REQUESTED BY: Stephen P. Herman, Frontier County Attorney, Curtis, NE 69025
QUESTION: Whether a county attorney, who is not prohibited from engaging in private law practice, who performs the duties of county attorney from his private law office, and who employs his spouse as secretary for his private law practice, may also employ his spouse as a secretary for the performance of his duties as county attorney?
Yes, provided that her government salary is not arbitrary, caprisious and unreasonable.
FACTS: The county attorney in this case appeared before the Commission at its regular February meeting and thereafter submitted a Statement of Potential Conflict dated February 21, 1983 and followed that up with a letter dated March 10, 1983. He appeared again before the Commission at its May meeting.
He is permitted to engage in private practice and does so from a private office. The secretary in question was employed as his secretary for his private law practice prior to his becoming county attorney and prior to their marriage. Since there marriage and since his becoming county attorney, the county attorney has employed his wife as secretary for both his private law practice as well as his duties as county attorney. The county board has authorized a budget for the county attorney which includes $580 per month as a salary for the county attorney's secretary. The law office in question is located in Curtis, a town of only about 1000 people, the largest town in the county but not the county seat.
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.
In Advisory Opinion #46 we stated that there is no anti-nepotism statute, similar to Section 81-108, R.R.S. 1943, which is applicable to certain state officials, which would apply to county officials. Employment of a spouse by a county official is therefore not illegal per se.
At the March 1983 meeting of the Accountability Commission, a resolution was adopted providing that Section 49-14,101(3) would not be construed as an anti-nepotism statute.
Since employment of a spouse in and of itself is not to be considered a violation of Section 49-14,101(3), there must be a showing of abuse of discretion. See Meyer v. Colin et al, 204 Ne. 96. Abuse of discretion would include an unfair gain as stated in Advisory Opinion #46 or as stated in Bass v.County of Saline, 171 Neb. 538, a salary which is arbitrary, capricious and unreasonable.
The job and salary in question here have been described as part-time and have been approved in the budget for the county attorney's office by the county board. We further recognize that the circumstances of not functioning as county attorney from an office in the court house but doing so from a private office which is for the performance of his private law practice makes consideration of another to be employed as a part-time government secretary awkward in that there is no fixed time for performing government duties and that it is necessary to switch from government duties to private and vice versa.
With respect to the fact situation in Advisory Opinion #46 we, in effect, took the position that there would not be an abuse of discretion if the county attorney's spouse were employed as needed temporarily and not permanently or preferentially over others who are qualified. Advisory Opinion #46 involved a fact situation where the county attorney was not permitted to engage in private practice and performed his county attorney duties from an office in the court house with a regular secretarial staff.
Needless to say, abuse of discretion must be judged in each case depending upon the circumstances. And, as far as the employment in this case is concerned, it is our position that where the duties of county attorney are not performed in a government office but in a private law office and under circumstances which do not lend themselves to a fixed schedule, the fact that such employment is permanent and perhaps even preferential as to others who might be qualified does no constitute an abuse of discretion.
In Advisory Opinion #54, the county attorney was proposing to have his spouse act as secretary for both his private and government business which would mean terminating a full-time government secretary. We distinguished Advisory Opinion #46 and said that he could not do so because the employment would be permanent and not temporary and, in effect, construed Section 49-14,101(3) as an anti-nepotism statute in the case of permanent employment.
We hereby withdraw Advisory Opinion #54.
In view of the position of the Commission in this opinion, our position with respect to the fact situation in Advisory Opinion #54 is that if a qualified government employee were to be terminated so that his or her salary could be used to pay the salary of the spouse of a public official, that would be an abuse of discretion. However, this is not to say that a public official is prohibited from making a good faith change of a full-time job to a part-time job with a corresponding reduction of salary to reflect the value of the government services rendered or to be rendered.
In neither this case nor in Advisory Opinion #54, may a full-time salary be paid to a public official's spouse since in both cases the government work to be performed is or would be part-time. In order to avoid an abuse of discretion, if the spouse in this case is to continue to be employed, and in Advisory Opinion #54 in the event the spouse were to be employed, the government salaries to be paid such spouses should not provide them with an unfair gain, i.e., a salary which is arbitrary, capricious and unreasonable.