San Francisco Unified School District and County Office of Education
Board Rule and Procedure 9270
Conflict of Interest
This Rule and Procedure applies to the San Francisco Unified School District and the County Office of Education.
Introduction
The Board desires to maintain the highest ethical standards and help ensure that decisions are made in the best interest of the District and the public. In accordance with law, Board members and designated employees shall disclose any conflict of interest and, as necessary, shall abstain from participating in the decision.
In addition to the restrictions imposed by State law, Board members and the Superintendent are also subject to a number of local restrictions designed to prevent conflicts between the officials’ outside activities and public duties. These restrictions are codified in the City and County of San Francisco Campaign & Governmental Conduct Code (“SF C&GC”) Section 3.200 et seq.
(cf. 9005 – Governance Standards)
The Board shall review and adopt this Rule and Procedure each year at its annual organizational meeting. The Executive Assistant to the Board of Education shall ensure that each Board member receives a copy of this Rule and Procedure.
Conflict of Interest Code
The Board shall adopt a resolution that specifies the terms of the district’s conflict of interest code, the District’s designated positions, and the disclosure categories required for each position.
Upon direction by the code reviewing body, the Board shall review the District’s conflict of interest code and submit any changes to the code reviewing body. (Government Code 82011, 87303)
When a change in the District’s conflict of interest code is necessitated due to changed circumstances, such as the creation of new designated positions, changes to the duties assigned to existing positions, amendments, or revisions, the amended code shall be submitted to the code reviewing body within 90 days. (Government Code 87306)
When reviewing and preparing the District’s conflict of interest code, the Superintendent or designee shall provide officers, employees, consultants, and members of the community adequate notice and a fair opportunity to present their views. (Government Code 87311)
(cf. 9320 – Meetings and Notices)
Board members and designated employees shall annually file a Statement of Economic Interest/Form 700 in accordance with the disclosure categories specified in the District’s conflict of interest code. A Board member who leaves office or a designated employee who leaves District employment shall, within 30 days, file a revised statement covering the period of time between the closing date of the last statement and the date of leaving office or District employment. (Government Code 87302, 87500)
(cf. 4117.2/4217.2/4317.2 – Resignation)
(cf. 9222 – Resignation)
Conflict of Interest under the Political Reform Act
- Disqualifying Conflict of Interest
A Board member or designated employee shall not make, participate in making, or in any way use or attempt to use his/her official position to influence a governmental decision in which he/she knows or has reason to know that he/she has a disqualifying conflict of interest. A conflict of interest exists if the decision will have a “reasonably foreseeable material financial effect” on one or more of the Board member’s or designated employee’s “economic interests,” unless the effect is indistinguishable from the effect on the public generally or the Board member’s or designated employee’s participation is legally required. (Government Code 87100, 87101, 87103; 2 CCR 18700-18709)
A Board member or designated employee makes a governmental decision when, acting within the authority of his/her office or position, he/she votes on a matter, appoints a person, obligates or commits the District to any course of action, or enters into any contractual agreement on behalf of the District. (2 CCR 18702.1)
A Board member who has a disqualifying conflict of interest on an agenda item that will be heard in an open meeting of the Board shall abstain from voting on the matter. He/she may remain on the dais, but his/her presence shall not be counted towards achieving a quorum for that matter. A Board member with a disqualifying conflict of interest shall not be present during a closed session meeting of the Board when the decision is considered and shall not obtain or review a recording or any other nonpublic information regarding the issue. (2 CCR 18702.1)
- Rule of Necessity or Legally Required Participation
On a case-by-case basis and upon advice of legal counsel, a Board member with a financial interest in a contract may participate in the making of the contract if the rule of necessity or legally required participation applies pursuant to Government Code 87101 and 2 CCR 18708.
