ADVISORY OPINION #202
Subject: Conflicts of Interest/Financial Gain/Compensation Provided by Law
Requested By: Larry J. Dix, Executive Director, Nebraska Association of County Officials (“NACO”)
1) May a county board member vote for him or herself for county board chair without violating the conflict of interest provisions within Neb. Rev. Stat. §49-1499.03?
2) If the answer to (1) is yes, is the answer different if the county board chair would receive additional compensation for serving as county board chair as provided for in a county’s salary resolution?
3) If an individual is allowed to vote for him or herself, would he or she be required to notify the Accountability and Disclosure Commission of such action pursuant to Neb. Rev. Stat. §49-1499.03(1)(c)?
1) Yes, a county board member may vote for himself or herself for county board chair without violating the provisions of Neb. Rev. Stat. §49-1499.03 (Reissue 2010).
2) No, the answer is not different if the county board chair receives additional compensation for being county board chair.
3) No, an individual need not file a Potential Conflict of Interest Statement with the Nebraska Accountability and Disclosure Commission (“NADC”) or otherwise notify the NADC, about voting for himself or herself for county board chair.
Scope of this Opinion. This Opinion is limited in its scope to the factual situation and the questions presented by the requestor as stated above.
Information and authorities provided by NACO. In its request, NACO alluded to a possible situation where a county board was voting for a chairman and the result of the vote was 3-3 tie. The questions, as specified above, relate to the appropriateness of a board member voting for himself or herself.
Authorities provided by NACO included Art. III, §19 of the Nebraska Constitution providing that compensation for public officers must not be increased during their term in office. NACO further notes that Neb. Rev. Stat. §23-1114(1) (Reissue 2012) provides that salaries of all elected officers of the county shall be fixed by the county board prior to January 15th of the year in which a general election will be held.
NACO also advised that a Nebraska Attorney General’s Opinion provided that the chair of the county board may be paid a salary larger than that paid to other board members. (See, 1974 Nebraska Att’y Gen. Op. No. 122).
County Clerks conduct the election of the new chair. Robert’s Rules of Order is a source cited by NACO. The following quotation from that source is relevant and supportive of the analysis as discussed below:
“VOTING ON QUESTIONS AFFECTING ONESELF. The rule on abstaining from voting on a question of direct personal interest does not mean that a member is prevented from voting for himself for an office or other position to which members generally are eligible, nor from voting when other members are included with him in a motion. If a member could never vote on a question affecting himself, it would be impossible for a society to vote to hold a banquet, or for the majority to prevent a small minority from bringing charges against them and suspending or expelling them.” (Robert’s Rules of Order (1981), §44, p.345). (emphasis supplied)
1) Analysis Concerning Question 1
Question 1 asks whether a board member may vote for himself or herself without violating §49-1499.03 of the Nebraska Political Accountability and Disclosure Act (“NPADA”).
The cited section defines a potential conflict of interest as one in which, if an official takes official action, it will likely result in financial benefit or detriment to that official. If so, there may be a potential conflict of interest.
Because we will be repeatedly referring to the language of this statute, it is appropriate to quote the relevant portions of the statute:
§49-1499.03. (1)(a) An official of a political subdivision designated in section 49-1493 [which includes “an elected county official”] who would be required to take any action or make any decision in the discharge of his or her official duties that may cause financial benefit or detriment to him or her, a member of his or her immediate family, or a business with which he or she is associated, which is distinguishable from the effects of such action on the public generally or a broad segment of the public, shall take the following actions as soon as he or she is aware of such potential conflict or should reasonably be aware of such potential conflict, whichever is sooner:
(b) The official shall take such action as the commission shall advise or prescribe to remove himself or herself from influence over the action or decision on the matter.
Question 1 makes no reference to any financial benefit or detriment. The question simply asks whether a board member, in the absence of any potential financial gain or detriment, may vote for himself or herself.
The answer to the first question is: “Yes.” In the absence of potential financial gain or detriment, a county board member may vote for himself or herself for county board chairman.
2) Analysis Concerning Question 2
In view of the affirmative response to the first question, we proceed to the second. The second question restates the first question and adds the fact that a board member would receive additional compensation for serving as board chairman. Under those circumstances, the question is: would there be a violation of §49-1499.03 if a county board member votes for himself or herself for county board chairman knowing that there would be an increase in pay attending such a chairmanship?
This question has not previously been directly addressed by the NADC’s Advisory Opinions - - although we will cite one Advisory Opinion, below, which is relevant to determining the question.
In order to answer the question presented, this Opinion will review relevant Nebraska laws and legal principles, as well as examining laws and precedents from other jurisdictions which may assist in answering the question.
For purposes of analysis, the question can be rephrased as follows: Is there “financial benefit” or “financial gain” where government recompense is greater for the chairmanship of the county board? Phrased alternatively, does “financial benefit” or “financial gain” include compensation provided by law?
In order to answer these questions we turn to the following sources of authority and analysis.
