Considerations for developing a Conflict of Interest Policy

This is a very lengthy but important document prepared by Kirk Strang of the Madison law firm of Davis and Kuelhoff that was presented to the BOE at the September 10th meeting. Mr. Strang is the head of their school practice and an expert in the field. Maria


LEGAL AUTHORITY AND PRELIMINARY POLICY CONSIDERATIONS FOR DEVELOPING A BOARD OF EDUCATION POLICY ON CONFLICTS OF INTEREST AND ETHICS FOR PUBLIC OFFICIALS

I. LEGAL AUTHORITY

A. Code of Ethics for Public Officials

19.59. Codes of ethics for local government officials, employees and candidates

(1)(a) No local public official may use his or her public position or office to obtain financial gain or anything of substantial value for the private benefit of himself or herself or his or her immediate family, or for an organization with which he or she is associated. A violation of this paragraph includes the acceptance of free or discounted admissions to a professional baseball or football game by a member of the district board of a local professional baseball park district created under subch. III of ch. 229 or a local professional football stadium district created under subch. IV of ch. 229. This paragraph does not prohibit a local public official from using the title or prestige of his or her office to obtain campaign contributions that are permitted and reported as required by ch. 11.

(b) No person may offer or give to a local public official, directly or indirectly, and no local public official may solicit or accept from any person, directly or indirectly, anything of value if it could reasonably be expected to influence the local public official's vote, official actions or judgment, or could reasonably be considered as a reward for any official action or inaction on the part of the local public official. This paragraph does not prohibit a local public official from engaging in outside employment.

(br) No local public official or candidate for local public office may, directly or by means of an agent, give, or offer or promise to give, or withhold, or offer or promise to withhold, his or her vote or influence, or promise to take or refrain from taking official action with respect to any proposed or pending matter in consideration of, or upon condition that, any other person make or refrain from making a political contribution, or provide or refrain from providing any service or other thing of value, to or for the benefit of a candidate, a political party, any person who is subject to a registration requirement under s. 11.05, or any person making a communication that contains a reference to a clearly identified local public official holding an elective office or to a candidate for local public office.

(c) Except as otherwise provided in par. (d), no local public official may:

1. Take any official action substantially affecting a matter in which the official, a member of his or her immediate family, or an organization with which the official is associated has a substantial financial interest.

2. Use his or her office or position in a way that produces or assists in the production of a substantial benefit, direct or indirect, for the official, one or more members of the official's immediate family either separately or together, or an organization with which the official is associated.

(d) Paragraph (c) does not prohibit a local public official from taking any action concerning the lawful payment of salaries or employee benefits or reimbursement of actual and necessary expenses, or prohibit a local public official from taking official action with respect to any proposal to modify a county or municipal ordinance. (Emphasis added).

B. Code of Ethics for Public Officials: Opinion of Legal Counsel

19.59. Codes of ethics for local government officials, employees and candidates

(5)(a) Any individual, either personally or on behalf of an organization or governmental body, may request of a(n) county or municipal ethics board, or, in the absence of a county or municipal ethics board, a county corporation counsel or attorney for a local governmental unit, an advisory opinion regarding the propriety of any matter to which the person is or may become a party. Any appointing officer, with the consent of a prospective appointee, may request of a county or municipal ethics board, or, in the absence of a county or municipal ethics board, a county corporation counsel or attorney for a local governmental unit an advisory opinion regarding the propriety of any matter to which the prospective appointee is or may become a party. The county or municipal ethics board or the county corporation counsel or attorney shall review a request for an advisory opinion and may advise the person making the request. Advisory opinions and requests therefor shall be in writing. It is prima facie evidence of intent to comply with this section or any ordinance enacted under this section when a person refers a matter to a(n) county or municipal ethics board or a county corporation counsel or attorney for a local governmental unit and abides by the advisory opinion, if the material facts are as stated in the opinion request. A county or municipal ethics board may authorize a county corporation counsel or attorney to act in its stead in instances where delay is of substantial inconvenience or detriment to the requesting party. Except as provided in par. (b), neither a county corporation counsel or attorney for a local governmental unit nor a member or agent of a county or municipal ethics board may make public the identity of an individual requesting an advisory opinion or of individuals or organizations mentioned in the opinion.

