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Illinois School Board Journal - ARCHIVES
September-October, 2004
ASK THE STAFF:
Political activities and gifts face tougher scrutiny
By Melinda Selbee
Melinda Selbee, IASB general counsel, answers this issue's "Ask the staff" question. Contact her at mselbee@iasb.com
Question: I need help understanding what is prohibited by the State Officials and Employees Ethics Act. Can you give me a short lesson?
Answer: Delivering a "short lesson" on the Ethics Act is a huge challenge. The legislation is lengthy, confusing, and we have no case law interpreting it. In addition, the Act says little that directly applies to school districts. You should contact your school district’s attorney if you have questions about specific events or activities.
The Ethics Act prohibits state employees and officials from engaging in certain political activities and accepting certain gifts (5 ILCS 430/1-1 et seq.). The Act also requires all school boards to adopt a policy "in a manner no less restrictive" than the Act’s provisions.
Prohibited political activity
The Ethics Act prohibits board members and employees from engaging in "prohibited political activity" in certain named situations. The ban’s applicability will depend on the actor (board member or employee) as well as the context. In summary, the ban on engaging in "prohibited political activity" applies to: (1) employees during any compensated time, (2) board members and employees to prohibit them from using any district property or resources in connection with any "prohibited political activity," (3) board members and employees to prohibit them from requiring other board members or employees to perform any "prohibited political activity," or (4) board members and employees to prohibit them awarding other board members or employees additional compensation or benefit for participating in any "prohibited political activity."
The Ethics Act defines "prohibited political activity" broadly. It includes circulating a petition on behalf of a candidate for elective office or referendum as well as producing or distributing campaign literature. In addition to other various campaign activities, "prohibited political activity" includes soliciting votes for or working on a campaign for a referendum. Thus, an employee is prohibited from supporting a referendum during compensated time. Determining whether a salaried employee is supporting a referendum during "compensated time" depends on the facts in each case. (Editor’s note: For more on this issue, see "Law chills superintendents from campaigning for funds" in the July 26, 2004, issue of the Illinois School Board Newsbulletin.)
Gift ban
School officials (board members and employees) are prohibited from taking a gift from a "prohibited source" unless the gift falls within an exception. An entity is a "prohibited source" if, among other things, it "is seeking official action" or "does business or seeks to do business with" school officials. Lawyers, architects and software vendors doing business with the district are examples of prohibited sources. The ban applies to spouses and immediate family members living with the school official.
The exceptions to the gift ban follow with brief comments in bold:
1) Opportunities, benefits and services that are available on the same conditions as for the general public.
This exception allows a school official to accept opportunities, benefits and services that are available to the general public, provided the school official is treated as a member of the general public. A school official may attend a vendor’s open house to which the general public is invited without concern for how much the sponsoring entity is spending.
2) Anything for which the school official pays the market value.
This exception’s applicability will depend on facts demonstrating that the school official actually paid fair market value for the item purchased. Be sure to keep receipts for purchases from a prohibited source.
3) Any (i) contribution that is lawfully made under the Election Code or under the Ethics Act or (ii) activities associated with a fundraising event in support of a political organization or candidate.
This exception requires candidates to comply with the Election Code section on Campaign Contributions and Expenditures, 10 ILCS 5/9-1 et seq.
4) Educational materials and missions.
This exception allows a school official to receive educational materials or attend educational meetings without concern for how much the sponsoring entity is spending. Attending an IASB function falls within this exception.
5) Travel expenses for a meeting to discuss school district business.
This exception allows a school official to receive travel expenses, paid by a prohibited source, to a meeting to discuss district business. Determining facts include the travel expenses’ reasonableness (travel expenses that are excessive may be hard to defend) and the extent district business was discussed.
6) A gift from a relative, meaning those people related to the individual as father, mother, son, daughter, brother, sister, uncle, aunt, great aunt, great uncle, first cousin, nephew, niece, husband, wife, grandfather, grandmother, grandson, granddaughter, father-in-law, mother-in-law, son-in-law, daughter-in-law, brother-in-law, sister-in-law, stepfather, stepmother, stepson, stepdaughter, stepbrother, stepsister, half brother, half sister, and including the father, mother, grandfather, or grandmother of the individual’s spouse and the individual’s fiancé or fiancée.
This exception’s applicability will depend on facts demonstrating that the prohibited source really was a relative.
7) Anything provided by an individual on the basis of a personal friendship unless the school official has reason to believe that, under the circumstances, the gift was provided because of his or her official position or employment.
This exception’s applicability will depend on facts demonstrating that the prohibited source really was a personal friend. If the prohibited source takes a tax deduction, the relationship will appear more business than personal.
8) Food or refreshments not exceeding $75 per person in value on a single calendar day; provided that the food or refreshments are (i) consumed on the premises from which they were purchased or prepared or (ii) catered.
This exception will allow a school official to attend certain vendor receptions or meals. The Ethics Act is silent on whether the $75 limit is calculated on the basis of the value actually consumed by a school official or the amount the vendor spends per person. Either will probably be accepted depending on the type of event. For example, actual consumption should be used for a dinner at a restaurant since the costs are easily traced to an individual. For a reception or buffet, the calculation should be based on an average per-person cost. This exception may be used 365 days a year.
9) Food, refreshments, lodging, transportation, and other benefits resulting from the outside business or employment activities (or outside activities that are not connected to the school official’s duties), if the benefits have not been offered or enhanced because of the school official’s position or employment and are customarily provided to others in similar circumstances.
This exception’s applicability will depend on facts demonstrating that the event results from outside business or employment activities (or outside activities that are not connected to the school official’s duties). For example, a school board member who is a purchasing agent for a private company may receive gifts from vendors doing business with that company — presuming that neither company has a policy banning such gifts and that the vendor is not actually seeking to do business with the school district.
10) Intra-governmental and inter-governmental gifts.
This exception’s applicability will depend on facts.
11) Bequests, inheritances and other transfers at death.
This exception’s applicability will depend on facts.
12) Any item or items from any one prohibited source during any calendar year having a cumulative total value of less than $100.
School officials may receive gifts with a cumulative value of less than $100 per year from one prohibited source. For example, a school official could receive four $23 bottles of wine in one year from one vendor, but not a fifth bottle. As the items accepted from one prohibited source cannot exceed $100 during the calendar year, school officials should be mindful of the accumulated value of cigars, lighters, jackets, tickets, pictures, flower arrangements, sports memorabilia and other items they receive per each prohibited source.
"Honorariums" are included in the definition of "gifts." A school official may, however, receive over $100 according to the terms of an employment or independent contractor relationship with a prohibited source, subject to the prohibitions contained in applicable conflict-of-interest statutes, rules, regulations, and policies and enforceable pre-existing contracts.
There is no specific exception for entertainment. Since the exceptions are independent of one another, two exceptions may be used for gifts of entertainment — "food or refreshments not exceeding $75 per person in value on a single calendar day," and/or "any item or items from any one prohibited source during any calendar year having a cumulative total value of less than $100." Vendors sometimes offer tickets to sports events, including refreshments. A school official may accept the tickets from a prohibited source, provided the cumulative value of the tickets plus all other items received from that prohibited source during the calendar year does not exceed $100. The refreshments are considered separately and may be accepted if they do not exceed $75 that day.
So much for the short course on the Ethics Act. For more information, get a copy of "Answers to FAQs Regarding the State Officials and Employee Ethics Act," prepared by the Illinois Council of School Attorneys. It's available on the IASB web site at www.iasb.com/GBFAQ.pdf.