OPINION NUMBER - 175

ADOPTED - 1997/06/06

SUBJECT - Conflicts of Interest/Dual Public Positions

REQUESTED BY: Lynn Folcik, Child Protective Service Supervisor, Nebraska Health and Human Services

QUESTION: Is it a conflict of Interest under the Nebraska Political Accountability and Disclosure Act for a Child Protective Service Supervisor to serve on a mental health board?

CONCLUSION

No, but see analysis.

FACTS

A state employee holds the position of Child Protective Service Supervisor for Nebraska Health and Human Services, a Nebraska state agency. Prior to January 1, 1997, this position was within the Nebraska Department of Social Services. After that date, Social Services and other state agencies were merged and became Nebraska Health and Human Services. The employee describes herself as a licensed mental health professional and a certified substance abuse counselor. The employee also serves as a member of the Adams County Mental Health Board. Her service as a mental health board member occurs on the employee's own time and not on state time or when otherwise engaged in her state duties.

Mental health boards are established pursuant to the Nebraska Mental Health Commitment Act. See 83-1001, et seq. of the state statutes. The function of a mental health board is to determine if an individual brought before it poses a substantial risk of serious harm to himself or another person by reason of a mental illness, alcohol abuse, or drug abuse. If a person is found by the board to pose a substantial risk, the person may be retained in custody and placed in a state hospital under the control of Nebraska Health and Human Services. See 83-1039(1). The mental health board is also authorized "to require the Director of Health and Human Services. . . to provide such assistance as may be necessary" to place the mentally ill person in an appropriate facility or program.

Members of a mental health board are appointed by the presiding judge of the judicial district for a term of four years. One member of the board must be a licensed attorney. The remaining two must be from one of the statutory categories, except that only one of the two may come from any one of the categories. The categories are: a physician, a psychologist, a psychiatric social worker, a psychiatric nurse; a clinical social worker; or a layperson with demonstrated interest in mental health issues. They are paid at an hourly rate set by the district judge and expenses. See 83-337.

As stated, the mental health board may place an individual in an institution under the control of Nebraska Health and Human Services. Prior to January 1, 1997, such a placement would have been made with the Nebraska Department of Public Institutions. The Department of Public Institutions has been merged into Nebraska Health and Human Services.

ANALYSIS

There is nothing in the Nebraska Political Accountability and Disclosure Act generally applicable to state employees which prohibits an individual from simultaneously holding more than one public position. The holding of more than one public position is not a conflict of interest as defined.

Section 49-1499 as applied to an employee of the executive branch of state government provides that the employee has a potential conflict of interest if he or she is faced with taking an action or making a decision in his or her official capacity which may cause a financial benefit or detriment to: a) the employee; b) a member of his or her immediate family; or c) a business with which he or she is associated. The benefit or detriment must be distinguishable from that experienced by the general public or a broad segment of it.

There is nothing in the information submitted that indicates that there is any action or decision before the state employee in connection with her state duties which would result in a financial benefit or detriment to her or an immediate family member.

Section 49-1407 defines the term business as "any corporation, partnership, limited liability company, sole proprietorship, firm, enterprise, franchise, association, organization, self-employed individual, holding company, joint-stock company, receivership, trust, activity, or entity." This definition does not include a governmental entity. See Advisory Opinions #61 and #125. Section 49-1408 defines the term business association as having a specified relationship to an entity which fits the definition of business. Thus even if the state employee were faced with taking an action or making a decision as part of her state duties which would result in a financial benefit or detriment to the mental health board, it would not be a conflict of interest as defined since one cannot have a business association with an entity which does not fit the definition of a business

Given the foregoing, the employee of Nebraska Health and Human Services does not have a conflict of interest because she simultaneously holds a position with the state and serves as a member of a mental health board.

In order to determine if one may hold more than one public position at the same time one must look to other sources such as the state constitution, state statutes, rules and regulations and personnel policies. For example, Article III, Section 9 of the Nebraska Constitution prohibits a state senator from holding any other lucrative office under the authority of the state. By way of further example, 49-14,114 prohibits an appointed member of the Nebraska Accountability and Disclosure Commission from holding any other public position. Title 273, Chapter 15 Nebraska Classified System Personnel Rules applies to certain classes of state employees and their outside activities.

According to the Division of Personnel of the Department of Administrative Services, Nebraska Health and Human Services falls within the Classified Personnel System and most of its employees are subject to Title 273, Chapter 15. Section 006 of Title 273, Chapter 15 provides as follows:

Conflict of Interest. An employee shall not have any interest, financial or otherwise, direct or indirect, in any business or transaction or professional activity or incur any obligation of any nature which is in conflict with the proper discharge of his/her duties in the public interest.

Section 006.04 of the same title and chapter provides:

Employees failing to resolve a conflict of interest, as prescribed in the procedures outlined by the Accountability and Disclosure Commission, shall be subject to disciplinary action.

The Commission is authorized to issue advisory opinions as to how the Nebraska Political Accountability and Disclosure Act applies to a specified set of facts. See 49-14,100 and 49-14,123(10). Thus, the Commission is authorized to issue opinions as to whether a conflict of interest exists as defined by the Act.

The way in which the term "conflict" is used in 006 is unfortunate. As used, it appears to refer not only to a conflict of interest as provided by 49-1499, but also to a situation in which the outside activity of a state employee is in some way incompatible with his or her public employment. A determination as to whether a state employee is engaged in a professional activity which is incompatible with his or her state employment does not lie with the Commission since no statute within the Act addresses such a concept. Presumably, such a determination is for the state agency.

SUMMARY

An employee of Nebraska Health and Human Services does not have a conflict of interest merely because she also serves as a member of a mental health board. She should engage in mental health duties only on her own time and not on state time or when otherwise engaged in her state duties. It is not for the Commission to determine if an outside professional activity of a state employee is incompatible with her state employment.