REQUESTED BY: K.B. Smith, candidate for county commissioner for Lancaster County, Nebraska.
QUESTION: May an individual who is a candidate for the office of county commissioner for Lancaster County and who is a member of the reserve deputy sheriff's force of Lancaster County continue membership in such a reserve force if elected to the position of county commissioner.
It is the opinion of the Commission that a member of a county board may serve as a reserve deputy sheriff in the circumstances you describe. See Analysis.
I. Facts. You have indicated to us that you are presently a member of the Lancaster County Reserve Deputy Sheriff's force. You are also a candidate for the office of county commissioner. If you are elected you desire to continue serving as a member of the reserve deputy sheriff's force.
The sections relevant to answering your question are Neb. Rev. Stat. Sections 81-1438 through 1446, (Reissue 1981). Those sections authorize a county to establish such a force. They establish qualifications and training standards, and set out the powers of persons appointed. They authorize payment of a salary to such officers of at least $1.00 per year. They also authorize the payment of assistance for the purchase and maintenance of uniforms and equipment. Hospital and medical assistance for injuries occurring in the course of official duties are required.
The county sheriff is authorized by statute to appoint deputies. (See Neb. Rev. Stat. Section 84-801, et. seq. generally dealing with deputies and Section 23-1701 et. seq. dealing with the powers of county sheriffs.) Under these statutes the appointment by a sheriff of a deputy is subject to approval of the required bond by the county board. (Neb. Rev. Stat. Section 11-107, Reissue 1983, provides "the official bonds of all county . . . bonds of county commissioners . . . which shall be approved by the county judge." It is our understanding that only the required pay and other assistance is provided to the reserve forces of Lancaster County. We restrict our analysis to the provisions of the Accountability and Disclosure Act. In doing so we do not ignore, and direct your attention to, the case law which prohibits an officer from holding inconsistent public offices. Summarized, that case law provides that an officer may not hold simultaneously two public offices whose duties are inconsistent with one another; nor may two offices be held where the supervision of the lesser office is exercised by the greater office occupied by the same individual. We do not analyze that situation for you but merely bring it to your attention and state our belief that is not applicable to your question.
II. Actual conflicts of interest. Section 49-14,101(3) provides "No public official or public employee shall use that person's public office or any confidential information received through the holding of a public office to obtain financial gain, other than compensation provided by law, for himself or herself, a member of his or her immediate family, or a business with which the individual is associated."
We have observed in prior opinions that this section embodies an idea that a public office or employment should not be used for private gain beyond the compensation provided by law. Nebraska Stat. Section 49-1402(3) makes patent this concern. It in part provides "it is essential to the proper operation of democratic government. . . that public office or employment not be used for private gain other than the compensation provided by law." The sections are not limited or qualified in any way.
See also advisory opinion Nos. 77 and 81. They specifically prohibit direct private gain. We see nothing in the situation you have described to us that falls within the prohibitions of Section 49-14, 101(3). We are unaware and we cannot think of any situation in which the offices that you would propose to hold simultaneously would raise such issues.
III. Potential Conflicts of Interest. Section 49-1499 sets forth standards to be applied in determining whether a potential conflict of interest exists. That section in part provides that an official "who in the discharge of his or her official duties would be required to take any 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 take the following actions . . ."
The question to be analyzed is whether any official action taken either as a member of the reserve force or as a member of the county board would be one that would cause a benefit or detriment to you, a member of your immediate family or a business with which you are associated. In that connection, we have tried to analyze the relationship between the sheriff's office and the county board and more particularly the reserve deputy sheriff's force and the county board.
It is clear that there is a statutory duty to approve the appointment of members of the reserve force through the bond requirements. The county board acts on the budget requests of the sheriff's office which could affect the reserve component. In this regard it is certainly conceivable that a budget request having an immediate monetary effect on you could exist. There could be requests for payment of salaries, reimbursement of expenses or other monetary assistance for the purchase and maintenance of uniforms or equipment. That, of course, would be a direct benefit. It would require you to take the action specified by Section 49-1499 which is to deliver a Statement of Potential Conflict to the Accountability and Disclosure Commission and take the steps the Commission prescribes. The fact, however, that a potential or even an actual conflict of interest exists does not disqualify one from holding an office. The Accountability and Disclosure Act simply prescribes certain steps to be taken to remove oneself from such situations.