OPINION NUMBER 087

ADOPTED 1986/02/07

SUBJECT - Contracts with Governmental Bodies

REQUESTED BY: Richard T. Smith, Gage County Attorney

QUESTION: May the County Board contract with the elected, part-time County Surveyor or his firm for materials, equipment, and manpower services after a public letting of bids for that purpose and be in compliance with the Accountability and Disclosure Act?

CONCLUSION

Yes, provided the contract is awarded in an open and public process. This opinion is limited to the provisions of the Accountability and Disclosure Act. See Analysis.

FACTS

The office of County Surveyor in Gage County is a part-time position for a four-year term, with a salary set at $7,000 per year. The Gage County Board is considering letting a contract for the remaining materials and expenses required to complete county surveying and engineering tasks. The Board's question involves the situation in which the elected County Surveyor is also the winning bidder of the proposed contract.

ANALYSIS

The statute relevant to this situation is Section 49-14,102 R.R.S., (Reissue 1984). That section prohibits public officials and employees in Nebraska, their immediate family members, and their businesses from entering into government contracts valued at two thousand dollars or more in a year, unless the contract is awarded through an open and public process which includes:

. . . prior public notice; and

. . . availability for public inspection of the proposals considered and the contract awarded.

The Commission has held that Section 49-14,102 does not require public bidding. It does require however, that the contract be awarded in an "open and public process", which would include giving public notice prior to awarding the contract. See: Advisory Opinion #61. Additionally, we have taken the position that an action in proceedings conducted pursuant to the Public Meetings Act, Sections 84-1408 R.R.S., et seq., would qualify as an action taken in an open and public process as required in Section 49-14,102.

Therefore, it is our position that under Section 49-14,102, the elected, part-time County Surveyor may contract with the county to provide materials, equipment and manpower, provided that the open and public process requirement of Section 49-14,102 (Reissue 1984) is met, and that the contract award decision is made by the Board rather than the Surveyor himself.

Although the Accountability Commission is currently only empowered to interpret the Nebraska Accountability and Disclosure Act, we would also refer you to Sections 23-180 to 185 of the Revised Statutes of Nebraska, which regulate the conduct of a county officer with an interest in a county contract. Specifically, Section 23-180(3) (c) prohibits interested county officers from acting for the county as to inspection or performance of a contract in which he or she has an interest. It appears that this requirement may conflict with the duties of the Surveyor under Section 23-1901 R.R.S. (Reissue 1983).

Finally, Section 23-180(7) mandates that a contract entered into with an interested county officer is subject to all competitive bidding requirements and must be fair and reasonable to the county.