00 annual limitation previously discussed, cannot use his public office or any confidential information received through the holding of his public office to obtain any of the contracts or business.
This opinion only interprets the provisions of the Nebraska Political Accountability and Disclosure Act. It does not address the applicability of any other sections of the Nebraska Statutes which might relate to the City of LaVista or the members of its city council, such as Chapter 18, Article 3.