Elmer Enigma was a mystery. During the election campaign, he stayed completely below the radar, but thanks to minority representation he got himself elected to the Nutmeg Board of Education. For the first several months, he was completely mute during Board meetings, simply raising his hand to vote from time to time. As a consequence his fellow Board members were surprised at Elmer’s passionate interest in a specific company that distributed educational software.
The issue first came to light when Elmer visited Mr. Superintendent to tell him about "BlueFlame," new software that promised to raise CAPT scores without fail. Elmer was noncommittal when Mr. Superintendent asked him where he had heard about it, but Mr. Superintendent did not care. Rather, he was intrigued by the promise of higher CAPT scores and the job security that such scores would bring him. Consequently, he decided to pitch it to the Board of Education despite the expense.
For the most part, the reaction was predictable. Mr. Chairperson was his usual supportive self, and Red Cent and Penny Pincher, the two fiscal conservatives on the Board, were critical of the cost and the uncertainty. Elmer, however, was a real surprise. Animated for the first time in his time on the Board, Elmer spoke with conviction and enthusiasm about the need for BlueFlame. "We are talking about the future of our children," he exhorted. "This is not the time to be penny-wise and pound-foolish, with apologies to Ms. Pincher."
The Board debated at length, and finally the proposed purchase came to a vote. The vote was five to three, and Mr. Superintendent was given the green light for BlueFlame. Given Elmer’s enthusiastic endorsement of the new software, however, the other Board members were surprised and a little suspicious when Elmer abstained and refused to explain why when asked.
Nancy Newhound, crack reporter for the Nutmeg Bugle, smelled a story, and she went home that night and Googled BlueFlame Software. Her curiosity was piqued by the name of the founder, Ima Enigma. With the help of some genealogy software, Nancy nailed it down: Ima was Elmer’s sister. Her next step was to confront Elmer. "I will be writing a big story on Board ethics," she warned him, "and I’m giving you a chance to respond. Didn’t you sign the Nutmeg Ethics Code, for goodness’ sake?"
Elmer did not deny that his sister owns BlueFlame Software, but he denied that the connection had anything to do with his support for an excellent product. He explained that he had abstained to avoid just the type of insinuations that Nancy was making. As to the Ethics Code, Elmer conceded that he had not signed. As an agent of the State implementing its educational interests, he explained, he and the other Board members are not obligated to comply with municipal regulations such as ethics codes. He ended the conversation with a simple threat – he told Nancy that if she even hinted that he had somehow been unethical here, he would sue her and the Bugle for millions.
Should Nancy be worried?
* * *
Hardly. Elmer, however, is a different story. While his actions are not criminal (as far as we know), he has some serious explaining to do.
In threatening Nancy, Elmer has forgotten about the First Amendment. Forty years ago, an Alabama jury awarded the Montgomery Police Commissioner $500,000 for his defamation claim against The New York Times, among others. The United States Supreme Court reversed, holding that free debate on matters of public concern is protected by the First Amendment. It then further held that defamation claims against public officials must be limited to situations in which untrue statements are made either with malice or reckless disregard for the truth. Here, there is no indication that Nancy’s article will not be factual, and in any event Elmer would have a difficult time meeting the high New York Times v. Sullivan standard.
Elmer, however, has some problems. On these limited facts, it is not clear whether Elmer committed the crime of "bribe receiving," defined in Conn. Gen. Stat. § 53a-148 as occurring when "a public servant or a person selected to be a public servant . . . solicits, accepts or agrees to accept from another person any benefit for, because of, or as consideration for his decision, opinion, recommendation or vote." While his motivation appears to have been familial rather than educational, it is not clear that his sister conferred or was planning to confer a benefit upon him.
A careful reading of the statutory definition reflects a broader truth regarding conflicts of interest. By simply refraining from voting, public officials do not avoid conflict-of-interest questions. Any time a board member (or other public official) is confronted with a potential conflict of interest (hiring a spouse, expelling the babysitter, etc.), he or she must withdraw completely from all deliberations. Boards of education are deliberative bodies. Expressing an opinion can affect the decision-making process, and participation in the related discussion should be avoided in conflict situations.
The general rule on abstention is that the board member must decide for him- or herself whether a personal interest (or, in hearing situations, receiving information outside of the hearing) calls into question his or her ability to decide the question objectively on the information presented. If a board member makes that decision and abstains, it is customary to explain why. Robert’s Rules is clear, however, that members need not explain their reasons for abstention. Whether to provide an explanation involves personal and political, rather than legal, considerations.
Finally, Nancy’s question concerning the Code of Ethics raises two issues. Elmer is probably wrong to claim that he, as a board of education member, is exempt from the ethics code. Such codes are usually authorized by charter, and charter provisions are binding upon board of education members unless they are inconsistent with statute or inimical to the efficient operation of the district (which is clearly not the case here). However, even if such a code were applicable to Elmer, it may not cover his actions here. Typically, ethics codes prohibit participation where there is personal benefit to the household income, i.e when the official or his spouse will receive a pecuniary benefit. Even if connections with extended family and friends are not covered by an ethics code, however, dealing with such issues appropriately is an important matter of public responsibility.