Moore v. Nebraska Acct. & Disclosure Comm. ( 2021 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/05/2021 08:08 AM CDT
- 302 -
Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
MOORE v. NEBRASKA ACCT. & DISCLOSURE COMM.
Cite as 310 Neb. 302Timothy Moore, appellant, v. Nebraska
Accountability and Disclosure
Commission, appellee.
___ N.W.2d ___
Filed October 22, 2021. No. S-20-753.
1. Administrative Law: Judgments: Appeal and Error. A judgment or
final order rendered by a district court in a judicial review pursuant to
the Administrative Procedure Act may be reversed, vacated, or modified
by an appellate court for errors appearing on the record. When review-
ing an order of a district court under the Administrative Procedure Act
for errors appearing on the record, the inquiry is whether the decision
conforms to the law, is supported by competent evidence, and is neither
arbitrary, capricious, nor unreasonable.
2. Judgments: Appeal and Error. Whether a decision conforms to law
is by definition a question of law, in connection with which an appel-
late court reaches a conclusion independent of that reached by the
lower court.
3. ____: ____. An appellate court, in reviewing a district court judgment
for errors appearing on the record, will not substitute its factual find-
ings for those of the district court where competent evidence supports
those findings.
4. Statutes: Appeal and Error. The interpretation of statutes presents
questions of law, in connection with which an appellate court has an
obligation to reach an independent conclusion irrespective of the deci-
sion made by the court below.
5. Public Officers and Employees: Contracts. Neb. Rev. Stat.
§ 49-14,103.01(5) (Reissue 2010) provides an exemption from the
general prohibition against an officer having an interest in any contract
with his or her governing body, when all of the following conditions
are met: (1) The contract is an agenda item approved at a board meet-
ing; (2) the interested officer makes a declaration on the record to the
governing body regarding the nature and extent of his or her interest
- 303 -
Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
MOORE v. NEBRASKA ACCT. & DISCLOSURE COMM.
Cite as 310 Neb. 302before official consideration of the contract; (3) the interested officer
does not vote on matters relating to the contract, including making pay-
ments pursuant to the contract or accepting performance of work under
the contract; and (4) the interested officer does not act for the governing
body as to any inspection or performance under the contract.
6. ____: ____. When an officer complies with the disclosure and absten-
tion requirements set out in Neb. Rev. Stat. § 49-14,103.01(5) (Reissue
2010), he or she can avoid violating the general prohibition against
having an interest in any contract to which his or her governing body is
a party.
7. Statutes: Legislature: Intent. When construing a statute, a court must
determine and give effect to the purpose and intent of the Legislature
as ascertained from the entire language of the statute considered in its
plain, ordinary, and popular sense.
8. Statutes: Appeal and Error. The rules of statutory interpretation require
an appellate court to give effect to the entire language of a statute, and
to reconcile different provisions of the statutes so they are consistent,
harmonious, and sensible.
9. Contracts: Parties. A binding mutual understanding or meeting of the
minds sufficient to establish a contract requires no precise formality
or express utterance from the parties about the details of the proposed
agreement; it may be implied from the parties’ conduct and the sur-
rounding circumstances.
10. Contracts: Parties: Intent. An implied contract arises where the inten-
tion of the parties is not expressed in writing but where the circum-
stances are such as to show a mutual intent to contract.
11. ____: ____: ____. The determination of the parties’ intent to make a
contract is to be gathered from objective manifestations—the conduct
of the parties, language used, or acts done by them, or other pertinent
circumstances surrounding the transaction. If the parties’ conduct is
sufficient to show an implied contract, it is just as enforceable as an
express contract.
12. ____: ____: ____. The determination of the parties’ intent to make a
contract is normally a question of fact.
13. Appeal and Error. An appellate court does not consider errors which
are argued but not assigned.
Appeal from the District Court for Buffalo County: Ryan C.
Carson, Judge. Affirmed.
James R. Korth, of Reynolds, Korth & Samuelson, P.C.,
L.L.O., for appellant.
- 304 -
Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
MOORE v. NEBRASKA ACCT. & DISCLOSURE COMM.
Cite as 310 Neb. 302Douglas J. Peterson, Attorney General, and Lynn A. Melson
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), vio-
lated 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 absten-
tion requirements of § 49-14,103.01(5). The NADC imposed a
civil penalty of $500 for the violations. Moore filed an admin-
istrative 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 absten-
tion 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 offi-
cer shall receive any pay or perquisites from the [village] other
than his or her salary.” 3
1
Neb. Rev. Stat. §§ 49-1401 to 49-14,142 (Reissue 2010 & Cum. Supp.
