OPINION NUMBER - 161
ADOPTED - 1995/06/16
SUBJECT - Conflict of Interests/Use of Public Resources.
REQUESTED BY: Ellen Totzke, Hall County Attorney.
QUESTION: May a deputy public defender use certain county resources in connection with a private practice of law?
Hall County is considering the enactment of personnel policies applicable to deputy public defenders who also engage in the private practice of law. The deputies are considered full-time employees and are required to work 37.5 hours per week. As a practical matter, they often work more then this number of hours per week.
Section 23-3401 R.S. Supp, 1994 provides that deputy public defenders in counties having a population of more than 170,000 inhabitants shall not engage in the private practice of law. Hall County has a population of approximately 49,000. Thus, there is no express statutory prohibition against deputy public defenders in a county the size of Hall County engaging in the private practice of law.
Questions have arisen as to the circumstances, if any, under which deputy public defenders would be permitted to use county resources in connection with the private practice of law.
Section 49-14,101(4) of the Nebraska Political Accountability and Disclosure Act provides 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.
Simply stated, the personnel, resources, property, or funds of a political subdivision may be used for government purposes only. They may not be used for the personal financial gain of a public official or public employee, except for the compensation of the public official or public employee as provided by law.
Section 23-3403 of the Nebraska statutes provides as follows:
The public defender may appoint as many assistant public defenders, who shall be attorneys licensed to practice law in this state. . . and other employees as are reasonably necessary to permit him or her to effectively and competently represent clients of the office subject to the approval and consent of the county board which shall fix the compensation of all such persons. . .
Thus, it is for the county board to fix the compensation of a deputy public defender. A deputy public defender may not then use the resources of the county for personal financial gain except that compensation which has been established by the county board.
With these general principles in mind we examine the specific questions raised.
Question #1 - May a full-time deputy public defender engaged in the private practice of law make a court appearance on behalf of a private client during business hours?
Response - Yes. A deputy public defender in Hall County is required to work at least 37.5 hours per week. He or she is paid a salary and is not eligible for overtime. As long as all of the obligations of his or her official position are met there is no prohibition. If a court appearance on behalf of a private client results in a deputy public defender spending less than full-time at his or her official duties, the deputy public defender must use vacation or other leave.
Section 23-1114.09 pertains to the salaries of deputy county officials. It states in part as follows:
No full-time deputy shall, except for vacation and sick leave periods established by the county board, be entitled to such salary during any period of time that such deputy is not actually engaged in the performance of the official duties of a deputy.
Question #2 - May a secretary employed by the public defender's office perform certain secretarial functions, such as typing legal documents, for a deputy public defender in connection with the private practice of law?
Response - No, unless the secretary is performing these functions on personal time using non county equipment or resources. That is, county stationery, a county computer, and a county photocopier should not be used in connection with work being done for a private client. It would generally be acceptable for county resources to be used on behalf of a private client if they are used on the same basis that the resources are available to other members of the public. For example, if there is a county photocopier which is available for public use at the rate of 25 cents per page, it is acceptable for photocopies to be made on behalf of a private client at the rate of 25 cents per page. Naturally, work by public secretarial staff on behalf of the private client of a deputy public defender must be at the personal expense of the deputy public defender.
Question #3 - May a deputy public defender engaged in the private practice of law meet with a private client at county facilities assigned to the public defender?
Response - Generally no. A deputy public defender may meet with a private client in those county facilities which are open and available to the general public. For example, hallways, public meeting rooms, etcetera. However, the deputy public defender should not make a practice of meeting with private clients in those areas assigned exclusively for the use of the public defender and his staff.
Question #4 - May government telephones be used for personal calls or calls associated with the private clients of a deputy public defender?
Response - The nature of the question defies an easy answer. Generally speaking, it is for the county board or the appropriate county official to determine what constitutes official business or what sort of activity facilitates official business. Clearly, a client assigned to the public defender's office who calls the appropriate deputy public defender is calling on official business. A deputy public defender making calls in connection with his court assigned cases is conducting official business. There the clarity ends.
It is not uncommon for employees at any work place, public or private, to occasionally receive calls which are personal in nature. These calls might include calls from babysitters, minor children, spouses, or other family members. In addition, it is not unusual for an employee, public or otherwise, to make occasional use of an employer's telephone to contact babysitters, minor children, or spouses. A government body may simply conclude that such calls are inevitable and that it facilitates government business to allow employees to make occasional use of government telephones for personal use since it eliminates the need to have the employee leave the work site to find the nearest telephone booth. A supervisor can certainly determine if personal calls are getting out of hand or interfering with government business. Calls made on government telephones which are personal in nature should not be charged to the governmental entity. For the purposes of this opinion, when we use the term personal call we are referring to those types of telephone calls which pertain to the business of raising a family, running a household, maintaining one's health or that of one's family. Again, it is for the appropriate county official or the county board to determine if personal calls are to be permitted or prohibited.
