1. The Delicate Balance between Advocacy, Lobbying and Politicization
Wednesday, August 3, 2016
Western New York Education Law Conference
Scott Johnson Jeffrey F. Swiatek, Esq.
Board of Education Member Partner
Sweet Home Central School District Hodgson Russ, LLP

2. Improper Budget Advocacy
The long-standing rule is that school district funds may not be used to express “favoritism, partisanship, partiality, approval or disapproval … of any issue, worthy as it may be.” (Phillips v. Maurer, 67 N.Y.2d 672 (1986)).
However, school district funds may be used to provide factual information, such as the potential impact of a budget rejection (Appeal of Julian, 42 Ed. Dept. Rep. 300 (2003)).

3. Improper Budget Advocacy
Individual board members and school officials acting in their individual capacity have the same right as any other member of the public to express their views on public issues (e.g., Appeal of Allen, 39 ED. Dept. Rep. 528 (2000)).
However, school district funds, facilities and channels of communication may not be used, and the individual board member or school official must avoid giving the impression they are speaking on behalf of the board or district (e.g., Appeal of Wallace, 46 Ed. Dep. Rep. 347 (2007)).

4. Improper Budget Advocacy
School districts must take affirmative steps to ensure that officers and employees do not convey partisan positions to students during school time on maters pending before the voters (Appeal of Lawson, 36 Ed. Dep. Rep. 450 (1997)).

5. Prohibited Conflicts of Interest
A. The Standard (GML § 801):
“No municipal officer or employee shall have an interest in any contract with the municipality of which he is an officer or employee, when such officer or employee, individually or as a member of a board, has the power or duty to:
1. Negotiate, prepare, authorize or approve the contract or authorize or approve payment thereunder;
2. audit bills or claims under the contract; or
3. appoint an officer or employee who has any of the powers or duties set forth above.”

6. Prohibited Conflicts of Interest (con’t)
B. Definitions: 1. An “interest” is defined by statute as “a direct or indirect pecuniary or material benefit … as a result of a contract with the municipality which such officer or employee serves” (GML § 800(3)). Furthermore, an employee or officer is deemed to have an interest in any municipal contract with (1) his or her spouse, children or dependents (except an employment contract with the municipality; (2) any “firm, partnership or association” of which the District officer or employee is a member or employee.

7. Prohibited Conflicts of Interest (con’t)
C. The Exceptions (GML § 802): The Conflict of Interest prohibitions do not apply to: 1. A District contract with the employer of a District officer or employee if the officer or employee's remuneration is not directly affected as a result of the contract, and the officer or employee's duties of employment do not directly involve procurement, preparation or performance of the contract.

8. Disclosure Requirements
A. Mandatory Disclosure (GML § 803) 1. A District officer or employee must disclose any interest (even if not a prohibited interest) in any actual or proposed contract with the District. 2. Such disclosure must be in writing, must detail the nature and extent of the interest, and must be made as soon as the officer or employee has knowledge of such actual or prospective interest. 3. The written disclosure must be entered into the official records of Board proceedings. 4. Disclosure is not required, notwithstanding an interest in the contract, in certain limited circumstances (e.g. less than 5% holding in corporation; contract less than $750/year).

9. Penalties
Any contract entered into by a school district in violation of ethical standards is null and void (Gen. Mun. Law § 804).
A board member or school official who knowingly violates the statutory ethics provisions may be guilty of a misdemeanor and/or subject to removal (Gen. Mun. Law § 805; Appeal of Golden, 32 Ed. Dept. Rep. 202 (1992)).

10. Common Law Ethics The Common Law Standard
Even if statutory ethics provisions are not violated, certain actions have been nullified because they violated the “spirit and intent” of the ethics laws, or “were inconsistent with public policy, or suggest self-interest, partiality or economic impropriety.” The courts will determine whether private actions or circumstances might “impair the judgment or discretion” of an officer or employee in performing public duties.
How to Avoid a Finding of Common Law Conflict of Interest
1. Disclosure; and/or
2. Recusal.

11. Code of Ethics
Each school district must adopt a Code of Ethics (GML § 806) setting forth "standards of conduct reasonably expected" from officers and employees.
A Code of Ethics must address standards respecting:
Disclosure of interests
holding investments in conflict with official duties
private employment in conflict with official duties
other standards which the Board deems advisable
A Code of Ethics may regulate or prohibit conduct not expressly prohibited by statute, but may not authorize conduct which is expressly prohibited by statute. Furthermore, a Code of Ethics may not be inconsistent with General Municipal Law, Article 18 (Conflicts of Interest).

