Ethics for Board Members, Part 1

Back in October, at the Wisconsin Technical College System’s Legal Issues Conference, Kirk Strang presented on the topic of ethics for board members.

Since this is an important topic, we’re sharing the details of Kirk’s presentation in a two-part series that covers a range of ethics-centric information that’s relevant to Wisconsin school districts.

Here’s an overview of what you can expect from the series:

Part 1

• Board Members
  • Authority of individual board members
• Ethics
  • Board member ethical considerations
  • The code of ethics for state public officials

Part 2

• Criminal Statutes Governing Board Member Ethics
• Conflicts of Interest
• District Board Codes of Ethics

Let’s dive into Part 1 …

Board Members

AUTHORITY OF INDIVIDUAL BOARD MEMBERS

1. Individual board members are individual citizens that do not carry the authority of the board unless the board itself vests them with board authority.
2. Individual board members that hold recognized board offices do have the individual duties and authority of the office that state statutes provide. 

Ethics

BOARD MEMBER ETHICAL CONSIDERATIONS

When taking official action (or participating in discussions) on a matter, board members must keep in mind the ethical obligations that apply to public office holders — on both a state and local level.

1. The Code of Ethics for State Public Officials applies to Wisconsin technical colleges district board members. Wis. Stat. § 19.42(13)(f).

2. The Code of Ethics for Local Public Officials applies to appointive offices of a technical college, such as a college administrator. Wis. Stat. § 19.42 (7w) and (7x). 

   The Code of Ethics for State Public Officials closely mirrors the Code of Ethics for Local Public Officials, meaning the following requirements would apply equally to technical college administrators. However, the state code of ethics has a separate conflict of interest provision. Wis. Stat. § 19.46.

THE CODE OF ETHICS FOR STATE PUBLIC OFFICIALS

1. A public official may not profit personally from holding his/her public office or position, apart from the salary and expenses to which the official is entitled as a result of the position.

   1. No public official may use his/her public position or office to obtain financial gain or anything of substantial value for the private benefit of himself/herself or his/her immediate family or for an organization with which he/she is associated. Wis. Stat. § 19.45(2).

      Important Definitions:

      • Substantial Value: Anything of more than nominal, token or inconsequential value in light of the totality of the circumstances. 1993 Wis. Eth. Bd. 8 (reviewed and reaffirmed by the GAB on January 15, 2009).
      • Immediate Family: An official’s spouse and an official’s relative by marriage, lineal descent, or adoption, who receives, directly or indirectly, more than one-half of his/her support from the official or from whom the official receives, directly or indirectly, more than one-half of his/her support. Wis. Stat. § 19.42(7).
      • Organization(s) with which the Public Official is Associated: Any organization in which an official or member of his/her immediate family is a director, officer or trustee, or owns or controls, directly or indirectly, and severally or in the aggregate, at least 10% of the outstanding equity or of which an official or a member of his/her immediate family is an authorized representative or agent. Wis. Stat. § 19.42(2).

      A public official is not associated with an organization merely because he/she is a member or an employee of an organization or business.

   2. No person may offer or give to a public official, directly or indirectly, and no public official may solicit or accept from any person, directly or indirectly, anything of value, if it could reasonably be expected to influence the 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 public official. Wis. Stat. § 19.45(3). 

      This provision does not prohibit a public official from engaging in outside employment. 

      Important Definitions: 

      • Anything of Value: Any money or property, favor, service, payment, advance, forbearance, loan, or promise of future employment. Wis. Stat. § 19.42(1).
      • Influence the Official: According to the Wisconsin Ethics Commission, it would be unreasonable to expect a gift of not more than $15 to influence an individual’s judgment. It would be unreasonable to expect a favor or service from an individual or from an organization without any special interest in the actions of the public body to influence an official affiliated with that body.
2. A public official may not participate in decisions in which he/she has a personal financial interest.

   1. No public official may take any official action substantially affecting a matter in which the official or a member of his/her immediate family or an organization with which he/she is associated has a substantial financial interest. Wis. Stat. § 19.45(2).

      There is no $15,000 safe harbor like that which exists in the felony statute, Wis. Stat. § 946.13. 

   2. No public official may use his/her office or position in any way that produces or assists in the production of a substantial benefit, direct or indirect, for the public official, one or more members of his/her family either separately or together, or an organization with which the official is associated. Wis. Stat. § 19.45(5).

      The Wisconsin Ethics Commission interprets “benefit” as broader than a financial interest. A “benefit” means an advantage or profit gained. For example, the terms of a health insurance contract that provides health insurance to a board member would be a substantial benefit even if it did not result in financial gain. 1996 Wis. Eth. Bd. 10. Thus, the range of prohibited voting matters extends beyond direct financial interests. 

   3. The Wisconsin Ethics Commission advises that board members may take action on general policy issues even though the action will affect the board member, his/her immediate family, or an associated organization if: 

      1. the board member's action affects a whole class of similarly-situated interests; 
      2. the interests of the board member, the immediate family member, or associated organization is not significant when compared to all affected interests in the class; and
      3. The action's effect on the interests of the board member, immediate family member, or associated organization is not significantly greater or less than the effect on other members of the class.

      Ethics Commission Guideline 1240. 

3. Penalties for violations:
   1. Any person who violates the Code of Ethics for State Public Officials may be required to forfeit not more than $5,000 for each violation. Wis. Stat. § 19.579.
   2. Intentional violations are penalized criminally by fines of $100 to $5,000, imprisonment for up to one year, or both. Wis. Stat. § 19.58(1).

Although many of these points seem like common sense, it’s important to clearly define the code of ethics for state public officials so, in the case of a school board and its members, everyone is on the same page.

In Part 2 of this series, we’ll continue the conversation about ethics for school board members, turning our attention to criminal statutes governing board member ethics, conflicts of interest, and district board codes of ethics.

Additional articles that might be of interest:

• The Impact of Social Media on Wisconsin School Districts, Part 1: Social Media & Students
• The Do’s and Don’ts of Parental Involvement Part 1: Parents as Constituents & Electorate