OPINION NUMBER - 165

ADOPTED - 1996/02/23

SUBJECT - Conflicts of Interest/Use of office for financial gain

REQUESTED BY: Amy Hollenbeck, Assistant Attorney General

QUESTION: Can an assistant attorney general accept money from a movie production company for a story based upon a case which she prosecuted?

CONCLUSION

No

FACTS

On March 29, 1995 a disciplinary action was commenced by the Nebraska Department of Health against a psychologist to whom it had issued a license to practice in Nebraska. It was alleged that the psychologist had engaged in unprofessional conduct, was addicted to or dependent upon the use of controlled substances, practiced psychology while in an impaired state, and other allegations of a similar nature. An order was entered by the Director of the Department of Health in September of 1995. The order found that certain of the allegations against the psychologist were true. The psychologist, by virtue of the order, became ineligible to practice psychology in the State of Nebraska for a period of at least two years.

The psychologist has not appealed the order of the Department of Health and the time within which an appeal may be taken expired in October of 1995. As of the expiration of the appeal time, the assistant attorney general's involvement in the matter was concluded. The proceedings held and the evidence introduced in the case are matters of public record on file with the Nebraska Department of Health.

At the beginning of December 1995 the assistant attorney general was contacted by a production company from California. One of the principals of the production company had read an article about the psychologist's case in the newspaper. The individual purchased a copy of the transcript of the public hearing and developed an interest in pursuing the case as a potential movie story line. On December 27, 1995 the production company sent a letter of agreement to the assistant attorney general. The letter is essentially a contract which recites that the production company believes that the assistant attorney general, as to the case against the psychologist, "posesses insight and background to the principals and events of that case." It therefore proposes to purchase an option on "her consulting and/or story rights." Pursuant to the proposed contract, the production company would pay $500 for a one year option, an additional $500 to extend the option by one year, $2500 if a script is sold, and $25,000 if a movie is made.

The assistant attorney general wishes to enter into this contract, but only if it does not violate the Nebraska Political Accountability and Disclosure Act.

ANALYSIS

Section 49-1499 of the Nebraska Political Accountability and Disclosure Act provides that a public official or public employee has a potential conflict of interest if he or she is faced with taking an official action or making an official decision which could result in a financial benefit or detriment to: a) the official or employee; b) a member of his or her immediate family; or c) a business with which he or she is associated. The benefit or detriment must be distinguishable from the effect experienced by the general public or a broad segment of it. In this matter, the assistant attorney general is not faced with taking any sort of official action or making any sort of official decision. The contract offer arose after her official connection with the case had been completed.

Section 49-14,101(1) generally provides that no person shall offer or give a public official or public employee anything of value based upon an agreement that the official action or judgment of the public official or public employee would be influenced thereby. Section 49-14,101(2) generally provides that a public official or public employee shall not solicit or accept anything of value based upon an agreement that the official action or judgment of the public official or public employee would be influenced thereby. In this matter there is nothing which indicates that the proposed contract, or any payment thereunder, is meant to influence the action or judgment of the assistant attorney general.

Section 49-14,101(3) includes two prohibitions. The first is that a public official or public employee shall not use confidential information received through the holding of a public office to obtain personal financial gain for himself or herself, a member of his or her immediate family, or a business with which he or she is associated. We do not apply this aspect of 49-14,101(3) to this matter since it is our understanding that most aspects of this case are public and the assistant attorney general has indicated that she would not disclose any matter which may be deemed confidential. However, a second prohibition found in 49-14,101(3) is that no pubic official or public employee shall use his or her public office to obtain personal financial gain for himself or herself, a member of his or her immediate family, or business with which he or she is associated.

In this matter, we note that if the assistant attorney general had not been employed by the attorney general's office, she would not have been at the psychologist's hearing. If she had not prosecuted the case, her name would not have been associated with the case and it is unlikely that the production company would have contacted her or offered her the contract. It is, therefore, our opinion that it would be a violation of 49-14,101(3) for the assistant attorney general to enter into the contract under the circumstances described. That is, entering into the contract would constitute the use of her public position for personal financial gain.

SUMMARY

An assistant attorney general may not enter into a contract for the possible production of a movie based upon a case which she prosecuted since to do so would constitute a use of public office for personal financial gain in violation of 49-14,101(3).