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Opinion 98009

DATE: February 4, 1998

SUBJECT: County Veterans Service Officers; Private Financial Enterprises

REQUESTED BY: Keith Fickenscher, Director Nebraska Department of Veterans' Affairs

WRITTEN BY: Don Stenberg, Attorney General

Lauren L. Hill, Assistant Attorney General




You have requested an opinion from this office regarding

the extent to which a county veterans service officer may engage in

a private financial enterprise to provide certain services to

veterans residing outside of the service officer's assigned county.

We note that this opinion request is prompted by a specific inquiry

which you have received from a county veterans service officer

["CVSO"]. The Nebraska Attorney General does not provide legal

advice to private citizens. See Op. Att'y Gen. No. 95-001 (January

3, 1995); Op. Att'y Gen. No. 157 (December 20, 1985); 1977 Op. Att'y

Gen. 217 (Opinion No. 144, dated November 15, 1977). You have,

however, indicated that the outcome of our opinion would potentially

impact upon other county service officers who may decide to pursue

the same course of action as that being inquired of herein. Under

that circumstance, we have determined that addressing your inquiry is

appropriate.




Background




On September 17, 1997, the Buffalo County Veterans Service

Officer requested a legal opinion from the Buffalo County Attorney as

to whether the CVSO was legally able to establish a "private

practice" in order to provide certain services to veterans residing

outside of Buffalo County. Via his October 7, 1997, opinion, the

Buffalo County Attorney concluded that the CVSO was prohibited from

providing, on a private basis, those services which the CVSO was

being paid to provide as a public officer.




Unsatisfied with the county attorney's legal opinion, the

CVSO subsequently requested that an opinion be rendered on this issue

by the Nebraska Accountability and Disclosure Commission. In

response to the CVSO request, a staff opinion was issued by the

Commission's legal counsel on January 2, 1998.




Since we agree, in pertinent part, with the conclusions

asserted in the staff opinion which has already been issued, we take

this opportunity to set forth several of those conclusions. The

question at issue in the opinion was whether state law would prohibit

a CVSO from charging a fee for serving as a veteran's accredited

"agent" before the U.S. Department of Veterans' Affairs so long as

the veteran is not otherwise eligible for the CVSO's official

services. Summarized, the opinion concluded as follows:




1. The CVSO would be prohibited from directing county

personnel or using county property to engage in activity

associated with the private enterprise;




2. The CVSO could not use confidential information,

obtained through public employment, in connection with the

private enterprise;




3. The CVSO, while engaged in public duties, could not

refer individuals to a private enterprise;




4. The CVSO could not perform privately for any person for

pay any service which is required to be provided as part of

the CVSO's public duties.




What remains at issue is whether representation, on behalf

of a veteran, as an accredited "agent" for work on a federal benefit

claim is work that a CVSO would perform as part of his or her public

duties. Resolution of the issue requires a review of applicable

state and federal statutes.




Statutes Governing County Veterans Service Officer Duties.




The Nebraska Department of Veterans' Affairs has been

designated as the state agency charged with advocacy efforts on

behalf of veterans. Neb. Rev. Stat. § 80-401.02 (Supp. 1997). To

assist the Department in the performance of its duties, each county

board is required to appoint a county veterans service committee.

Neb. Rev. Stat. § 80-406 (1996). Each county veterans service

committee "shall cooperate with and assist the Department of

Veterans' Affairs in the performance and discharge of its duties and

functions." Neb. Rev. Stat. § 80-407 (Supp. 1997). In order to

provide that assistance to the state department, the county service

committees are required to appoint a county veterans service officer

["CVSO"]. Neb. Rev. Stat. § 80-407 (Supp. 1997). County Boards are

authorized to appoint a CVSO to serve more than one county. Id.




The CVSO works as a permanent, full-time employee of the

county, unless the county board and the county service committee have

determined that the work required by the CVSO may be adequately

provided on a permanent part-time basis. Id. In addition to their

general duty to assist the Nebraska Department of Veterans' Affairs,

the CVSOs are specifically required by statute to:






intake, process, and forward from any veteran an application

for admission to one of the state veterans' homes (Neb. Rev.

Stat. § 80-317 (Supp. 1997));






receive, process, and forward to the Nebraska Veterans' Aid

Fund applications from any eligible person whose residence is

nearest to the CVSO (Neb. Rev. Stat. § 80-401.03 (Supp. 1997));

and




intake, process, and forward any application for a waiver of

tuition benefit (Neb. Rev. Stat. § 80-412 (1996)).




CVSOs may also be required to perform other specific functions

pursuant to personnel policies or job descriptions which have been,

or may be, established by the county employers.




Representation of Veterans Regarding Federal Benefit Claims.




Veterans are entitled to many benefits under programs

administered by the U.S. Department of Veterans' Affairs ["USVA"].

Once a dispute regarding a particular veteran's benefit arises,

federal law generally prohibits any individual from acting as "an

agent or attorney in the preparation, presentation, or prosecution of

any claim under laws administered by the [USVA] unless such

individual has been recognized for such purposes by the Secretary [of

the USVA]." 38 U.S.C. § 5901 (1991).




