OPINION NUMBER - 132

ADOPTED - 1991/04/19

SUBJECT - Conflicts of Interest/Use of public resources.

REQUESTED BY: William M. Miller, Director, Division of Communications

QUESTION: May an agency install in a state vehicle a personally owned mobile telephone to be used for state business?

CONCLUSION

Yes.

FACTS

The Nebraska Department of Agriculture recently hired a Field Veterinarian Supervisor. The Field Veterinarian Supervisor owns a mobile telephone. He has asked that this mobile phone be installed in his state owned vehicle for the purpose of conducting state business. It is the belief of the Field Veterinarian Supervisor that the telephone would have 70% coverage for his inspection area. Telephone calls within the coverage area would be at no charge. Calls outside the coverage area would be charged to a credit card. The State would pay a $33 monthly access charge, a $5 monthly maintenance charge, and $2.27 per month in excise and sales tax. There would also be a one-time charge for installation of the phone and a one-time charge for its removal.

The Department of Agriculture cites several considerations in installing the telephone. They are:

1) The cost of traveling to find a pay phone versus the fixed monthly cost of maintaining the mobile phone;

2) The cost of maintaining the mobile phone versus the long distance charges on a pay phone;

3) The convenience to the department and the employee of being in closer contact with the State Veterinarian's Office;

4) The increased accessibility of the field staff to the regulated industry for which the employee is responsible; and

5) Based on the trial usage of the mobile phone, the cost/time advantage of placing similar mobile phones in vehicles assigned to other supervisory personnel across the state.

ANALYSIS

With certain exceptions not applicable here, Section 81-1010 provides that it is the responsibility of the Transportation Services Bureau of the Nebraska Department of Administrative Services to monitor the utilization of permanently assigned motor vehicles. Section 81-1016 Authorizes the Transportation Services Bureau to adopt rules and regulations as are necessary to fulfill its statutorily established duties. Section 1, Paragraph 4 of the Policies and Procedures of the Transportation Services Bureau states:

Agency heads shall approve, furnish, and finance the procurement and installation of all special equipment, paint, markings, accessories and passenger comfort items they may require for permanently assigned vehicles. They shall finance the removal of all special equipment and the restoration of the vehicle to its original condition before the vehicle is returned to the Transportation Services Bureau.

Therefore, the installation of a mobile phone in a state vehicle permanently assigned to a Department of Agriculture employee appears to be within the discretion of the Director of the Department of Agriculture. Because the equipment to be installed is a communications device, the discretion of the Director of the Department of Agriculture may be limited somewhat by the statutorily granted authority of the Director of the Division of Communications.

Section 81-1120.17 requires the Division of Communications "To coordinate the purchase, lease, and use of communications services equipment . . . " and "To assume all management responsibility for any consolidated system or service and approve all purchases and contracts for such communications activities".

Section 81-1120.02(4) defines communications system as "the total communications facilities and equipment owned, leased, or used by all departments, agencies, and subdivisions of state government". Section 81-1120.02(5) defines communications as "any transmission, emission, or reception of signs, signals, writing, images, and sounds or intelligence of any nature by wire, radio, optical, or other electromagnetic systems".

While the provisions of Chapter 81 are beyond the jurisdiction of the Commission, it does not appear from a plain reading of Section 81-1120.02 that upon installation of the mobile telephone in the state owned vehicle the telephone becomes part of the communications system of the state. Section 81-1120.27 states:

The communications system shall not be used for any purposes other than business of the state or its political subdivisions except under conditions of emergency.

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.

There is nothing in the Nebraska Political Accountability and Disclosure Act which would prohibit the installation of a privately owned mobile phone in a state vehicle for governmental use. This is a matter left to the agency head subject to the regulations established by the Transportation Services Bureau and to the authority granted to the Divisions of Communications.

It is our position that while this mobile telephone is installed in a state vehicle, it is part of the communications system of the state and is a public resource. It may therefor be used only for state business. It may not be used for personal business even if the use of the mobile phone for personal business results in no added charge to the State.