OPINION NUMBER - 084

ADOPTED - 1985/12/20

SUBJECT - Conflict of Interests, holding dual offices.

REQUESTED BY: Emil E. Beyer, Jr., State Senator, District Three

QUESTION: May a state senator accept an appointment to an agricultural society board established under the provisions of Neb. Rev. Stat. Sec. 2-201 et seq (Reissue 1983), or is such a state senator precluded by the provisions of the Accountability and Disclosure Act from accepting such a position.

CONCLUSION

There is no prohibition with respect to the Accountability and Disclosure Act, however, see analysis for constitutional provisions.

ANALYSIS

I. Actual Conflicts of Interest

In Opinion #81 we determined that a county agricultural society is not subject to the Political Accountability and Disclosure Act. Of course, a state legislator is subject to the provisions of that Act {see Sections 49-1493(5) and 49-1443}.

You wish to accept a position on the Board of the Sarpy County Agricultural Society. We have examined the statutes and the revised Constitution of the Sarpy County Agricultural Society. It appears this position does not pay any salary nor contain any other emoluments of which we are aware. We should point out that under the Fair Board Statutes Neb. Rev. Stat. Sec. 2-226, the secretary of a County Fair Board may be paid a salary. That section allows members of a County Fair Board to receive necessary expenses. In previous opinions we have said:

Neither section 49-1402 nor section 49-14,101(3) are qualified, but rather both clearly prohibit the use of public office for private financial gain, and the Act generally seeks to prevent public officers from becoming involved in conflicts of interest . . . See Opinion #77.

Later in that same opinion we stated:

As mentioned above, the Act does not qualify the terms financial gain in any way--it does not specify a certain amount of gain that is required to constitute a violation of section 49-14,101(3). However, the case law indicates that courts will not prevent an official from participating in matters where his interests are remote, uncertain, contingent, speculative or de minimis.

Having these two prior opinions in mind, it is clear that the provisions of said Neb. Rev. Stat. Section 49-14,101(3) do not apply in this situation, that section states:

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.

No actual conflict exists under this section. Election to the agricultural society board is by vote of the members of the society and there is no indication that the legislative office you hold would in any way either contribute to your election nor result in financial gain to you or any other covered parties under the above section.

II. Potential Conflicts of Interest

Section 49-1499 deals with potential conflicts of interest. That section makes certain steps mandatory if an individual in the discharge of their official duties is required to take an action or make a decision that would cause financial benefit or detriment to them, a member of their immediate family or business with which they are associated. In the current situation it is certainly conceivable that matters may come before the legislature that would have an effect on county agricultural societies or even conceivably specifically the Sarpy County Agricultural Society. It would require speculation on our part to conclude that such a matter would come before the legislature or what it might involve. For this reason we can only generally advise you that should any matter dealing with agricultural societies come before the legislature you would be required to take those steps outlined in Section 49-1499(1) and (2)(a).

III.The Nebraska Constitution

We would be remiss if we did not bring to your attention the provisions of Article III Section 9 of the Constitution. It provides in part:

No person holding office under the authority of the United States, or any lucrative office under the authority of this state, shall be eligible to, or have a seat in the Legislature. No person elected or appointed to the Legislature shall receive any civil appointment to a state office while holding membership in the Legislature or while the Legislature is in session, and all such appointments shall be void.

In analyzing this constitutional provision the first matter to be determined is whether the society board is an office under the authority of the state. The statutes referred to above relating to county agricultural societies established the position of member of the board of such a society, see Section 2-201 et seq. Although an argument could be made that this is a local or municipal office due to the electoral requirement contained within the section, we caution you that it could be held to be one under the authority of the state.

The other important question with respect to Article III, Section 9 is the meaning of the language "lucrative office". We have found no Nebraska case which deals with this issue. However, in State ex rel Beicker vs. Mycue 41 S.W. 2nd 476 the Texas court determined that the receipt of an automobile expense allowance did not make the office one with an emolument. And, in Whitehead vs. Julian 476 S.W. 2nd 844 Texas determined that a lucrative office was not one in which an expense allowance was authorized. Further Black's Law Dictionary defines "lucrative office" as:

One which yields a revenue or a fixed salary to the incumbent; according to some authorities, one which yields a compensation supposed to be adequate to the services rendered and in excess of the expenses incidental to the office.

We must hasten to point out however, that interpretation of these provisions is beyond the authority given to this Commission. And, we do not purport to interpret the prohibitions contained therein. Clearly, if this were held to be a lucrative office under the prohibition of Article III, Section 9 you might well be faced with removal from the office of state legislator.

The Constitution in Article III, Section 10 provides that the legislature shall determine the qualification of its members. A series of Attorney General opinions have addressed a number of cases arising under these sections. You should consult that office for further guidance so as to not jeopardize your seat in the legislature.