2016).
2
Neb. Rev. Stat. § 17-209 (Reissue 2012).
3
Neb. Rev. Stat. § 17-611 (Reissue 2012).
- 305 -
Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
MOORE v. NEBRASKA ACCT. & DISCLOSURE COMM.
Cite as 310 Neb. 302Our 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 compen-
sation 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 com-
pensation 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 consid-
ered, 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 vil-
lage 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
- 306 -
Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
MOORE v. NEBRASKA ACCT. & DISCLOSURE COMM.
Cite as 310 Neb. 302obtain 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 com-
pensation 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 con-
tract 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 con-
tract 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 con-
tract, making payments pursuant to the contract, or accept-
ing 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
- 307 -
Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
MOORE v. NEBRASKA ACCT. & DISCLOSURE COMM.
Cite as 310 Neb. 302(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 vil-
lage, 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 “prob-
able 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, work-
ing 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
4
See § 49-14,125.
5
See § 49-14,126.
6
See, e.g., §§ 49-14,124.02 and 49-14,133. See, also, § 49-14,103.04.
- 308 -
Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
MOORE v. NEBRASKA ACCT. & DISCLOSURE COMM.
Cite as 310 Neb. 302testified 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 meet-
ings, and Moore accepted the payments when they were made.
These payments were in addition to Moore’s annual compensa-
tion 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 deter-
mined there was not sufficient evidence to establish violations
of § 49-14,101.01(1). No party has appealed from that deter­
mination, 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
- 309 -
Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
MOORE v. NEBRASKA ACCT. & DISCLOSURE COMM.
Cite as 310 Neb. 302on the monthly meeting agendas, failed to declare his inter-
est 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 perceived
duty as a member of the [V]illage [B]oard.” It therefore unani-
mously concluded Moore was subject to, and had violated, the
disclosure and abstention requirements of § 49-14,103.01 in
2014, 2015, and 2016. It assessed a single civil penalty of $500
for all of the violations. 7
Administrative Procedure Act Appeal
Moore filed a timely petition in the district court for Buffalo
County, seeking judicial review of the NADC’s decision under
the Administrative Procedure Act (APA). 8 As pertinent here,
Moore assigned error to the NADC’s determination that he
entered into contracts with the Village Board to perform addi-
tional services for an hourly rate. Moore’s primary argument
was that he had not entered into any contracts with the Village
Board to perform the additional work, so the provisions of
§ 49-14,103.01(5) did not apply to his requests to be paid for
such work. Alternatively, he argued that § 49-14,103.01 did
7
See § 49-14,126 (authorizing NADC to order violators to pay “a civil pen­
alty of not more than two thousand dollars for each violation of the act,
rule, or regulation”).
8
See Neb. Rev. Stat. §§ 84-901 to 84-920 (Reissue 2014 & Cum. Supp.
2020).
- 310 -
Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
MOORE v. NEBRASKA ACCT. & DISCLOSURE COMM.
Cite as 310 Neb. 302not apply, because he was performing the extra work as an
employee of the village, and not as an officer.
In an order entered September 18, 2020, the district court
rejected both of Moore’s arguments. The court agreed with the
NADC that the evidence showed there was an implied con-
tract between Moore and the village for the additional work,
reasoning:
[T]he evidence shows that [Moore] agreed to perform
certain tasks beyond the normal duties as Chairman of the
Village Board, and did so at the board’s request. While it
is clear that [Moore’s] motivation was to serve his com-
munity, the evidence shows he was offered consideration
or payment for those services in the form of compensa-
tion at an hourly rate. This compensation was extra pay
in addition to his salary and is generally prohibited by
statute. See Neb. Rev. Stat. §17-611 (“No officer shall
receive any pay or perquisites from a . . . village other
than his or her salary”). The parties proceeded in this
manner from 2014 to 2016, and [Moore’s] invoices were
regularly approved by the Village Board every month.
Accordingly, the parties’ conduct and the surrounding
circumstances are sufficient to indicate the existence of a
contract, implied or otherwise.