Conflict of Interest under Government Code Section 1090
Board members, employees, or District consultants shall not be financially interested in any contract made by the Board on behalf of the District, including in the development, preliminary discussions, negotiations, compromises, planning, reasoning, and specifications and solicitations for bids. If a Board member has such a financial interest, the District is barred from entering into the contract. (Government Code 1090; Klistoff v. Superior Court, (2007) 157 Cal.App. 4th 469)
- Noninterest of a Board Member
A Board member shall not be considered to be financially interested in a contract if his/her interest is a “noninterest” as defined in Government Code 1091.5. Noninterest includes a Board member’s interest in being reimbursed for his/her actual and necessary expenses incurred in the performance of his/her official duties, in the employment of his/her spouse/domestic partner who has been a district employee for at least one year prior to the Board member’s election or appointment, or in any other applicable circumstance specified in Government Code 1091.5. (See also SF C&GC for additional restrictions.)
- Remote Interest of a Board Member
A Board member shall not be considered to be financially interested in a contract if he/she has only a “remote interest” in the contract as specified in Government Code 1091 and if the remote interest is disclosed during a Board meeting and noted in the official Board minutes. The affected Board member shall not vote or debate on the matter or attempt to influence any other Board member to enter into the contract. (Government Code 1091)
- Personnel Matters Affecting Relatives of Board Members
Even if there is not a prohibited conflict of interest, a Board member shall abstain from voting on personnel matters that uniquely affect his/her relatives. However, a Board member may vote on collective bargaining agreements and personnel matters that affect a class of employees to which his/her relative belongs. Relative means an adult who is related to the Board member by blood or affinity within the third degree, as determined by the common law, or an individual in an adoptive relationship within the third degree. (Education Code 35107)
A relationship within the third degree includes an individual’s parents, grandparents, great-grandparents, children, grandchildren, great-grandchildren, brothers, sisters, aunts, uncles, nieces, nephews, and the similar family of the individual’s spouse/registered domestic partner unless the individual is widowed or divorced.
Common Law Doctrine against Conflict of Interest
A Board member shall abstain from any official action in which his/her private or personal interest may conflict with his/her official duties.
Gifts
Board members and designated employees may accept gifts only under the conditions and limitations specified in Government Code 89503 and 2 CCR 18730.
The limitation on gifts does not apply to wedding gifts and gifts exchanged between individuals on birthdays, holidays, and other similar occasions, provided that the gifts exchanged are not substantially disproportionate in value. (Government Code 89503)
In addition, the limitation on gifts does not apply to informational materials such as books, reports, pamphlets, calendars, and periodicals. (Government Code 82028)
Gifts of travel and related lodging and subsistence shall be subject to the current gift limitation, except when: (Government Code 89506)
- The travel is in connection with a speech given by a Board member or designated employee, provided the lodging and subsistence expenses are limited to the day immediately preceding, the day of, and the day immediately following the speech and the travel is within the United States; or
- The travel is provided by a person or agency specified in Government Code 89506, including a government, governmental agency or authority, bona fide public or private educational institution, as defined in Revenue and Taxation Code 203, or nonprofit organization exempt from taxation under section 501(c)(3) of the Internal Revenue Code.
Gifts of travel exempted from the gift limitation, as described in items #1 and 2 above, shall nevertheless be reportable on the recipient’s Statement of Economic Interest/Form 700 as required by law.
A gift of travel does not include travel provided by the district for Board members and designated employees. (Government Code 89506)
Honoraria
Board members and designated employees shall not accept any honorarium, which is defined as any payment made in consideration for any speech given, article published, or attendance at any public or private gathering, in accordance with law. (Government Code 89501, 89502)
The term honorarium does not include: (a) earned income for personal services customarily provided in connection with a bona fide business, trade, or profession unless the sole or predominant activity of the business, trade, or profession is making speeches; or (b) any honorarium which is not used and, within 30 days after receipt, is either returned to the donor or delivered to the District for donation into the general fund without being claimed as a deduction from income for tax purposes. (Government Code 89501)
City and County of San Francisco Government Ethics Ordinance
Board members and the Superintendent are subject to a number of local restrictions which are codified in the City and County of San Francisco Campaign & Governmental Conduct Code Section 3.200 et seq.
