Abstract
of Advisory Opinion No. 99-33
BEFORE
THE NEVADA COMMISSION ON ETHICS
OF
PUBLIC EMPLOYEE
This Opinion is in response to a first-party request for opinion filed with the Nevada Commission on Ethics (“Commission”) by Ms. A, an inspector for a Nevada State Board (“Board”) and the Board, seeking retrospective guidance from the Commission as to whether the Board’s policy regarding the use of a state-owned vehicle violates NRS 281.481(7). A closed hearing was held by the Commission on August 12, 1999, in Reno, Nevada. The Commission received testimony from Ms. A. Ms. A and the Board did not waive statutory confidentiality, so the proceeding was not open to the public. The Commission now issues the Findings of Fact and Opinion which follow.
FINDINGS
OF FACT
1.
The Commission has jurisdiction over this matter pursuant to NRS
281.511(2) because Ms. A is a public employee as defined by NRS 281.436.
2.
Ms. A is employed by the Board as its sole inspector. Her duties include
a yearly inspection of every site licensed throughout Nevada by the Board. Ms. A
is required to be on-call 24 hours per day, 7 days per week in order to
investigate the Board’s industry-related emergencies.
3.
The Board has provided a state car and a cellular phone for Ms. A’s
official use. Pursuant to the Board’s policy, Ms. A is allowed to drive the
car on official business on weekends and after 5:00 p.m. on weekdays. She is
also authorized to store the vehicle at her home. The Board pays for maintenance
and fuel for the car. The car bears an official state decal and state-exempt
license plates. Otherwise, Ms. A uses her own private car for personal business.
4.
The Board encourages her to use the state car on personal outings if she
is expecting an off-hour call that requires an immediate response. The Board
considers Ms. A to be “on-duty” in the latter instance for policy purposes.
During weekends and normal off-duty hours (e.g. after 5:00 p.m. on weekdays),
when not on official business, Ms. A utilizes her personal vehicle.
5.
On December 27, 1998, during her off-hours and while awaiting a call
regarding either of two ongoing events involving businesses regulated by the
Board, Ms. A used the state car to take her spouse and another couple out to
breakfast in Coleville, California. She wanted to be near the vehicular cellular
phone as there was a possibility that she could be called out to inspect the
sites which were located in nearby Nevada and which were experiencing problems.
6.
A citizen witnessed what appeared to be Ms. A’s personal use of a
state-owned vehicle and complained to the Board.
7.
At the time of the December 27, 1998 occurrence, the
cellular phone was permanently attached to the state car. When eating breakfast
in Coleville, Ms. A would not have been able to hear the cell phone if it rang
because she did not eat breakfast in the car. Ms. A now carries a portable
cellular phone.
8.
The Board reviewed the aforementioned circumstances and approved Ms.
A’s use of the car because the use was covered by the Board’s policy.
9.
The Board is a state agency funded by its licensees.
The
issue before the Commission is whether Ms. A’s use of a state-owned vehicle on
December 27, 1998 constituted a violation of NRS § 281.481(7).
NRS
281.481(7)(a) provides in pertinent part:
A
public ... employee ... shall not use governmental ... property for]
equipment...to benefit his personal ... interest.
This subsection does not prohibit:
(a) A limited use of governmental property, equipment or other facility for personal purposes if:
(1)
The public officer who is responsible for and has authority to authorize the use
of such property, equipment or other facility has established a policy allowing
the use or the use is necessary as a result of emergency circumstances;
(2)
The use does not interfere with the performance of his public duties;
(3)
The cost or value related to the use is nominal; and
(4)
The use does not create the appearance of impropriety ... (Emphasis added.)
The
State Administrative Manual (SAM) §§ 1302 through 1314.0 provide policy for
state vehicle use. SAM § 1302.0 specifically states that "[a]lI
state-owned vehicles shall be used only for authorized official business. .
."
SAM
§§ 1306.0(5) and (6) provide, in pertinent part:
Home
storage of state vehicles may be authorized only if the following apply:
*
* * *
5.
