ADVISORY OPINION #198
Subject: Conflicts of Interest/Supervising a Family Member
Requested By: Sue Larson, Human Resources Administrator, Nebraska Department of Roads
Questions Presented: How do the provisions of LB 322 apply to a situation in which a newly promoted employee in the executive branch of state government will supervise a family member?
Conclusion: See analysis.
Facts: The Nebraska Department of Roads (DOR) has an employee in Arapahoe. For 12 years the employee was a Highway Maintenance Worker Senior. He was later promoted to Maintenance Crew Chief and has served in that capacity for the past 5 years. Crew Chiefs are considered lead workers and not formal supervisors. One of his crew members recently became his son-in-law. At the time this crew member was hired, he was not related to the Crew Chief.
DOR is in the process of filling the vacant position of Highway Maintenance Supervisor in the Arapahoe yard. The Crew Chief is one of three applicants for the job. The other two applicants have less experience and have not served as Crew Chiefs. Therefore, the Crew Chief currently appears to be the best qualified applicant. In the event that the Crew Chief is chosen as the Highway Maintenance Supervisor of the Arapahoe yard, he would directly supervise his son-in-law.
DOR has a policy that certain categories of employee must be able to report to the yard within 30 minutes in order to deal with emergencies such as snow removal or flooding. The DOR notes that the son-in-law currently lives 6 miles from the Arapahoe yard. The next nearest yard is 27.5 miles from the son-in-law’s residence. To assign the son-in-law to the distant yard would compromise likelihood that DOR would have the benefit of his services within 30 minutes.
The Department of Roads wants to know how the provisions of LB 322 apply to this situation.
Advisory Opinion #198
Analysis: Legislative Bill 322 was passed during the 2009 Legislative Session and relates to the areas of nepotism and the supervision of family members. LB 322 becomes law three months after May 29, 2009.
Section 2 of LB 322 provides in part that “Except as authorized in subsection (5) of this section, an official or employee in the executive branch of state government shall not act as a supervisor to his or her family member”.
Section 2 (1) (c) defines the term supervisor as “an individual having authority, in the interest of the state, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline employees, responsibility to direct them or to adjust their grievances, or effectively to recommend any such action, if the exercise of such authority is not merely of a routine or clerical nature but required the use of independent judgment.” For the purposes of this opinion, we accept the representation in the request for an opinion that a person holding the position of Highway Maintenance Supervisor would act as a supervisor of the son-in-law of the current Crew Chief.
Section 2 (1) (a) defines the term family member as “an individual who is the spouse, child, parent, brother, sister, grandchild, or grandparent, by blood, marriage, or adoption, of an official or employee in the executive branch of state government”. By this definition, the son-in-law is a family member of the Crew Chief.
Consequently, if the Crew Chief were to be promoted to the position of Highway Maintenance Supervisor, he would be supervising his son-in-law, a family member. The Crew Chief would be required to take the action set forth in Section 2, subsection (5) of LB 322.
Section 2, subsection (5)(b) of LB 322 provides that “An official or employee in the executive branch of state government who becomes a supervisor to his or her family member other than by means of nepotism shall notify the head of the agency within seven days of becoming aware of such situation and may continue to act as a supervisor until the head of the agency remedies the situation. The head of the agency shall act as soon as practicable.”
The term nepotism is defined in Section 2, subsection (1)(b) of LB 322 as follows:
Nepotism means the act of hiring, promoting, or advancing a family member in state government, including the initial appointment and transfer to other positions in state government…
Advisory Opinion #198
We note in this case, that any supervision of the son-in-law would not come about by nepotism. That is, at the time the son-in-law was hired, he was not a son-in-law and the Crew Chief was not a supervisor. Therefore, in the event that the Crew Chief is chosen as the Highway Maintenance Supervisor, he should notify the Director of the Department of Roads in writing within seven days. A “supervisor” meeting this notice requirement may continue to function in the new position pending action of the agency head.
The legislative bill appears to contemplate that the agency director shall take action to either: a) eliminate the unlawful supervision of a family member (such as by transferring one of the employees); or b) permit the situation to continue upon a written showing of good cause.
LB 322 does not define the term “good cause” nor does it indicate who must make the showing of good cause. It states as follows:
The head of the agency may, upon a written showing of good cause, grant an exception to (2) or (3) of this section.
The term good cause is a legal term which is used in statutes, court decisions and administrative rules and regulations. The description of the term and its use varies somewhat depending on the area of law in which the issue of good cause arises. In most cases the term good cause describes the basis by which a person may be granted an exception to a rule, a statute or a court order. Good cause is variously described as “a good and sufficient reason”, Stiles v. Skylark Meats, Inc., 231 Neb 863 (1989); “a substantial reason that affords a legal excuse”, State v. Caldwell, 10 Neb App 803 (2002); or “a legally sufficient reason” Black’s Law Dictionary, 251 (9th Edition 2009).
In the context of LB 322 an agency head should determine if there is a good and sufficient reason to justify waiving the prohibition against the supervision of a family member in a particular situation. Section 2 (5)(b) of LB 322 provides that the agency head shall act as soon as practicable.
We note that during the committee hearing on LB 322 Carlos Castillo, Director of the Department of Administrative Services, stated, “The exception is in response to limited labor pools in remote areas of the state.” Thus, in the estimation of at least one proponent of LB 322, the waiver exception is an important means of dealing with supervision of family issues in areas with small labor pools. A limited labor pool for the supervisory position in question may constitute good cause under the statute. There may be other factors which constitute good cause in a given case.
Advisory Opinion #198
Because LB 322 does not specify who must make a showing of good cause, it appears that there is no restriction on who may make such a showing. Since the circumstances at issue involve the promotion of an employee to a supervisor’s position, it may be that the appropriate person to make a showing of good cause would be a supervisor of the employee to be promoted, a person involved in making the promotion decision, or someone at DOR who works in human resources.
In order to ensure that there is a good public record of any waiver of the supervisory provisions of LB 322, the agency head should file the following with the Commission: a) a copy of the written showing of good cause as required by statute; b) a copy of the employee’s letter advising the agency head that he/she is a supervisor of a family member; and c) a copy of the agency head’s decision.
These documents will be maintained by the Commission as a public record.
Summary: If the Department of Roads promotes the employee to Highway Maintenance Supervisor and he is a supervisor of his son-in-law, the employee must notify the Director of the Department of Roads in writing of this situation within seven days. He may continue to function in the new position pending action of the agency director. Upon a written showing of good cause, the agency director may waive the prohibition against supervising a family member. The agency director should file a copy of the employee’s written statement, a copy of the showing of good cause, and a copy of his decision to waive the restriction with the Commission. The Commission will maintain these documents as public records.
ADOPTED as an advisory opinion pursuant to Section 49-14,123(10) and Title 4, Chapter 1, Rules of Practice and Procedure. As provided in Section 49-14,123(10), this advisory opinion shall be binding upon the Commission unless amended or revoked, concerning the person or public body who requested the opinion and acted in reliance thereon in good faith unless material facts were omitted or misstated by the person in the request for the opinion.
DATED this ______ day of August 2009.
NEBRASKA ACCOUNTABILITY AND DISCLOSURE COMMISSION
Stephen McCollister, Chairman