OPINION NUMBER - 076

ADOPTED - 1985/02/15

SUBJECT -

REQUESTED BY: Dan McGuire, Director - Nebraska Wheat Board

QUESTION: Whether the Nebraska Wheat Board may expend funds to assist in defraying the expenses of members of the Nebraska Legislature traveling to Washington, D.C. to communicate the severity of the economic depression affecting agriculture in the State of Nebraska.

ANALYSIS

The Nebraska Wheat Development, Utilization and Marketing Board was created by Section 2-2301 of the Nebraska Statutes. Its membership and duties are governed by Sections 2-2303 through 2-2321 of the Nebraska Statutes. The powers and duties of the Board are set forth in Section 2-2309. In that section it is declared to be the public policy of the State of Nebraska to protect and foster the health, prosperity and general welfare of its people by protecting and stabilizing the wheat industry and the economy of the areas producing wheat. In connection with and in furtherance of that public policy, the Board is given the express power to, among other things, 1. formulate the general policies and programs of the State of Nebraska respecting the discovery, promotion and development of markets and industries for the utilization of wheat grown within the State of Nebraska; 2. adopt and devise a program of education and publicity; 3. cooperate with local, state or national organizations, whether public or private, in carrying out the purposes of the Act; and 4. conduct, in addition to the things enumerated, any other program for the development, utilization and marketing of wheat grown in the State of Nebraska.

Section 2-2321 provides that no funds collected by the Board shall be expended directly or indirectly to promote or oppose any candidate for public office or to influence legislation.

If the legislative delegation is going to Washington, D.C. for the specific purpose of influencing and pending legislation, either directly or indirectly, then the above-quoted language would prohibit the proposed expenditure. However, Legislative Resolution 2, which authorizes the trip, recites that the delegation is going to Washington, D.C. to speak with federal officials to alert them to the severity of agriculture's problems. If the delegation does not directly or indirectly influence any pending legislation in Washington, then Section 2-2321 would not present a barrier.

It could be argued that the funds are being expended to influence legislation, not pending in Washington, but pending before the Unicameral. We are concerned by the fact that LB456, which proposes the elimination of the Nebraska Wheat Board along with approximately six other commodity promotion boards, is presently pending before the Unicameral. That bill was introduced by Senator Vickers, who is also the sponsor of Legislative Resolution 2. Thus, it is possible that the proposed expenditure could be construed as an attempt to indirectly influence LB456. This could only be determined by ascertaining the intent of the members of the Wheat Board and its Director. In his letter of February 7, 1985, Dan McGuire, the Board's Director, states that nothing could be farther from the truth than perceiving that the offer of financial support was a reaction to LB456. We have no basis upon which to find a contrary intent.

Section 49-14,101(4) provides that no public official or public employee shall use property or funds under that individual's official care and control other than in accordance with prescribed constitutional, statutory and regulatory procedures. The expenditure of the funds proposed to further the purpose of LR2 is consistent with the policy and the statutory powers granted to the Wheat Board, which are set forth in Section 2-2309, and were enumerated in the first paragraph above.

Section 49-14,101(3) prohibits a member of the Legislature from using his or her governmental position to obtain financial gain. This section has previously been interpreted by the Commission to mean that as long as the trip does not involve payment or reimbursement of amounts in excess of ordinary and necessary business travel expenses, there is no violation of the above statute. (See August 30, 1983 letter to Loran Schmit re potential conflict of interest.)

Section 49-1490 prohibits the acceptance of a gift by a public official from a lobbyist or the principal of a lobbyist. Under Section 49-1434(3)(a), the Nebraska Wheat Advisory Board would not be considered a lobbyist or a principal, and the activity contemplated would not be considered as lobbying within the definition contained in Section 49-1433.

Finally, in accordance with Attorney General's Opinion #205, issued on February 10,1958, a legislator would be recluded from accepting any such expense funds by the oath of office contained in Article XV, Section 1, of the Nebraska Constitution. There is considerable doubt whether the Legislature, itself, the Legislative Council, or any other designation of the entire collective body has the authority or financial mechanism to accept such funds. That being true, it might be less cumbersome for the Board to pay directly a portion of the trip expense, such as lodging or travel, directly to the hotel or airline involved. In any event, we can find no authority, either permitting or precluding the acceptance of such funds by the Legislature or Legislative Council.