OPINION NUMBER - 172

ADOPTED - 1997/04/18

SUBJECT - Conflicts of Interest/Outside Consulting

REQUESTED BY: Louise A. Weyer, Training Specialist, Nebraska Public Employees Retirement Systems

QUESTION: Can a state employee who, as part of her duties, conducts preretirement seminars for participants in the retirement systems administered by a state agency, conduct seminars on emotional preparation for retirement for individuals who are not participants in the systems?

CONCLUSION

Yes

FACTS

The employee holds the position of Training Specialist II with the Nebraska Public Employees Retirement Systems (NPERS). The system administers the retirement programs of five categories of public employees. In the course of her official duties, the employee coordinates and presents preretirement planning seminars to participants in the five systems.

During these seminars, she presents a detailed explanation of one of the five retirement plans. She also presents information on deferred compensation plans and insurance programs. An additional topic of her presentation is "adjusting" or the emotional, psycho/social preparation for retirement. It is her opinion that the emotional preparation for retirement is of equal importance to the financial preparation. She notes, however, that most often the considerations for retirement are financial. Consequently, it is her intent to use her experience and education by offering an adult education service. This service would be directed to current and future retirees associated with or employed by businesses and organizations in the private sector. This service would pertain only to the topic of emotional preparation for retirement.

She wishes to know if offering these services to the private sector 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 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 have outside businesses or engage in consulting or speaking 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 to do for an individual or group for pay that which he or she is required to do for the individual or group 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 seminars would be directed to individuals who are not participants in any of the five retirement systems administered by NPERS. They would not be directed to categories of people who would be entitled to the employee's services through the state at no charge.

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.

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 prior notification of the agency head, may engage in additional employment or acquire private interest in a 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 NPERS are within the Classified System. The employee should notify the Director of NPERS prior to engaging in this outside activity. NPERS has no rules or regulations on file the with Secretary of State which apply to outside consulting, speaking or employment by the agency's employees. However, an employee of the state who wishes to provide outside services should always inquire as to whether his or her agency has any rule or internal policy which pertains to this issue.

SUMMARY

A state employee who, as part of her official duties, conducts preretirement seminars for participants in the retirement systems administered by the state, may conduct preretirement seminars on her own time for individuals who are not participants in these systems. State resources should not be used in connection with private seminars. Confidential information received through the holding of a public position should not be used.