OPINION NUMBER - 136

ADOPTED - 1991/12/06

SUBJECT - Conflicts of Interests.

REQUESTED BY: Kerry P. Egan, Deputy Lancaster County Attorney

QUESTION: May a county commissioner who is in the process of obtaining a nursing home administrators license complete the required administrator-in-training process at a nursing home owned and operated by the county?

CONCLUSION

See Analysis.

FACTS

Lancaster County Commissioner Marcia Malone is currently in the process of obtaining her license to be a nursing home administrator. As part of this process, she must complete an administrator-in-training program under a certified preceptor. Section 71-6055(4) provides that in order to become a certified preceptor an individual must (a) be currently licensed and practicing as a nursing home administrator in the State of Nebraska, (b) have 3 years of experience as a nursing home administrator, and (c) complete a preceptor training course approved by the Board of Examiners in Nursing Home Administration. The preceptor essentially functions as a teacher and is responsible for verifying that an administrator-in-training has obtained the training and experience set forth in section 71-6053(12)(a) through (i).

Commissioner Malone has applied to become an administrator-in-training at Lancaster Manor under administrator Larry Van Hunnik. Mr. Van Hunnik is a certified preceptor.

Lancaster Manor is owned and operated by Lancaster County. The Lancaster County Board of Commissioners is the governing body for Lancaster Manor and is, therefore, responsible for establishing policy for the manor. Mr. Van Hunnik , as the Chief Administrator for Lancaster Manor, is appointed by the county board and serves at the discretion of the board.

In the past, Mr. Van Hunnik has served a preceptor for another administrator-in-training and plans on doing so in the future. Separate from Mr. Van Hunnik's previous service in this capacity, Lancaster Manor has been the facility at which another individual has completed the administrator-in-training process. The request letter indicates that the commissioner's application will be considered in the same manner as those of all other applicants. The preceptor receives no pay for serving as preceptor and the administrator-in-training receives no pay for his or her work. If accepted, Commissioner Malone would be required to spend a number of hours per week at Lancaster Manor in order to fulfill the training requirements. Mr. Van Hunnik will be required to spend from one-half to one hour per day performing preceptor duties.

ANALYSIS

Commissioner Malone, as a member of the Lancaster County Board, participates in decisions on the hiring of a nursing home administrator, setting the salary for the nursing home administrator, and determining the continued employment of the nursing home administrator. This same administrator, in his capacity as a preceptor, is required to evaluate the progress of the commissioner and ultimately verify to the Board of Examiners in Nursing Home Administration that she has successfully completed her training.

Section 49-1402 of the Nebraska Political Accountability and Disclosure Act sets forth the legislature's findings of fact and declaration of intent. This section condemns, as a statement of public policy, the appearance of "a substantial conflict between the private interest of a public official and his duties as such official". In Advisory Opinion #45 the Commission stated that while the "appearance of a conflict" is condemned by the Act, the prohibition provisions contained in the Act do not make the appearance of a conflict a violation in and of itself. See also Advisory Opinion #117. We must, therefore, examine the other provisions of the Act to determine if there is any provision which would prohibit this proposed course of action.

Section 49-14,101 generally provides that no person shall offer or give and no public official solicit or receive anything of value including a gift, loan, contribution, reward, or promise of future employment, based upon an agreement that the vote, official action, or judgment of any public official or public employee would be influences thereby. We have no information which would lead us to believe that anything of this nature is contemplated by either the county commissioner or the nursing home administrator. Assuming the absence of such an agreement or understanding, the provisions of section 49-14,101 (1) and (2) do not prohibit the proposed situation.

Section 49-14,101(3) provides that 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 for himself or herself, a member of his or her immediate family, or a business with which he or she is associated. In other words, this provision prohibits the use of the "power" of one's public position for some sort of gain or benefit. Clearly this provision would prohibit the county commissioner from using in any way the influence of her position to secure acceptance into the administrator-in-training program or to secure a favorable verification from the preceptor. Absent the use of influence in this manner, there is nothing in this provision which would prohibit the proposed course of action.

Section 49-1499 of the Act provides that a public official has a potential conflict of interest if the official, in his or her official capacity, is faced with taking an action or making a decision which could result in a financial benefit or detriment to (a) the official; (b) a member of the official's immediate family; or (c) a business with which the official is associated. As we understand it, Commissioner Malone is not currently faced with taking an action or making a decision which could result in a financial benefit or detriment to herself. There is nothing, therefore, in the provisions of section 49-1499 which would prohibit the proposed course of action. This is not to say, however, that Commissioner Malone would never have a potential conflict of interest because her service as an administrator-in-training. However, if Commissioner Malone does have a potential conflict of interest it would not require her to withdraw from her position as administrator-in-training. It may, however, require her to abstain from participating or voting on a particular matter as a county commissioner.

Mr. Van Hunnik, as an administrator of the facility owned and operated by the county, is a public employee as defined in section 49-14,442. As such, he too is subject to certain provisions of the Act. Of particular relevance are the provisions of section 49-14,101(4). This section provides that a public employee may not use personnel, property, resources or funds under his or official care and control other than in accordance with prescribed constitutional, statutory, and regulatory procedures. It further provides that these resources may not be used for personal financial gain. In order to avoid any questions arising concerning the provisions of section 49-14,101(4) Mr. Van Hunnik may wish to insure that either his job description or the policies of Lancaster Manor as approved by the county board make some provision for his functioning as preceptor in an administrator-in-training program. If there is nothing applicable in Mr. Van Hunnik's job description or the policies of Lancaster Manor, he may wish to seek the approval of the Lancaster County Board for this proposed course of action.

In summary, while the proposed course of action gives an appearance of impropriety, it is not prohibited by the provisions of the Nebraska Political Accountability and Disclosure Act.