OPINION NUMBER - 171

ADOPTED - 1997/04/18

SUBJECT - Janet Drudik, Vocational Rehabilitation Counselor Director, Nebraska Department of Education.

QUESTION: Can a vocational rehabilitation counselor director for the Department of Education perform for pay vocational assessments for individuals being served through one of the railroads or through a private rehabilitation firm?

CONCLUSION

Yes.

FACTS

An employee of the Division of Vocational Rehabilitation of the Nebraska Department of Education holds the position of vocational rehabilitation counselor director. In the course of her official duties she supervises vocational rehabilitation counselors employed by the department at a regional office. She is giving consideration to doing vocational assessments for individuals with impairments that are working with counselors from two railroads and with private rehabilitation companies. Individuals who have been injured at work are assigned a counselor through a private rehabilitation company under contract with the employer or through the Workers Compensation Court. Other individuals who work for two railroads are assigned counselors who are on the railroad staff or are assigned counselors through the Workers Compensation Court.

Part of the counseling process includes a vocational assessment. The purpose of a vocational assessment is to measure the skills and abilities of the individual for the purpose of determining what type of work he or she could do. The standard vocational assessment focuses on the types of skills and abilities that can be measured through a written question and answer process. The vocational assessment performed by the Vocational Rehabilitation Division is more in depth, measures a wider variety of skills and is considered a more accurate indicator of the potential of the individual. Around the state, the Department of Education maintains offices at which clients of the Vocational Rehabilitation Division may receive free vocational assessments. For a number of years, the two railroads and certain private rehabilitation companies have contracted with the state to have these vocational assessments done for their clients. The state was paid for providing these services.

In November of 1996, the Division of Vocational Rehabilitation decided to cease performing these assessments for anyone other than its own clients and certain clients referred by other state agencies. In parts of central and western Nebraska vocational assessment services are essentially nonexistent. Since certain of these private companies have asked the employee to do vocational assessments, the employee is considering doing these on her own time. If she proceeds, it is her intent never to perform any services for a person privately who is otherwise being served by the Vocational Rehabilitation Division.

The employee wishes to know if engaging in this outside activity would violate 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 from engaging in consulting and speaking outside of his or her official duties. In Advisory Opinions #117, #129, #150, and #170, the Commission acknowledged that state employees and officials may engage in outside businesses or engage in consulting or speaking outside of their state 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 to do for pay that which he or she is required to do for the person as part of his or her 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 or speaking opportunities by conveying the impression to any person that increased opportunities for private consulting or speaking would result in favorable or unfavorable treatment by the state or by the official or employee in his or her 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 outside service would not be contrary to the provisions of the Nebraska Political Accountability and Disclosure Act. The vocational assessments would be done for individuals who would not be receiving the service through the Department of Education.

Additional discussion is required.

Section 49-14,101(4) prohibits the use of public personnel, resources, property or funds for personal financial gain. As applied to this situation, there should be no use of government resources in connection with the outside service. For example, state telephones, computers, photocopiers and the like should not be used in connection with this service. This private service may only be provided when the employee is not on state time or otherwise engaged in state duties.

We noted that the Nebraska Department of Education has adopted a Code of Ethics which addresses the matter of outside employment, outside businesses and outside professional activities. The employee should consult with the appropriate person within the department to insure that the proposed activity would not violate the department's Code of Ethics.

SUMMARY

An employee of the Nebraska Department of Education may, in her private capacity and on her own time, do vocational assessments of individuals who will not receive this service through the department. State resources should not be used in connection with these private vocational assessments. Confidential information received through the holding of a public position should not be used.