REQUESTED BY: Charles A. Kandt, Lincoln County Attorney
QUESTION: May a County Attorney employ his wife as a secretary and manager on a temporary basis?
CONCLUSION
Yes, when such employment does not provide his wife with an unfair gain or otherwise amount to an abuse of power.
FACTS
The County Attorney's wife is an experienced secretary. There has been a turnover of both attorneys and secretarial personnel in the County Attorney's office, and the current office manager will be leaving her position in about six weeks. The County Attorney's wife is to be employed for a transitional period of nine months. She would assume the duties of office manager and would assist in the search and training of a new employee for the position of office manager. She would be paid at the minimum rate for such position as set out in the "county-wide comparability study" adopted, we assume, by the County Commissioners.
We have recently been advised that the county attorney is training one of the other secretaries to be the office manager, and that his wife is to be employed during the transition only on a part-time as needed basis.
ANALYSIS
Section 49-14,101(3) provides that no public official shall use that person's public office to obtain financial gain, other than compensation provided by law, for himself, a member of his immediate family or a business with which he is associated.
Section 49-1425 defines immediate family to include a spouse.
Section 49-1499 requires that a public official required to file a Statement of Financial Interests, among others, who is about to take an action that would provide that 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 statement of potential conflict with the Commission. If he has no immediate superior, he shall take such steps as the Commission shall prescribe or advise to remove himself from influence over actions and decisions on the matter.
There apparently is no anti-nepotism statute, similar to 81-108, which would apply to county officials. Employment of a spouse by a county official is therefore not illegal per se. The employment in question is part-time and temporary. See Reddell V. State, 170 P. 273. And, it does not appear in this case that the County Attorney is hiring his spouse upon considerations other than merit or ability. See State ex rel. Robinson v. Keefe, 149 So. 638.
It would seem, therefore, that since her employment is part-time and temporary, since she appears qualified and would be hired if the county attorney were not her husband, since she is not to be paid a salary greater than another qualified person would be paid, and since she is not being employed to the exclusion of other qualified persons, there would not be an unfair gain or abuse of power, which anti-nepotism statutes seek to guard against as a matter of law. See State ex rel. Robinson V. Keefe, supra.
Under such circumstances, such employment should not be considered a use of public office "to obtain financial gain . . . for a member of his immediate family" in violation of section 49-14,101(3). Nevertheless, such employment "would provide. . . a member of his immediate family with financial benefits. . ." Therefore, under the circumstances and pursuant to the provisions of section 49-1499, we prescribe and advise the County Attorney to remove himself from influence over actions and decisions on the matter to the extent of employing his wife only as needed on a temporary basis at a rate of compensation not to exceed the minimum for the position or work performed pursuant to the comparability study and that she not be employed permanently or preferentially over others who are qualified.
