OPINION NUMBER - 147
ADOPTED - 1994/07/08
SUBJECT - Conflicts of Interest/Gifts
REQUESTED BY: Michael P. Manly on behalf of the Nebraska Association of County Officials.
QUESTION: 1) Does a county official attending a convention at county expense own any door prize that he or she wins? 2) Do the provisions of Section 49-1490 apply to county officials?
As to question #1, yes.
As to question #2, no.
A convention is to be held which will be attended primarily by county officials. For the most part, the registration fee, meals, travel, and lodging costs will be paid by the counties of these officials. The organization as well as a variety of other companies, businesses, and individuals, will be donating items to be used as door prizes. Certain of these door prizes may have nominal value while other of these door prizes may have values exceeding $100. The prizes will be awarded through the random drawing of names of those in attendance. Some of those donating door prizes may be principals or lobbyists as defined in Section 49-1434 of the state statutes. Many of the donors are in the business of supplying goods or services which may be of interest to county government or county officials.
The sponsoring organization wishes to know if door prizes awarded under these circumstances become the personal property of the recipient county official or if the door prizes become the property of the county which is paying the cost of the attendance of the recipient county official. In addition, the sponsoring organization wishes to know if the provisions of Section 49-1490 establishing limits on gifts from principals and lobbyists to certain public officials and public employees apply to county officials.
The term "gift" is defined in Section 49-1423. That section generally provides that a gift is "a payment, subscription, advance, forbearance, rendering or deposit of money, services or anything of value unless consideration of equal or greater value is given therefor." The section goes on to provide that the definition of "gift" does not include "a campaign contribution otherwise reported as required by law, a commercially reasonable loan made in the ordinary course of business, or a gift received from a member of the individual's immediate family or from a relative."
Section 49-14,101(1) provides that no person shall offer or give a public official or public employee "anything of value, including a gift, loan, contribution, reward, or promise of future employment, based on an agreement that the vote, official action, or judgment of any public official, public employee, or candidate would be influenced thereby." Section 49-14,101(2) provides that no public official or public employee shall solicit or accept anything of value, including a gift, et cetera based upon an agreement that the vote, official action or judgment of the recipient would be influenced thereby. The circumstances under which door prizes are awarded are such that the activity would not be prohibited by the provisions of Section 49-14,101(1) or Section 49-14,101(2).
Except as provided in Section 49-14,101, there is nothing in the Nebraska Political Accountability and Disclosure Act which prohibits county officials from receiving gifts. In fact, the act appears to contemplate that there will be county officials who do, on occasion, receive gifts. Section 49-1493(10) requires elected county officials to annually file Statements of Financial Interests. Section 49-1496(2)(e) requires those Statements of Financial Interests to include the name, address, and occupation or nature of business of any person from whom a gift is received with a value of more than $100. The Statement of Financial Interests must also disclose the circumstances of the gift. It is important to note that county officials who file Statements of Financial Interests are required to report all gifts with a value of more than $100 except those from immediate family members and relatives. Gifts made under circumstances having no connection with one's official position are still reportable.
It is the position of the Commission that door prizes received by public officials and public employees are gifts. Such a gift becomes the property of the public official or public employee and not the property of the governmental entity sending the employee to the event. Door prizes with a value of more than $100 received under these circumstances must be reported as gifts on Statements of Financial Interests by those public officials or public employees who are required to file Statements of Financial Interests.
For the sake of clarity it is necessary to distinguish situations in which public officials or public employees receive door prizes and situations in which public officials or public employees receive other items in connection with attendance at a convention paid for by government or the receipt of items in situations in which government money is a factor.
Books, printed matter, and other items which are received by a public official or public employee as the result of his or her attendance at a convention paid for by the state or a political subdivision normally become the property of the state or the political subdivision. That is, items received as part of the cost of registration belong to the unit of government paying for the registration. If a public official or public employee makes a purchase on behalf of the state or one of its political subdivisions and the seller is offering some sort of "free gift" as an inducement to purchase, the so-called "free gift" is the property of the governmental unit and not of the employee or official. Other types of benefits which may be conferred as the result of a purchase by a governmental entity would normally belong to the governmental entity. We state this as a general rule knowing that there may be exceptions. Exceptions, however, would need to be considered on a case by case basis.
The second question is whether the provisions of Section 49-1490 of the Nebraska Political Accountability and Disclosure Act apply to county officials. This section generally provides that a principal, lobbyist, or anyone acting on behalf of either may not give a gift with a value of more than $50 in a one month period to certain categories of public officials or public employees. It further provides that certain categories of public officials and public employees may not accept gifts with a value of more than $50 in a calendar month from principals, lobbyists, or anyone acting on behalf of either. While there are certain exceptions to this gift limitation provision, we do not discuss them here since it is clear that the provisions of Section 49-1490 do not apply to county officials. The provisions apply to officials in the executive or legislative branches of state government, their staffs, and their immediate families. Therefore, these provisions do not apply to door prizes which are provided to county officials. These provisions would apply to door prizes which are provided to officials or employees of the legislative or executive branches of state government attending the event if the donors of the prizes are principals, lobbyists, or anyone acting on behalf of either.
A door prize awarded to a county official attending a convention at county expense is the property of the county official and not the county. Under these circumstances the door prize is a gift. A county official who is required to file annual Statements of Financial Interests must show the door prize on his or her Statement of Financial Interests if the door prize has a value of more than $100. The provisions of Section 49-1490 do not apply to county officials.