Local officials wail:
Local officials wail: |
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There is much confusion as to what is legal public service and what is conflict of interest. This confusion needlessly impugns the reputations of some public servants and discourages citizens from holding public office.
Consider the case of Peter Shoresman. A school board member in Champaign Community Unit School District No. 4, he married elementary school teacher Michele Wagner in 1975, and since that time, the couple has been at the center of what probably will be a textbook conflict of interest case.
The Shoresman case
A chronology of the case follows:
January 1971: Michele Wagner begins employment as elementary teacher in Champaign Unit District No. 4.
April 1971: Peter Shoresman elected to the Champaign Unit 4 Board of Education.
April 1974: Shoresman reelected to the Champaign Unit 4 Board of Education.
June 1975: Wagner and Shoresman married.
November 10, 1975: Champaign County State's Atty. James Burgess filed a declaratory judgment suit in Champaign Circuit Court seeking Shoresman's removal from office for being in conflict of interest under Chapter 102, section 3 (Illinois Revised Statutes), which states:
In an evening board meeting. Shoresman abstained from voting on acceptance of the teacher's 1975-1976 contract.
A parallel case filed at the same time by the state's attorney against Harold Baker, a board member and attorney whose firm represents several clients who have contracts with the Champaign Unit 4 school district, was dismissed by Circuit Judge Birch Morgan as being too remote an interest to amount to a legal conflict of interest.
March 1, 1976: Judge Morgan ruled that the declaratory judgment was an inappropriate route to follow under Chapter 102, sections 3 and 4. Section 4 reads, "Any . . . person holding any office, either by election or appointment under the laws or constitution of this state, who violates any provision of the preceding sections, is guilty of a Class 4 felony and in addition thereto, any office or official position held by any person so convicted shall become vacant . . . ." Therefore, the civil suit was dismissed with the understanding that a criminal-suit would need to be brought against Shoresman if he were prosecuted under Chapter 102, sections 3 and 4, since conviction amounts to a Class 4 felony (People v. Shoresman, No. 75-L-887; Cir. Ct. Champaign Cy., Il.).
March 4, 1976: Burgess wrote a letter to Byron Wise, superintendent of the Champaign County Educational Service Region, in which he said that it was his belief that any school board member who was married to an employee of the school district was involved in a conflict of interest and would be vulnerable to criminal prosecution. Copies of this letter were forwarded to all boards of education in the county.
March 23, 1976: Julia Quinn Dempsey, legal advisor for the Illinois Office of Education, issued an official legal opinion on whether a school board member is engaged in a conflict of interest when the member's spouse is employed by the district. Reviewing Chapter 102, section 3, and Chapter 122, section 10-9, and a number of conflict-of-interest cases, none of which involved public schools, Ms. Dempsey ruled that this did indeed amount to a conflict of interest. This opinion was sent to Supt. Wise, who forwarded copies to all boards of education in Champaign County. Of four known Champaign County board members in a similar position to Shoresman, one did not run for reelection after serving nine years, one resigned, and two others are continuing to serve on their respective boards.
March 24, 1976: After Michele Shoresman and others were subpoenaed to appear before a county grand jury April 22, ostensibly for the purpose of obtaining a criminal indictment against
18 / July 1977 / Illinois Issues
Peter Shoresman for conflict of interest, the Shoresmans sought injunction in federal district court against further prosecution. They claimed that prosecution under Chapter 102, sections 3 and 4, and Chapter 122, section 10-9, violated their constitutional right to marital privacy as well as violating the Fourteenth Amendment by being overly vague and overbroad, creating an irrebuttable presumption that a public official with a potential conflict of interest cannot hold office and failing to contain any element of criminal intent in the criminal violation.
May 7, 1976: Judge Wise issued his federal district court opinion in which he failed to find any constitutional infirmities in the prosecution of Shoresman for violation of the conflict-of-interest statutes (Shoresman v. Burgess, 412 F. Supp 831). This decision was appealed to the Seventh Circuit Court of Appeals.