12. Advocacy - NYSSBA Education Law § 1618 provides as follows:
“The trustee, trustees or board of education of any school district may determine to expend and raise by taxation annually such sums as may be required toward defraying the actual and necessary expenses of maintaining and continuing the New York State School Boards Association, Inc., and any of its activities in this state for the purpose of devising practical ways and means for obtaining greater economy and efficiency in the administration of school district affairs and projects.”

13. “Lobbying”
“Lobbyists,” as conventionally understood, are “persuaders” (usually paid) whose job it is to influence the decisions of government.
Registration and reporting requirements for those lobbying municipalities have been around since 2002, but “school districts” were specifically excluded.
But the definition of “municipality” changed in 2015, and the exclusion for “school districts” was removed.
The “Lobbying Act” has now been expanded to cover, among others, all school districts with a population of more than 5,000 residents (Legislative Law Article 1-A, § 1-c).

14. Lobbying Issues
Can a school district, board member or school official be a lobbyist?
Probably not. Even if a board member or officer engages in actions that fall within the definition of “lobbying,” as defined by the Legislative Law, there is an exception if the “lobbying” is done in the course of “discharging … official duties” (Legislative Law, § 1-c(a)).
Who must report to the Joint Commission on Public Ethics (“JCOPE”)?
The lobbyist and the client of the lobbyist, if the lobbyist incurs, expends or receives “in excess of $5000 annually in compensation and expenses”, or anticipates doing so.

15. Lobbying Issues, cont’d.
So how does the Lobbying Act affect a school district?
A school district now can be the subject of “lobbying activities” triggering the reporting requirement.
School district officers and employees are subject to gift restrictions (discussed below).

16. Lobbying Issues, cont’d.
What is a lobbying activity in the school district context?
Any attempt to influence the passage or defeat of a proposition, policy, resolution or regulation having the force and effect of law (Legislative Law § 1-c(c)).
Any attempt to influence any determination “related to a public procurement” (Id.).

17. Lobbying Issues, cont’d.
What is not a lobbying activity in the school district context?
“Persons who communicate with public officials where such communications are limited to obtaining factual information related to benefits or incentives offered by a state or municipal agency and where such communications do not include any recommendations or advocate governmental action or contract provisions, and further where such communications are not otherwise connected with pending legislative or executive action or determinations” (Legislative Law § 1-c(Q)).

18. Lobbying Issues, cont’d.
What is not a lobbying activity in the school district context?
Preparing or submitting “a response to a request for information or comments” issued by a governmental official or agency (Legislative Law § 1-c(E)).
“Participants … in a conference provided for in a request for proposals, invitation for bids, or any other method for soliciting a response from officers intending to result in a procurement contract.” (Legislative Law § 1-c(H))

19. Lobbying Issues, cont’d.
What is not a lobbying activity in the school district context?
Participating in the public proceedings of a governmental entity where such participation is a matter of public record (Legislative Law § 1-c(C)).
“Participants … in a conference provided for in a request for proposals, invitation for bids, or any other method for soliciting a response from officers intending to result in a procurement contract.” (Legislative Law § 1-c(H))

20. Gifts / Expense Reimbursement
General Municipal Law § 805-a(1)(a):
“No public officer or employee may “directly or indirectly, solicit any gift, or accept or receive any gift having a value of seventy-five dollars or more, whether in the form of money, service, loan, travel, entertainment, hospitality, thing or promise, or in any other form, under circumstances in which it could reasonably be inferred that the gift was intended to influence him, or could reasonably be expected to influence him, in the performance of his official duties or was intended as a reward for any official action on his part.”

21. Gifts / Expense Reimbursement (con’t)
The Lobbying Act provides a similar gift restriction:
“No individual or entity required to be listed on a statement of registration pursuant to this article shall offer or give a gift to any public official as defined within this article, unless under the circumstances it is not reasonable to infer that the gift was intended to influence such public official. No individual or entity required to be listed on a statement of registration pursuant to this article shall offer or give a gift to the spouse or unemancipated child of any public official as defined within this article under circumstances where it is reasonable to infer that the gift was intended to influence such public official.” (Legislative Law § 1-m).

22. Gifts / Expense Reimbursement (con’t)
Receipt of Compensation for Services Rendered (GML § 805-a(1)(c & d))
A school district officer or employee is generally prohibited from receiving compensation as a result of any work involving a contract with or matter before the district, or from entering into a contingent arrangement for compensation for any matter before the district.

23. Gifts / Expense Reimbursement (con’t)
All school district officers and employees are entitled to reimbursement for any expenses “actually and necessarily incurred in the performance of their official duties.” (emphasis added; Ed. Law § 2118).

24. Conclusion QUESTIONS ??? Scott Johnson Jeffrey F. Swiatek, Esq.
Board Member Hodgson Russ LLP
Sweet Home Central School District
(716)