REQUESTED BY: Ken Kirschenmann, 540 South 55th Street, Lincoln, NE 68510
QUESTION: May a state employee, who engages in a private business, sell its products to the State of Nebraska and its political subdivisions?
Yes, under the circumstances set forth in this opinion.
The fact situation, as presented in the request for advisory opinion dated May 27, 1983, sets forth that the person requesting the same is a state employee and operates a part-time flag business. He sells U.S. flags, Nebraska State flags, flag poles and other related products. He has done business with the State of Nebraska through the bidding process and perhaps with other governmental agencies through negotiation. We assume that he is an individual proprietor.
He had previously written to us concerning the matter on January 28, 1983, and our General Counsel responded by letter dated February 1, 1983.
Section 49-14,102 provides that no public employee, a member of that individual's immediate family, or a business with which the individual is associated, shall enter into a contract valued at $2000 or more, in any one year, with a governmental body unless the contract is awarded through an open and public process, which includes prior public notice and subsequent availability for public inspection . . ..
If the flags and flag products are sold through an open and public bidding procedure, there would not be a violation of this section. If a contract for such products is for less than $2000 in any one calendar year, it may be negotiated without violation of this section so long as the contract is not divided for the purpose of evading the $2000 threshold requiring an open and public process for awarding such a contract.
If the state employee is involved in purchasing flags or flag products by reason of his government employment, he would be required to file a disclosure of potential conflict pursuant to Section 49-1499. And, he would be prohibited from taking any governmental action with respect to a sales transaction by his business with the government by reason of the provisions of Section 49-14,101(3). Section 49-14,101(3) provides that no public official or employee shall use his public office to obtain financial gain for himself, a member of his immediate family or a business with which he is associated.