OPINION NUMBER - 150

ADOPTED - 1994/08/19

SUBJECT - Conflicts of Interest/Use of Public Office and Public Resources

REQUESTED BY: Frank C. Lloyd, Assistant Commissioner and Director of the Vocational and Rehabilitation Division of the Nebraska Department of Education.

QUESTION: May a state employee conduct an outside consulting business?

CONCLUSION

See Analysis.

FACTS

The Director of the Division of Vocational Rehabilitation of the Nebraska Department of Education previously held a similar position in another state. While in that prior position he engaged in consulting activities on his own time and was compensated for those activities outside of his governmental salary. Specifically he was hired by private businesses, local groups, etc. to make presentations in the areas of personal growth, leadership, and management. These presentations consisted of short banquet presentations, one hour keynote addresses, and one day workshops. In the past, this individual's contacts with those groups engaging his services was separate from his work with the state. He had his own business phone, calling cards, stationery, and office equipment. All matters pertaining to the consulting business were handled on his own time and not on state time. When engaging in his consulting duties, he did not identify himself as a state employee.

The individual's current official duties with the State of Nebraska require him to act as a spokesman for the Vocational Rehabilitation Division and as a liaison to the public, other state agencies, and state policymakers. As a spokesman he speaks to various rehabilitation groups and other groups that may assist the division with funding as well as job placement. These other groups include a variety of service organizations.

The individual wishes to know if the nature of his current official duties preclude him from engaging in outside speaking and consulting.

ANALYSIS

Section 49-14,101(3) of the Nebraska Political Accountability and Disclosure Act generally provides that a public official or public employee may not use his or her public position for personal financial gain. Stated another way, a public official or public employee may not use his or her employment for the purpose of generating outside income. Pursuant to this statute, a state employee could not contract with an individual or group to do for pay that which he or she is required to do as a part of his or her official duties or reasonably could be required to do as part of his or her official duties.

Consider a situation in which a state employee is required to provide information and training which would allow daycare providers to comply with a body of state law and regulation. The employee's supervisor has the authority to require the employee to hold workshops or seminars at any location within the state and either during business hours or evening hours. For that employee to arrange privately to provide a training seminar on daycare laws and regulations for a group of daycare providers and to be paid by that group would be a violation of Section 49-14,101(3). If the same employee is an expert gardener, he would not be prohibited from giving talks and seminars for pay to garden clubs on gardening topics.

In this case, the Division Director is required to occasionally address groups regarding the topic of vocational rehabilitation. These are a legitimate part of his state duties and he should not receive compensation other than his state compensation for performing these duties. However, his consulting and speaking business focuses on the area of personal growth, leadership, and management. By his description, they tend to be motivational sessions. These do not relate to his duties as a state employee and therefore these outside activities are permissible.

Further discussion is required in order to ensure a full understanding of the application of the Nebraska Political Accountability and Disclosure Act to the situation.

The application of Section 49-14,101(3) is discussed above in part. In past advisory opinions the Commission has taken the position that the provisions of Section 49-14,101(3) also prohibit a public official or public employee from using the power of his or her position in order to secure financial gain. Therefore, a public official or public employee may not use the power or influence of his or her position to increase the number of speaking or consultation opportunities by conveying to another the understanding that increased speaking or consultation opportunities will result in more beneficial treatment by the department while a failure to increase speaking or consultation opportunities will result in harsher treatment by the department. In addition, Section 49-14,101(3) provides that a public official or public employee may not use confidential information received through the holding of public office for the purpose of securing personal financial gain. As applied to this situation, it is clear that the Division of Vocational Rehabilitation would have lists of names and other information concerning persons applying for or receiving vocational rehabilitation. By law, these records are confidential. See Section 79-1454. A public official or public employee is prohibited from using this type of information to develop a mailing list for the purpose of securing outside speaking and consultation opportunities.

Section 49-14,101(4) provides that no public official or public employee shall use personnel, resources, property, or funds under his or her official care and control except in accordance with law. It additionally provides that none of these things may be used for personal financial gain. As applied to this situation, the provision means that the activities of the private consultation business may only take place on the individual's own time and not state time. He may not use any of the equipment or resources of the state in connection with this private consultation business. This includes, but is not limited to, the use of computers, telephones, photocopy machines, or personnel.

State employees who are within the Nebraska Classified System Personnel Rules should be aware that Title 273, Chapter 15, Section 005 provides as follows:

An employee, with the prior notification of the agency head, may engage in additional employment or acquire private interest in business, provided such employment or interest does not interfere with the interest of the state, the agency, or the state statutes.

Employees of the Nebraska Department of Education do not fall within the Nebraska Classified System Personnel Rules. However, many agencies which are not within the Classified System have their own internal guidelines which may be similar in nature. A Nebraska state employee who is considering in engaging in outside employment or business activities should always check the policies of his or her own agency.

SUMMARY

A state employee may engage in consultation and speaking activities outside of his or her state employment if these activities are not activities which relate to his or her duties of state employment. State personnel, resources, property, or funds may not be used in connection with outside consultation and speaking activities.