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Opinion 98037

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-

336(1).




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

added).




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

judicial review.




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. §

20-336(1).


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.




Sincerely,




DON STENBERG

Attorney General










Suzanna Glover-Ettrich

Assistant Attorney General