- Prohibition on Compensated Advocacy
Board members and the Superintendent are prohibited from representing, for compensation, anyone other than the District before any other Board member or District employee. The prohibition does not apply to a Board member acting on behalf of a business, union or organization of which the officer is a member or full-time employee; or to an officer acting in his or her capacity as a licensed attorney in communications with the City lawyers or representatives. (SF C&CG Section 3.224)
- Prohibition on Contracting with Local Agencies
Board members are prohibited from contracting with the City, the District, the Housing Authority, or the Community College District. This provision applies to any contract or subcontract of ,000 or more. This prohibition does not apply to contracts or subcontracts with nonprofit organizations, to contracts or subcontracts existing at the time of appointment, or to agreements to provide goods or services to the City at substantially below fair market value.
The prohibition also does not apply to contracts or subcontracts with business entities for which a City officer works unless the officer exercises management and control over the business. (SF C&GC Section 3.222)
- Prohibition on Disclosing or Using Confidential Information
Board members and the Superintendent are prohibited from disclosing or using for personal gain any confidential information concerning the District. Confidential information means information that at the time of use or disclosure was not subject to disclosure under the California Public Records Act. (SF C&GC Section 3.228)
- Appointments and Nominations
Board members are prohibited from soliciting or accepting any money or other valuable thing in exchange for nomination or appointment to any position of employment, promotion, or for other favorable employment action in the District. (SF C&GC Section 3.208)
- Prohibition on Voting on Own Character or Conduct
Board members and the Superintendent are prohibited from knowingly voting on or in any way attempting to influence a governmental decision involving their own character or conduct, or their appointment to any office, position, or employment. This section does not prohibit an individual from responding to allegations or inquiries, applying for a position, or participating in the decision of the Board to choose a president or other officer. (SF C&GC Section 3.210)
- Decisions Involving Family Members
Board members and the Superintendent are prohibited from making, participating in making, or seeking to influence a District decision regarding an employment action involving a relative. (SF C&GC Section 3.212)
- Disclosure of Personal, Professional and Business Relationships
Board members shall disclose on the public record any personal, professional, or business relationship with any individual who is the subject of, or has an ownership or financial interest in, the subject of a governmental decision being made by the Board. This disclosure requirement applies only if, as a result of the relationship, the ability of the Board member to act for the benefit of the public could reasonably be questioned. Disclosure on the public record means inclusion in the minutes of a public meeting, or if the decision is not being made at a public meeting, recorded in a memorandum kept on file at the District. (SF C&GC Section 3.214)
- Receipt of Benefits for Referrals and Requiring Particular Contractors
Board members and the Superintendent are prohibited from receiving anything of value from anyone other than the District for referring a member of the public to another person or entity for any advice, service or product related to the processes of the District. Board members and the Superintendent are also prohibited from conditioning any governmental action on a member of the public hiring, employing or contracting with any specific person or entity. (SF C&GC Section 3.226)
- Limitations on Gifts
In addition to the Political Reform Act’s requirements, local law imposes additional gift restrictions as set forth below.
- Prohibition on bribery: Board members and the Superintendent shall not accept any gift intended to influence them in the performance of any official act. (SF C&GC Section 3.216(a))
- Limits on gifts from a restricted source: No Board member or the Superintendent may solicit or accept any gift from a person who they know or have reason to know is a restricted source. A restricted source is any person or entity that is contracting or seeking to contract with the District, or that has attempted to influence the Board member or the Superintendent in the previous 12 months. (SF C&GC Section 3.216(b))
Exceptions to Limitations on Gifts
There are several exceptions to the prohibition on receiving gifts from restricted sources. (See SF Regulation 3.216(b)-5 Gifts from Restricted Sources—Exemptions, for a complete description of exceptions.) Gifts may be accepted under the following circumstances even though they come from restricted sources:
- Voluntary gifts, other than cash, with an aggregate value of or less per occasion, up to four times during a calendar year.
