REQUESTED BY: Richard A. Douglas, Attorney for Western Community College Area
QUESTION: 1) May a public employee who serves on a non-public body in the course of his public duties engage in activities in conjunction with the non-public body to promote or oppose matters before the Nebraska Legislature? 2) May a public employee who serves on a non-public body in the course of his public duties vote on a resolution by the body to support or oppose the qualification, passage, or defeat of a ballot question?
As to question #1, yes. As to question #2, yes.
Western Community College Area is a political subdivision of the State of Nebraska which operates Western Nebraska Community College (WNCC). Currently, WNCC is acting as the fiscal agent for a consortium of local school districts which are operating a "Tech-Prep Program." Generally stated, the purpose of the Tech-Prep Program is to facilitate the training of students for technical and vocational positions in the work force. The process involves determining what skills and training are needed in the work force. It also involves eliminating duplicative course work as the student moves through a system which can include high school, a two year college, and a four year college. Funding is provided through a federal grant administered by the Nebraska Department of Education.
By the terms of the grant, an advisory committee must be established. The advisory committee must include consortium members, persons representing business, industry, labor, public agencies, education, and special populations. It must also include community members, parents, career guidance and counseling personnel, and students. The purpose of the advisory committee is to provide counsel, direction, and guidance to Tech-Prep education. In this case, the advisory committee consists of thirty-one individuals. Eight of these individuals are employees of WNCC.
A number of the members of the advisory committee wish to have the committee pass a resolution advocating legislative action to foster and ensure appropriate funding for the Tech-Prep Program. In addition, some consideration may be given to adopting a resolution in support of a ballot question. Western Nebraska Community College wishes to ensure that its employees who are members of the advisory committee do not violate applicable ethics and lobbying laws. However, WNCC recognizes that the public and private mix of the advisory committee potentially puts its employees in difficult situations. These can occur when the committee members from the private sector wish to have the committee engage in the types of activities for which there are restrictions for public sector employees.
We note at the onset that the issues here are the activities of public employees engaged in those activities in their official capacities. Therefore, this opinion in no way addresses the activities of public employees engaged in activities in their private capacities and with private resources.
For the purpose of this opinion, we are assuming that the advisory committee is not a government or public body. We decline to determine the status of the advisory committee because it is not necessary to do so in order to respond to the questions presented. The restrictions on the activities of a public employee follow him or her whenever he or she is engaged in activities in an official capacity.
Question #1 - Lobbying. The term lobbying is generally defined in §49-1433 of the Nebraska Political Accountability and Disclosure Act as "the practice of promoting or opposing for another person . . . the introduction or enactment of legislation or resolutions before the Legislature or the committees or members thereof, and shall also include the practice of promoting or opposing executive approval of legislation or resolutions." To the extent that a member of any group promotes or opposes legislation on behalf of that group, he is engaging in lobbying activity.
Section 49-1434 defines the terms lobbyist and principal. It also provides certain exclusions from the definitions of these terms. For example, a person who limits his or her activity to appearances before a legislative committee and who, at the time of his or her appearance, identifies whom he or she represents, is excluded from the definition of the term lobbyist. For the purpose of determining if a public employee may engage in lobbying activity, the following provisions are instructive.
Section 49-1434(3)(a) excludes from the definition of the terms lobbyist and principal "a public official or employee of a branch of state government, except the University of Nebraska, or an elected official of a political subdivision who is acting in the course or scope of his or her office or employment."
Section 49-1434(3)(f) excludes from the definition of the terms lobbyist and principal "an employee of a political subdivision whose regular employment duties do not ordinarily include lobbying activities as long as such employee is not additionally compensated for such lobbying activities, other than his or her regular salary, and is not reimbursed for any lobbying expenditures except for his or her travel, lodging, and meal expenses and the meal expenses for members for the legislature."
These two provisions are primarily intended to establish who must register as a lobbyist and who must file a variety of reports as either a principal or a lobbyist. For the purposes of this opinion, however, the two provisions are significant because they clearly contemplate that public officials and public employees will engage in lobbying activities. We also note that there is no generally applicable statute prohibiting public officials and public employees from engaging in lobbying activities.
It is our conclusion therefore that a public employee who serves in his or her official capacity as a member of a non-public body, is not prohibited from engaging in activities which promote or oppose matters before the Nebraska Legislature. Naturally, a public employee engaging in lobbying activity should acquaint himself with the applicable laws and regulations pertaining to lobbyists.
Question #2 - Ballot Questions. The second issue is whether a public employee who serves in his or her official capacity on a non-public body may vote on a resolution by the body to support or oppose the qualification, passage or defeat of a ballot question. It is our position that such activity is permissible.
The Nebraska Accountability and Disclosure Commission has regularly interpreted the provisions of §49-14,101(4) as prohibiting a public employee from using personnel, resources, property, or funds under his or her official care and control for the purpose of supporting or opposing the qualification, passage or defeat of a ballot question. See Advisory Opinions 68, 82, 89, 95, 128, and 143. In Advisory Opinion #95 the Commission took the position that a public body could pass a resolution supporting or opposing a ballot question. In that opinion, the Commission stated that "there are potential benefits to the public interest when a public policy-making body, takes a position on a matter which is within their area of concern." See also Advisory Opinion #112. The Commission has also taken the position that public resources may be used to provide factual information about a ballot question as long as it is presented in a balanced and neutral manner and does not attempt to persuade the voters. See Advisory Opinions 128 and 143.
The Commission has taken the position that a public employee may not advocate or oppose a ballot question while otherwise engaged in his or her official duties. However, the Commission has stated in Advisory Opinions #68 and #128 that a public official or public employee is not prohibited from responding to a question as to his or her opinion on a ballot question even if the question is posed while the official or employee is engaged in his or her official duties.
When a motion is before the voting members of any body, the motion is essentially a question to each voting member of the body. The member responds to the question by casting a vote. There is no substantial difference between a public employee casting a vote on a resolution expressing support of or opposition to a ballot question and a public employee responding to a question as to whether he or she supports or opposes a ballot question. Additionally, a public employee serving on a non-public body in his or her official capacity who casts a vote in connection with a resolution supporting or opposing a ballot question is making only incidental use of public resources. This incidental usage of public resources is consistent with the incidental usage of public resources permissible if he or she were casting a vote as a member of a public body.