OPINION NUMBER - 170

ADOPTED - 1997/01/24

SUBJECT - Conflicts of Interest/Outside Consulting

REQUESTED BY: Christopher Hoy, Director of Special Projects, Nebraska Department of Economic Development

QUESTION: 1) Can a state employee who, as part of his official duties, helps Nebraska Communities develop information technology focused strategic plans, accept opportunities to speak and consult for pay on this topic outside of the State of Nebraska? 2) Can the employee advertise his availability for these speaking and consulting opportunities on a web site?

CONCLUSION

Yes as to both questions, but see analysis.

FACTS

The requester is the Director of Special Projects for the Nebraska Department of Economic Development. Currently, he works exclusively on rural telecommunications matters. In this capacity he helps rural communities develop information technology focused strategic plans. Stated another way, he assists in the development of plans which will strengthen the technological infrastructure of the community. He has developed a body of knowledge about this process which has been recognized as unique and valuable. Consequently, he has been asked to speak on this subject in other states and countries.

Because he has frequently been asked to speak on this topic outside of the State of Nebraska, he is considering the establishment of a web site which would advertise his availability to consult and speak on this subject. He indicates that he would engage in this outside consulting only on his own time and not on state time. No state resources would be used in connection with this business. That is, he would not use state telephones, personnel, computers, photocopiers, etc. in connection with this outside consulting and speaking. He would only engage in this activity for clients located outside of the State of Nebraska.

He wishes to know if engaging in this outside consulting and speaking under the circumstances described would be contrary to the provisions of the Nebraska Political Accountability and Disclosure Act.

ANALYSIS

There is nothing in the Nebraska Political Accountability and Disclosure Act which generally prohibits a state official or state employee holding employment or engaging in consulting and speaking outside of his or her official duties. In Advisory Opinions #1 17, #1 29, and #1 50, the Commission acknowledged that state employees and officials may have outside businesses or engage in consulting or speaking outside of their official duties. However, there are restrictions on state officials and state employees which restrict the circumstances under which they may engage in consulting or speaking for pay outside of their official duties.

Section 49-14,101(3) provides as follows:

No public official or public employee shall use that person's public office or any confidential information received through the holding of a public office to obtain financial gain, except compensation provided by law, for himself or herself, a member of his or her immediate family, or a business with which the individual is associated.

Pursuant to this statute, a state employee could not contract with an individual or group to do for pay that which he is required to do for the individual or group as part of his official duties or reasonably could be required to do as part of his official duties.

In addition to the prohibition noted above, the Commission has taken the position that 49-14,101(3) also prohibits 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 consulting opportunities by conveying the impression to any person that increased opportunities for private consulting would result in favored treatment by the state or by the official or employee in his official capacity.

Section 49-14,101(3) further prohibits a public official or public employee from using confidential information received through the holding of a public position for personal financial gain. In Advisory Opinion #99 the Commission took the position that confidential information includes not only that information which is strictly confidential, but also that information which is not generally available to the public.

Given the foregoing factors, it is our position that the proposed consultation/speaking activities would not be contrary to the provisions of the Nebraska Political Accountability and Disclosure Act. The employee would be providing services to persons who are.not entitled to the benefit of his services in the course of his official duties. The thing of value in this case is the expertise of the employee and not confidential information received through state employment. Also, the ability of a state employee to use the power or influence of his official position to secure consulting opportunities is reduced when potential clients are located outside the State of Nebraska.

Additional discussion is required.

Section 49-14,101(4) prohibits the use of public personnel, resources, property or funds for personal financial gain. The Commission notes the requestor's stated intent not to use public resources in connection with outside consulting or speaking engagements.

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.

We note that employees of the Department of Economic Development are within the Classified System. The requester should notify the Director of the Department of Economic Development prior to engaging in private consulting. The Department of Economic Development has no rules or regulations on file with the Secretary of State which pertain to outside employment or consulting by the Department's employees. However, an employee of the State of Nebraska who wishes to engage in outside employment or consulting should always inquire as to whether his or her agency has any rule or internal policy which pertains to this issue.

Finally, there is nothing in the Act which prohibits a state employee from establishing a web site to advertise his availability for consultation. No state resources, personnel, property or funds should be used in establishing this web site. Nothing in the site should imply that it is established or sanctioned by the State of Nebraska.

SUMMARY

A state employee or official may engage in private consultation outside the State of Nebraska. State personnel, property, resources or funds may not be used in connection with the private consulting business. Confidential information received through the holding of a public position should not be used. A web site may be established subject to the same restrictions.