A State of Arizona school district Governing Board Member’s position on the Governing Board is both an honor and a privilege.  To hold such a position requires a person to balance their own personal philosophy, the needs of the community (members of which ideally voted the Governing Board Member into the position in the first place), and the overall best interests of the school district that they serve.  Most, if not all, people chosen to serve as Governing Board Members for an Arizona school district treat the position with the reverence and dedication it demands.  However, there are circumstances under which even the most dedicated of Governing Board Member’s interests may run counter to the interest of the school district they serve.  As a “public officer” a Governing Board Member is bound by State of Arizona conflict of interest laws which, depending on the circumstances, may require the Governing Board Member to refrain from taking a particular course of action.  Further, “public officers” can be subject to severe penalties for failure to abide by State of Arizona conflict of interest laws.  This article seeks to address the debate as to whether or not a Governing Board Member is properly considered a “public officer” and therefore subject to the restrictions and penalties imposed by State of Arizona conflict of interest laws.

The State of Arizona conflict of interest laws are found in Title 38, Chapter 3, Article 8 of the Arizona Revised Statutes.  Arizona Revised Statutes (“A.R.S.”) §38-501(A) states that the aforementioned conflict of interest laws apply to “all public officers.”  If a Governing Board Member is considered a “public officer” for the purposes of A.R.S. §38-501(A), then that Governing Board Member is subject to the restrictions of the State of Arizona conflict of interest laws found in Title 38, Chapter 3, Article 8 of the Arizona Revised Statutes.

Arizona school district Governing Board members are considered “public officers” as that term is defined in A.R.S. §38-502(8).  A.R.S. §38-502(8) provides,

“‘Public officer’ means all elected and appointed officers of a public agency established by charter, ordinance, resolution, state constitution or statute.” Emphasis added.

This statutory language requires that in order for a Governing Board Member to be considered a “public officer” that they must be considered an elected or an appointed “officer” of a “public agency.”  A “public agency” is defined in A.R.S. §38-502(6)(c) as,

“The state, county and incorporated cities or towns and any other political subdivisions.” Emphasis added.

What this statutory language provides is that if a Governing Board Member is considered an “officer” of a “political subdivision” (which is considered a type of “public agency”) then the Governing Board Member will be considered a “public officer.”  The definition of “political subdivision” found in A.R.S. §38-502(5) specifically includes school districts as it reads,

“‘Political subdivision’ means all political subdivisions of the state and county, including all school districts.” Emphasis added.

A school district is a “political subdivision” (and therefore a “public agency”) and a Governing Board Member is either elected or appointed to their position within that school district.  This satisfies the requirement that the Governing Board Member be elected or appointed to serve a “public agency” (as outlined in A.R.S. §38-502(8)).  The only requirement left to satisfy within the definition of “public officer” found in A.R.S. §38-502(8) is that the Governing Board Member is considered an “officer.”

The definition of an “officer” is found in A.R.S. §38-101(3) states,

“‘Officer’ or ‘public officer’ means the incumbent of any office, member of any board or commission, or his deputy or assistant exercising the powers and duties of the officer, other than clerks or mere employees of the officer.” Emphasis added.

What this means is that if the person is considered an incumbent of any “office”, “board”, or “commission” then that person will be considered an “officer.”  The terms “office”, “board”, and “commission” are defined in A.R.S. §38-101(1) which provides,

“‘Office’, ‘board’ or ‘commission’ means any office, board or commission of the state, or any political subdivision thereof, the salary or compensation of the incumbent or members of which is paid from a fund raised by taxation or by public revenue.” Emphasis added.

We have already established above that an Arizona school district is considered a “political subdivision.”  A school district governing board is a “board” of a “political subdivision.”  Any compensation afforded to an “incumbent” of a school district governing board (i.e. a Governing Board Member) is paid from “a fund raised by taxation or by public revenue.”

Given that a Governing Board Member is a “member” of a “board” of a “political subdivision” the Governing Board Member is considered to hold an “office” for the purposes of A.R.S. §38-101(1), and is therefore considered an “officer” pursuant to the definition found in A.R.S. §38-101(3).  As an “officer” of a “public agency”, a Governing Board Member meets the requirements found in A.R.S. §38-502(8) and is considered a “public officer.”

As a “public officer” a Governing Board Member is bound by all of the restrictions imposed by State of Arizona conflict of interest laws as they are outlined in Title 38, Chapter 3, Article 8 of the Arizona Revised Statutes.  It is important to note the restrictions found in State of Arizona conflict of interest laws vary greatly depending on the individual circumstances of each situation.  As the penalties can include criminal sanctions, civil sanctions, or even removal from office it is best practice to consult with the school district’s attorney to confirm whether or not a conflict of interest exists, if that conflict is governed by statute, and if it is governed by statue the legally permissible methods of addressing the conflict.

 

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 regarding Conflict of Interest: Board Members as Public Officers, or any other estate planning matters, please feel free to contact at  480.461.5300, log on to udallshumway.com,  or contact an attorney in your area. Udall Shumway PLC is located in Mesa, Arizona and is a full service law firm. We assist Individuals, families, businesses, schools and municipalities in Mesa and the Phoenix/East Valley.