OPINION NUMBER - 034

ADOPTED - 1979/09/05

SUBJECT - Conflict of Interest -- Honoraria to public official for speaking engagements - as campaign contributions - for newsletter to constituents. Public official as salesman for business selling educational materials to state agencies, governmental subdivisions and public schools.

REQUESTED BY: The Honorable Don Wesely, State Senator, State Capitol, Lincoln, Nebraska

FACTS

The request for advisory opinion dated July 26, 1979, states that the Senator spoke to the Lincoln Central Labor Union at its March 8, April 12, May 10, and June 14 meetings. That at such meetings he discussed the work of the Legislature, reviewed legislation of interest to the union and answered questions. He states that an "honorarium of $100 was authorized for me for each of these four speeches." He received four checks for $100 from the union but has not cashed any of those checks. He states that the reason for not cashing the checks is because of his concern that such "honoraria" be legal and proper.

He further advises that if it is proper to accept the same he is considering two possible uses for the money. They are to consider the same as campaign contributions or to use the money to partially pay for the printing and mailing of a newsletter to constituents.

He asks whether it is legal to accept such "honoraria" and whether the funds can be used for the purposes stated.

He further states that he has an employment opportunity with a company that produces educational materials for schools as well as other institutions and businesses. The company that he is referring to would produce various educational materials for which he would be a sales representative. As a sales representative he would be in contact with various schools and school districts in Nebraska. He further states that it is unlikely that any purchases made from the company would be made through a bidding process. In addition to schools, other political subdivisions may be contacted, including educational services units and technical community colleges.

He asks whether holding such a position would be a conflict of interest, whether there are any legal restrictions concerning having such a position, whether the company he works for could make sales to government entities if he were not personally involved, and to which, if any, of such governmental entities sales could be made by him.

CONCLUSION:

1. Under the circumstances set forth in the request for advisory opinion, we conclude that the senator may accept such"honoraria".

An honorarium in excess of $25 may be given and accepted for speech making by a public official, provided that it is not given by a lobbyist, the principal of a lobbyist or on behalf of either; provided that it is not offered, given, solicited or accepted based on an agreement, express or implied, that the vote, official action, or judgment of the public official would be influenced thereby; and provided further that it is not for performing a duty he is legally required to perform by reason of his public office or for taking, or refraining from taking, an action of a nonministerial nature within the scope of the authority of his public office, i.e., an action requiring the exercise of judgment, such as voting or introducing legislation. See sections 49-1490, 49-14,101(1) and (2), and 49-14,101(3).

2. Under the circumstances set forth in the request for advisory opinion, the checks received are the property of the senator and may be used for any lawful purpose including contributing them or their proceeds to his campaign committee or using them or their proceeds to pay for the printing and mailing of a newsletter to constituents. See sections 49-1423, 49-1426, 49-1415 and 49-1419.

In the alternative, since in this case the checks have not been cashed, the union and the senator may agree to treat the checks as campaign contributions by the union, in which case the union should file NADC Forms B-7 within 10 days of such determination, and the next campaign statement due from the senator's candidate committee should show the receipt of campaign contributions from the union of over $100. The senator's campaign committee may use such contributions to print and mail such a newsletter. See sections 49-1469(1), 49-1415 and 49-1419.

3. The senator may be employed or act as a sales representative and engage in transactions for the sale of educational materials to state agencies, political subdivisions and public schools so long as each separate contract to be entered into is valued at less than $2000 in any one year. In addition, even if a contract to be entered into is valued at more than $2000, he may represent the seller provided that the contract is awarded through an open and public process, which includes some form of prior public notice and subsequent availability for public inspection of the proposals considered and the contract awarded but not necessarily formal competitive bidding. Section 49-14,102.

In any case, the business with which he is associated may enter into a contract of $2000 or more regardless of whether the contract is awarded through an open and public process so long as the public official does not in any way represent either contracting party in any transaction related to the awarding of such a contract. Section 49-14,102.

The requirement for an open and public process where the contract is for $2000 or more and where the public official is representing such business applies to contracts with a school district board as well as an individual public school, a technical community college board as well as an individual technical community college, and to any authority or division of any other state or governmental subdivision, agency or entity. See section 49-1424.