OPINION NUMBER - 119

ADOPTED - 1989/01/13

SUBJECT - Conflicts of Interest

REQUESTED BY: The Honorable Spencer W. Morrissey, State Senator, Legislative District #01

QUESTION : Does part time employment as a State Legislation Director for an international union constitute a conflict of interest with the duties of a state senator?

CONCLUSION

See Analysis.

FACTS

We are advised by the Senator that he has three jobs outside of his duties as state senator. The main occupation is that of track inspector for the Burlington Northern Railroad. In this capacity, he looks for violations of the Federal Railroad Administration Standards by visually inspecting track. In addition, his family owns and operates a service station in Tecumseh, Nebraska. The station is owned by his mother and his brother is the manager. The Senator works part time at the station and has no share in the ownership. He does, at times give advice on management decisions. The third occupation is that of State Legislation Director for the Brotherhood of Maintenance of Way Employees which represents the interests of track maintenance workers in the United States and Canada. This is a part-time occupation allowing maximum activity of thirty days per year with compensation at $130 per day. During the 1987/88 Legislative Session he was a lobbyist for the union. He resigned as lobbyist prior to filing for the office of state senator.

Article 22 of the Constitution and Bylaws of the Brotherhood of Maintenance of Way Employees is entitled "Law Regulating State and Provincial Legislative Activities". Section 3 of Article 22 is entitled "Duties of State or Provincial Legislative Representatives". It states:

It shall be the duty of the Legislative Representative to work in conjunction with other legislative representatives in the state or province in the promotion of legislation favorable to the membership of the Brotherhood as employees or to the effectiveness of the Brotherhood as a collective bargaining representative and to oppose such legislation as may be detrimental to such interest.

He shall keep informed on pertinent state or provincial legislation, and in every way possible advance the interest of the Brotherhood as a collective bargaining representative and its memberships as employees. Within thirty days after the close of each legislative session he shall submit to the Grand Lodge President a complete comprehensive report of all legislative work done during the session and copies of any laws enacted that are of particular interest to this Brotherhood.

After Senator Morrissey's election the union agreed to permit him to retain the position at an administrative level with no lobbying duties. His role would be limited to receiving information on legislative activities from the lobbyist of the union and filing reports on this activity with the international organization.

The Senator inquires as to whether or not any of these activities constitute a conflict of interest.

ANALYSIS

It has always been the goal of the people of the State of Nebraska to maintain a "citizens' legislature". It is therefore expected that a member of the Legislature will have an outside occupation. Senator Morrissey's occupations as a track inspector for Burlington Northern Railroad and as part-time employee at a service station are not in any way unusual and we confine ourselves to stating that we do not see that the holding of these two positions would, in and of themselves, constitute some sort of conflict with the duties of a state senator.

Section 49-1499 of the Nebraska Political Accountability and Disclosure Act describes a conflict of interest as a situation in which a public official (including a member of the Legislature) is faced with taking an action or making a decision in the discharge of his official duties that may cause financial benefit or detriment to himself or herself, a member of his or her immediate family, or a business with which he or she is associated. These benefits or detriments must be distinguishable from the effects of such action on the general public, or a broad segment of it.

"Business with which the individual is associated" is defined in Section 49-1408 as a business: (1) in which the individual is a partner, director or officer; or (2) in which the individual or a member of the individual's immediate family is a stockholder of closed corporation stock worth $1,000 or more at fair market value or which represents more than a 5% equity interest, or is a stockholder of publicly traded stock worth $10,000 or more at fair market value or which represents more than a 10% equity interest.

If a member of the Legislature has a potential conflict of interest he or she is governed by the provisions of Section 49-1499(1) and Section 49-1499(2). These sections would require a Senator to: (1) prepare a written statement describing the matter requiring action or decision and the nature of the potential conflict, and if he or she as a member of the legislature will not abstain from voting, deliberating, or taking action on the matter the statement shall state why despite the potential conflict he or she intends to vote or otherwise participate; and (2) deliver a copy of the statement to the Commission and a copy of the statement to the Speaker of the Legislature.

Section 49-1499(2) goes on to provide that the Speaker of the Legislature shall cause the statement to be filed with the Clerk of the Legislature to be held as a matter of public record. The Senator with the potential conflict of interest may abstain from voting, deliberating, or taking action on the matter on which the potential conflict exists. In such cases, the Senator may have the reasons for the abstention recorded in the journal or minutes of the Legislature.