A different category of telephone calls consists of private business calls. That is, those calls which are connected to a for profit business or otherwise directed toward earning money other than that compensation provided by law. The use of government telephones for this purpose is prohibited. There is simply no public purpose achieved by having a public official or public employee make telephone calls on government telephones for the purpose of earning a personal profit. As a practical matter, one cannot always control in-coming telephone calls. However, a deputy public defender with private clients should, at the very least, do what he or she can to discourage private clients from calling the government office. For example, if a deputy public defender has his or her own privately printed stationery for use in connection with private clients, it should not include the telephone number or mailing address of the governmental office. Likewise, business cards should not include the telephone number or mailing address of the governmental office. Instructing private clients where and when to call may also be useful.
Calls to and from a county office relating to private, non-profit organizations also need to be addressed. There are situations in which these types of calls may be considered government business. Many public officials, public employees, or their political subdivisions, belong to outside organizations for the purpose of furthering government business. That is, the purpose of belonging to the organization is to enhance the skill or knowledge of the employee or official in areas related to his or her duties. As with many membership organizations, members are occasionally asked to perform some service on behalf of the organization. At times this involves serving in a position of responsibility within the organization such as being an officer or director of the group. This, of necessity, occasionally requires the use of governmental telephones in connection with the activities of the organization. The county board or the appropriate county official may determine that the use of government telephones in connection with such an organization serves a public purpose or facilitates government business. Certainly the payment of membership dues or fees to an organization is an indication of the political subdivision's belief that belonging to and participating in the organization serves a government purpose. Further discussion of the issue of the occasional use of government resources in connection with a private organization is found in Advisory Opinion #148.
There are situations in which telephone calls to or from private non-profit organizations may be in the nature of personal calls. That is, they in some way relate to the raising of a family, the running of a household, or maintenance of the health of one's self or one's family. Thus, the county board or appropriate county official may take the position that it facilitates government business to permit officials or employees to occasionally make or receive telephone calls to certain outside organizations such as parent teacher organizations and the like. As with other personal calls, they should not be charged to the government body and it can be left to supervisors to determine if such telephone calls are getting out of hand or are interfering with government business.
The use of government telephones to make calls to and receive calls from political organizations constitutes another category of telephone calls. Certainly there can be legitimate government reasons for these types of telephone calls. Political parties are, by their nature, a part of the political and governmental process. However, a public official or public employee associated with a political party should not be conducting the business of a political party out of his or her governmental office and should not be using governmental telephones to further the business of a political party. In past advisory opinions the Commission has taken the position that governmental resources may not be used for the purpose of supporting or opposing the nomination or election of a candidate or the qualification, passage, or defeat of a ballot question. Conducting the business of a candidate committee, ballot question committee or any committee as defined by §49-1413 from a county office is prohibited.
On the whole, it is inappropriate for a private business to be run out of an office established for the conduct of government business. There are at least three reasons for this. The first is that it conveys the wrong impression if a potential customer or client calls a number only to find that he or she has called a government office. The caller may believe that he or she should do business with a government employee because there would be some advantage to having "government connections." On the other hand, the reaction may be a disgusted "my tax dollars at work." The second reason is that the situation could give the government official or employee an advantage over private competition. After all, the government employee is not paying overhead. The third reason is that it is a short step from using the telephone and facilities of government for private business to using the computer, the photocopier, the fax machine, and the personnel for private business. In addition, it becomes easier to rationalize spending ever increasing amounts of government time on private matters.
There are a number of statutes which apply to different county officials in different ways. In addition, a number of statutes applicable to county officials and employees differ in their application depending upon the population of the county. The Commission takes no position as to whether it is the county board or some other county official who has the authority to make decisions as to personnel policies and the use of county telephones.
Summary: County personnel, resources, property, or funds may be used for county purposes only. They may not be used for the personal financial gain of a deputy public defender except that compensation which is provided by law. Thus, county resources should not be used in connection with a private client of a deputy public defender in Hall County. A deputy public defender may appear in court on behalf of a private client as long as it does not interfere with his or her official duties and as long as vacation leave is taken if the activity results in less than a full work week. County telephones are to be used for county business. They may be used for occasional personal matters if the appropriate county official or the county board believes that such use ultimately facilitates county business. Use of county telephones for the purpose of conducting a private business for money or in connection with political party activities is prohibited.