- Voluntary gifts of food and drink to be shared in the office among Board members and employees.
- Free attendance at a widely attended conference appropriate to the Board member’s or Superintendent’s official duties.
- Gifts from subordinates
Board members and the Superintendent are prohibited from soliciting or accepting anything of value from any subordinate, or employee or from any candidate or applicant for a position as an employee or subordinate under him or her. There are several exceptions to this rule, including gifts worth or less on occasions when gifts are traditionally given, gifts associated with personal hospitality, and gifts given in recognition of an occasion of special personal significance. (See San Francisco Regulation 3.216(c)-1 Gifts from Subordinates for a complete description of exceptions.)
- Restrictions on Use of District Resources and Political Activity
Board members shall not use district funds, services, supplies or equipment to urge the passage or defeat of any ballot measure or candidate, including any candidate for election to the Governing Board. This restriction includes the following prohibited conduct:
- Using district equipment for the preparation or reproduction of political campaign materials, even if the district is reimbursed;
- Posting or distributing political campaign materials on district property; and
- Disseminating political campaign materials through the district’s mail service, e-mail or staff mailboxes. (Education Code 7054)
Board members and the Superintendent shall not directly or indirectly solicit political contributions from other Board members, employees of the District or from persons on employment lists of the District, unless the solicitation is part of a solicitation made to a significant segment of the public. (SF C&GC Section 3.230)
- Incompatible Offices and Activities
Board members shall not engage in any employment or activity or hold any office which is inconsistent with, incompatible with, in conflict with, or inimical to the Board member’s duties as an officer of the District. (Government Code 1099, 1126) (See also Board Policy 4036 Incompatible Activities for language applicable to District employees.)
In accordance with the Campaign and Governmental Conduct Code, Board members shall not be subjected to discipline unless he or she has been provided an opportunity to demonstrate that his or her activity is not in fact inconsistent, incompatible or in conflict with the duties of a Board member.
- Post-Employment Restrictions
- Permanent Ban on Switching Sides
Board members and the Superintendent may not act as an agent, attorney or otherwise represent any other person, other than the District, before any court or administrative agency in connection with a particular matter if all of the following conditions are present:
- the District is a party or has a direct and substantial interest in the matter;
- the former Board member or Superintendent participated personally and substantially in their capacity as a Board member or District employee in the matter; and
- the matter involved a specific part or parties at the time of the Board member’s or Superintendent’s participation.
This prohibition includes a prohibition on aiding, advising, counseling, consulting or assisting another person (other than the District) in any proceeding in which the Board member or employee would be precluded from participating personally.
- One Year Ban on Communication with the District with Intent to Influence
Board members and the Superintendent are prohibited for one year after terminating their service from the District, with an intent to influence a government decision, communicating orally, in writing, or in any other manner on behalf of any other person (except the District) with any officer or employee of the District. The San Francisco Ethics Commission may grant a waiver with regard to either of the above restrictions.
- Future Employment Restrictions
- One Year Ban on Employment with Certain District Contractors
Board members and the Superintendent are prohibited from being employed by or otherwise receiving compensation from any person or entity that entered into a contract with the District in the previous 12 months, where the Board member or Superintendent personally and substantially participated in the award of the contract.The San Francisco Ethics Commission may waive this prohibition if the Commission determines that imposing the restriction would cause extreme hardship for the Board member or Superintendent.
- Decisions Affecting Future Employment
Board members and the Superintendent are prohibited from making, participating in making, or seeking to influence, government decisions affecting a person or entity with whom the board member or Superintendent is discussing or negotiating future employment.
Obligations of Board Members and Employees
Board members and all District employees shall cooperate in investigations of any alleged violations of this Board Rule and Procedure. District employees and Board members may not provide false or fraudulent evidence, documents, or information or conceal any information that is material to an investigation.
No Board member or District employee may knowingly and intentionally provide assistance or otherwise aid and abet any person in violating this Rule and Procedure.