(b) A county or municipal ethics board, county corporation counsel or attorney for a local governmental unit replying to a request for an advisory opinion may make the opinion public with the consent of the individual requesting the advisory opinion or the organization or governmental body on whose behalf it is requested and may make public a summary of an advisory opinion issued under this subsection after making sufficient alterations in the summary to prevent disclosing the identities of individuals involved in the opinion. A person who makes or purports to make public the substance of or any portion of an advisory opinion requested by or on behalf of the person waives the confidentiality of the request for an advisory opinion and of any records obtained or prepared by the county or municipal ethics board, the county corporation counsel or the attorney for the local governmental unit in connection with the request for an advisory opinion. (Emphasis added).

C. Open Meetings of Governmental Bodies

19.82. Definitions

As used in this subchapter:

(1) "Governmental body" means a state or local agency, board, commission, committee, council, department or public body corporate and politic created by constitution, statute, ordinance, rule or order; a governmental or quasi-governmental corporation except for the Bradley center sports and entertainment corporation; a local exposition district under subch. II of ch. 229; a family care district under s. 46.2895; a nonprofit corporation operating the Olympic ice training center under s. 42.11(3); or a formally constituted subunit of any of the foregoing, but excludes any such body or committee or subunit of such body which is formed for or meeting for the purpose of collective bargaining under subch. I, IV or V of ch. 111.

(2) “Meeting" means the convening of members of a governmental body for the purpose of exercising the responsibilities, authority, power or duties delegated to or vested in the body. If one-half or more of the members of a governmental body are present, the meeting is rebuttably presumed to be for the purpose of exercising the responsibilities, authority, power or duties delegated to or vested in the body. The term does not include any social or chance gathering or conference which is not intended to avoid this subchapter, any gathering of the members of a town board for the purpose specified in s. 60.50(6), any gathering of the commissioners of a town sanitary district for the purpose specified in s. 60.77(5)(k) or any gathering of the members of a drainage board created under s. 88.16, 1991 stats., or under s. 88.17, for a purpose specified in s. 88.065(5)(a).

(3) "Open session" means a meeting which is held in a place reasonably accessible to members of the public and open to all citizens at all times. In the case of a state governmental body, it means a meeting which is held in a building and room thereof which enables access by persons with functional limitations, as defined in s. 101.13(1). (Emphasis added).

D. Board of Education Meetings

19.89. Exclusion of members

No duly elected or appointed member of a governmental body may be excluded from any meeting of such body. Unless the rules of a governmental body provide to the contrary, no member of the body may be excluded from any meeting of a subunit of that governmental body. (Emphasis added).

E. Conflict of Interest for Public Officials

946.13. Private interest in public contract prohibited

(1) Any public officer or public employee who does any of the following is guilty of a Class I felony:

(a) In the officer's or employee's private capacity, negotiates or bids for or enters into a contract in which the officer or employee has a private pecuniary interest, direct or indirect, if at the same time the officer or employee is authorized or required by law to participate in the officer's or employee's capacity as such officer or employee in the making of that contract or to perform in regard to that contract some official function requiring the exercise of discretion on the officer's or employee's part; or

(b) In the officer's or employee's capacity as such officer or employee, participates in the making of a contract in which the officer or employee has a private pecuniary interest, direct or indirect, or performs in regard to that contract some function requiring the exercise of discretion on the officer's or employee's part.

(2) Subsection (1) does not apply to any of the following:

(a) Contracts in which any single public officer or employee is privately interested that do not involve receipts and disbursements by the state or its political subdivision aggregating more than $15,000 in any year.

(b) Contracts involving the deposit of public funds in public depositories.

(c) Contracts involving loans made pursuant to s. 67.12.

(d) Contracts for the publication of legal notices required to be published, provided such notices are published at a rate not higher than that prescribed by law.