June 2, 1976: John Franklin, Champaign Unit4 school attorney, filed a civil suit in Champaign County Circuit Court against the Shoresmans and the Champaign Education Association seeking declaratory judgment as to the legality of any contract entered into between the board and the teachers as long as Shoresman and his wife continued in their respective positions. Burgess arrested Shoresman, who was released on bond, on charges of committing a Class 4 felony because of his unlawful interest in contracts under Chapter 102, sections 3 and 4.
June 14, 1976: Champaign County Circuit Judge Roger Little refused to decide whether Shoresman's position on the board constitutes a conflict of interest, although he did rule that the district can enter into a valid contract with the teachers in spite of Shoresman's marriage to a teacher. In his oral opinion Judge Little also noted that the master contract between the teachers and the district had been signed beforethe Shoresmans' marriage.
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July 8, 1976: Circuit Court Judge John Shonkwiler dismissed the felony conflict-of-interest charge against Shoresman brought under Ch.102, sec. 3, because it failed to allege Shoresman had a pecuniary interest in the contract in question. The judge ruled the cause of action should have been brought under Chapter 122, section 10-9, which was a more recent statute and deals specifically with school board members. Section 10-9 states, "Any board member who is interested in a contract made by the board of which he is a member shall be guilty of a Class A misdemeanor." (Conviction of a Class A misdemeanor is punishable by a maximum of $ 1,000 fine and up to one year in prison.) |
July 13, 1976: After this decision, Shoresman withdrew his appeal to the Seventh Circuit Court of Appeals because the favorable decision made it unlikely that the Circuit Court would reach the constitutional claim. With Judge Shonkwiler's dismissal of the felony conflict-of-interest charge, Shoresman no longer had standing to argue his constitutional defense in federal court.
July 30, 1976: Burgess filed a criminal misdemeanor charge against Shoresman under Chapter 122, section 10-9, and appealed to the Fourth District Appellate Court the dismissal of the felony charge.
August 18, 1976: Motion to dismiss the criminal misdemeanor charge denied by Circuit Judge Morgan.
December 3, 1976: A continuance granted by Champaign Circuit Court to Thomas Difanis, Burgess' successor as state's attorney, to carry over the Shoresman criminal misdemeanor charge until January.
December 20, 1976: Appeal of felony dismissal by the Fourth District Appellate Court.
December 21,1976: Difanis dropped all charges against Shoresman.
April 9, 1977: Shoresman defeated in reelection to board.
Uncertainty persists
The Shoresman case shows how difficult it is to come up with a good working
definition of conflict of interest. For
those who think "interest" must be
read literally to include small amounts
of money to a spouse or children, over
which the public official may in fact
have little control, there is a third
statutory section which appears to
conflict. The pertinent language of
Chapter 127, section 132.11-1 reads:
Shoresman argued that he clearly fell within the exception of this statute, and that it should take precedent over the other two statutes. Although intrigued by this argument, none of the judges hearing the various cases against Shoresman were willing to accept that a local school board member falls within the meaning of "an elective office[r] in this state." According to this interpretation, it seems local public officials are held to a higher standard of conduct than state officers. It might be argued that the public needs greater protection from local public officials than from state officers, but the fact that certain
July 1977 / Illinois Issues / 19
state officials have recently taken kickbacks and continue in the employment of corporations who receive sizeable state contracts makes it difficult to take seriously.
Certainly it is in the public interest to limit the more glaring types of conflict, but the statutes need to be drawn narrowly enough to make valid distinctions. Although Shoresman stands to gain because of the increased salary his wife earns, it is unrealistic to think he really has any control over her salary except in a very general way. Because the salary schedule of teachers is based on years of teaching experience and college credit and many people are involved in negotiating the contract, it is difficult to see how one board member has much say about the teachers' salaries. If this amounts to a conflict of interest, it is difficult to understand how a property owning board member who votes against taking a tax referendum to the public or votes to hold the operating tax rate of the district below the maximum amount that can be levied is not in a conflict of interest for saving himself money on his tax bill. Yet it is hard to imagine a conflict-of-interest statute stringent enough to prohibit all propertied persons from being members of a school board. The potentiality of such a literal interpretation has led one wag to suggest, "We are almost to the situation where the only people who can hold public office are those who own nothing, know nothing, and earn nothing."
