REQUESTED BY: Larry Morris, Chief of Administration, Nebraska Game and Parks Commission.
QUESTION: May the Game and Parks Commission permit a park superintendent employed by the Nebraska Game and Parks Commission who is required to live in state owned housing on park grounds to operate an antique business from the state owned housing?
An individual employed as a State Park Superintendent by the Nebraska Game and Parks Commission is required to live on state property in state owned housing. The superintendent is engaged, and plans to continue to be engaged, in the buying and selling of antiques. This activity would occur on the superintendent's own time and not on state time. Essentially, the business consists of taking orders from individuals looking for specific antique items. Upon doing so he will purchase the item for resale to the individual. The superintendent, on his own time will try to locate these items. The superintendent delivers the antique items to individuals on his day off.
The superintendent also purchases mail-order hand-crafted items at wholesale price. These items are sold at retail to craft shops and antique shops. The shop owner receives a percentage of the profit. Most of the business at home consists of phone calls on the superintendent's own time at his own expense. The superintendent has a tax I.D. Number and reported profits of slightly more than $300 during the 1989 tax year. He describes this as more of a hobby than a business.
The Game and Parks Commission wishes to know if it may allow its facilities to be used in this manner.
Section 49-14,101(4) states:
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 with prescribed constitutional, statutory, and regulatory procedures, or use such items, other than compensation provided by law, for personal financial gain.
Simplified, this provision generally means that government property and facilities may be used for government purposes only. It is apparently the position and policy of the Nebraska Game and Parks Commission that there is a government benefit to having its park superintendents live on the park grounds. Certainly, it is contemplated that an individual required by the terms of his or her employment to live in government owned housing will engage in some activity which does not necessarily have a government purpose. For example, it is difficult to find a government purpose in the superintendent or his spouse doing the laundry of their children in the house which is a state facility. Thus, the superintendent may engage in activity at the house which is not inconsistent with his status as Park Superintendent and which does not take advantage of the location of the house in the park or the level of traffic through the park.
We note that Section 81-805 of the Nebraska Statutes provides that the Game and Parks Commission is authorized to promulgate rules and regulations governing the use of all real property under its ownership or control. Section 81-805(8) provides that the Game and Parks Commission is authorized to enact regulations permitting the sale, trade or vending of any goods, products, or commodities of any type in any area under its ownership or control. Section 81-805(9) provides that where the permission of the Game and Parks Commission is required as a prerequisite to certain activity (including the sale, trade, or vending of any goods, etcetera), such permission shall be established by resolution of the Game and Parks Commission.
While the Commission does not have jurisdiction to interpret statutes outside of the Nebraska Political Accountability and Disclosure Act, it does appear on the face of the noted provisions in Chapter 81 that the Game and Parks Commission is empowered to regulate the type of activity which occurs at a state owned house occupied by a park superintendent. It appears that it may, by regulation, either permit the type of activity described above or prohibit the type of activity described above. In other words, the Game and Parks Commission could cause the above described activity to be consistent with the "regulatory procedures" referred to in Section 49-14,101(4). The Game and Parks Commission could also cause the above described activity to be contrary to "regulatory procedures".
The Nebraska Accountability and Disclosure Commission takes no position as to what, if any, action the Game and Parks Commission should take in this area. We believe that this is a matter which should be left to the consideration of the Game and Parks Commission.