OPINION NUMBER - 173
ADOPTED - 1997/04/18
SUBJECT - Conflicts of Interest/Outside Consulting
REQUESTED BY: Carol J. Iverson, School and Adolescent Health Consultant, Nebraska Health and Human Services
QUESTION: May a state employee who, as part of her past state duties, taught a course to school nurses in Nebraska, contract with a national organization to develop a course on the same topic and conduct the course at sessions of the organization?
The employee of the Nebraska Health and Human Services holds the position of School and Adolescent Health Nursing Coordinator. In the course of her official duties she consults with and provides advice to school districts and school nurses in Nebraska on a variety of health issues and adolescent health nursing practices. She is also involved in the educational, training and clinical aspects of the agency's school and adolescent health nursing activities.
Recently, the National Association of School Nurses (NASN) asked the employee and a school nurse for a Nebraska school district to enter into a contract to write a segment of a new series being developed by NASN. The new series will be entitled Increasing the Capacity of School Nurses to Meet Today's Challenges. The employee and the school nurse are being asked to develop a manual and video designed to improve the knowledge and skills of school nurses and to make clinically appropriate assessments of school age youth with regard to their cardio-vascular status. The cardio-vascular unit would be one of nine educational units which would be part of the NASN program. NASN would provide this program at annual national and regional conferences.
The employee states that the school nurse was selected to help write the program because she had previously been under contract by the Nebraska Department of Health School Health Program to develop a cardio-vascular curriculum module. This work was done approximately five years ago. The employee taught the program developed by the school nurse. This particular curriculum module was developed because of a perception that the programs available through NASN did not adequately cover the area of cardio-vascular assessments.
The proposed new manual and video being contemplated would incorporate certain technical information from the curriculum developed for the State of Nebraska five years ago. However, the format and teaching framework would be different. In addition, it would include updated information in the area. The employee states that there is the possibility that she and the school nurse would be asked to present this new educational program at national and regional conferences in the future.
She wishes to know if engaging in these private activities for pay as a private citizen would violate the provisions of Nebraska Political Accountability and Disclosure Act.
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 activities 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 a person 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 curriculum is being developed for a national organization which in not entitled to the services of the State of Nebraska. Any teaching of these seminars would be directed toward national and regional audiences rather than specifically to school nurses within 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. As applied to this situation, there should be no use of government resources in connection with this outside service. For example, state telephones, computers, photocopiers and the like should not be used. To the extent that the employee wishes to make use of a past curriculum developed by the State, she may use it only on the same basis as any other member of the public. That is, if copies of the old curriculum are available to the public for a set fee, the employee may secure a copy of the old curriculum for the same fee. To the extent that any member of the public could use the old curriculum as a starting point for a new curriculum, the employee could do the same. None of this activity may be engaged in while the employee is on state time or otherwise engaged in her official duties.
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.
A state employee, who holds the position of School and Adolescent Health Nursing Coordinator may contract with a national organization to develop and teach on her own time a course for school nurses on appropriate assessment of school age youth as to their cardio-vascular status. Public resources should not be used except on the same basis that these resources may be used by any member of the public. Confidential information received through the holding of a public position should not be used.