REQUESTED BY: Terry R. Schaaf, Attorney At Law, Lincoln, Nebraska
QUESTION: May an attorney employed by the State of Nebraska represent private clients before a State Commission if the State Commission is not the employer of the attorney?
An attorney in private practice has been functioning as a hearing officer for the Department of Health. This relationship has not been that of employer-employee. The attorney has acted as an independent contractor. The Department of Health and the attorney have discussed the possibility of the attorney becoming a part-time employee of the Department. The attorney regularly represents private clients before the Nebraska Liquor Control Commission. The Department of Health has indicated that it has no objections to the attorney continuing to represent clients before the Liquor Control Commission on his own time and while not engaged in duties for the Department of Health. Despite this lack of objection, the attorney is concerned about the applicability of section 49-14,104 of the Nebraska Political Accountability and Disclosure Act.
Section 49-14,104 provides:
An official or full-time employee of the executive branch of state government shall not represent a person or act as an expert witness for compensation before a governmental body when the action or nonaction of the governmental body is of a noministerial nature, except in a matter of public record in a court of law, but this prohibition shall not apply to an official or employee acting in an official capacity. Any person violating the provisions of this section shall be guilty of a Class III misdemeanor.
The term public employee is defined in section 49-1442 as "an employee of the state or a political subdivision therof.
Section 49-1424 defines government body as "an authority, department, commission, committee, council, board, bureau, division, office, legislative body, or any other agency in the executive, legislative, or judicial branch of state government . . . "
Clearly if the attorney were a full-time employee of the Department of Health he would be prohibited from representing private clients before the Nebraska Liquor Control Commission, a government body. We are informed that it is contemplated that the attorney will work approximately thirty to thirty-five hours per week for the Department of Health. The question thus becomes whether the hearing officer position is actually part-time or, in reality, full-time.
Chapter 4, section 0006.01 of the Rules and Regulations of the Nebraska Department of Personnel states:
Full-time employees are required to work as a minimum, 40 hours per week on an ongoing basis. Full-time employees earn all benefits.
Chapter 4, section 006.02 states:
Part-time employees are required to work fewer than full-time employees on an ongoing continuous basis. Work schedules may fluctate by week, month, or season. Part-time employees earn benefits on a prorated basis equal to the total yearly FTE for their positions.
Assuming the attorney works thirty to thirty-five hours per week for the Department of Health, he is by the above regulations a part-time employee. As a part-time employee his representation of private clients before the Nebraska Liquor Control Commission would not constitute a violation of section 49-14,104. This position is consistent with that taken by the Commission in Advisory Opinion #63 which considered the applicability of section 49-14,104 to a part-time public official.
While the employment situation contemplated does not, on its face, constitute a violation of the Nebraska Political Accountability and Disclosure Act, the attorney should seek an opinion from the Chair of the Advisory Committee of the Nebraska State Bar Association in order to ensure that the contemplated employment situation would not be a violation of the Canons of Legal Ethics applicable to attorneys practicing law in the State of Nebraska.