§49-1402(3) which constitutes the Legislative findings upon which the NPADA is premised states as follows:
“§49-1402. Legislative Findings. The Legislature Finds:
…(3) That it is essential to the proper operation of democratic government that public officials and employees be independent and impartial, that governmental decisions and policy be made in the proper channels of governmental structure, and that public office or employment not be used for private gain other than the compensation provided by law...” (emphasis supplied)
The “compensation” at issue in the subject Question 2 is additional compensation for chairmanship of the county board. For purposes of our analysis we assume that the additional compensation has been lawfully authorized by the county from county funds. Accordingly, the compensation has been specifically provided by law.
Consequently, in determining the meaning of the term, “financial benefit” as found in §49-1499.03, “compensation provided by law,” would appear to fall outside the definition of that term.
This conclusion is buttressed by the language of §49-14,101.01(1) which prohibits public officials or public employees from utilizing their public office to obtain “financial gain, other than compensation provided by law..,” (emphasis supplied)
Compensation from public sources which is approved and provided according to law is, by definition, “compensation provided by law”. It does not come to the public official or employee from a private source. It has been approved by officials acting for the public. Therefore, this is public compensation provided by law which does not fall within the meaning of “financial gain” as that term is used in §49-1499.03(1).
In Advisory Opinion #77, the Commission considered a request for opinion from Senator Chris Beutler. His question related to possible conflict in his role as legislator and compensation which he could receive from his practice of law and from his position at a title insurance company.
In responding to Senator Beutler’s request for Advisory Opinion, the Commission made it clear that it was private sources of income which presented possible “financial gain” within the meaning of the statute. As the Commission wrote:
This interpretation of §49-1499 recognizes that, in a representative, citizen-legislature, there will always exist certain inherent conflicts of interest which are considered naturally occurring and unavoidable. Conflicts which may arise because a legislator is a parent, a homeowner, a taxpayer, or a consumer, for example, are unlikely to cause a senator to act in a manner contrary to the public interest, and the Act is not concerned with these. Rather it [the NPADA] is concerned with disclosure of the possibility that a decision-maker may realize private financial gains or losses from his or her official actions. (Adv. Opin. #77, p.2) (emphasis supplied).
In that same Advisory Opinion, the NADC cites a case from Oregon involving the question of “financial gain” in a conflict of interest situation. Although the facts of that case are not in point, it is worth noting that the Advisory Opinion quoted, with approval, from the Oregon Statute. Like Nebraska’s, Oregon’s Statute exempts compensation received, as, “official salary, honoraria, or reimbursement of expenses,” from the definition of “financial gain.”(Id, pp.3-4)
In this case, there is not a conflict between public and private interests. The NPADA requires that there must be impartiality in public officials such that their private interests do not conflict with their public interest.
In the case of Vokal v. Nebraska Accountability and Disclosure Commission, 276 Neb. 988, 759 N.W.2d 75 (2009), the Nebraska Supreme Court reviewed the purposes of the NPADA and the problems which it sought to address. The Court quoted from §49-1402 of the NPADA concerning its objectives, which the Court summarized as follows:
“Specifically, it [the NPADA] was designed to establish requirements for the financing, disclosure, and reporting of political campaigns and lobbying activities and provide conflict of interest provisions for ensuring the independence and impartiality of public officials.” (759 N.W.2d at 80)
With particular reference to conflict of interest issues, the court directly quoted from the NPADA’s findings:
“(4) That the attainment of one or more of these ends is impaired when there exists, or appears to exist, a substantial conflict between the private interests of a public official and his or her duties as such official…” Ibid. (emphasis supplied)
In the question presented, there does not appear to be any such conflict. The individual county board member seeking to advance to chairmanship does not have any discernible “private interests” as defined by the NPADA. While there may be an increase in pay by advancement to the chairmanship, this is not a private interest. It is instead, an incidental intra-governmental step provided by the government which does not in any way alter or dilute the interest of the county board member in serving the public.
The obligation of the county board member to serve the public does not waver where that board member advances to be chairman. In cases largely involving conflict of interest involving attorneys, the Nebraska Supreme Court has repeatedly utilized a definition of conflict of interest which is relevant and useful in this analysis. The Court has stated that it is dual loyalties - - wholly absent here - - which categorize a conflict of interest situation: “’Conflict of interest’ designates a situation in which regard for one duty tends to lead to disregard of another.” State v. Whitmore, 238 Neb. 125, 469 N.W.2d 527 (1991) (Fifth Syllabus Point). In this case there is no dilution of duty to the public by ascension to chairmanship.
In Vokal the Nebraska Supreme Court rejected a finding by the NADC that a provision of the NPADA had been violated by requiring the NADC to articulate how the alleged violation in that case related to the purposes of the NPADA: “In fact, the Commission has been unable to persuasively explain how Vokal’s action represented any of the problems the NPADA sought to address.” (Id. at 81)
Similarly, we conclude here that the ‘problems’ identified by the NPADA are not present in the circumstance described by the subject question.
