REQUESTED BY: Larry Morris, Chief of Administration, Game and Parks Commission, 2200 North 33rd Street, Lincoln, NE 68503
FACTS
On April 13, 1984 the NADC Executive Director received a memorandum, dated April 12, 1984, from the Chief of Administration of the Game and Parks Commission which had attached to it a Statement of Potential Conflict for Robert Dahl, a Superintendent of a state recreation area, which was not signed, and a copy of a Game and Parks Commission New Employee Or Pay Change Personnel Recommendation form showing the terms and conditions for the employment of Dahl's spouse as a Temporary Park Worker II at an hourly rate of approximately $3.80 and further showing that such employment was also recommended by a division chief and approved by an assistant director.
The Morris memorandum indicates that the situation set forth in the Dahl Statement of Potential Conflict is a common fact situation. The Potential Conflict Statement states that as Superintendent of a state recreation area the public employee in question (Dahl) is recommending that the Game and Parks Commission employ his spouse as indicated. His spouse will also have some supervisory duties over other employees. Further, as is common with many park and recreation areas around the state, the area office and the place where the spouse will work is located within the government furnished family residence of the Superintendent. The spouse would perform many of her duties on an "as needed" basis at any time rather than on a fixed work week schedule, which would otherwise require the presence of a non-family member in their living quarters.
In the Morris memorandum, it is also stated that 7 spouses of Superintendents are employed as permanent employees, and during the 1983 park season, 19 spouses and 4 children were employed as temporary employees by the Parks Division.
Under these circumstances, we treat the Morris memorandum and the accompanying materials described above as a request for advisory opinion by a government body affected by the Accountability Act pursuant to Section 49-14,123(10).
The specific question presented in the Morris memorandum is whether Statements of Potential Conflict have to be filed in connection with such employment. Additional questions arise by reason of the circumstances, namely whether a recommendation of employment by a state employee of a member of his immediate family is permissible under Section 49-14,101(3).
ANALYSIS
The question of whether Statements of Potential Conflict must be filed prior to recommending the employment of a spouse, dependent or resident child is governed by Section 49-1499. That section provides that an official or employee of the executive branch of state government, who, in the discharge of his or her official duties, would be required to take an action or make any decision that may cause financial benefit or detriment to him or her, a member of his or her immediate family or a business with which he or she is associated, which is distinguishable from the effects of such action on the public generally, or a broad segment of the public, shall file a Statement of Potential Conflict as soon as he or she is aware thereof or should reasonably be aware, whichever is sooner. The Statement must be filed with the Accountability Commission and with the employee's immediate superior. The immediate superior must assign the matter to another employee. In those cases where the public official or employee does not have an immediate superior, he or she shall take such steps as the Accountability Commission shall prescribe or advise to remove himself or herself from influence over such actions and decisions.
Regardless of whether the matter is handled by a superior, another employee or upon the prescription or advice of the Accountability Commission, Section 49-14,101(3) must be considered. That section provides that no public official or public employee shall use that person's public office . . . to obtain financial gain, other than compensation provided by law, for himself or herself or a member of his or her immediate family, or a business with which the individual is associated.
"Immediate family" is defined in Section 49-1425 of the Accountability Act as a child residing in the household of a public official or employee, a spouse of such official or employee or an individual claimed by that official or employee or the spouse thereof as a dependent for federal income tax purposes.
The Commission has issued a number of advisory opinions bearing on questions of employment of a member of a public official's immediate family. Advisory Opinion #46 holds, in effect, that temporary employment under certain circumstances is not a violation of Section 49-14,101(3).
Advisory Opinion #59 recognizes special circumstances for the employment of a spouse by a county attorney in his private law office where he performs the duties of county attorney. The basic rule is that employment of a member of an immediate family is permissible if the public official does so under circumstances where he has not abused his discretion. In Advisory Opinion #64, we set forth a series of examples of abuse of discretion, pointing out that abuse of discretion must be judged in each case depending on the circumstances. Examples of abuse of discretion, depending on circumstances, might include (1) providing a spouse with an unreasonably high salary, (2) not requiring a spouse to actually perform the duties of his or her position, (3) terminating another employee so as to make funds available for the employment of a spouse, (4) hiring a spouse who is not qualified or in preference over others, and (5) hiring a spouse without solicitation or consideration of applications for employment where ordinarily the job would have been filled that way.
In the Dahl case, even though the employment in question is temporary, it appears to be long term. However, the salary is not unreasonably high. In addition, there are circumstances similar to Advisory Opinion #59. The work is to be performed in the family home, which, although government property, is not a government office setting conducive to fixed working hours or having others present during non-regular working hours. And, although the public employee in question would be taking a government action or making a government decision by recommending the employment of his spouse, actual employment is accomplished by public employees who are his superiors.
Under the circumstances, the government action or decision of recommending the employment of the public employee's spouse, is not an abuse of his discretion and, therefore, would not constitute a use of public office to obtain financial gain for a member of his immediate family in violation of Section 49-14,101(3).
In view of our position in Advisory Opinion #64, a Statement of Potential Conflict would not be required prior to a recommendation for rehiring a spouse on a temporary basis similar to the Dahl situation provided that the terms and conditions of the re-employment were materially the same as the original temporary employment. If a spouse, dependent or resident child is to be hired for the first time, a Statement of Potential Conflict is required prior to the public employee's recommendation. If the public employee is about to recommend a salary increase which is not automatic pursuant to a personnel plan, a change of temporary to permanent employment or other material change in the terms and conditions of the employment of a member of his immediate family, a Statement of Potential Conflict must be filed.
Section 49-1499(2)(b) provides that if the public official's or public employee's government action or decision would cause financial benefit or detriment to a member of his immediate family which is distinct from the effects of such action generally, he must file his Statement of Potential Conflict, deliver a copy to his immediate superior, if any, who shall assign the matter to another. However, in those cases where the public official or employee, usually an elected public official, has no immediate superior, he or she shall take such steps as the Accountability Commission shall prescribe or advise to remove himself or herself from influence over the government action or decision on the matter.
In the case of a public employee with an immediate superior, the Commission does not have the authority to prescribe or advise steps he must take to remove himself from influence over the government action or decision. The public employee is simply required to provide a copy of his Statement of Potential Conflict to his immediate superior, and the immediate superior is to assign the matter to another. Under such circumstances, the standard applicable to the public employee's conduct is Section 49-14,101(3), and as indicated above, a recommendation of employment under circumstances considered in this advisory opinion is not an abuse of discretion by the public employee and therefore not a use of public office to obtain financial gain in violation of Section 49-14,101(3).
Note: Section 49-14,101(4) provides that no public official or public employee shall use personnel, resources, property, or funds under that individual's official care and control, other than in accordance prescribed constitutional, statutory, and regulatory procedures . . .The rules and regulations of the Department of Personnel, Title 273, Chapter 18, 005 Nepotism, January 1, 1984, provide that no employee shall hire or supervise directly a member of his/her immediate family without prior approval of the agency head. The immediate family shall be considered as: spouse, children, parents, grandparents, grandchildren, brothers, sisters or persons bearing the same relationship to the spouse.
