OPINION NUMBER - 176

ADOPTED - 1997/07/18

SUBJECT - Conflicts of Interest/ Hiring of an Immediate Family Member

REQUESTED BY: Beth E. Mares, Saline County Commissioner and Tad D. Eickman, Saline County Attorney.

QUESTION: May a county commissioner participate in a hiring process when her spouse is an applicant for the position?

CONCLUSION

Yes, but see analysis.

FACTS

In 1996 the Saline County Highway Superintendent discussed with the county board the possibility of creating the position of assistant county highway superintendent. In 1997 the matter was discussed again. It was determined that for budgetary reasons it would be more appropriate to determine if there was any interest in the position among current employees of the Saline County Department of Roads. At that time, the job description for the position and salary had not been established.

As the result of this contact with current employees, two individuals expressed an interest in the position. One of those individuals is the spouse of the county commissioner. Three questions have arisen. They are:

1 Can the county commissioner take part in the job interview process if one of the applicants is her spouse?

2) Can the county commissioner vote on any motion made to hire her spouse for the position?

3) Can the county commissioner take an active role in the determination of the job description and level of pay for the position after the fact and with her spouse being one of two candidates for the position?

ANALYSIS

Section 49-1499.01 of the Nebraska Political Accountability and Disclosure Act provides in part as follows:

Notwithstanding section 49-1499 and subsection (3) of section 4914,101, a public official or public employee may employ, recommend the employment of, or supervise the employment of an immediate family member if he or she does not abuse his or her official position and makes a full disclosure on the record to the governing body or a written disclosure to the person in charge of keeping records for the governing body. No public official or public employee shall employ an immediate family member without first having made a reasonable solicitation and consideration of applications for such employment.

Section 49-1425 includes within the definition of the term immediate family "a spouse of an individual."

Section 49-14,103.01(6) provides:

If an officer's parent, spouse, or child is an employee of his or her governing body, the officer may vote on all issues of the contract which are generally applicable to (a) all employees or (b) all employees within a classification and do not single out his or her parent, spouse, or child for special action.

Section 49-14,103.01 (1) includes within the term officer "a member of any board or commission of any county."

Clearly, the Nebraska Political Accountability and Disclosure Act contemplates that public officials and public employees may be faced with employment matters involving the hiring or supervision of immediate family members. It is equally clear that the provisions of sections 49-1499 and 49-14,101 do not bar the participation of a public official in a hiring process merely because one of the applicants is an immediate family member. The Act permits public officials and public employees to participate in the hiring and supervision process even if an immediate family member is involved. However, the Act prescribes a process which must be followed and establishes restrictions to which the public official must adhere.

As stated above, 49-1499.01 requires a public official to make a public disclosure in advance of participation in a hiring decision involving an immediate family member. Thus, in order for the county commissioner to participate in a hiring decision which may involve her spouse, a public disclosure must be made. The statute contemplates that this public disclosure be made in one of two ways. The first is to make a full disclosure on the record to the governing body. An acceptable method for making a disclosure of this type is for the county commissioner to state at an open and public meeting of the governing body the fact that one of the applicants for the position is her spouse. In order to insure that the disclosure is a matter of record, the commissioner should instruct the person keeping records for the board to include the disclosure in the minutes. In the alternative, the county commissioner may file a written statement with the person who keeps records for the county board disclosing that one of the applicants is her spouse. The written disclosure may be made on a form provided by the Commission or in another written form. In either case, the disclosure must be made in advance of the county board taking up the matter.

One of the applicable restrictions is that there be a reasonable solicitation and consideration of applications for the position. The process described as having been followed by the Saline County Board does not appear to have met this test. Mere inquiry among current employees of one county department does not constitute a reasonable solicitation of applications. In our view, this requirement exists to insure that there all who have a desire to apply for a public position have a reasonable opportunity to do so. Simply because a public official is authorized to hire an immediate family member, it is not meant to be a foregone conclusion that it is the immediate family member who will be hired. This concept is bolstered by the provision that an immediate family member cannot be hired until there has been a consideration of all applications, and by the provision that the public official not abuse his or her position. It is also our position that these provisions are meant to insure that a hiring process involving an immediate family member is an open one.

Accordingly, the county commissioner may participate in the hiring process only if there has been a reasonable solicitation and consideration of applications. At the very least this process must include some form of public notice that applications are being accepted. The notice must be reasonably calculated to bring the opening to the attention of the public. By way of illustration, a newspaper ad is a reasonable solicitation. Posting a notice on the county roads building which is infrequently visited by members of the public is not a reasonable solicitation of applications.

The interplay among sections 49-1499.01, 49-1499, and 49-14,101(3) is quite clear. Section 49-1499.01 controls "notwithstanding section 49-1499 and subsection (3) of 49-14,101." The interplay between section 49-1499 and 4914,103.01(6) is not quite as apparent. Section 49-14,103.01(2) provides that is except as provided in sections 49-1499.01 and 70-624, no officer may have an interest in any contract to which his or her governing body ... is a party." The section goes on to state that this prohibition applies when the spouse of the officer will receive a direct pecuniary fee or commission. Subsection (6) is quoted above in full and applies if an officer's "parent, spouse, or child is an employee of his or her governing body." We interpret section 49-1499.01 as applying to the hiring process. We interpret section 49-14.103.01(6) as applying to matters coming before the governing body after the hiring process. That is, once the family member is an employee.

As applied to the situation before us, if the duties and salary range of the position are established by the county board before the applications are considered, section 49-14,103.01 does not apply. If the matter of duties and salary range were to be taken up after the hiring process was complete and the spouse was the person hired, section 49-14,103.01(6) would prohibit the county commissioner's participation in the determination of duties and salary.

We turn now to the specific questions asked.

1 Can the county commissioner take part in the job interview process if her spouse is an applicant?

Response: Yes, if there has first been a reasonable solicitation of applications and the process includes a consideration of those applications. The required public disclosure must be made in advance of participation in the hiring process.

2) Can the county commissioner vote to hire her spouse for the position?

Response: Yes, subject to the same conditions noted in the response to question #1.

3) Can the county commissioner take an active role in the determination of the job description and level of pay for the position?

Response: Yes, if these decisions are made in advance of the hiring decision or if the person hired is not her spouse. If the person hired is her spouse, she may not participate in these decisions after he is hired.

SUMMARY

A county commissioner may participate in hiring decisions for a public position even if her spouse is an applicant as long as there is a reasonable solicitation and consideration of applications and the required disclosure is made. The county commissioner may participate in decisions as to the duties and salary range of the position only if the decisions are made prior to a hiring decision or if her spouse is not the individual hired.