OPINION NUMBER - 039
ADOPTED - 1980/06/18
SUBJECT - Contract between a Public Official and a Governmental Body.
Requested by: Michael Albert and the Board of Directors, Omaha-Council Bluffs Metropolitan Area Planning Commission (MAPA).
May a corporation whose president is a member of the Douglas County Board of Commissioners enter into a contract with the Board of Directors of MAPA?
I. Section 49-14,102 of the Nebraska Political Accountability and Disclosure Act provides that "Except as otherwise provided by law, no public official or public employee, a member of that individual's immediate family, or business with which the individual is associated shall enter into a contract valued at two thousand dollars or more, in any one year, with a governmental body unless the contract is awarded through an open and public process which includes prior public notice and subsequent availability for public inspection during the regular office hours of the contracting governmental body of the proposals considered and the contract awarded."
The Commission concludes that Mr. Albert is a public official as defined in section 49-1443; that Mr. Albert as President of Albert Inc. would necessarily represent Albert Inc., one of the parties to the proposed contract; that MAPA is a governmental body as defined in section 49-1424, and that the value of the proposed contract exceeds $2,000 per annum. (We have been advised that the proposed contract is one involving a 5 year lease of real property for approximately $50,000 per annum.) The provisions of S49-14,102 are therefore applicable.
The proposed contract between Albert Inc. and MAPA would not violate the provisions of the Nebraska Political Accountability and Disclosure Act if it is awarded through an open and public process, including prior public notice and subsequent availability for public inspection during the regular office hours of the contracting governmental body of the proposals considered and the contract awarded.
II. The request for advisory opinion also discusses the possibility that Mr. Albert might become a member of the MAPA board in the future and would therefore be participating in the approval of MAPA budgets in years to follow which would include appropriations for leasing office space." It was also pointed out that "Mr. Albert would have a vote as a Douglas County Board member reviewing the cash appropriation for MAPA within the Douglas County budget."
The Commission cannot give general approval or disapproval to the myriad of various situations in which a conflict of interest might conceivably arise in the future. The Commission does conclude that Mr. Albert is subject to the conflict of interest provisions of Section 49-1499 and as such must refrain from taking any action as a member of the County Board or as a Director of MAPA which would confer a special benefit upon Albert Inc.
III. The Commission renders Advisory opinions only on matters pertaining to the provisions of the Nebraska Political Accountability and Disclosure Act. The Douglas County Attorney's office has called your attention to section 23-146 of the Revised Statutes of Nebraska. This section states in part that "No county officer or county surveyor shall in any manner, either directly or indirectly, be pecuniarily interested in or receive the benefit of any contracts executed by the county for the furnishing of supplies or any other purpose when the consideration of the same is in an amount in excess of five thousand dollars in any one year, and no contract may be divided for the purpose of evading the requirements of this section."
Interpreting this statute is beyond the jurisdiction of the Commission. Competent authority should determine whether a contract executed by MAPA is within the meaning of a contract executed by the county, and whether section 23-146 precludes the proposed contract between Albert Inc. and MAPA.