The district court also rejected Moore’s contention that the
disclosure and abstention requirements of § 49-14,103.01(5)
did not apply because he had performed the extra work as an
“employee” of the village, not as an officer. The court held that
Moore was serving as a Village Board trustee at all relevant
times, and under Neb. Rev. Stat. § 17-209.02 (Reissue 2012),
trustees are not allowed to simultaneously perform the duties
of a village employee, unless they are performing “seasonal or
emergency work” for the village. Moreover, the court reasoned
that even if some of Moore’s extra work could be considered
permissible “seasonal” or “emergency” work, that would not
allow him to avoid the disclosure and abstention requirements
of § 49-14,103.01, because under § 17-209.02 as it existed
- 311 -
Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
MOORE v. NEBRASKA ACCT. & DISCLOSURE COMM.
Cite as 310 Neb. 302during the relevant time period, a trustee could not be com-
pensated for such work absent board approval and compliance
with § 49-14,103.01. 9
The district court therefore affirmed the NADC’s decision in
all respects. Moore filed this timely appeal, which we moved
to our docket on our own motion.
ASSIGNMENTS OF ERROR
Moore assigns that the district court erred in affirming the
decision of the NADC based on a finding that he “entered
into contracts with the Village of Madrid in 2014, 2015,
and 2016.” 10
STANDARD OF REVIEW
[1] A judgment or final order rendered by a district court
in a judicial review pursuant to the APA may be reversed,
vacated, or modified by an appellate court for errors appearing
on the record. 11 When reviewing an order of a district court
under the APA for errors appearing on the record, the inquiry
is whether the decision conforms to the law, is supported by
competent evidence, and is neither arbitrary, capricious, nor
unreasonable. 12
[2] Whether a decision conforms to law is by definition
a question of law, in connection with which an appellate
court reaches a conclusion independent of that reached by the
lower court. 13
[3] An appellate court, in reviewing a district court judg-
ment for errors appearing on the record, will not substitute its
9
See § 17-209.02 (prohibiting governing bodies from merging duties of
trustee with duties of any other office or employment “except that trustees
may perform and upon board approval receive compensation for seasonal
or emergency work subject to sections 49-14,103.01 to 49-14,103.06”).
10
Brief for appellant at 3.
11
Big Blue Express v. Nebraska Dept. of Rev., 309 Neb. 838, 962 N.W.2d
528 (2021).
12
Id.13
Id.- 312 -
Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
MOORE v. NEBRASKA ACCT. & DISCLOSURE COMM.
Cite as 310 Neb. 302factual findings for those of the district court where competent
evidence supports those findings. 14
[4] The interpretation of statutes presents questions of law,
in connection with which an appellate court has an obligation
to reach an independent conclusion irrespective of the decision
made by the court below. 15
ANALYSIS
§ 49-14,103.01
Section 49-14,103.01(2) of the NPADA provides that “no
officer may have an interest in any contract to which his or
her governing body, or anyone for its benefit, is a party.” For
purposes of this prohibition, the NPADA defines “officers” to
include “a member of any board or commission of any . . .
village which spends and administers its own funds, who is
dealing with a contract made by such board or commission.” 16
Moore does not dispute that as a trustee of the Village Board,
he was an “officer” subject to the general prohibition against
having an interest in any contract in which the Village Board
is a party. His contention is that he had no contract with the
Village Board to perform extra work for an hourly rate.
Before addressing the merits of this contention, we pause
to note that under earlier codifications of this statute, when
an officer had an interest in a contract to which his or her
governing body was a party, the contract was deemed void as
a matter of law. 17 But under the current statutory scheme, the
­existence of a prohibited interest renders the contract voidable
14
Id.
15
Vokal v. Nebraska Acct. & Disclosure Comm., 276 Neb. 988, 759 N.W.2d
75 (2009).
16
§ 49-14,103.01(1).
17
See, e.g., Heese v. Wenke, 161 Neb. 311, 73 N.W.2d 223 (1955) (holding
§ 17-611 prohibited village officer from having interest in any contract to
which village was party and rendered any such contract void); Neisius v.
Henry, 142 Neb. 29, 5 N.W.2d 291 (1942) (holding Comp. Stat. § 17-517
(1929) prohibited village officer from having interest in any contract with
village and such contracts were void for all purposes).
- 313 -
Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
MOORE v. NEBRASKA ACCT. & DISCLOSURE COMM.
Cite as 310 Neb. 302by court decree under certain circumstances. 18 We are aware
that § 49-14,103.01 was amended in several respects in 2020
and 2021, 19 but we confine our analysis to the statute as it
existed in 2014 through 2016.
