REQUESTED BY: Terence B. Campbell
QUESTION: May an employee of the Penal Complex, who is an agent for a catalogue merchandiser, have goods from that catalogue approved by another employee of the Penal complex for purchase by inmates from their own funds?
The employee in question has no connection with the administration of the approved list or department or method by which goods are up for the purchase by prisoners. He and his wife are independent Amway distributors and offer a shoppers' catalogue whereby customers may order catalogue merchandise such as clothing, appliances, television, stereo and radio equipment. The Penal Complex has what is called the Hobby Association, which is a Penal Complex employee who authorizes goods approved for purchase by inmates from their funds, including statutorily earned funds and funds derived from the sale of crafts, which is also managed by this employee.
The Amway dealer in question would like to offer approved items for sale from his catalogue as is the case with other catalogue merchandise such as that of Sears & Roebuck or Montgomery Ward. He states in his request for advisory opinion that the money used for the purchase of approved items is earned money by the prisoners and is not State funds.
If the funds involved to be spent by the prisoners are not State funds then there is no issue of conflict of interest under the provisions of Section 49-1499, R.S. Supp., 1976. That section provides that an employee of the executive branch of State government, who, in the discharge of his official duties, would be required to take an action that would provide that individual, a member of the individual's immediate family, or a business with which the individual is associated, financial benefits of more than a de minimis nature which are distinguishable from the benefits to the public or a broad segment of the public, shall file a disclosure of his potential conflict of interest with the Commission and his immediate supervisor, who in turn shall assign the matter to another employee.
The provisions of this section requiring a filing of a disclosure and certain other actions is not applicable since no official action is required to be taken by the employee requesting this opinion and if the employee requesting this opinion is not a member of the immediate family or associated in business with the administrator of the Hobby Association.
As to Section 49-14,102 providing that no public employee, a member of that person's family or a business with which he is associated shall enter into a contract valued at $2,000 or more, in any one year, with a governmental body unless the contract is awarded through an open and public bidding process is concerned, the contract in question here would not be a contract between the State employee in question and a governmental entity if the funds are not State funds or funds held in trust by the State. In any case, we are advised that the dollar amount would not exceed in any one year the $2,000 referred to, either in terms of remuneration to the State employee or in terms of the purchase price of such goods.
With respect to the provisions of Section 49-14,101(3), which prohibits a public employee from using his public office to obtain financial gain for himself or a member of his family or a business with which he is associated, the actions of the employee requesting this opinion are not per se a violation of this section. A violation of this section requires proof of more than the fact that one State employee is subject to what appears to be the ministerial action of another State employee.