Abstract
of Advisory Opinion No. 93-08
BEFORE
THE NEVADA COMMISSION ON ETHICS
This
opinion is in response to a first party opinion request filed with the Nevada
Commission on Ethics (Commission) by an employee of a statutorily created county
district (District) that renders emergency prevention and care services.
The opinion requestor has a personal pecuniary interest in a private
business which provides travel arrangement services to the District.
The
issue presented is whether the opinion requestor's public employment and private
business interests constitute a conflict of interest under the Code of Ethical
Standards at NRS 281.411, et seq.
At
a hearing on the merits of the opinion request, the opinion requestor and his
spouse were present and testified in the matter. The hearing was confidential pursuant to the provisions of
NRS 281.511(4) and (9) and, therefore, not open to the public.
At the conclusion of the hearing, the Commission provided the opinion
requestor with oral guidance relating to his opinion request, the substance of
which is incorporated into this Opinion.
The
Commission has jurisdiction over this matter pursuant to the provisions of NRS
281.511(1).
The
Commission makes the following Findings and renders the following Opinion.
FINDINGS
1.
The opinion requestor is the subject of this Opinion and is a public
employee as defined in NRS 281.436. The
opinion requestor is publicly employed by the District where he has served as
its chief training officer for several years.
In his capacity as chief training officer, the opinion requestor recruits
and encourages District members to attend various training programs, some of
which require airline transportation. Decisions
relating to the District's budget, business, travel policies and arrangements
are the responsibility of the opinion requestor's supervisor or the deputy chief
in charge of administration; not that of the opinion requestor.
2.
The opinion requestor and his spouse each own 25% of the shares of a
travel agency incorporated and doing business in Nevada.
The opinion requestor is vice-president of the corporation and has little
involvement in the day-to-day operations or management of the business.
The opinion requestor's spouse is president of the corporation and works
full-time at the agency. The
District oftentimes books travel arrangements for District members with the
opinion requestor's travel agency. Three
other travel agencies conduct business within the municipal area where the
agency is located and several other agencies operate in the regional vicinity of
the District.
3.
In December, 1989, the Commission issued a confidential opinion,
identified as Opinion No. 89-07, in which it determined that a public agency
secretary whose job duties included the purchase of supplies, and whose spouse
worked as a commissioned salesman for a company that sold such supplies, was
required to recuse herself from any job function normally performed in the
purchasing process whenever her spouse's employer was a bidder or potential
vendor on a supply contract. The secretary was also prohibited from discussing purchasing
needs of the public agency with her spouse.
Upon becoming privy to this opinion, and believing his business interest
in the travel agency to be analogous to that case, the opinion requestor relied
upon the dictates of Opinion No. 89-07 to govern his conduct in the performance
of his duties as deputy chief and chief training officer for the District.
4.
When District members need to make travel arrangements, the opinion
requestor explains the rules regarding travel days and times, ground transport
procedures, paperwork requirements, etc., and then refers them to the District
secretary to make specific travel arrangements.
The travel agency sells one or two tickets per month to the District at
an average cost of $300.00 to $1,000.00 per month, earning 10% of the ticket
costs as commission.
5.
The opinion requestor requested this Opinion after being told by the
District secretary that she, for purposes of expediency and convenience, had
been making exclusive use of the travel agency in which the opinion requestor
owns a partial interest, in all District personnel training and non-training
travel arrangements. Based upon
that circumstance, of which he was not previously aware, the opinion requestor
believed he needed more specific conflict of interest guidelines than those
contained in Opinion No. 89-07 and submitted a request for opinion to this
Commission.
OPINION
Based
on the foregoing findings, the Commission concludes that, at the time of the
hearing, the opinion requestor was a public employee in his position as deputy
chief for the District, as such employment is defined in NRS 281.436.
The
issue presented in this matter is whether the opinion requestor had or continues
to have a pecuniary interest in the travel agency in his private capacity which
constitutes a conflict of interest between his private interest and his public
employment.
NRS
281.481 is relevant to this issue and provides in pertinent part the following:
A
code of ethical standards is hereby established to govern the conduct of public
officers and employees:
2.
A public officer or employee shall not use his position in government to
secure or grant unwarranted privileges, preferences, exemptions or advantages
for himself, any member of his household, any business entity in which he has a
significant pecuniary interest, or any other person
.
. .
5.
If a public officer or employee acquires, through his public duties or
relationships, any information which by law or practice is not at the time
available to people generally, he shall not use the information to further the
pecuniary interests of himself or any other person or business entity.
The
Commission finds that the potential for a conflict of interest exists between
the opinion requestor's private pecuniary business interest in the travel agency
and his public employment, as training coordinator for the District. In
order for the opinion requestor to avoid conflict between his private interests
in the travel agency and the general public whom he serves as District chief
deputy and training coordinator, the opinion requestor must continue to refrain
from any involvement in specific travel arrangements for the District;
including, but not limited to, all decision-making regarding travel agency
selection and the manner in which such decisions are made.
Specifically,
the Commission advises that:. (1) the opinion requestor neither disclose nor
privately use or convey any confidential information, gained in his public
capacity, that could give the subject travel agency a business advantage over
competing travel agencies; (2) the opinion requestor should not be involved in
any District travel decisions, or matters relating thereto, including the
selection of the mode of transportation, the travel agency to be used, or the
creation or revision of District travel policy; (3) the opinion requestor should
not be involved in determining competitive bidding policies or requests for
proposals from travel agencies; and (4) the opinion requestor should meet with
the District chief, his supervisor, and all other deputy chiefs to develop
internal policies for the District which would be consistent with these
guidelines.
GUIDELINES
A
specific conflict of interest must be apparent from the circumstances or
established by sufficient evidence in order to justify a finding that the Code
of Ethical Standards has been violated. A potential for conflict is apparent from the circumstances
identified in this opinion request. Accordingly, though no specific violation by the opinion
requestor is found to have yet occurred, the opinion requestor is directed to
follow the guidelines contained in this Opinion in order to ensure continued
compliance with the Code of Ethical Standards.
COMMENT
It
is specifically noted that the foregoing Opinion applies only to these specific
circumstances, and may not apply to other circumstances. The
provisions of NRS 281.481 quoted and
discussed
above must be applied on a case-by-ease basis, the results of which will vary
depending on the specific facts and circumstances involved.
DATED:
August 15, 1994.
NEVADA
COMMISSION ON ETHICS
By:
/s/ THOMAS R. C. WILSON,
Chairman