ADVISORY OPINION #200

Subject:  Conflicts of Interest/Gifts

Requested By:  Duane W. Acklie

Question Presented:  Is the proposed Nebraska First Spouse’s Fund consistent with the provisions of the Nebraska Political Accountability and Disclosure Act (“NPADA”)?

Conclusion:  Yes, with certain specified reservations

Facts:  The Spouse of the Governor of the State of Nebraska (hereinafter referred to as “Spouse”), is often called upon to support or engage in public activities other than activities directly related to the official duties of the Governor or campaign activities.  Currently, there is no organization or statutory provision which provides for funding those expenses.  While the Governor would typically have available campaign funds, these funds may only be used for specified purposes under the terms of NPADA and those purposes would not include reimbursement for public expenses of the spouse.

In order to help the Spouse in undertaking such public activities without lending support to campaigning or assisting in the Governor’s official duties, the “Nebraska First Spouse’s Fund” (the “Fund”), has been proposed.  The Fund seeks to assist in meeting financial burdens which may fall upon the Spouse of the Governor - - including the present Spouse and all future Spouses.  The Fund would pay for the Spouse’s expenses for certain public activities.  Such expenses  would include travel, secretarial expenses, and other ancillary expenses unrelated to campaign activities and unrelated to the performance of the official duties of the Governor.  The assets of the fund would not be used to support or oppose the election of a candidate or to support or oppose the passage of a ballot question.  The fund would not engage in lobbying activity.

In order to establish this Fund, it is proposed that donations be solicited for the Fund, not to exceed $2,000 per donor.  Donations will not be sought or accepted from principals of lobbyists or lobbyists as defined under §49-1434 of the NPADA.

It is further proposed that the Fund would be administered by a person who would be independent of the Governor and the Governor’s immediate family.  The Fund administrator would not be subject to any control by the Governor or Spouse.  Disbursements from the Fund, which are consistent with the Fund’s purpose, would be made at the discretion of the Fund’s administrator.

The Fund proposes to submit an annual report of its activities to the Nebraska Accountability and Disclosure Commission (“NADC”).  This report would be a public document.  The report would state the total amount of donations, payments, and purposes of disbursements.  The report would also identify donors and payees.

Once the Fund commences operation, its purpose will be to benefit the present and all future first Spouses.

Analysis:  The Spouse of the Governor of Nebraska, is not included in those persons holding a state executive office as defined by Article IV of the Constitution of Nebraska or as enumerated in §49-1436, R.R.S. 2010.  Nor is the spouse a “public official” as that term is defined (including elected office-holders and others holding or appointed to specific offices) within §49-1443, R.R.S. 2010.

The role of the Governor’s Spouse therefore falls outside most of the provisions of the NPADA, whose provisions generally cover the conduct of officeholders and elected officials.

However, there are provisions of the NPADA which relate to and govern certain conduct of spouses or immediate family members of public officials.

§49-1490(1)(c), R.R.S. 2010 provides that no principal or lobbyist “shall within one calendar month give any gifts with an aggregate value of more than fifty dollars to . . . (c) a member of the immediate family of any official in the executive branch of state government.”  The term “immediate family” is defined in §49-1425, R.R.S. 2010 and includes the Spouse of the Governor.

Since the proposed fund will not accept any funds from principals or lobbyists, §49-1490(c) R.R.S. 2010 would not be applicable to the Fund.

§49-14,101.01(4) R.R.S. 2010 of the NPADA provides that: “A public official shall not accept a gift of travel or lodging if the gift is made so that a member of the public official’s immediate family can accompany the public official in the performance of his or her official duties.”

Similarly, the next subsection §49-14,101.01(5) R.R.S. 2010 provides a corollary prohibition to the giving of gifts to the immediate family member to accomplish reimbursement for travel and lodging:  “A member of the immediate family of a public official shall not accept a gift of travel or lodging or a gift of reimbursements for travel or lodging if the gift is made so that a member of the public official’s immediate family can accompany, the public official in the performance of his or her official duties.”

The proposed Fund recognizes both of these statutory prohibitions and would not, according to the terms of the request for advisory opinion, be used “to pay for or reimburse the payment of, the cost of travel or lodging to enable the Governor’s spouse to accompany the Governor in the performance of official duties.”  As a consequence, the fund would be consistent with and would not violate §49-14,101.01(4) and (5) R.R.S. 2010.

The status of the spouse of the Governor is somewhat unique in Nebraska State Government.  Neither the Nebraska Constitution nor the Nebraska Statutes establish any official duties for the first lady or first gentleman.  Yet there are expectations that the first spouse will make public appearances and engage in other public activity that support the Governor.  These expectations notwithstanding, there is no provision in state law or any provision in the state budget to fund these activities.  This lack of funding was discussed at a Legislative committee hearing in 2002 in connection with LB 1086.  At the hearing there was some discussion of providing state funding for certain activities of the first spouse.  The final version of the bill which was passed into law provided for no public funding of the first spouse’s activities, but did permit a Governor to use his or her campaign funds for conference fees, meals, lodging, and travel by the immediate family (including spouse) of the Governor when involved in activities related to the duties of the Governor.  See §49-1446.03(9).  The same legislative bill also provided that “A member of the immediate family of the public official shall not accept a gift of travel or lodging or a gift of reimbursement of travel or lodging if the gift is made so that a member of the public official’s immediate family can accompany the public official in the performance of his or her official duties.”  See §49-14,101.01(5). Given these two provisions, the funding options for the first spouse are limited.

Expenditures for campaign purposes is an area which is regulated by the NADC but the request states that the proposed funds will not be expended for any such campaign related expenditures, and, consequently.  The proposed Fund is consistent with the NPADA.

There are certain aspects of the Fund which raise issues outside the scope of the NPADA and the jurisdiction of the NADC.  These issues include: (1) the precise corporate or organizational structure of the fund under Nebraska law; (2) the tax consequences of donations to the Fund and of administering the fund; (3) the tax consequences includes reimbursements to the Spouse, and whether these would constitute gifts; and (4) the provision for regular audits of the Fund.  These are matters which the organizers of the Fund will no doubt address, but which are outside the scope of this advisory opinion.

Finally, under the proposal, an annual report of the activities of the Fund would be furnished to the NADC as a public document.  While the submission of this report is not required by the NPADA, the NADC would certainly accept and retain it as a public document.

Summary: The proposed Nebraska’s First Spouse’s Fund relates to proposed expenses of the Governor’s Spouse.  This Fund, as proposed, is consistent with the provisions of the NPADA.

ADOPTED as an advisory opinion pursuant to Section 49-14,123(10) R.R.S. 2010 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, 2011

NEBRASKA ACCOUNTABILITY AND DISCLOSURE COMMISSION


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Judith Schweikart, Chairman