OPINION NUMBER - 131

ADOPTED - 1991/04/19

SUBJECT - Conflicts of Interest/Use of Public resources.

REQUESTED BY: Michael A. Shrier, Treasurer, Ben Nelson for Governor Committee.

QUESTION: May the Governor's Mansion be used by the Governor for a political fund raising event?

CONCLUSION

Yes

FACTS

Over the years the Governor's Mansion has been the site of a number of political and fundraising events. The treasurer of the Ben Nelson for Governor Committee wishes to insure that political fund raising events may legally be held at the Governor's Mansion.

ANALYSIS

Section 49-14,101(4) states

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.

The Commission has generally interpreted this provision to mean that government resources may be used for a governmental purpose only. It is, therefore, necessary to determine the purpose for which the mansion is provided to a Governor during his or her term in office.

The 1871 Constitution of the State of Nebraska provided that the Governor shall reside at the seat of government. The current state constitution, known as the Constitution of the State of Nebraska of 1875 also provides in Section I, Article IV that the Governor shall reside at the seat of government during his term of office. While this portion of the current constitution has been amended over the years, there has always been a requirement that the Governor reside at the seat of government.

During the early years of statehood there was no state owned executive mansion. Instead, for a number of years the Legislature appropriated money to rent a place for the Governor to live. In 1899 the Legislature enacted a bill which required the Board of Public Lands and Buildings to "publish a notice in the daily papers of the City of Lincoln . . . , soliciting proposals for the sale to the State of Nebraska, a dwelling house property, located within said city, for an executive mansion, to be occupied by the Governor." (emphasis added) The sum of $25,000 was appropriated for this purpose. Soon thereafter a house was purchased and referred to as the executive mansion.

In 1945 the Legislature created the Post War Construction Fund and authorized money from the fund to be used for the "purchase of sites and construction thereon of an official residence for the Governor." (emphasis added) The current Governor's Mansion was completed in 1958 and is on a site paid for out of this fund.

In State v. Sheldon 78 NEB 552, 111 N.W. 372 (1907) the Nebraska Supreme Court noted that many states recognized "the added dignity given to the office and other advantages to be derived from the residence of the Chief Executive Officer being certain in location and convenient of access at all times . . .". (emphasis added) This observation was being made by the court in connection with a dispute as to whether the Governor should pay rent while residing in the Governor's Mansion.

The Constitution, the legislative enactments, and the Nebraska Supreme Court consistently use the term residence.(emphasis added) Webster's Ninth New Collegiate Dictionary defines the term "residence" in part as "a building used as a home; dwelling".

From the foregoing it is apparent that the State of Nebraska has taken the position that there is a government benefit to having the Governor reside at a place in the capital city "certain location and convenient of access at all times." State v. Sheldon, supra. Certainly it is contemplated that individuals residing in a state owned house will engage in some activity which does not necessarily have a governmental purpose. For example, a gathering at the mansion of the friends and family of the Governor for a family birthday celebration serves no governmental purpose. However it is clearly a use to which one might put a residence. So it is with a political fundraising event at the Governor's Mansion.

Section 81-1108.17 R.R.S., 1943 provides that the "Department of Administrative Services shall be the custodian of the State Capitol . . . the Governor's Mansion and grounds, and all other buildings and lands adjacent to the Capitol grounds owned or leased by the State of Nebraska". In its capacity as custodian of state buildings DAS has established Title 7, Chapter 5002.02 as to the State Capitol Building which states:

Any fundraising, canvassing or direct solicitation in individual offices is prohibited. Charitable fundraising activities, in the public interest, may be permitted upon written request but only after written approval from the Building Administrator.

Title 7, Chapter 6002.02 applies precisely the same language to the State Office Building. There are no regulations as to the use of the Governor's Mansion.

While the mansion and it's facilities may be used for a political fundraising event, the same does not hold true for state funds and state employees. Section 49-14,101(4) prohibits the use of state funds and state personnel for non-state purposes. State funds should not be used to pay the expenses of a political fundraising event at the Governor's Mansion. Expenses should be paid by the sponsoring political committee. State employees should not be used to prepare for a political fundraising event at the Governor's Mansion, nor should they perform services for the event during their working hours. The manpower needed for such an event should either be volunteer help, or paid for by the sponsoring political committee. This, of course, is not to say that the Nebraska State Patrol may not take whatever steps it deems necessary in order to provide security for the mansion and its grounds during a fundraising event, nor does this mean that the mansion director may not provide some general oversight of the event consistent with his or her duties.

In summary, it is our opinion that the Governor's Mansion and the mansion grounds may be used by the Governor for a political fundraising event provided that state funds and state employees are not used in connection with the event.