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July-August, 2008

Conduct descriptions clarify restrictions

Melinda Selbee, IASB general counsel, answers the question for this issue.

Question: Conflict of interest, incompatible offices, gift ban, prohibited political practices — what's the difference?

Answer: These doctrines share one feature — they refer to laws that restrict certain conduct by school officials. They differ by the types of conduct prohibited, which officials they cover and their penalties. The following descriptions should help you differentiate among these laws. Of course, many other laws control conduct and legal counsel should always be sought regarding specific situations.

Conflict of interest

Two laws define when a board member's conduct creates an illegal conflict of interest: the Public Officer Prohibited Activities Act (50 ILCS 105/3) and section 10-9 of The School Code (105 ILCS 5/10-9). Violating either law is a Class 4 felony.

These laws prohibit a board member from having a financial interest directly or indirectly in any contract, work or business of the district he or she serves, unless an exception applies.

For example, one exception allows a board member to provide materials or services if he or she has less than a 7½-percent share in the business's ownership, provided other elements of the exception are present. Another exception applies to a contract that does not exceed $1,000, provided that the aggregate amount of all such contracts does not exceed $2,000 in the same fiscal year. However, when the materials or services are not available in the district, the aggregate amount of all contracts so awarded may be as high as $5,000.

These exceptions require the member to publicly disclose the interest and abstain from voting. Other less frequently used exceptions exist. Also, a board member may be reimbursed for his or her actual and necessary expenses incurred while attending meetings sponsored by the Illinois State Board of Education, regional superintendent, IASB or a public school education organization. (105 ILCS 5/10-22.32)

Hiring relatives of board members does not of itself constitute a conflict of interest. This question is fact-sensitive — a board member may commit a conflict of interest by acting to further the financial interests of his or her spouse or other family member. Some boards adopt no-spouse or anti-nepotism policies to prevent favoritism, cronyism and abuse. Such policies may have negative consequences by reducing the applicant pool, being difficult to apply or preventing the most capable applicant from being hired.

Incompatible offices

The doctrine of incompatible offices is found in the Public Officer Prohibited Activities Act and the Illinois Constitution. The doctrine applies only to elected or appointed board members, not employees.

Simultaneously holding offices as a county board member and a school board member violates the Public Officer Prohibited Activities Act, except for several enumerated circumstances. In People v. Wilson, 828 N.E.2d 1214 (Ill.App.3, 2005), a county board member's election to a school board was voided according to the provisions in this law.

The broader doctrine of incompatible offices arises from the principle of separation of offices as provided in the Illinois Constitution. The doctrine is intended to assure high quality performance with undivided loyalty. Appellate decisions have held that incompatibility arises if the duties of one office would necessarily prevent the office holder from faithfully performing the other office's duties.

By operation of law, the acceptance of an incompatible office is a resignation from the first office. Unfortunately, as the constitutional proscription of incompatible office holding developed in common law — not in statute — there is no comprehensive list of offices that are incompatible with each other. Most rulings are in the form of Attorney General opinions.

Gift ban and prohibited political practices

The State Officials and Employees Ethics Act (Ethics Act), 5 ILCS 430/70-0.01 et seq., prohibits the acceptance of certain gifts by public officials and identifies prohibited political activities. The Ethics Act is designed for state employees and officials but requires local governments to adopt an ordinance or resolution "no less restrictive" than the Act's provisions. Thus, school officials are left to figure out how to make a piece of legislation that was not designed for them, fit their situation.

This is particularly problematic regarding enforcement provisions because the legislature has not granted school boards the power to adopt penal ordinances and penalties. Thus, school boards are generally limited to enforcing the Ethics Act through personnel actions when the violator is an employee and notifications to the State's Attorney when the violator is a board member.

Regardless of enforcement uncertainties, school officials should pay attention to the Act's prohibitions because violation charges are tried in the court of public opinion where due process concerns are nonexistent.

Determining what political activities are prohibited by the Ethics Act depends on three factors: the actor (board member or employee), the context (location and time), and the activity.

No employee may intentionally perform any political activity during compensated time. No board member or employee may intentionally use any district property or resources in connection with any political activity (similar to the prohibition in the Election Interference Prohibition Act, 10 ILCS 5/9-25.1, that bars spending public money to advance a candidate or proposition); intentionally require any other board member or employee to perform any political activity; or award board members or employees compensation or benefits for participating in any political activity.

The Ethics Act's gift ban prohibits school officials (board members and employees) from accepting a gift from a "prohibited source" unless the gift falls within an exception. A person or entity becomes a "prohibited source" by, among other ways, seeking official action from, or doing or seeking to do business with, school officials.

The 12 exceptions include the receipt of educational materials; a gift from a relative or personal friend; goods or refreshments not exceeding $75 per person in value on a single calendar day; and any item(s) from one prohibited source during any calendar year having a cumulative total value of less than $100. The ban applies to spouses and immediate family members living with the school official.

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