Moore v. Accountability

310 Neb. 302

965 N.W.2d 564

Timothy MOORE, appellant,

v.NEBRASKA ACCOUNTABILITY AND DISCLOSURE COMMISSION, appellee.

No. S-20-753.

Supreme Court of Nebraska.

Filed October 22, 2021

James R. Korth, of Reynolds, Korth & Samuelson, P.C., L.L.O., Ogallala, for appellant.

Douglas J. Peterson, Attorney General, and Lynn A. Melson, Lincoln, for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

Stacy, J.

After an evidentiary hearing, the Nebraska Accountability and Disclosure Commission (NADC) determined that Timothy Moore, while serving as the chair of the board of trustees for the village of Madrid, Nebraska (Village Board), violated the Nebraska Political Accountability and Disclosure Act (NPADA)¹ by having an interest in a contract with the Village Board and failing to comply with the disclosure and abstention requirements of § 49-14,103.01(5). The NADC imposed a civil penalty of $500 for the violations. Moore filed an administrative appeal, and the district court affirmed the NADC's decision. Moore appeals again, assigning error to the district court's finding that he had an interest in a contract with the Village Board sufficient to trigger the disclosure and abstention provisions of § 49-14,103.01. We affirm the judgment of the district court.

BACKGROUND

The pertinent facts in this matter are undisputed. The village of Madrid is governed by a five-person Village Board. From 1998 through 2016, Moore served as the chair of the Village Board. Pursuant to Nebraska statute at the time, "the annual salary of the chair[person] and other members of the [village] board of trustees shall be fixed by ordinance"² and "[n]o officer shall receive any pay or perquisites from the [village] other than his or her salary."³

Our record does not contain an ordinance for the village of Madrid addressing the annual salary of the Village Board, but the parties generally agree that in 2014, the chair of the Village Board was entitled to compensation of $150 for each regular monthly meeting he or she attended, for a total annual compensation of $1,800. In December 2014, the Village Board passed a "Resolution" increasing the chair's compensation to $300 per regular monthly meeting attended, for an expected annual compensation of $3,600. From 1998 through 2016, Moore regularly received the authorized compensation for attending monthly meetings of the Village Board.

During 2014, 2015, and 2016, Moore performed certain work for the village beyond the normal duties of the chair of the Village Board and he regularly submitted requests to be paid for such work at an hourly rate. This additional work, and the manner in which Moore requested and received payment for that work, is at the heart of this appeal.

Moore's payment requests for the additional work were reviewed during the monthly Village Board meetings, but were not listed as agenda items. Moore typically did not declare his interest on the record in such requests before they were considered, nor did he abstain from voting on or approving his own payment requests. The Village Board regularly approved and paid Moore's requests for additional compensation. The record contains Internal Revenue Service tax forms showing the village paid Moore "[n]onemployee compensation" of $9,528.68 in 2014, $8,898 in 2015, and $14,490.50 in 2016.

NADC COMPLAINT

In April 2017, a village resident filed a complaint against Moore with the NADC. Ultimately, Moore was notified that he was being investigated for 11 alleged violations of the NPADA.

Two of the alleged violations pertained to § 49-14,101.01(1), which provides, in part:

A public official or public employee shall not use or authorize the use of his or her 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.

The NADC's notice alleged that in 2015 and 2016, while holding public office, Moore requested and received compensation other than that allowed by law, in violation of § 49-14,101.01(1).

Nine of the alleged violations pertained to § 49-14,103.01, which at the time provided, in relevant part:

(2) ... [N]o officer may have an interest in any contract to which his or her governing body, or anyone for its benefit, is a party. The existence of such an interest in any contract shall render the contract voidable by decree of a court of competent jurisdiction as to any person who entered into the contract or took assignment of such contract with actual knowledge of the prohibited conflict.

....

(4) The prohibition in this section shall apply only when the officer ... (b) will receive a direct pecuniary fee or commission as a result of the contract.

