REQUESTED BY: Con Bernbeck, Stanton County Commissioner
QUESTION: Does a county commissioner have a conflict of interest as to the application of a feeder pig operation for a conditional use permit as the result of certain business dealings with the operation in his private capacity?
No, but see analysis.
A county board member anticipates that the county board will need to take action on an anticipated application by a feeder pig operation for a conditional use permit which would allow it to increase it's capacity by 2,500 pigs. The county commissioner has a farm and cattle feedlot operation. He also has significant grain storage capacity. To the extent that he does not need this capacity, he rents grain storage space to others. This is done on a first come, first served basis. Because the pig operation uses large amounts of grain, during the past three years it has rented space from the county commissioner. This space is used for the storage of grain purchased from local producers by the pig operation. The county commissioner is paid a specific rate per bushel of grain stored.
The typical transaction involves a producer delivering grain to the storage facility for storage in the space reserved by the pig operation. The county commissioner weighs in the grain and sends the scale ticket and the name of the producer to the pig operation. Payment for the grain is made directly to the producer by the pig operation. The county commissioner receives no payment or brokerage fee in connection with the transaction. He receives only the per bushel storage fee.
The county commissioner also discloses that the feeder pig operation occasionally makes use of the county commissioner's privately owned scale to weigh grain purchased from others even if the grain is not to be stored in the county commissioner's grain storage facility. On these occasions, the feeder pig operation pays seventy-five cents per axle for the use of the scale. Others use the scale for the same purpose. Conceivably, if the number of pigs to be fed increases, the amount of grain to be purchased increases and the use of the scale increases.
The commissioner wants to know if he would have a conflict of interest as to an application by the feeder pig operation before the county board for a conditional use permit to increase the size of the operation.
Section 49-1499 of the Nebraska Political Accountability and Disclosure Act applies to certain categories of public officials and public employees including "an individual designated in section 49-1493." Section 491493(10) includes an elected county official. Thus, §49-1499 applies to a county commissioner.
Section 49-1499 provides that a public official has a potential conflict of interest if he or she is faced with taking an official action or making an official decision which may result in a financial benefit or detriment to-. a) the public official; b) a member of his or her immediate family; or c) a business with which he or she is associated. The benefit or detriment must be distinguishable from that experienced by the general public or a broad segment of it.
When considering the application of §49-1499, the Commission has used the "reasonably foreseeable" test. See Advisory Opinions #77, 78, 79 and 167. That is, any potential financial benefit or detriment must be reasonably foreseeable. A financial benefit or detriment is not reasonably foreseeable if the benefit or detriment is remote, highly uncertain, contingent, or speculative.
Based upon the foregoing, the county commissioner would not have a conflict of interest as to an application of the feeder pig operation for a permit to increase the size of its operation. The county commissioner may vote and fully participate in the matter.
In reaching this conclusion, we consider the following to be significant as to the storage of grain. First, the commissioner does not sell grain to the feeder pig operation nor act as a broker for the purchase of grain. That is, the county commissioner has no financial interest in the purchase or sale of the grain. Second, the commissioner has filled his grain storage facilities to capacity for the last several years. His storage capacity is finite. Therefore, the fact that the feeder pig operation may need additional grain and additional grain storage facilities is not likely to result in financial benefit to the commissioner. Stated another way, there is no reasonably foreseeable financial benefit or detriment to the commissioner based upon the storage of grain because he typically rents out all of his excess storage space anyway.
The choice of a scale for the weighing of grain depends on a variety of factors. These factors include the point from which grain is shipped, the point at which it is to be received or stored, the amount of grain, the size of the vehicle transporting the grain, and the capacity of the scales available.
Thus, an increase in the number of pigs fed by the feeder pig operation may increase the scale use, but it may not. Any financial benefit to the county commissioner is speculative or uncertain. He would not have a conflict of interest as to the application of the feeder pig operation based upon his ownership of the scale.
In his request, the county commissioner discloses other matters or transactions which have occurred between him and the feeder pig operation over the last few years. These other matters are not addressed in this opinion. The storage and weighing of grain is something which the county commissioner foresees as continuing into the future. The other matters were self-contained transactions and there is no contemplation that they will occur in the future. For example, a one-time purchase of grain by the county commissioner from the feeder pig operation in 1996 need not be considered in order to determine if the county commissioner may have a conflict of interest in 1998. Even so, it was appropriate for the county commissioner to disclose this information in requesting this opinion.