OPINION NUMBER - 163
ADOPTED - 1995/09/08
SUBJECT - Conflicts of Interest/Use of Public Resources
REQUESTED BY: Gerard A. Piccolo, Hall County Public Defender
QUESTION: May deputy public defenders use county resources in connection with the private practice of law if the use is pursuant to a compensation package?
The Hall County Public Defender plans to ask the Hall County Board of Supervisors to approve a compensation package for the county's deputy public defenders. The proposed compensation package will include the following terms: 1) Allow for private practice of law by deputy public defenders so long as county responsibilities are not neglected. 2) Allow the use of county telephones in connection with private practice. The calls would be limited to local calls. Any long distance calls from the county phones would be paid for by reimbursing the county or transferring the cost in some way to the attorney or client such as through calling cards, collect calls, etc. 3) Allow the use of county equipment such as computers, word processors, dictation machines, etc. The use of this equipment would take place only when it was not needed for county work. 4) Allow the use of county personnel such as secretaries to do private legal work. A private compensation agreement between the deputy public defender and the personnel would be required. Private work by personnel would be done on non county time such as lunch hours, breaks, in the evening, or on weekends. 5) Allow interviews of private clients in the deputy public defender's county office including the interviewing of others associated with a private client's case.
It is the Hall County Public Defender's intent that all private practice work be secondary to any county related work and that if county equipment or property is used, reasonable reimbursement would be required.
Hall County has a population of approximately 49,000. Therefore, its public defenders are not subject to the provisions of §23-3401 of the Nebraska Statutes which provides that deputy public defenders in counties having a population of more than 170,000 shall not engage in the private practice of law.
In Advisory Opinion #161 the Commission took the position that county resources could not be use by deputy public defenders in Hall County in connection with the private practice of law because such use would violate §49-14,101(4). That section 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.
Since §49-14,101(4) prohibits a public official or public employee from using public resources for personal gain, "other than compensation provided by law," the essential issue is whether the use of public resources for personal financial gain is permissible when it is part of the official's or employee's compensation.
Section 23-3403 provides in part:
The public defender may appoint as many assistant public defenders . . . and other employees as are reasonably necessary to permit him or her to effectively and competently represent the clients of the office subject to the approval and consent of the county board which shall fix the compensation of all such persons . . .
It is clear that it is within the authority of the county board to set the compensation for deputy public defenders. Fixing compensation normally involves determining a level or amount of compensation. The question presented goes to the form of compensation.
Section 49-1414 of the Nebraska Political Accountability and Disclosure Act provides that compensation "shall mean anything of monetary valve received or to be received from a person, whether in the form of a fee, salary, forbearance, forgiveness, or any other form of recompense." Chapter 23, which establishes the powers and duties of counties, includes no definition of the term compensation. Therefore, in determining the meaning of the term compensation as found in §49-14,101(4) and §23-3403, we rely on the definition found in §49-1414. That definition clearly provides that compensation may be made in a form other than money. This being the case, it is our opinion that the Hall County Board may permit deputy public defenders in Hall County to make use of county resources in connection with the private practice of law as long as the use of those resources is part of a compensation package. Under such circumstances, the use of the county resources by the deputy public defender would not violate §49-14,101(4). A determination as to whether such a compensation package is good public policy or bad public policy is left to the county board.
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. Therefore, this opinion is limited in applicability to deputy public defenders who are not subject to the provisions of §23-3401. This opinion is not applicable to elected county attorneys, elected public defenders, contract county attorneys, or contract public defenders.
A county board may permit deputy public defenders not subject to §23-3401 to use county resources in connection with the private practice of law as long as the permitted use is part of the compensation package which is properly reported to the appropriate taxing authorities.