The officer or employee is directed, in writing, by the head of the
agency to which the vehicle is assigned, or his/her designee, to keep the
vehicle at his/her residence because his/her duties include responding to
conditions that regularly require an immediate response.
6.
The employee operates out of his/her home.
*
* * *
Authorization
may be given for items 5 and 6 only if demonstrated, to the satisfaction of
the Director of the Department of Administration, that it is less costly to
the state to assign a state vehicle than to reimburse the employee for the use
of his/her personal vehicle... (Emphasis added.)
The
Commission determined that because the Board has not fully complied with the
administrative directives in the SAM policy manual, the Commission should
refrain from making a determination about future use of the vehicle. This
decision is within the purview of the Director of Administration's authority and
not the Commission's authority. The Commission strongly advises the Board to
review the applicable SAM directives and comply with those provisions fully;
especially the requirement regarding yearly pre- authorization by the Director
of the Department of Administration. SAM § 1306.0. The remainder of this
opinion pertains to Ms. A’s past conduct and Board policy.
The
Commission determined that Ms. A’s use of a state-owned vehicle for personal
purposes violated NRS 281.481(7) for the following reasons.
Generally,
NRS 281.481(7) is a strict prohibition of the use by a public officer or
employee of “governmental time, property, equipment or other facility to
benefit his personal or financial interest.” Use of a state-owned vehicle for
personal purposes violates NRS 281.481(7) unless it can be shown that all
four exceptions enumerated in NRS 281.481(7)(a)(1) through (4) apply to Ms.
A's situation.
The
evidence adduced at the hearing in this matter showed that Ms. A satisfied the
dictates of NRS 281.481(7)(a)(2) and (3). First, the use of the vehicle on
December 27, 1998 did not “interfere with the performance of [her] public
duties.” In fact, it was her concern for public duty that made her consider
using the vehicle at all. Second, the “cost or value related to the use was
nominal.” The Board prepared a cost calculation to determine if providing Ms.
A a vehicular allowance was more cost effective than providing her with a
vehicle. The results revealed that it was more cost effective and efficient for
Ms. A to utilize the state-owned vehicle.
Our
analysis, therefore, turns on whether Ms. A’s use of the vehicle on December
27, 1998 was approved by the appropriate “authority to authorize the use of
such property” and whether it created “the appearance of impropriety.”
NRS 281.481(7)(a)(1) and (4).
We
begin our analysis by reviewing the clear language provided in the SAM manual
which states, “Authorization may be given for 5 and 6 only if demonstrated, to
the satisfaction of the director of the Department of Administration...” SAM
§ 1306. Here, the administrative manual makes it clear that the Director of
Administration has final authority to authorize the use of the state-owned
vehicle. Thus, Ms. A’s use of the vehicle had not been approved by the
appropriate “authority to authorize the use of such property” as required in
the SAM manual. The Board had not gained the yearly pre- approval for the use of
the vehicle. It is understood that the Board is now aware of this deficiency and
has taken steps to repair it. This does not conform with the requirements of NRS
281.481(7)(a)(1).
Finally, Ms. A’s use of the vehicle for personal purposes creates the “appearance of impropriety” as evidenced by the complaint filed by a citizen who witnessed Ms. A’s use of the vehicle on December 27, 1998. NRS 281.481(7)(a)(4).
CONCLUSION
Based upon the record, the Commission concludes that Ms. A violated NRS 281.481(7) when she used the state-owned vehicle for private purposes even though she relied upon a flawed agency policy allowing her such use. Furthermore, this Commission advises the Board that in the future, the board must follow appropriate administrative policies outlined in the SAM. Finally, this Commission commends Ms. A and the Board for seeking this opinion.
COMMENT
It
is specifically noted that the foregoing Opinion applies only to these specific
circumstances. The provisions of
the NRS quoted and discussed above must be applied on a case-by-case basis, with
results, which may vary depending on the specific facts and circumstances
involved.
DATED: February 8, 2000.
NEVADA
COMMISSION ON ETHICS
By: /s/ PETER BERNHARD, Chairman