[5,6] Section 49-14,103.01(5) provides an exemption from
the general prohibition against an officer having an interest in
any contract with his or her governing body, when all of the
following conditions are met: (1) The contract is an agenda
item approved at a board meeting; (2) the interested officer
makes a declaration on the record to the governing body
regarding the nature and extent of his or her interest before
official consideration of the contract; (3) the interested offi-
cer does not vote on matters relating to the contract, includ-
ing making payments pursuant to the contract or accepting
perform­ance of work under the contract; and (4) the interested
officer does not act for the governing body as to any inspection
or performance under the contract. 20 When an officer complies
with the disclosure and abstention requirements set out in
§ 49-14,103.01(5), he or she can avoid violating the general
prohibition against having an interest in any contract to which
his or her governing body is a party.
As stated, Moore concedes he did not comply with the
disclosure and abstention requirements of § 49-14,103.01(5)
when seeking payment for the extra work, but he contends that
compliance was not necessary, because he had no interest in a
contract with the Village Board sufficient to trigger the statute.
We address this contention next, and we reject it.
Moore’s Interest in Contract
The NPADA does not expressly define “an interest in any
contract” as used in § 49-14,103.01, and we have not pre-
viously construed this provision of the statute. In doing so now,
we apply familiar principles of statutory construction.
18
§ 49-14,103.01(2).
19
See, e.g., 2021 Neb. Laws, L.B. 65, § 1; 2020 Neb. Laws, L.B. 1055, § 19.
20
See § 49-14,103.01(5)(a) through (c).
- 314 -
Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
MOORE v. NEBRASKA ACCT. & DISCLOSURE COMM.
Cite as 310 Neb. 302[7,8] When construing a statute, a court must determine
and give effect to the purpose and intent of the Legislature as
­ascertained from the entire language of the statute considered
in its plain, ordinary, and popular sense. 21 Additionally, the
rules of statutory interpretation require an appellate court to
give effect to the entire language of a statute, and to reconcile
different provisions of the statutes so they are consistent, har-
monious, and sensible. 22
Although the Legislature has not expressly defined “an
interest in any contract” for purposes of § 49-14,103.01, the
plain language of the statute provides considerable guidance as
to what the phrase does, and does not, include. Some of that
guidance is found in § 49-14,103.01 23 itself, and some is found
in related statutes. 24
As relevant here, § 49-14,103.01(4) states:
The prohibition in this section shall apply only when the
officer or his or her parent, spouse, or child (a) has a
business association as defined in section 49-1408 with
the business involved in the contract or (b) will receive
a direct pecuniary fee or commission as a result of
the contract.
Moore does not dispute that he received a direct pecuniary
fee or payment of money from the Village Board in exchange
21
Peterson v. Jacobitz, 309 Neb. 486, 961 N.W.2d 258 (2021).
22
Id.23
See, e.g., § 49-14,103.01(7) through (10) (identifying certain financial
transactions that are not considered “contracts” and certain de minimis
corporate ownership that is not considered “interest”; identifying certain
employment contracts in which officers can vote even when officer’s
spouse, parent, or child is employee of governing body).
24
See, e.g., § 49-14,103.03(1) (providing that “[a]n open account estab­
lished for the benefit of any governing body with a business in which
an officer has an interest shall be deemed a contract subject to sections
49-14,103.01 to 49-14,103.06”); § 49-14,103.06 (authorizing governing
bodies to exempt “contracts involving one hundred dollars or less” from
requirements of § 49-14,103.01).
- 315 -
Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
MOORE v. NEBRASKA ACCT. & DISCLOSURE COMM.
Cite as 310 Neb. 302for performing the extra work. But he argues there was no evi-
dence of a “mutual understanding or meeting of the minds” 25
sufficient to show he had a contract with the Village Board to
perform the extra work for an hourly rate. We disagree.
[9-11] A binding mutual understanding or meeting of the
minds sufficient to establish a contract requires no precise for-
mality or express utterance from the parties about the details
of the proposed agreement; it may be implied from the parties’
conduct and the surrounding circumstances. 26 An implied con-
tract arises where the intention of the parties is not expressed
in writing but where the circumstances are such as to show
a mutual intent to contract. 27 The determination of the par-
ties’ intent to make a contract is to be gathered from objective
manifestations—the conduct of the parties, language used, or
acts done by them, or other pertinent circumstances surround-
ing the transaction. 28 If the parties’ conduct is sufficient to
show an implied contract, it is just as enforceable as an express
contract. 29
[12] Normally, the determination of the parties’ intent to
make a contract is a question of fact. 30 Here, the district court
made an express factual finding that “the parties’ conduct
and the surrounding circumstances are sufficient to indicate the
existence of a contract, implied or otherwise.” We find compe-
tent evidence in the record to support this finding.
