AGO Opinion 98037
Does a conflict of interest exist when the Nebraska Equal Opportunity Commission makes a determination of reasonable cause in a complaint filed by the NEOC under the Nebraska Fair Housing Act?
DATE: August 17, 1998
SUBJECT: Does a conflict of interest exist when the Nebraska Equal Opportunity Commission makes a determination of reasonable cause in a complaint filed by the NEOC under the Nebraska Fair Housing Act?
REQUESTED BY: Mr. Alfonza Whitaker, Executive Director Nebraska Equal Opportunity Commission
WRITTEN BY: Don Stenberg, Attorney General
Suzanna Glover-Ettrich, Assistant Attorney General
You have requested an Attorney General's Opinion regarding a
possible conflict of interest involving the Nebraska Equal
Opportunity Commission. Specifically, you wanted an opinion
regarding the propriety of the NEOC investigating and making
determinations on complaints when the complaint has been initiated
by the NEOC. We conclude that no conflict of interest exits.
The Nebraska Fair Housing Act states:
An aggrieved person may, not later than one year after an
alleged discriminatory housing practice has occurred or
terminated, file a complaint with the commission alleging such
discriminatory housing practice. The commission, on its own
initiative, may also file such a complaint.
Neb. Rev. Stat. § 20-326(1)(a)(i) (emphasis added).
According to the statute, the commission is authorized to file
a complaint of housing discrimination. As with all housing
discrimination complaints, the NEOC then is required to investigate
the alleged discriminatory practice. Neb. Rev. Stat. § 20-
326(1)(b)(iv). At the end of the investigation of the complaint,
the commission shall prepare a final investigative report which is
then forwarded to the commissioners for a determination of cause.
Neb. Rev. Stat. § 20-328; Neb. Rev. Stat. § 20-333(1)(a). If the
commission determines that reasonable cause exists to believe that
a discriminatory housing practice has occurred or is about to
occur, it shall immediately issue a charge on behalf of the
aggrieved person for further proceedings under the act. Neb. Rev.
Stat. § 20-333(1)(b)(i).
Once a charge has been issued, a complainant, a respondent, or
an aggrieved person on whose behalf the complaint was filed may
elect to have the matter heard in a civil action in District Court.
Neb. Rev. Stat. § 20-335. If none of the parties file a timely
election to have the matter heard in District Court, the commission
shall set the matter for a public hearing. Neb. Rev. Stat. § 20-
The role of an administrative agency such as the NEOC can be
analogized to the role of a grand jury investigation.
Administrative agencies are granted investigative powers that are
inquisitional in nature and are separate from their quasi-judicial
functions. 73 C.J.S., Public Administrative Law & Procedure, § 78.
An adjudicatory hearing before a public administrative body is
a quasi-judicial proceeding in which factual determinations
are made and, thus, is considered adjudicatory in nature. The
purpose of an adjudicatory hearing has been said to test the
evidence discovered and procured in an investigatory hearing
upon a record in an adversary proceeding before an independent
officer to determine whether it sustains whatever charges are
based upon it. An adjudicatory proceeding before an
administrative officer or body is not an action at law.
73A C.J.S., Public Administrative Law & Procedure, § 116 (emphasis
With regard to a possible conflict of interest arising in a
situation in which the NEOC initiates a discrimination complaint
which is then decided at a public hearing, the argument can be made
that since NEOC public hearings are not legal proceedings, a
conflict of interest in the sense that the NEOC is acting as
accuser, investigator, and judge doesn't really apply, particularly
in view of the fact that there is a provision in the statute for
However, because public hearing officers are appointed by
NEOC, pursuant to rules and regulations promulgated by the NEOC,
there may be a perception that a conflict of interest exists when
the NEOC files a complaint on its own initiative, investigates the
complaint, makes a determination of reasonable cause, and then has
the matter heard before a hearing officer appointed by the NEOC.
The NEOC could respond to this perception by pointing out that all
hearing officers are required, by statute, to meet the
qualifications of a judge in the district court. Neb. Rev. Stat. §
If there are still concerns about the appearance of a conflict
of interest, the NEOC could, as an alternative to having a
complaint heard at a public hearing, elect to have the matter heard
in District Court. If the commission, in its role as complainant,
exercised its option to have the matter adjudicated in District
Court, the charge would then be decided by a judge rather than by
a hearing officer which is, in effect, on the commission's payroll.
Regardless of whether a complaint initiated by the NEOC is
adjudicated at a public hearing or in District Court, the
commission has statutory authority to initiate such complaints.
Assistant Attorney General