ADVISORY OPINION #190
Subject: Conflicts of Interest / Interest in a Contract
Requested By: Dale Dvorak and Ray Branstiter, Nebraska Department of Roads.
Questions Presented: May the Nebraska Department of Roads contract with one of its own employees to mow a section of the state right-of-way?
Facts: Branstiter is a full time employee of the Nebraska Department of Roads (NDOR). His job title is maintenance supervisor. He is assigned to a geographic territory known as District 3 which covers Northeast Nebraska. District 3 is divided into several mowing areas. For each mowing area NDOR intends to enter into a contract with a private party to mow the state’s right-of-way. Branstiter has held a contract to mow in one mowing area in the past and he seeks to submit a bid for a new contract with NDOR. Such a contract would have a value of more than $2,000.
The Purchasing and Supply Section of NDOR is responsible for awarding the mowing contracts. To that end it uses a public bidding procedure. Two separate notices are placed in a regional newspaper setting out the process to follow for submitting a bid. Bids are opened, reviewed and awarded by employees of the Purchasing and Supply Section. Branstiter is not employed by the Purchasing and Contract Section and would have no role in the award process. He would have no access to information other than that information available to the public. After the opening of the bids, the bids submitted and the contract awarded are public records.
The mowing contract on which Branstiter is expected to bid is within District 3. Under normal circumstances, mowing contracts in District 3 are monitored by employees of the district who are supervised by Branstiter. They would report to Branstiter on mowing contract compliance issues. In the event that Branstiter is awarded a mowing contract, the employees would report directly to the Region 3 District Maintenance Superintendent who is Branstiter’s supervisor.
If awarded the contract, Branstiter would use his own equipment and fulfill the terms of the contract on his own time. No state time or resources would be used.
Analysis: Section 49-1442 of the Nebraska Political Accountability and Disclosure Act (NPADA) defines a public employee as “an employee of the state or a political subdivision thereof.” An employee of the Nebraska Department of Roads is a public employee.
Section 49-1499.02 of the NPADA provides that a public official or public employee of the executive branch of state government 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. Based upon the facts presented, Branstiter would not be taking any action or making any decision in his capacity as a public employee with regard to the mowing contract.
Section 49-14,101.01 of the NPADA generally provides that a public official or public employee may not use resources, property, personnel or funds under his official care and control for personal financial gain. The same section prohibits the use confidential information acquired through one’s public office for personal financial gain. In the matter before us, Branstiter would be using his own equipment and own time to fulfill the contract. No state resources would be used. He has no access to information other than information available to the public.
Section 49-14,102 of the NPADA generally prohibits a public official or public employee from having an interest in a contract valued at more than $2,000 with a governmental body either personally, through an immediate family member, or through a business association. The prohibition does not apply if the contract is entered into through an open and public process which includes prior public notice and subsequent availability for public inspection of the proposals considered and the contract awarded.
Based upon the foregoing, an employee of the Nebraska Department of Roads may submit a bid for a mowing contract with the Department. The NDOR may award a contract to one of its employees as long as the contract is entered into in compliance with §49-14,102. The process outlined in the request meets the test of being an open and public process. After the award of a contract, the bids considered and the contract awarded are available for public inspection.
Summary: An employee of the Nebraska Department of Roads may submit a bid on a contract with the Department. The NDOR may award a contract to one of its employees as long as the contract is entered into through an open and public process which includes prior public notice and subsequent availability for public inspection of the proposals considered and the contract awarded. The employee must complete the contract on his own time and using his own equipment. No state resources may be used.
ADOPTED as an advisory opinion pursuant to Section 49-14,123(10) and Title 4, Chapter 1, Rules of Practice and Procedure. As provided in Section 49-14,123(10), this advisory opinion shall be binding upon the Commission unless amended or revoked, concerning the person or public body who requested the opinion and acted in reliance thereon in good faith unless material facts were omitted or misstated by the person in the request for the opinion.
DATED this ______ day of September 2004
NEBRASKA ACCOUNTABILITY AND DISCLOSURE COMMISSION
John Bergmeyer, Chairman