REQUESTED BY: Byron W. Fallesen
QUESTION: References made to your letter of October 17, 1977 concerning a County Commissioner who is an employee and a controlling stock holder with his wife in an insurance agency which writes bid and performance bonds for a local contractor bidding for contracts to be awarded by the County Board of Commissioners.
CONCLUSION: This letter is a recommended advisory opinion which will be submitted to the Commission for adoption as an official advisory opinion at its meeting at 10:00 a.m., Tuesday, November 15, 1977 in Supreme Court Hearing Room No. 2 State Capitol Building, Lincoln, Nebraska 68509 at which time you may appear and be heard further if you so desire.
FACTS: Pursuant to the provisions of Section 49-1499, be advised that a County Commissioner is an individual designated in Section 49-1493 required to disclose a potential conflict of interest.
ANALYSIS: It is concluded that the County Commissioner in question, in the discharge of his official duties, would be required to take an action that would provide that individual, a member of that individuals immediate family and a business with which that individual is associated financial benefits of more than a deminimus nature which are distinguishable from the benefits to the public or a broad segment of the public, and therefore your letter is being treated as a potential conflict of interest statement pursuant to Subsection (1) of 49-1499.
Since a County Commissioner does not have an immediate superior pursuant to Subsection (2) of that statute, the following steps are hereby prescribed and advised for the County Commissioner to remove himself from influence over actions and decisions on the matter in question:
1. That the County Commissioner may be considered as a necessary Commissioner to constitute a quorum of the board.
2. That the County Commissioner should abstain from voting on any contract to be awarded by the County Board wherein his insurance agency furnishes bonds to any bidding contractor and prior to the taking of a vote on the awarding of any such contract should disclose for the minutes of the County Board meeting that he is abstaining from voting by reason of potential conflict of interest and should offer an explanation of such potential conflict of interest (such as a copy of your October 17, 1977 letter) to be made a part of the minutes of the board meeting.
3. In the event that the vote of County Commissioner is required in order for an action to be taken in the awarding of such contracts similar disclosure should be made for the minutes of the board meeting, and further the minutes should show that the Commissioner in question is voting because his vote is necessary to the action of awarding a contract, and upon so acting the County Commissioner should file with the Commission a disclosure that he acted under such circumstances and the nature and date of the action taken pursuant to the provisions of Section 49-1498 and 49-1499(2).
4. The foregoing steps to be taken by the County Commissioner in question are on the assumption that the contract or contracts to be awarded the contractor for whom such bonds are furnished have a consideration in an amount of $5000 or less in any one year in that the provisions of Section 23-146, R.S. Supp., 1976, provided that no county officer shall in any manner, either directly or in-directly, be pecuniary 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 $5000 in any one year.