Interpretation of Board Rule and Procedure – Effect of Law or Regulation
This Board Rule and Procedure is intended to be reflective of applicable State and Local conflict of interest laws and regulations. In the event of any conflict between this Board Rule and Procedure any such law or regulation, as may be amended from time to time, such law or regulation shall control.
Officers, agents or designated employees violating any applicable provision of this code are subject to the administrative, criminal, and civil sanctions provided in the Political Reform Act, Government Code Sections 81000-91014. In addition, a decision in relation to which a violation of the disqualification provisions of this code or of Government Code Sections 87100 or 87450 has occurred, may be set aside as void pursuant to Government Code Section 91003.
Legal Reference:
EDUCATION CODE
1006 Qualifications for holding office
35107 School district employees
35230-35240 Corrupt practices, especially:
35233 Prohibitions applicable to members of governing boards
41000-41003 Moneys received by school districts
FAMILY CODE
297.5 Rights, protections, and benefits of registered domestic partners
GOVERNMENT CODE
1090-1099 Prohibitions applicable to specified officers
1125-1129 Incompatible activities
81000-91014 Political Reform Act of 1974, especially:
82011 Code reviewing body
87100-87103.6 General prohibitions
87200-87210 Disclosure
87300-87314 Conflict of interest code
87500 Statements of economic interests
89501-89503 Honoraria and gifts
91000-91014 Enforcement
SAN FRANCISCO CAMPAIGN AND GOVERNMENTAL CONDUCT CODE
Article I. Election Campaigns
Article II. Lobbying
Article III. Conduct of Government Officials and Employees
Article IV. Protection of Whistleblowers
PENAL CODE
85-88 Bribes
CODE OF REGULATIONS, TITLE 2
18110-18997 Regulations of the Fair Political Practices Commission, especially:
18702.5 Public identification of a conflict of interest for Section 87200 filers
COURT DECISIONS
Klistoff v. Superior Court, (2007) 157 Cal.App.4th 469
Thorpe v. Long Beach Community College District, (2000) 83 Cal.App.4th 655
Kunec v. Brea Redevelopment Agency, (1997) 55 Cal.App.4th 511
ATTORNEY GENERAL OPINIONS
92 Ops.Cal.Atty.Gen. 26 (2009)
92 Ops.Cal.Atty.Gen. 19 (2009)
89 Ops.Cal.Atty.Gen. 217 (2006)
86 Ops.Cal.Atty.Gen. 138(2003)
85 Ops.Cal.Atty.Gen. 60 (2002)
82 Ops.Cal.Atty.Gen. 83 (1999)
81 Ops.Cal.Atty.Gen. 327 (1998)
80 Ops.Cal.Atty.Gen. 320 (1997)
69 Ops.Cal.Atty.Gen. 255 (1986)
68 Ops.Cal.Atty.Gen. 171 (1985)
65 Ops.Cal.Atty.Gen. 606 (1982)
63 Ops.Cal.Atty.Gen. 868 (1980)
Management Resources:
CSBA PUBLICATIONS
Conflict of Interest: Overview of Key Issues for Governing Board Members, Fact Sheet, July 2010
FAIR POLITICAL PRACTICES COMMISSION PUBLICATIONS
Can I Vote? A Basic Overview of Public Officials’ Obligations Under the Conflict-of-Interest Rules, 2005
INSTITUTE FOR LOCAL GOVERNMENT PUBLICATIONS
Understanding the Basics of Public Service Ethics: Personal Financial Gain Laws, 2009
Understanding the Basics of Public Service Ethics: Transparency Laws, 2009
WEB SITES
CSBA: http://www.csba.org
Fair Political Practices Commission: http://www.fppc.ca.gov
Institute of Local Government: http://www.ca-ilg.org
Please note that compare references, or “cf”, refer to CSBA model policies and do not necessarily indicate that the San Francisco Unified School District has adopted the referenced policy.