OPINION NUMBER - 101

ADOPTED - 1987/03/27

SUBJECT - Conflicts of Interests/Contracts with Governmental Bodies

REQUESTED BY: Calvin H. Gullion, Gage County Clerk

QUESTION: May an elected County Clerk enter into a contract with the county to perform the services of computer manager and receive a salary for such work?

CONCLUSION

Yes

FACTS

You indicate that you are the elected Gage County Clerk. You state that Gage County has upgraded its computer facilities and wishes to enter into a contract with you as a manager for computer services and facilities. You indicate that you will be paid a salary of $3,162 per year under the contract which amount is above and separate from your salary as Gage County Clerk. In additional conversations with you, you have indicated that you have been managing computer services for Gage County for approximately four years. As part of your duties you will perform various computer services for all county offices for Gage County. The computer equipment is maintained in the county board meeting room which is immediately adjacent to your office. You also indicate that the duties associated with these functions are separate and apart from your duties as Gage County Clerk.

Finally, you state that these duties are performed both during regular office hours, in the evenings, and on weekends as needed.

ANALYSIS

Section 49-14,103.01 establishes certain procedures which must be followed by an elected county official who seeks to enter into a contract with the county. This section generally prohibits an elected county official from having an interest in any contract to which the county is a party. However, Section 49-14,103.01(3) goes on to provide that the prohibition does not apply if the interested officer: 1) makes a declaration on the record to the county regarding the nature and extent of his or her interest prior to official consideration; 2) does not vote (if applicable) on the matter of granting the contract; and 3) does not act for the county as to inspection or performance under the contract.

Section 49-14,103.02 requires the person charged with keeping records for the county to maintain separately from all other records a ledger containing certain information. This information includes: 1) the names of the contracting parties; 2) the nature of the interest of the officer in question; 3) the date the contract was approved by the governing body; 4) the amount of the contract; and 5) the basic terms of the contract.

In order to avoid difficulties in complying with the Political Accountability and Disclosure Act you should be acquainted with other sections of the Act. You should pay particular attention to Section 49-14,101(3) which 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.

Since the duties of your office as contained in Section 23-1301, et seq, R.R.S., 1943 include duties which essentially make you a secretary of the County Board, it will be necessary for you to be scrupulous in avoiding the use of confidential information received by virtue of your office.

Section 49-14,101(4) of the Act provides that:

No public official or public employee shall use personnel, resources, property, or funds under that individual's official care and control, other than in accordance with prescribed constitutional, statutory, and regulatory procedures, or use such items, other than compensation provided by law, for personal financial gain.

We advise you that we express no opinion with respect to the legality of such a contract under any provisions of law outside the Nebraska Political Accountability and Disclosure Act. Those matters are beyond the jurisdiction of this Commission. However, we do feel obliged to direct your attention to 23-3101 et seq. R.S.Supp., 1986 which is often referred to as the County Purchasing Act. Particular attention should be paid to 23-3109 which makes reference to the procuring of professional services by a county. You should consider consulting the County Attorney as to the applicability of the County Purchasing Act to your situation.

Amends Advisory Opinion #101 as originally adopted on March 27, 1987.