25
Linscott v. Shasteen, 288 Neb. 276, 281, 847 N.W.2d 283, 289 (2014).
26
Linscott, supra note 25. See, also, City of Scottsbluff v. Waste Connections
of Neb., 282 Neb. 848, 856-57, 809 N.W.2d 725, 737 (2011) (explaining
“‘implied contract’ refers to that class of obligations that arises from
mutual agreement and intent to promise, when the agreement and promise
have simply not been expressed in words”); Turner v. Fehrs Neb. Tractor
& Equip., 259 Neb. 313, 609 N.W.2d 652 (2000) (noting there must be
evidence of mutual intent to have implied contract).
27
Linscott, supra note 25.
28
Id.
29
Id.
30
Kaiser v. Millard Lumber, 255 Neb. 943, 587 N.W.2d 875 (1999).
- 316 -
Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
MOORE v. NEBRASKA ACCT. & DISCLOSURE COMM.
Cite as 310 Neb. 302Moore testified that in 2014, 2015, and 2016, the Village
Board asked him to perform additional work for the village
and preapproved this additional work, as well as the hourly
rate for such work. Moore testified that he regularly performed
the additional work, describing that he felt an obligation to do
so, after which he submitted requests to be paid at the agreed-
upon hourly rate. The Village Board took up Moore’s pay-
ment requests at its regular monthly meetings, and the record
leaves no question that those requests were routinely approved
and paid.
We agree with the district court’s conclusion that the par-
ties’ conduct and the surrounding circumstances demonstrate
a mutual intent sufficient to show there was an implied con-
tract to have Moore perform additional work for the village in
exchange for compensation at a set hourly rate. Indeed, without
such a contract, there is nothing in the record that explains why
Moore performed the extra work, why the Village Board paid
him for such work, and why Moore accepted this additional
compensation. While we express no opinion on the propriety
of such a contract, we soundly reject as meritless Moore’s con-
tention that the district court erred in finding he had a contract
with the Village Board to perform extra work in exchange for
an hourly rate.
[13] For the sake of completeness, we note that Moore devotes
a significant portion of his appellate briefing to arguing that
the disclosure and abstention provisions of § 49-14,103.01(5)
did not apply to him, because he was acting as an “employee”
of the village when he performed the extra work. Moore pre-
sented a similar argument in the district court, and that court
rejected the argument as meritless under the plain language
of § 17-209.02. Because Moore has not assigned error to that
aspect of the district court’s holding, we do not consider his
arguments that he was acting as an employee when he per-
formed the extra work. An appellate court does not consider
errors which are argued but not assigned. 31
31
State v. Jennings, 308 Neb. 835, 957 N.W.2d 143 (2021).
- 317 -
Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
MOORE v. NEBRASKA ACCT. & DISCLOSURE COMM.
Cite as 310 Neb. 302CONCLUSION
At all relevant times, Moore was a trustee of the Village
Board and was therefore subject to the general prohibition
against having an interest in any contract in which the Village
Board was a party. He entered into contracts with the Village
Board to perform additional work for the village in exchange
for compensation at a set hourly rate. He then reg­ularly
requested payment under such contracts, and he violated
§ 49-14,103.01(5) when he failed to place the requests on
the agenda of the monthly Village Board meetings, failed to
declare his interest in the requests on the record before the
matters were considered, and failed to abstain from voting on
and approving his requests.
While the record shows that Moore’s primary motivation
for agreeing to perform the extra work was to serve his com-
munity, noble intentions do not exempt him from the disclo-
sure and abstention requirements of § 49-14,103.01(5). As the
Legislature has recognized, it is essential to the proper opera-
tion of democratic government that public officials be indepen-
dent and impartial and that end is impaired when there exists,
or appears to exist, a substantial conflict between the private
interests of a public official and his or her official duties. 32
Although the vast majority of public officials are dedicated and
serve with high integrity, the public interest requires that the
law provide greater accountability, disclosure, and guidance
with respect to the conduct of public officials. 33
The district court’s judgment affirming the decision of the
NADC conforms to the law, is supported by competent evi-
dence, and is neither arbitrary, capricious, nor unreasonable.
We therefore affirm the judgment.
Affirmed.
32
See § 49-1402(3) and (4).
33
See § 49-1402(4).