OPINION NUMBER - 098

ADOPTED - 1987/02/13

SUBJECT - Conflict of Interests/Contracts with Governmental Bodies

REQUESTED BY: Richard T. Smith, Gage County Attorney, on behalf of the Gage County Board

QUESTION: 1. May the Gage County Board contract with Mr. Bill Wehling, the elected part-time Gage County Surveyor for engineering services on the Pickrell East Road Project?

2. Must the County go through open public bidding procedures for the contract for Mr. Wehling's professional services?

3. Must a conflict of interests form be filed by Mr. Wehling if he performs engineering services on the Pickrell East Project for Gage County and also performs statutory duties as County Surveyor for the same project?

4. If the Commission decides that there is a conflict of interests on the above stated facts, are there any steps that could be taken either by the County or Mr. Wehling to remedy this situation short of not entering into the contract?

CONCLUSION

See Analysis

FACTS

You indicate that the Gage County Board has previously authorized Mr. Bill Wehling, the part-time, elected Gage County Surveyor, to earn fees outside of his position as County Surveyor. Mr. Wehling and the County Board wish to enter into a contract wherein Mr. Wehling will provide engineering services for the County on the Pickrell East Road Project. You further indicate that Mr. Wehling would perform his statutory duties as Surveyor, including establishing corners of land surveys pursuant to Section 37-1708 of the Nebraska Statutes. You have attached as Exhibit "A" of your request letter a description of the proposed engineering work to be performed by Mr. Wehling.

ANALYSIS

In Advisory Opinion Number 87 we said that the Gage County Board could contract with the elected, part-time County Surveyor or his firm for materials, equipment and manpower services after a public letting of bids for that purpose, provided the contract was awarded in an open and public process pursuant to section 49-14,102 of the Accountability Act. In that situation, the Board was considering letting a contract for materials and expenses required to complete County surveying and engineering tasks. The Board's inquiry involved the situation in which the elected County Surveyor was the winning bidder of the proposed contract. You now ask whether the Board may contract with Mr. Wehling for professional engineering services on a specific road project. We would repeat that the Accountability Act requires that contracts of $2,000 or more per year between government bodies and public officials or employees must be awarded through an open and public process. The use of public bidding is not required by the Accountability Act. See: NADC Advisory Opinion No. 87, attached. Provided that there is no overlap in tasks or roles which would allow Mr. Wehling to be compensated more than once for a single effort, we do not believe the Accountability Act would prohibit Gage County from contracting with Mr. Wehling for engineering services.

LB548, an amendment to the Accountability Act which became effective in July of 1986, contains further provisions regarding public officials who have an interest in a public contract. Under the law, an elected county official may not have an interest in a contract with the County Board unless he discloses the interest on the record or in writing and does not consider, or vote on granting the contract, nor inspect or supervise the performance of the contract. See: 49-14,103.01 R.R.S., (1986 Supp)

You have also asked whether Mr. Wehling would be required to file a Potential Conflict of Interest Statement with this Commission in the event that he performs the proposed engineering services for the Pickrell East project, and also performs his statutory duties as County Surveyor on the project. From the description of the proposed engineering services in Exhibit "A", it appears that the engineering work to be performed under the contract would be wholly separate from Mr. Wehling's statutory duties, and the two do not appear to overlap significantly, assuming, of course, that Mr. Wehling is not called upon in his capacity as Surveyor to inspect or supervise the engineering work. We would advise that a Statement of Potential Conflict should be filed in the event that Mr. Wehling is faced with taking action or making a decision in his capacity as County Surveyor which may affect the work done under the engineering contract. In such an instance the law would require him to be removed from considering or acting on the matter. See: 49-1499 R.R.S. (Reissue 1984).