According to the Arizona Agency Handbook, Sect. 8.2.1, the Arizona Conflict of Interest statutes serve to prevent the financial interests of public officers and employees from conflicting with the “unbiased performance of their public duties because one cannot serve two masters with conflicting interests.’” Maucher v. City of Eloy, 145 Ariz. 335, 338, 701 P.2d 593, 596 (App. 1985). While most of us can understand and agree that we don’t want our public officials and employees taking bribes, the water becomes a bit more murky when vendors hand out a “gimme”cap, mug, or a key chain with a logo.
A.R.S. §38-504 (C) does not give a pass for minimum dollar value items in its prohibition against accepting gifts, stating, “A public officer or employee shall not use or attempt to use the officer’s or employee’s official position to secure any valuable thing or valuable benefit for the officer or employee that would not ordinarily accrue to the officer or employee in the performance of the officer’s or employee’s official duties if the thing or benefit is of such character as to manifest a substantial and improper influence on the officer or employee with respect to the officer’s or employee’s duties.” School district policies, while acknowledging the law, generally attempt to use the emphasis on “valuable things or benefits” to allow employees to receive “inexpensive novelty advertising items of general distribution,” business meals and “holiday gifts for general consumption,” like a box of candy for the office to share. See: Arizona School Boards Association (ASBA) Policies DJ and GBEAA.
A.R.S. §5-806, a statute dealing with Tourism and the Sports Authority, was an apparent attempt on the part of the Arizona legislature to specifically spell out what was not considered to be a “gift,” perhaps in recognition of the many items a person on the Board or an employee of the Tourism and Sports Authority might receive from the various types of lobbyists. That statute excludes not only items “of nominal value such as a greeting card, baseball cap, t-shirt, mug or pen,” but flowers; nonrecreational travel, lodging, or both; and awards and prizes “given to competitors in a contest or event that is open to the public including a random drawing.” While this statute might offer some insight, it was not written for, nor extended to include, school board members or school district employees.
So, what happens when a vendor like Google includes a Chromecast valued at $35.00 in with the materials for all those attending a leadership conference? The Chromecast is not normally given away free to the general public as a marketing device. Although $35.00 may seem nominal in Everett Dirksen terms (“a billion here, a billion there, and pretty soon you’re talking about real money”), it certainly isn’t the key chain and it isn’t listed as an acceptable “not a gift” item in the policy. In those instances, the give-away needs to be turned over to the school as a gift. The same holds true for any door prize, “raffle” prize, or other gift handed out at a conference or training attended by school personnel as a part of their duties.
The bottom-line test is not the value of the “give away;” it is whether it becomes more likely that the “things or benefits [received] are of such value or character as to manifest a substantial and improper influence upon the performance of [the employee’s] duties.” While it is highly unlikely that an employee would violate the trust of the District and its taxpayers because he or she received a key ring, an individual may choose to pass on bid information to a “friend” after being given a $25.00 gift card. For this reason, although the gift may seem minimal, it is better to return it or turn it over to the District than to retain it if it does not specifically meet one of the exemptions listed in the District’s policy. If even “inexpensive novelty advertising items,” an occasional business meal, or a box of candy at Christmas affects an employee’s perception of the vendor and causes the employee to give the vendor an improper advantage, then it is still a violation of the conflict of interest laws and potentially a crime.
Since these issues can be fact specific, it is important that if you have a question about a particular vendor gift or donation, you contact legal counsel for advice.
 15-506. Gift ban; principals and lobbyists; exemptions.
- A principal or lobbyist or any other person acting on behalf of a principal or lobbyist shall not give a gift to any board member or employee of the board and a board member or employee of the board shall not accept a gift from a principal or lobbyist.
- For the purpose of this section, a gift does not include any of the following:
- Salary, compensation or employer reimbursed expenses lawfully paid to a board member or employee.
- A family gift.
- An award or prize that is given to competitors in a contest or event that is open to the public including a random drawing.
- Any discount or other benefit that is offered to a board member or employee on the same conditions as to the public, to a class consisting of all board members and employees or to a group or class in which membership is unrelated to being a board member or employee.
- An educational event or speaking engagement.
- Expenses relating to a special event or function to which all members of the board are invited and that are properly reported.
- Food and beverage.
- Informational material, including a book, calendar, pamphlet, periodical, report or video.
- An item that is not used and that is returned within fifteen days of receipt to the donor or that is delivered within fifteen days of receipt to a charitable organization and that is not claimed as a charitable contribution for state or federal income tax purposes.
- An item that is given to a board member or employee if the board member or employee gives an item of approximately the same value to the giver of the item at the same time that the item is given or on a similar occasion as the one that prompted the original item to be given.
- An item of a personal nature that was customarily received by an individual from the donor before the individual became a board member or employee.
- An item that is given to the general public at an event.
- An item of nominal value such as a greeting card, baseball cap, t-shirt, mug or pen.
- Nonrecreational travel or lodging, or both.
- Personal hospitality.
- A plaque or other form of recognition similar to a plaque to a board member or employee to signify the honorary recognition of a service or other notable accomplishment.
- Professional or consulting services rendered on matters directly related to holding a position on the board or employee of the board and that are not rendered to obtain a benefit for any registered principal, public body, lobbyist, designated public lobbyist or authorized public lobbyist or the clients of a principal or lobbyist.
 13-2602. Bribery of a public servant or party officer; classification
- A person commits bribery of a public servant or party officer if with corrupt intent:
- Such person offers, confers or agrees to confer any benefit upon a public servant or party officer with the intent to influence the public servant’s or party officer’s vote, opinion, judgment, exercise of discretion or other action in his official capacity as a public servant or party officer; or
- While a public servant or party officer, such person solicits, accepts or agrees to accept any benefit upon an agreement or understanding that his vote, opinion, judgment, exercise of discretion or other action as a public servant or party officer may thereby be influenced.
- It is no defense to a prosecution under this section that a person sought to be influenced was not qualified to act in the desired way because such person had not yet assumed office, lacked jurisdiction or for any other reason.
- Bribery of a public servant or party officer is a class 4 felony.
- A person who:
- Intentionally or knowingly violates any provision of sections 38-503 through 38-505 is guilty of a class 6 felony.
- Recklessly or negligently violates any provision of sections 38-503 through 38-505 is guilty of a class 1 misdemeanor.
- A person found guilty of an offense described in subsection A of this section shall forfeit his public office or employment if any.
- It is no defense to a prosecution for a violation of sections 38-503 through 38-505 that the public officer or employee to whom a benefit is offered, conferred or agreed to be conferred was not qualified or authorized to act in the desired way.
- It is a defense to a prosecution for a violation of sections 38-503 through 38-505 that the interest charged to be substantial was a remote interest.
This blog should be used for informational purposes only. It does not create an attorney-client relationship with any reader and should not be construed as legal advice. If you need legal advice, please feel free to contact Education Law Attorney, Candyce B. Pardee at 800.863.6718 log on to udallshumway.com, or contact an attorney in your area.
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