An individual may be "recognized" to pursue veterans'

claims on a regular basis before the USVA in one of three ways.

First, the individual can pursue recognition as an accredited member

of one of the organizations approved by the USVA (e.g., American

Legion; Veterans of Foreign Wars; Disabled American Veterans; etc).

38 U.S.C. § 5902 (1991); 38 C.F.R. § 14.628 (1997). Second, the USVA

may recognize any individual as an accredited "agent" for purposes of

pursuing veterans' benefits claims. 38 U.S.C. § 5904 (1991 & Supp.

1997); 38 C.F.R. § 14.629 (1997). Finally, the USVA may recognize

licensed attorneys to pursue claims. Id.




Either an accredited representative, or an accredited

agent, or an attorney may initiate a benefit claim on behalf of a

veteran. Those claims are initiated by filing an application before

the USVA. If a claim is denied by the USVA, then an appeal of that

decision may, within one year, be lodged with the Board of Veterans'

Appeals ["BVA" or "Board"]. 38 U.S.C. § 7104 - §7105 (1991). If the

BVA renders a decision adverse to the veteran, then that decision may

be appealed, within 120 days, to the U.S. Court of Veterans Appeals.

38 U.S.C. § 7251 & § 7266(a) (1991 & Supp. 1997). Within 30 days

after the Court renders its determination, a final appeal may be

filed with the U.S. Court of Appeals for the Federal Circuit. 38

U.S.C. § 7292.




Discussion




Again, the question we have been asked to address is

whether the pursuit, on behalf of a veteran, of a federal benefit

claim entails work that a CVSO would perform as part of his or her

public duties. If a CVSO's public duties already encompass the

pursuit of federal benefit claims, then the CVSO would, under the

"Nebraska Accountability and Disclosure Act," be precluded from

engaging in a private financial enterprise to pursue those claims.

Neb. Rev. Stat. § 49-14,101 (3).




To resolve this matter, we construe the applicable statutes

in accordance with several well-established principles. First, we

are bound by the plain and ordinary meaning of the statutes. Nickel

v. Saline County School Dist., 251 Neb. 762, 559 N.W.2d 9 (1997).

Also, we must construe the statutes in a manner that would achieve

their purpose, rather than in a manner that would defeat the

statutory purpose. Slagle v. J.P. Theisen & Sons, Inc., 251 Neb.

904, 560 N.W.2d 758 (1997). Finally, the pertinent statutes are to

be construed so as to avoid reaching an absurd, unconscionable, or

unjust result. Southeast Rural Fire Dep't v. Neb. Dep't of Revenue,

251 Neb. 852, 560 N.W.2d 436 (1997).




Nebraska statutes do not specify that a CVSO must pursue

federal benefit claim applications on behalf of veterans. State law,

does, however, clearly require county service committees to

"cooperate with and assist the Department of Veterans' Affairs in the

performance and discharge of its duties and functions." Neb. Rev.

Stat. § 80-407 (Supp. 1997). Thus, in addition to duties related to

county aid fund claims, a CVSO also must assist the state agency in

its advocacy functions. As part of those functions, the Nebraska

Department of Veterans' Affairs pursues federal benefit claims before

the USVA, the Board of Veterans' Appeals, and the Court of Veterans

Appeals.




As the state agency already pursues federal claims on

behalf of all Nebraska veterans, it would seem an absurd result to

conclude not only that a CVSO has no duty to assist the State with

that process, but, too, that the CVSOs could engage in a private

financial venture to pursue those claims. We therefore deem it

likely that Nebraska statutes governing the CVSOs, while silent with

regard to this particular issue, would not be construed by a court to

allow service officers to perform, for private financial gain, work

with regard to federal benefit claims. In reaching this

determination, we acknowledge that state law is not clear on the

issue. We do, however, believe that a construction of the governing

federal statutes bolsters our conclusion.




In accordance with 38 U.S.C. § 5902 (1991), a CVSO may, as

part of his or her public duties, represent a veteran before the

USVA, the BVA, and the Court of Veterans Appeals as an accredited

representative of a recognized organization. See also 38 C.F.R. §

14.628 (1997). The "National Organization of County Veterans Service

Officers" is an organization presently recognized by the USVA. Any

CVSO electing to become a member of that organization and satisfying

the organization's requirements for "accreditation" to practice

before the USVA, could file claims before the USVA on behalf of

veterans. No fees may be charged by accredited representatives for

work done on behalf of veterans. 38 U.S.C. § 5902(b)(1991).




Given that CVSOs may, under current law, already pursue

claims before the USVA, we find it would be an absurd construction of

the federal statutes to conclude that a CVSO could, concurrent with

his or her official duties, engage in this endeavor on a private

basis by assessing veterans fees for the same service.






Sincerely,




DON STENBERG

Attorney General






Lauren L. Hill

Assistant Attorney General