OPINION NUMBER - 156

ADOPTED - 1995/03/24

SUBJECT - Conflicts of Interest

REQUESTED BY: Arlene Thietje, Purchasing Agent, City of Norfolk

QUESTION: May the City of Norfolk make certain expenditures of municipal funds in connection with an open house?

CONCLUSION

Yes

FACTS

The City of Norfolk wishes to know if it may expend public funds in connection with an open house. The city considers an open house to be one of two types of activities. The first type of activity would be one in which the general public is invited to view one of the city's facilities. The second type of activity is one in which the general public is invited to either a city facility or non-city facility at which the city will provide information or education about a municipal purpose. Examples of these types of activities might include promotions during National Fire Prevention Week, library summer reading programs, a booth at a home product show, or an event by the city street division held before the snow season to acquaint the public with snow removal operations and equipment. Specifically, the city wishes to know; a) if it may pay for refreshments at an open house; b) if it may pay to lease booth space; c) if it may pay set up fees or rent tables and chairs at another facility for an open house; or d) if it may give away items of small value such as coloring books, pencils, halloween trick or treat bags, etc.

ANALYSIS

Section 49-14,101(4) of the Nebraska Political Accountability and Disclosure Act provides in part as follows:

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. . .

While this provision gives the Commission the authority to respond to questions such as the ones posed, the Commission has primarily exercised its authority pursuant to this statute in two types of situations. The first type of situation is one in which a public official or public employee uses public personnel, resources, property, or funds for his or her own personal benefit, including a benefit which constitutes financial gain. The second type of situation involves the use of public personnel, resources, property, or funds by a public official or public employee in order to support or oppose the nomination or election of a candidate or the qualification, passage, or defeat of a ballot question. The Commission does not view its purpose as the micromanagement of the activities of municipalities under circumstances in which a municipality is attempting in good faith, through the appropriate government body, to exercise its lawful municipal functions. Other checks exist on a municipality's use of public funds. For example, the use of public funds by a municipality in a manner not authorized by law could subject the municipality to a taxpayers suit. An additional remedy for the voters lies at the ballot box if a municipal body uses public funds in a manner which is not in accordance with the wishes of the voters. However, given the frequency with which "use of public funds" type of questions are posed to the Commission, we believe it would be of value to provide guidance.

Initially, we must acknowledge the well settled rule that "a municipal corporation possesses, and can exercise, the following powers and no others: first, those granted in express words; second, those necessarily or fairly implied in or incident to the powers expressly granted; and third, those essential to the declared objects and purposes of the corporation - not simply convenient, but indispensable." Professional Fire Fighters of Omaha v. City of Omaha, 243 Neb. 166 498 N.W.2d 325 (1993); Giger v. City of Omaha, 232 Neb. 676, 442 N.W.2d 182 (1989); Jacobs v. City of Omaha, 181 Neb. 101, 147 N.W.2d 160 (1966); Christensen v. City of Fremont, 45 Neb. 160, 63 N.W. 364 (1895). Consistent with this statement of the Nebraska Supreme Court are the provisions of 16-201 of the state statutes which are applicable to cities of the first class such as Norfolk. That section permits cities to "do all other acts in relation to the property and concerns of the city necessary to the exercise of its corporate powers, and to exercise other and further powers as may be conferred by law." Thus, in determining how a city may expend municipal funds, one must first look to the state statutes to determine the powers of the municipality.

Section 16-6,100 authorizes cities of the first class to own buildings for a variety of purposes. Such cities may own city halls, jails, auditoriums, fire departments, etc. The same series of statutes also provide methods by which these buildings may be purchased or acquired. It is consistent with this power for the city to provide opportunities for the public to view such buildings. In some cases it may be that the city wishes to have the public view municipal facilities so that the public will be aware of the need for repair or replacement. In other situations it may be that the purpose of an open house is informational, educational, or simply held for the purpose of allowing the public to see the facilities that tax dollars and other public monies have purchased. The expenditure of public funds in connection with matters reasonably attributed to an open house in which there is no special benefit to a public official or public employee is a matter to which the Nebraska Accountability and Disclosure Commission would not take exception.

Section 16-251 authorizes cities of the first class to establish and maintain public libraries and reading rooms. It further provides that cities may provide instruction on the use of library facilities. The expenditure of public funds to conduct a summer reading program so as to encourage children to discover the benefit of a public library and to provide instruction as to how the library may be used is reasonably connected with a power of city government. If there is no special benefit to a public official or public employee, it is not a matter to which the Nebraska Accountability and Disclosure Commission would take exception.

Section 16-222 authorizes cities of the first class to provide for the organization of a fire department. The same section authorizes a city to establish regulations for the prevention and extinguishment of fires. An open house at a fire department at which the public is given the opportunity to view equipment or receive information on fire safety is reasonably connected to a municipal function. The distribution to children of small items such as coloring books which include fire safety messages appears to be reasonably connected to a city function. The expenditure of public funds in connection with such an event in which there is no special benefit to a public official or public employee is a matter to which the Nebraska Accountability and Disclosure Commission would not take exception.

Section 16-609 provides that a city of the first class has the power to control and keep in good repair and condition any street, avenue, or alley within the city limits. The removal of snow is part of the process of keeping a street in good condition. A city holding an open house to display its snow removal equipment and providing citizens with information as to how their cooperation may facilitate the removal of snow from city streets is reasonably connected to a city function. The expenditure of public funds in connection with such an open house in which there is no special benefit to a public official or public employee is a matter to which the Nebraska Accountability and Disclosure Commission would not take exception.

To the extent that it is reasonably connected to the exercise of a municipal power or function, a city may expend public funds to pay to lease booth space and pay set up fees or rent tables and chairs at a non-municipal facility for an open house. Cities may expend public funds for items of small value if the purpose of the item is to facilitate the exercise of a city function and no special benefit is given to a public official or a public employee. We do not consider regular or overtime compensation to be a special benefit. Coloring books containing fire safety messages, pencils promoting reading, and halloween trick or treat bags made of reflector material or including safety messages would be examples of permissible items.

In 1993 the Local Government Miscellaneous Expenditures Act was enacted. The Act established circumstances under which food and non-alcoholic beverages could be provided by political subdivisions to public officials, public employees, and volunteers. The Act did not, however, address the concept of providing food and drink to the general public at public events. Nevertheless, if it is reasonably connected to the exercise of a municipal power or function, the Commission will not take exception to the use of public funds by a municipality for the purpose of providing food and non-alcoholic beverages to the general public at an open house. However, the law is far from precise in this area and clarifying legislation could be beneficial to municipalities which are concerned about taxpayers suits over this issue.

We note the provisions of 16-253 which are consistent with the approach taken in this opinion:

When the power is conferred upon the mayor and council of any city of the first class to do and perform any act or thing, and the manner of exercising such power is not specifically pointed out, the mayor and council may provide by ordinance the details necessary for the full exercise of such power.

SUMMARY

A municipality has those powers expressly granted, necessarily or fairly implied, or essential to the declared purposes of the municipality. It is permissible for a municipality to expend public funds for an open house of municipal facilities or for informational or educational events regarding a municipal function. The Nebraska Accountability and Disclosure Commission will not take exception to expenditures of public funds reasonably connected with such events as long as there is no special benefit to public officials or public employees and the funds are not being used to support or oppose a candidate or ballot question.