In the original version of Section 49-1499 all public officials subject to Section 49-1499 were required to "take such steps as the Commission shall prescribe or advise to remove himself from the influence over actions and decision on the matter". This is still the case for most public officials who are subject to Section 49-1499. However, in 1981 through LB134, a separate standard was established for members of the Legislature. Section 49-1499(2)(a) now provides that "nothing in this section shall be construed to prohibit any member of the Legislature from voting, deliberating, or taking other action on any matter that comes before the body".

As we understand it, Senator Morrissey is not now faced with taking an official action or making an official decision and so strictly speaking there can be no conflict of interest. However, we recognize the sensitive nature of Senator Morrissey's situation and his desire to know how to determine if there is a potential conflict of interest because of his duties as State Legislation Director for the Union. To this end, the Commission needs to determine if Senator Morrissey has a business association with the Brotherhood of Maintenance of Way Employees.

It is our understanding that this international union has a President and a secretary/treasurer. It also has regional vice-presidents who act somewhat like a board of directors in that they can jointly overrule a decision of the president. The State Legislation Director reports to either an assistant to the president in the State Legislation Department or an assistant to the president in the National Legislation Department. It therefore appears that notwithstanding the fact that the term "director" appears in the title of the position, the State Legislation Director is not a director in the sense contemplated by Section 49-1408. Based upon this information, we conclude that Senator Morrissey does not have a business association with the Brotherhood of Maintenance of Way Employees. If he were faced with making an official decision or taking some official action which would result in financial benefit or detriment to the union, he would not have a potential conflict of interest.

In reviewing Article 22, Section 3 of the Constitution and Bylaws of the Brotherhood of Maintenance of Way Employees, we note that the legislative representative is required to promote legislation favorable to the membership and oppose legislation detrimental to the membership. This could constitute evidence that there is a violation of Section 49-14,101(2) which states that no public official (including a member of the legislature): shall solicit or accept anything of value, including a gift, loan, contribution, reward, or promise of future employment based on an agreement that the vote, official action, or judgement of the public official, public employee, or candidate would be influenced thereby.

Obviously, the key is whether or not the holding of this position constitutes an agreement to vote in a particular manner; i.e., to support "legislation favorable to the membership" or oppose "legislation as may be detrimental" to the membership.

However, as stated above, the senator's request for this opinion states that his new role will be limited to receiving information on legislative activities and filing reports on this activity with the international organization. And further, we note the penalty provisions of section (5) of Section 49-14,101, as amended by LB548 in 1986, which provides as follows:

Any person violating the provisions of this section shall be guilty of a Class III Misdemeanor, except that no vote by any member of the Legislature shall subject such member to any criminal sanction under this section.

Section 49-14,101(3) provides that a public official shall not use his or her 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 he or she is associated. Thus, it is important for Senator Morrissey to avoid using his public office or information received through his holding or public office to retain his position as legislation director.

Section 49-14,101(4) provides that no public official shall use personnel, resources, property or funds under that individual's care and control, other than in accordance with prescribed constitutional statutory, and regulatory procedures, or shall use such items, other than compensation provided by law, for personal financial gain. This section essentially requires that work associated with Senator Morrissey's position as legislation director not be performed in his government office with government materials. In addition, government personnel could not be used to prepare or type reports or engage in any other activities which are related to the position of legislation director.

Finally, we note that Section 49-1490(2) provides that an official shall not solicit or accept a gift from a principal, lobbyist, or anyone acting on behalf of either. Subsection (3) defines gift as a payment, subscription, advance, forbearance or honorarium, or the rendering or deposit of money, services, or anything of value, the value which exceed $25 in any one month, unless consideration of equal or greater value is received therefore. It is the position of the Commission that the acceptance by a State Senator of a salary or wages from a principal or lobbyist in excess of $25 in a calendar month would be a violation of Section 49-1490 if the Senator did not provide something of equal or greater value. That is, a member of the legislature may not simply remain on the payroll of a principal or lobbyist but perform no work. See Advisory Opinion #65. Therefore, care should be taken that work is actually performed for the pay which is received as State Legislation Director.