REQUESTED BY: Dale De Haven, Sioux County Treasurer, Harrison, NE 69346
FACTS
The spouse in question has held the position of deputy treasurer for the past 10 years. Under Section 23-1114.09 her salary has been set by the board of commissioners at 65% of the elected official's salary. The request for advisory opinion asks the Commission's opinion specifically as to the following questions:
1. Is the elected official required under Section 49-1499 to prepare a written statement and deliver the same to the Accountability Commission?
2. Does the appointment of a spouse, as deputy, violate Section 49-14,101(3)?
3. Would the employment of a spouse by an elected official fall within the scope of Section 49-14,102?
ANALYSIS
Section 23-1114.09, R.R.S. 1943, provides that "The salary of one full-time deputy of the various county offices shall not be less than sixty-five per cent of the county officer's salary. No full-time deputy shall, except for vacation and sick leave established by the county board, be entitled to such salary during any period of time that such deputy is not actually engaged in the performance of the official duties of a deputy."
Section 23-1114 (2) provides that "The salaries of all deputies in the offices of the elected officers. . . of the county shall be fixed by the county board at such times as necessity may require."
Section 49-1499 provides that elected county officials, among others, who in the discharge of their official duties, would be required to take any action or make any decision that may cause financial benefit or detriment to such official, 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 certain actions as soon as he or she is aware of such potential conflict, or should reasonably be aware of such potential conflict, whichever is sooner. Those actions are to file a Statement of Potential Conflict with the Commission and in the case of an elected county official take such steps as the Commission shall prescribe or advise to remove himself or herself from influence over actions and decisions on the matter.
Section 49-14,101(3) provides that "No public official or public employee shall use that person's 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."
Section 49-14,102 provides that "no public official or public employee, a member of (his or her) immediate family or a business with which (he or she) is associated shall enter into a contract valued at $2000 or more, in any one year, with a governmental body unless the contract is awarded through an open and public process which includes prior public notice and subsequent availability for public inspection during the regular office hours of the contracting governmental body of the proposals considered and the contract awarded."
1. As to the filing of a Statement of Potential Conflict pursuant to the provisions of Section 49-1499, any action contemplated by the public official which would materially affect the terms and conditions of employment of his or her spouse would require the filing of a Statement of Potential Conflict. Continued employment or an automatic change in salary pursuant to a personnel plan would not require the filing of such a statement.
2. As to the provisions of Section 49-14,101(3), the Commission has held that employment of a spouse in and of itself is not a violation of Section 49-14,101(3). Such an action would be a violation, however, if the public official has abused his discretion and acted arbitrarily, capriciously and unreasonably. Abuse of discretion must be judged in each case depending on the circumstances. Examples of abuse of discretion, depending on the circumstances, might include (1) providing a spouse with an unreasonably high salary, (2) not requiring a spouse to actually perform the duties of his or her position, (3) terminating another employee so as to make funds available for the employment of a spouse, (4) hiring a spouse who is not qualified or in preference over others, (5) hiring a spouse without solicitation or consideration of applications for employment where ordinarily the job would have been filled that way. See Advisory Opinions number 59, number 54 as modified by number 59, and number 46.
As stated in Advisory Opinion number 59, abuse of discretion must be determined on a case by case basis. Under the fact situation provided in the request for advisory opinion, we have no information evidencing abuse of discretion. The setting of the spouse's salary by the County Board and at the statutory minimum is evidence to the contrary. Unless circumstances exist similar to those illustrated above, particularly within the last three years, the county official is not prohibited by the Accountability Act from continuing his spouse's employment as his deputy. The statute of limitations applicable to issuing orders to cease and desist or imposing civil penalties pursuant to the provisions of Section 49-14,126 is three years. Section 49-14,136.
3. The Accountability Commission has taken the position that government employment is not a contract subject to the provisions of Section 49-14,102. See Advisory Opinion #16 and Section 49-14,103(2).
Note: This opinion does not purport to advise in connection with the provisions of LB370, Laws 1983, pertaining to Conflicts of Interest and contracts entered into with certain political subdivisions.
