Trustees exercise influence in many ways . They ‘ provide direction ’ on matters concerning school policy , finances , personnel , contracts , and let us not forget the bully pulpit of the dais .
there is no government act .
Justices Roberts and Breyer would both likely find the conduct distasteful , but not criminal .
However , further assume that the trustee informs the superintendent that the administrator has credit debt and that could reflect poorly on the district . Then the superintendent includes the administrator on the next closed session agenda , and the board votes 3-2 to place the administrator on paid administrative leave .
Regardless of whether the administrator is in fact suffering financial woes , the attempt to influence other public officials coupled with the formal vote creates an “ official act .” Now , there is acceptance of something of value and agreement to perform an official act … quid pro quo , or as Justice Breyer put it , a “ crook .”
Although not nearly as extravagant as McDonnell , the trustee ’ s conduct is arguably more criminal . Certainly , given the finely nuanced distinctions of the McDonnell case and prosecutorial resources , the trustee may not be prosecuted . But there is a colorable violation .
Apparently , Justices Roberts and Breyer were both right . A bounded definition of official act can still allow room for prosecuting corruption , while at the same time some dishonest behavior may not be prosecuted .
Law , money and politics
The McDonnell decision is yet another inevitable intersection of law , money and politics . The ironic byproduct of the decision is that one ’ s political success appears directly related to criminal culpability .
Our hypothetical trustee effectively initiated personnel action against the administrator . Yet McDonnell did not deliver the university studies Mr . Williams wanted ; had he done so , he would have committed an official act .
The likely scenario is that when McDonnell committed the third official act alleged , and spoke with his counsel regarding “ research studies ,” he was advised that there were fine lines he should not cross ; so he didn ’ t . McDonnell will probably not go to jail , but he has become yet another symbol for public corruption . Hopefully , California board trustees receive similar advice .
Trustees intermittently receive ethics training on “ conflict of interest ” but not on bribery . As opposed to campaign contributions , personal gifts provided either before or after government action are almost presumed to be “ pro ” or “ for ” the value provided . Meeting with constituents may be conscientious public service , but it can be fraught with peril when constituents give the official something of value .
The Supreme Court was criticized for not taking a more righteous stance against “ pay-to-play ” politics . But we all have a responsibility to restore the public ’ s trust in government – both those seeking access and those who provide it . The real lesson of Mc- Donnell is to meet with your constituents , but split the tab .
Gregory J . Rolen is a partner in the San Francisco office of Haight Brown & Bonesteel LLP . He has more than 25 years of public entity litigation and advises on legal governance , as well as in political and public relations situations . He can be reached at ( 415 ) 281-7654 or grolen @ hbblaw . com .
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