REQUESTED BY: Ed Schulenber, Chief, Division of Social Services, Department of Public Welfare
QUESTION: May a judge of a Separate Juvenile Court enter into a contract with the Department of Public Welfare to be paid a per diem to serve on an advisory committee and be a consultant in connection with rules and regulations pertaining to the licensing of child care institution to be adopted by the Department of Public Welfare?
The sections of the Nebraska Political Accountability and Disclosure Act involved in this matter are Section 49-1499 concerning disclosure of conflict of interest, Section 49-14,102 with respect to a public official entering into a contract with a government agency, Section 49-14,101(3) prohibiting a public official from using his office for financial gain, and Section 49-14,101(4) prohibiting a public official from using funds under his control other than in accordance with constitutional, statutory, and regulatory procedures.
As far as Section 49-1499 is concerned, a conflict of interest is defined as the taking of an official action which will result in financial benefit to the official taking the action, a member of his family or the business with which he is associated, which is distinct and different from the public at large or a broad segment of the public. Section 49-1499 applies only to persons required to file Statements of Financial Interests and officials and employees of the executive branch of State Government and not to judges. In any case the situation here appears not to involve an official action. We conclude that there is no conflict of interest to be disclosed pursuant to Section 49-1499.
As to the matter of a contract pursuant to the provisions of Section 49-14,102 requiring public bidding, we have previously ruled that this section does not apply to contracts of employment and for personal services. See Advisory Opinion 16, adopted July 19, 1978, to Willard Weinhold, Dawson County Attorney.
As to the use of a public office for financial gain, Section 49-14,101(3) does apply to a judicial official. See Section 49-1443 defining a public official to include an elected or appointed official in the judicial branch of the State government or a political subdivision thereof. However, the fact that a public official or employee enters into and is paid pursuant to a contract with a governmental agency, or anyone else for that matter, is not per se a violation of this section.
With respect to Section 49-14,101(4) the question presented is really turned around and should be considered in the light of whether or not the Director of Public Welfare as a public official may use Welfare Department funds to pay a judge of a Separate Juvenile Court in accordance with prescribed constitutional, statutory and regulatory procedures.
As far as constitutional procedures are concerned, we call your attention to that part of Art. III, Sec. 19, Nebraska Constitution, which provides that "the compensation of any public officer, including any officer whose compensation is fixed by the Legislature, (shall not) be increased or diminished during the term of his office" except when there is a change of term. Art. V, Sec. 27, Nebraska Constitution, provides that the qualifications and compensation of the judges of the juvenile courts may be fixed by the Legislature.
In sections 43-234 and 24-301.01, R.R.S. 1943, the Legislature fixed the salaries of the judges of the juvenile courts, and in Section 43-233 the Legislature fixed the qualifications for a judge of a Separate Juvenile Court. None of these provisions restrict a juvenile judge from receiving a salary or other compensation for holding another office or rendering services outside the scope of his judicial duties.
Opinions of the Attorney General 1973-74, No. 18, has dealt with the constitutional restriction on extra compensation with respect to a sheriff who is also employed as a chief of police of a town within the same county as being permissible. That Attorney General's opinion cites Opinions of the Attorney General 1955-56, Page 346, dealing with the State Engineer even though he was on the Capitol Building Commission to the effect that he could receive compensation as a consulting engineer to the Building Commission and cites the case of Dunkel v. Hall County, 89 Neb. 585, which dealt with the question of whether or not a sheriff could be paid extra as a jailor.
By way of commentary, the Commission notes that Canon 6 of the Code of Judicial Conduct adopted by the Nebraska Supreme Court requires a judge to regularly file reports of compensation received for quasi-judicial and extra-judicial activities, and although Canon 5 requires that a judge should regulate his extra-judicial activities to minimize a risk of conflict with his judicial duties, Canon 4 permits a judge to engage in activities to improve the law, the legal system and the administration of justice.
Notwithstanding the foregoing considerations, the question has been raised in consultation with the Attorney General's office as to whether or not payment to a juvenile judge by the Welfare Department for the services described above constitutes a violation of Art. II, Sec. I of the Nebraska Constitution. That constitutional provision states: "The powers of the government of this state are divided into three distinct departments, the legislative, the executive and judicial, and no person or collection of persons being one of these departments, shall exercise any power properly belonging to either of the others, except as hereinafter expressly directed or permitted."
Authority is lacking with respect to judicial exercise of administrative or executive power. Judicial power is to interpret the law in actual controversies. VanSikle v. Shanahan, 511 P2d 223, 235, 212 Kans. 426. The doctrine of the separation of powers is to prevent the combination in the hands of a single person or group of the basic or fundamental powers of government, but does not prohibit the turning over of incidental or subordinate powers. Parker v Riley, 113 P2d 873, 877. Matters of public policy are legislative and legislative power may not be delegated or conferred on the courts. Williams v. County of Buffalo, 181 Neb. 233, 147 NW2d 776 (1967). With these considerations in mind, it might be said that a paid advisory function with respect to rulemaking is at most an incidental or subordinate executive power that would be exercised by a judge in this case or even that the situation is not one of the judicial exercising executive power in that the contract with the judge is not for services as a judge or a court but as an individual who happens to be a judge.
However, since the judge will be advising on rules and regulations with respect to institutions in which the judge may place persons within the scope of her judicial authority, and since the Department of Public Welfare exercises administrative jurisdiction with regard to such places distinct and separate from that of the juvenile court (see Section 43-209, R.R.S., 1943), we think that the doctrine of separation of powers applies as far as contracting and payment are concerned and therefore will not issue an advisory opinion pursuant to the provisions of Section 49-14,100, R.S.Supp., 1978 as a complete defense to any charge of violation of Section 49-14,101(4) in this case. Nevertheless, this opinion should not be construed to prohibit the juvenile judge from testifying, advising and being consulted by the Welfare Department on a non-contractual, non-fee basis within the scope of the Code of Judicial Conduct, cited above.
We wish to emphasize that this opinion is in response to a request for an advisory opinion by the Chief of the Welfare Department's Division of Social Services, which advises with respect to the expenditures of Welfare Department funds, and is not to be construed as an interpretation of the code of Judicial Conduct.