OPINION NUMBER - 174
ADOPTED - 1997/06/06
SUBJECT - Conflicts of Interest/Outside Employment
REQUESTED BY: Darrold Lammers, Electric Superintendent, South Sioux City, Nebraska
QUESTIONN: Can a city electric superintendent privately sell products designed to protect electronics equipment from electrical surges?
An employee of a city in Nebraska serves as the manager or superintendent of the city's electrical distribution system. In that capacity, he plans and coordinates the activities of the city's electric crews and plans and organizes the maintenance and growth of the system. He works with the city electric customers as to their needs, including growth and complaints. His duties also include budgeting, purchasing, construction safety and coordinating with other city departments.
The city employee has the opportunity to act as a sales representative for a company which sells products designed to protect electronics equipment from the stresses of voltage spikes or surges. His responsibility would be to sell this equipment to businesses or plants. In connection with sales, he would size the product to the needs of the customer. Any promotion or sales would take place on the employee's own time and not while on city time or otherwise engaged in the duties of his city employment. City facilities and equipment would not be used in the promotion of this product or its services.
There is nothing in the Nebraska Political Accountability and Disclosure Act which generally prohibits a municipal employee from engaging in outside employment or outside business activities.
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.
The Commission has taken the position that §49-14,101(3) prohibits a public official or public employee from using the power or influence of his or her public 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 public position in order to increase the number of sales of a privately marketed product. For a public official or public employee to convey the impression that the purchase or failure to purchase a product would result in favorable or unfavorable official treatment would be contrary to the provisions of §49-14,101(3). The employee should scrupulously avoid conveying such an impression to any potential customer who is also a customer of the electric system.
Section 49-14,101(3) also 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 the information which is strictly confidential, but also that information which is not generally available to the public. In the course of his official duties, the electric superintendent may acquire information about electric system customers which is confidential or not generally known to the public. This information must not be used for the purpose of promoting sales.
Given the foregoing, it is our position that the proposed outside business activity of a municipal electric superintendent selling devices designed to protect electronic equipment from electric surges is permissible.
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, city telephones, computers, photocopiers and the like should not be used in connection with this activity. The private business activity may only be engaged in when the employee is not on city time or otherwise engaged in municipal duties.
Generally, the terms and conditions of employment for municipal employees are governed by the statutes applicable to cities and villages, municipal ordinances, and municipal personnel policies. A municipal employee who wishes to engage in outside business activity should always determine if any of these prohibit the proposed activity.
A city employee who serves as the manager or superintendent of the city electric distribution system may privately sell products designed to protect electronics equipment from electrical surges. All sales activity must occur on the employee's own time and not on city time or when the employee is engaged in city duties. City resources may not be used in connection with this private business activity. Confidential information received through the holding of the public position should not be used.