The Hollister case
After spending thousands of dollars
in legal fees and hundreds of hours
defending his position as an elected
school board member, Peter Shoresman
still is not sure he will avoid conflict-of-interest charges. Although his prosecution has been halted, the Hollister case
(appeal of Hollister v. North, No. 75-MR-6; Cir. Ct. Coles Cy., Il.), is on
appeal before the 4th District Appellate
Court in Springfield. Oral argument
was heard May 3, with decision pending
at time of publication.
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Hollister, a taxpayer and citizen of Coles County, sought a declatory judgment from the Circuit Court under Chapter 102, section 3, voiding the contracts of three teachers whose spouses served on the board of education. Associate Judge Matthew Jurczak dismissed the complaint in his May 10, 1976, opinion on the basis that the alleged interest of the school board member in his spouse's contract was too small and too remote to be actionable under the statute. |
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The Fifth District Appellate Court may provide guidance to the Hollister court with its recent decision, People v. Simpkins (359 N.E. 2d 828). The mayor of Hurst was charged with violating Chapter 102, section 3, because his wife was water department clerk of the same city. The Fifth District Appellate Court dismissed the indictment for insufficient statement of charges. To be in violation of the Corrupt Practices Act, there must be a showing that the wife's contract is entered into as a subterfuge for the actual pecuniary interest of the husband. No such showing was made, as the marital relationship alone did not create sufficient pecuniary interest of the mayor in his wife's contract.
Of the four circuit decisions which have heard the question of the validity of a contract between the school district and teachers association where a board member is married to a teacher, the Hollister and Shoresman decisions upheld the contract while it was voided in People v. Roland (Rock Island Cir. Ct. No.75-MR-2) and People v. Willard (Lee Cy. Cir. Ct., No. 74-MR-269). As the Hollister case and others work their way through the judicial process, there may be a judicial interpretation applied to the statutes which will protect the public interest as well as enabling honest, well qualified citizens to be elected to public office. It is unlikely, though, that this judicial approach will be very satisfactory. The judicial approach will be an expensive, time consuming way to define a workable conflict-of-interest interpretation. As the Shoresman case indicates, public officials are open to uncertainty and some harassment, and the uncertainty must deter a number of qualified citizens from seeking public office. Because of the unsatisfactory results from this patchwork judicial approach, it is imperative that legislation be drafted that more clearly defines conflict of interest.
There are several models which could be used to develop adequate conflict of interest legislation for public officials, One method would be to simply define more precisely what amounts to a conflict: what percentage of ownership is unreasonable, what relationship is sufficiently close to be undesirable, what types of contracts are to be covered by the statutes? This approach was used in a proposed amendment to Chapter 102, section 3, introduced in the 79th General Assembly as Senate Bill 1093, providing "That no person has a prohibited interest by reason of ownership interest in a business unless he owns at least 7½ percent of the business, nor shall he have a prohibited interest if ¾ of the members holding office have approved the contract." The amendment did not pass. A second approach would put greater responsibility on the political process to decide what amounts to a conflict of interest. Public officials might be required to disclose their financial interest in anything related to a transaction the public board is about to make. It would then be incumbent upon the public to decide through the ballot box whether the public was adequately served by these officials. The law would focus on enforcing public disclosure of that information while the public would make the final decision of acceptability of performance. A statutory scheme which was adopted in California might also be instructive (see California Cods, Education sections 1174-1175.5).
Conclusion
The Shoresman case indicates that
the public may be the biggest loser from
the uncertainty surrounding conflict-of-interest laws in Illinois. It would be a
mistake to try to piece a meaningful
interpretation together through the patchwork of judicial decisions. The
Illinois legislature needs to write a
conflict-of-interest statute which protects the public from self-dealing public
officials while not discouraging qualified citizens from holding public office because of uncertainties about the
meaning of the law.
20 / July 1977 / Illinois Issues
