OPINION NUMBER - 125

ADOPTED - 1990/03/02

SUBJECT - Conflicts of Interest

REQUESTED BY: Daniel J. Hostler, Hall County Public Works Director

QUESTION: May an individual serving as a County Public Works Director run for and hold the office of County Surveyor?

CONCLUSION

Yes

FACTS

Mr. Hostler is the Hall County Public Works Director. Mr. Hostler is considering filing for the office of Hall County Surveyor. However, the office of Hall County Surveyor is a part time position which pays $5,500 per year. Mr. Hostler, therefore, intends to keep his position as Public Works Director while running for the office of County Surveyor. If elected to the office of County Surveyor, it is Mr. Hostler's intent to continue to serve as Public Works Director. He inquires whether or not there is any prohibition within the Nebraska Accountability and Disclosure Act which would prohibit this proposed course of action.

As Public Works Director, Mr. Hostler is required to plan, direct and coordinate the construction and maintenance of all county roads and bridges. He must direct land surveying operations. He is also required to provide estimates on projects, equipment, scheduling, manpower, equipment maintenance and materials. He is further required to submit an annual budget to the County Board, maintain fiscal management records and review completed work for technical soundness, quality, and compliance with contracts. The duties of a County Surveyor are statutory, though these statutory duties may vary depending upon the population of the county, its form of government, and whether it has adopted a County Road Unit Plan. Hall County has a population of less than 50,000, is organized under a township form of government, and has not adopted a County Road Unit Plan. Therefore, it is the duty of the Hall County Surveyor to make or cause to be made all surveys within his or her county that he or she may be called upon to make and to record the same. See section 23-1901. The other duties of the Hall County Surveyor would involve the establishment and maintenance of corners and the maintenance of certain records.

ANALYSIS

There is nothing in the Nebraska Political Accountability and Disclosure Act which prohibits an individual from filing for a county office while he or she is a county employee. In addition, there is nothing in the Act which prohibits an individual from holding two public positions simultaneously. See Advisory Opinions #71 and #84. However, the holding of two offices simultaneously, while not prohibited, requires further analysis in order to determine if dual position holding would result in restrictions upon the officeholder or public employee.

Section 49-1499 of the Nebraska Political Accountability and Disclosure Act identifies a potential conflict of interest as a situation in which a public official including one designated in section 49-1493 is faced with making a decision or taking an action which may cause financial benefit or detriment to: 1) the official; 2) a member of his or her immediate family; or 3) a business with which the official is associated. In addition, the benefit or detriment must be distinguishable from the effects of the action on the general public or a broad segment of it. An elected county official is a public official designated by section 49-1493(10).

We note that section 23-1901 establishes the duties of a County Surveyor. In counties having a population of more than 50,000, the County Surveyor is the ex officio County Engineer. The County Surveyor/County Engineer's duties as established by section 23-1901 are similar to those of the Public Works Director in Hall County. In a county with a population of less than 50,000 which is governed by a township form of government and which has not adopted a County Road Unit Plan, the duties of the County Surveyor are simply to make or cause to be made all surveys that the County Surveyor may be called upon to make. Essentially, it appears that the Public Works Director determines that a land survey needs to be done and directs its operation while the County Surveyor actually does the survey. Since both the County Public Works Director and the County Surveyor are paid a salary which does not change based upon the number of surveys done or not done, it does not appear that this is a concern. We might have a different opinion if the County Public Works Director determined that a survey needed to be made and the County Surveyor was paid on a per survey basis. The duties of the Public Works Director and the County Surveyor are distinct, and it is not a situation in which one individual is being paid twice for performing the same duties. While we do not state that there will never be a conflict or could never be a conflict between the two positions which would result in a financial benefit or detriment to the individual holding both positions, we do not see that there is an inherent conflict which would inure to the benefit or detriment of the individual holding both positions.

We next address the question as to whether there is financial benefit or detriment to a business association of the individual holding both offices. That is, may a political subdivision be a business association? Section 49-1407 defines business as a "corporation, partnership, sole proprietorship, firm, enterprise, franchise, association, organization, self employed individual, holding company, joint stock company, receivership, trust, activity or entity". Conceivably, the term entity could include a political subdivision. However, we determined in Advisory Opinion #61 that section 49-1407 referred to non-governmental entities. A public official cannot have a business association with a county.

We do not address the issue of conflicts based upon a benefit or detriment to an immediate family member since this is not an issue raised by this question.

We next turn our attention to the matter of an elected county official having a contractual relationship with the county. As County Public Works Director, Mr. Hostler has a contractual relationship with Hall County based upon his employment. Section 49-14,103.01 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 on the matter granting the contract; and

3) Does not act for the governing body which is a party to the contract as to the inspection or performance under the contract.

Should Mr. Hostler be elected to the office of Hall County Surveyor, he would need to be aware of these provisions and seek further advice from the Commission as to how to comply with them.

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. As applied to Mr. Hostler's proposed activities, this section requires that government resources not be used for the purpose of furthering his candidacy. That is, campaigning should not be done on government time and government personnel and resources should not be used for campaign purposes.

While there is no prohibition against the Hall County Public Works Director seeking the office of County Surveyor found in the Nebraska Political Accountability and Disclosure Act, it is possible that there are restrictions or prohibitions on this activity to be found in state statutes outside of the Act. The Commission has no jurisdiction to interpret statutes outside of the Act. Therefore it is recommended that Mr. Hostler also seek the advice of the Hall County Attorney or that of privately retained counsel.