(5) The prohibition in this section does not apply if the contract is an agenda item approved at a board meeting and the interested officer:

(a) Makes a declaration on the record to the governing body responsible for approving the contract regarding the nature and extent of his or her interest prior to official consideration of the contract;

(b) Does not vote on the matters of granting the contract, making payments pursuant to the contract, or accepting performance of work under the contract, or similar matters relating to the contract, except that if the number of members of the governing body declaring an interest in the contract would prevent the body with all members present from securing a quorum on the issue, then all members may vote on the matters; and (c) Does not act for the governing body which is party to the contract as to inspection or performance under the contract in which he or she has an interest.

The NADC's notice alleged that in 2014, 2015, and 2016, Moore had an interest in one or more contracts with the village, and that when submitting claims for payment under those contracts at monthly Village Board meetings, he failed to include the claims as agenda items, failed to declare an interest in the claims, and failed to abstain from voting on the claims, in violation of § 49-14,103.01(5).

After conducting its investigation, the NADC found "probable cause" that one or more of the violations alleged in the notice had occurred.⁴ It notified Moore that a hearing would take place to determine whether he violated the NPADA and, if so, whether civil penalties should be assessed.⁵ There is no suggestion in the record that the NADC referred the matter for consideration of a possible criminal violation of the NPADA.⁶

NADC HEARING

A hearing officer was appointed, and an evidentiary hearing was conducted in Kearney, Nebraska. The evidence adduced during that hearing was generally consistent with the facts described above.

Moore testified at the hearing. He explained that in 2014, 2015, and 2016, in addition to his ordinary board duties, he performed extra work for the village. According to Moore, this extra work included filling in for the village utilities superintendent when that employee was ill or absent, working on the village budget and audit, working with the attorney retained by the village to address ongoing legal issues related to a failure in the village's wastewater treatment facility, and performing miscellaneous "chores" for the village. Moore testified that he was asked by the Village Board to perform this extra work and that all of the work was preapproved by the Village Board.

Moore also admitted that from 2014 to 2016, he regularly submitted payment requests to the Village Board for the extra work he performed. He charged an hourly rate for his services, and he testified that this hourly rate had been preapproved by the Village Board. The Village Board considered and approved Moore's payment requests during its regular monthly meetings, and Moore accepted the payments when they were made. These payments were in addition to Moore's annual compensation as the chair of the Village Board.

Moore further admitted that when submitting the payment requests, he did not list them as agenda items for the Village Board meetings, he typically did not declare his interest in the requests before they were considered, and he did not abstain from voting on the requests. Moore claimed he was not required to comply with the disclosure and abstention provisions of § 49-14,103.01(5), because during the relevant timeframe, he did not have any contracts with the village for the additional work he performed. He also argued that he was not subject to the requirements of § 49-14,103.01(5), because he performed the extra work as an "employee" of the village, rather than an officer.

NADC ORDER

In an order issued September 13, 2019, the NADC determined there was not sufficient evidence to establish violations of § 49-14,101.01(1). No party has appealed from that determination, and we do not comment on it further.

Regarding the alleged violations of § 49-14,103.01(5), the NADC found that each month during the relevant time period, Moore submitted a request to be paid at an hourly rate for additional work performed on behalf of the village and the Village Board regularly approved and paid these requests. It also found that Moore failed to include his payment requests on the monthly meeting agendas, failed to declare his interest in the requests, and failed to abstain from voting on the requests. The NADC concluded that the conduct of the parties showed Moore had formed implied contracts with the Village Board to perform extra work for a set hourly rate and that Moore failed to comply with the disclosure and abstention requirements of § 49-14,103.01 when seeking payment under those contracts.

The NADC rejected Moore's contention that he was not subject to the requirements of § 49-14,103.01(5) because he had performed the extra work as an "employee" of the village rather than an officer. Instead, the NADC found that Moore was acting as an officer of the Village Board at all times and had performed the extra work "in an effort to fulfill his...