The Nebraska Supreme Court’s analysis in Vokal, supra, mirrors the treatment of conflict of interest statutes by legal treatises. As stated in 67 Corpus Juris Secundum (2012), “Officers and Public Employees,” §349:
“§349 Statutes – Purpose The object of conflict of interest statutes is to prevent any conflict of interest between the government and its officers and employees, and to remove or limit the possibility of personal influence, either directly or indirectly, which might bear upon an official’s decision.” (p.527)
A conflict of interest may be a situation where an official is required to serve two masters. (67 CJS, Ibid., p.528). But that is not the case where there is an intra-governmental movement from county board member to county board chairman since there is no new master being served.
Another treatise reaches a similar conclusion. In 63C American Jurisprudence 2d (2009), “Public Officers are Employees”, §246, it states:
“Conflicts of Interest; outside employment or other outside activities. A public official may not use her or her official power to further his or her own interest and is not permitted to place himself or herself in a position that will subject him or her to conflicting duties. - - that is in a position where his or her private interest conflicts with his or her public duty – or cause him or her to act or expose him or her to the temptation of acting, in any manner other than in the best interests of the public. (p. 713, emphasis supplied)
In writing about the need to adopt conflict of interest laws in California, the authors of an article entitled “The California Conflict of Interest Laws,” traced the origins of conflict of interest laws as follows:
“The prohibition against conflicts of interest evolved from the Biblical admonition that ‘No man may serve two masters.’ The California Statutes (drawn from English common law rules) seek to insure that public officers in the discharge of their responsibilities are absolutely free from any influence other than that which flows directly out of their obligations to the public at large…” 36 So. Cal. L. Rev. 186, 187 (1963), (“The California Conflict of Interest Laws”)
The foundation for the Nebraska conflict of interest laws as found in the NPADA appears to be roughly analogous to the genesis of the California Conflict of Interest laws. The purpose of both sets of laws is among other things, to ensure that public servants are not conflicted in their duty to the public by other private interests. But that over-riding concern is not present in a factual situation where a county board member is seeking to advance to the chairmanship of the county board. Whether as a board member or as a chairman, the individual in question would serve the public, and there would not be a division of his or her loyalties based upon any private interests or responsibilities.
Consistent with this analysis, the California conflict of interest laws prohibit public officials from entering into contracts in which they have a financial interest. West’s Ann. Cal. Government Code §1064, (2010), p.292. However, from this prohibition, the statutes exempt a “Remote interest of officer or member.” (Ibid., §1091, p.334). One such exemption from the operation of the California conflict of interest law is: “(13) … a person receiving salary, per diem, or reimbursement for expenses from a government entity.” (Id., §1091, p.336)
In New Jersey, the Supreme Court of that State has written that the test for disqualification of a public official due to a conflict of interest is: “…fact sensitive, and depends on whether, under the circumstances, a particular interest, ‘had the likely capability to tempt the official from his sworn public duty.’ ” Thompson v. City of Atlantic City, 190 N.J. 359, 921 A. 2d 427, 436 (N.J. 2007). In accord in Wyzykowski v. Rizas, 132 N.J. 509, 626 A.2d 406 (N.J. 1993), the New Jersey Supreme Court cited two alternate but complementary definitions of conflict of interest. The Court wrote: “A conflicting interest arises when the public official has an interest not shared in common with the other members of the public.” 627 A2d at 413. The Court also wrote that, “there cannot be a conflict of interest where there do not exist… contradictory desires tugging the official in opposite directions.” Ibid.
Simply put, there are no such conflicting interests or contradictory desires in the subject factual situation.
The Louisiana Code of Ethics for Government Employees prohibits public servants from receiving,” anything of economic value, other than compensation and benefits from the governmental entity to which he [public servant] is duly entitled…” La.R.S. 42:1111(A)(1). The Louisiana Supreme Court has defined “conflict of interest” involving public officers and employees to mean: “…a situation which would require an official to serve two masters.” Glazer v. Com’n on Ethics for Public Employees, 431 So.2d 752, 756 (La. 1983).
There are not two masters in this situation, and receipt of compensation provided by law does not constitute “financial gain” within the meaning of the subject statute.
Conclusion: The term “financial gain”, as it is used in §49-1499.03 of the NPADA does not include government compensation provided by law. Therefore, it is not a conflict of interest, as defined by the NPADA, for a county board member to vote for himself or herself for the position of chairman of the county board even where that position has a greater compensation.
Based upon the foregoing authorities and analysis, since the term “financial gain” does not include compensation provided by law, there is no need for a county board member voting for himself or herself for county board chairman to file a Potential Conflict of Interest Statement or otherwise notify the NADC of such action.
Summary: County board members may vote for themselves for the position of chairman of the county board even if the chairmanship has a higher salary. There is no “financial gain” and no conflict of interest involved in such a vote where the enhanced compensation for the chairmanship is compensation provided by law.
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 June, 2017.
Nebraska Accountability and Disclosure Commission
Timothy Schulz, Chairman