ADVISORY OPINION # 183

 

 

Subject: Conflicts of Interest/ Use of Office for Financial Gain

 

Requested By: Carolyn Johnsen, Reporter and Producer, Nebraska Public Radio

 

Question Presented: Can a reporter for a state owned radio network use information broadcast by the network to write a book as a private project?

 

Conclusion: Yes.

 

Facts: A reporter for the Nebraska Public Radio Network (NPRN) plans to write a book on the industrialization of hog farming in Nebraska.  The reporter became familiar with these issues while doing a documentary series for “Nebraska Nightly”.  Information for the documentary was gathered while working as a paid employee of NPRN, using equipment owned by NPRN. 

 

It is her intent to work on the book during an unpaid leave of absence.  She will use information broadcast by the network and new research which she will undertake on her own time and using her own resources.  She will not use non-broadcast material.

 

The Nebraska Public Radio Network is owned and operated by the Nebraska Educational Telecommunications Commission.  The Nebraska Educational Telecommunications Commission is an agency of the State of Nebraska.  Its broadcast operations are generally referred to as NET.  The employees of NPRN and NET are employees of the State of Nebraska.  The reporter is a public employee who worked on the documentary on state time using state owned equipment.

 

The Commission considered aspects of this issue with regard to this reporter in Advisory Opinion #180.

 

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Analysis: Section 49-14,101(4) of the NPADA generally provides that no public official or public employee shall use personnel, resources, property, or funds under that individual’s official care and control other than in accordance with law or regulation or use such items for personal financial gain. 

 

The Commission has taken the position a public resource may be used by public officials and public employees for non-governmental purposes and for personal gain only to the same extent and on the same basis that the resource is available to the general public.  See Advisory Opinions #173 and #180.  By way of illustration, a state owned photocopy machine is to be used for state business.  However, if the agency controlling the machine allows any member of the public to make photocopies at the rate of ten cents per page, an employee or official of the agency may make photocopies for personal business for ten cents per page.

 

Information and material which is broadcast by NPRN is the property of the Nebraska Educational Telecommunications Commission.  Consequently, the reporter may use them for a personal, non-governmental purpose or for personal financial gain to the same extent and on the same basis as the general public.  In practical terms, this means that if members of the public may acquire copies of audio tapes for a specific cost, the reporter may acquire copies at the same cost.  If members of the public may use these broadcast materials for research purposes, the reporter may do so as well.

 

In 1993 the Nebraska Educational Telecommunications Commission adopted a policy pursuant to the Nebraska Free Flow of Information Act.  See §20-144 et seq. of the Nebraska Statutes.  According to §20-146, the Free Flow of Information Act is intended to protect the First and Fourteenth Amendment rights of the print and broadcast media from compelled disclosure of:

 

1)     The source of any published or unpublished, broadcast or non-broadcast information obtained in the gathering, receiving, or processing of information for any medium of communication to the public; or

2)     Any unpublished or non-broadcast information obtained or prepared in gathering, receiving, or processing of information for any medium of communication to the public.

 

The two preceding numbered paragraphs are quoted in the NET policy which goes on to state:

 

Accordingly, NET’s policy is ordinarily to reject requests, from whatever quarter, for non-broadcast information and records (such as video and audio tapes, transcripts, telephone messages, notes,

 

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notebooks, files, computer data, and the like) obtained by NET personnel in the newsgathering process.  (Regardless of their location, all such materials remain the property of NET.)  Requests to deviate from this policy, or to provide copies of material previously broadcast, will be considered by management on a case by case basis.

 

In Advisory Opinion #180 the Commission took special note of the last sentence of the preceding paragraph.  It seems to state that requests for broadcast materials will be considered on a case by case basis.  The Commission took this to mean that broadcast materials might be provided to a member of the public or they might not.  Thus, in Advisory Opinion #180 the Commission determined that the broadcast materials of NET were not generally available to the public. 

 

The Commission is now advised by NET that the sentence in question is intended to be a time management tool.  A representative of NET states that NET reserves the right to consider requests for broadcast materials.  This is not done for the purpose of withholding broadcast material, but for the purpose of determining how to best meet the request while managing personnel time, equipment use, etc.  NET states that it has never rejected a request for copies of broadcast materials.

 

It is the practice of the Nebraska Public Radio Network to make cassette copies of broadcast material available to the public for the price of ten dollars.  It is also the practice of NPRN to allow members of the public to come to the studios to listen to tapes of broadcast materials from the archives.  Consequently, an employee of NPRN may use the broadcast materials on the same basis even if the use of the materials is for a private purpose or for personal financial gain.

 

To the extent that Advisory Opinion #180 takes the position that a state-employed reporter may not use the broadcast materials of NET for a private purpose, it is superceded by this opinion.  It is our determination in this opinion that the broadcast materials of NET may be used by the reporter on the same basis as any other member of the public.

 

Summary: A reporter may use the broadcast materials of the Nebraska Educational Telecommunication Commission for the private venture of writing a book if the broadcast materials are used on the same basis as any member of the public.

 

Adopted as an Advisory Opinion pursuant the provisions of §49-14,123(10) and Title 4, Chapter 1, Rules of Practice and Procedure.  As provided in §49-14,123(10), this Advisory Opinion shall be binding upon the Commission, unless

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amended or revoked, concerning the person or public body who requested the opinion and acted in reliance on it in good faith unless material facts were omitted or misstated by the person in the request for the opinion.

 

Dated this ______of March 2000.

 

 

 

_____________________________

Ellen Lierk

Chairman