(e) Contracts for the issuance to a public officer or employee of tax titles, tax certificates, or instruments representing an interest in, or secured by, any fund consisting in whole or in part of taxes in the process of collection, provided such titles, certificates, or instruments are issued in payment of salary or other obligations due such officer or employee.

(f) Contracts for the sale of bonds or securities issued by a political subdivision of the state; provided such bonds or securities are sold at a bona fide public sale to the highest bidder and the public officer or employee acquiring the private interest has no duty to vote upon the issuance of the bonds or securities.

(g) Contracts with, or tax credits or payments received by, public officers or employees for wildlife damage claims or abatement under s. 29.889, for farmland preservation under subch. IX of ch. 71 and s. 91.13, soil and water resource management under s. 92.14, soil erosion control under s. 92.10, 1985 stats., animal waste management under s. 92.15, 1985 stats., and nonpoint source water pollution abatement under s. 281.65.

(3) A contract entered into in violation of this section is void and the state or the political subdivision in whose behalf the contract was made incurs no liability thereon. (Emphasis added).

II. CONSIDERATIONS FOR POSSIBLE CONFLICT OF INTEREST/ETHICS POLICY

A Board of Education policy that is meant to reflect these statutes and principles will acquire Board of Education policy decisions in the following areas:


A. Does the Board wish to state that it recognizes state statutes and applicable legal authority in this area, and that it has instituted this policy to provide guidance to its members?

Recommendation: The Board of Education should specifically recognize state statutes and applicable legal authority concerning conflicts of interest and codes of ethics for local government officials to make certain that uniform rules and objective interpretations of those rules are incorporated into the policy

B. Does the Board wish to explicitly identify its purposes in formulating this policy?

Recommendation: The Board of Education may wish to identify at least the following purposes in formulating this policy:

1. Securing compliance with state law.

2. Providing notice to School Board members regarding applicable legal requirements.

3. Providing guidance to School Board members regarding applicable legal requirements.

4. Ensuring the validity of Board of Education decisions.

C. Does the Board of Education wish to have the policy apply to specified groups of School District personnel, in addition to School Board members?

Recommendation: The Board of Education should adopt a policy that applies to all personnel that are subject to applicable state statutes. However, the Board of Education and authorized Administration officials should retain discretion to determine when formal opinions under the policy (if any) are sought.

D. What means should the Board of Education employ to implement the policy? For example:
1. Should the policy specifically provide that the Board of Education may request opinions from legal counsel regarding ethical or conflict of interest issues?

2. Should the Board of Education or authorized administrators’ approval be required to seek such an opinion?

Recommendation: The policy should provide that the Board of Education and selected administrators may request opinions from legal counsel regarding ethical or conflict of interest issues. However, the policy should also provide that requests for a formal legal opinion under the policy must be approved by the Board of Education or authorized administrators.

E. How should resolving conflict of interest or ethical issues under the policy impact on matters that are pending before the Board of Education?

Recommendation: The Board of Education should retain discretion to resolve procedural issues on a case-by-case basis, but should identify criteria for tabling certain issues pending conflict of interest or ethical determinations to maximize the voting rights of Board of Education members. In this regard, the Board should consider adopting standards that include: (1) whether the issue is raised at or prior to a Board meeting; (2) whether the Board member that is potentially affected identified the issue on a timely basis; (3) whether the matter could reasonably affect a Board member’s entitlement to participate or vote on matters before the Board of Education; (4) whether the Board of Education and/or the District would be prejudiced by delaying action on a particular matter; and (5) whether the nature of the matter, in the judgment of the Board of Education, indicates that the need for separate evaluation and/or guidance outweighs the need for immediate action on the issue presented to the Board of Education.

F. Should the Board of Education specifically recognize that when an ethics opinion is obtained under this policy from the District’s legal counsel, this constitutes evidence of good faith compliance with the policy (and statute)?

Recommendation: The Board of Education policy should provide that acting in accordance with a formal opinion that has been authorized by the Board of Education under the policy constitutes evidence of good faith compliance.


III. DISCUSSION AND CONCLUDING REMARKS