POLICY 1-4.1 SCHOOL BOARD MEMBERS CONFLICT OF INTEREST
Purpose
The Montgomery County School Board seeks, through the adoption of this policy, to assure that the judgment of its members, officers and employees will be guided by a policy that defines and prohibits inappropriate conflicts and requires disclosure of economic interests, as defined by the Virginia General Assembly in the State and Local Government Conflict of Interests Act. As is required by that Act, any Montgomery County School Board member, officer, or employee who is required to file a disclosure statement of personal interests pursuant to applicable Virginia law shall be furnished by the division superintendent or his/her designee with a copy of the Act within two weeks following the person’s election, re-election, employment, appointment or re-appointment. All officers and employees shall read and familiarize themselves with the provisions of the Act.
Areas of Regulation
The State and Local Government Conflict of Interests Act establishes five principal areas of regulation applicable to School Board members, officers, and employees of the Montgomery County Public Schools. They include:
1. special anti-nepotism rules relating to School Board members and the division superintendent;
2. general rules governing public conduct by School Board members regarding acceptance of gifts and favors;
3. prohibited conduct regarding contracts;
4. required conduct regarding transactions; and
5. disclosure required from certain School Board members.
Definitions
The State and Local Government Conflict of Interests Act defines the following terms as:
“Advisory Agency” means any board, commission, committee or post which does not exercise any sovereign power or duty, but is appointed by a governmental agency or officer or is created by law for the purpose of making studies or recommendations, or advising or consulting with a governmental agency.
“Affiliated business entity relationship” means a relationship, other than a parent-subsidiary relationship, that exists when
(i) one business entity has a controlling ownership interest in the other business entity;
(ii) a controlling owner in one entity is also a controlling owner in the other business entity; or
(iii) there is shared management or control between the business entities.
Factors that may be considered in determining the existence of an affiliated business entity relationship include that the same person or substantially the same person owns or manages the two entities, there are common or commingled funds or assets, the business entities share the use of the same offices or employees, or otherwise share activities, resources or personnel on a regular basis, or there is otherwise a close working relationship between the entities.
"Business" means any individual or entity carrying on a business or profession, whether or not for profit.
"Contract" means any agreement to which a governmental agency is a party, or any agreement on behalf of a governmental agency which involves the payment of money appropriated by the General Assembly or political subdivision, whether or not such agreement is executed in the name of the Commonwealth, or some political subdivision of it. “Contract” includes a subcontract only when the contract of which it is a part is with the officer’s or employee’s own governmental agency.
"Dependent" means a son, daughter, father, mother, brother, sister or other person, whether or not related by blood or marriage, if such person receives from the officer or employee, or provides to the officer or employee, more than one-half of his/her financial support.
"Employee" means all persons employed by a governmental or advisory agency, unless otherwise limited by the context of its use.
“Financial Institution” means any bank, trust company, savings institution, industrial loan association, consumer finance company, credit union, broker-dealer as defined in Virginia Code §13.1-501, or investment company or advisor registered under the federal Investment Advisors Act or Investment Company Act of 1940.
"Gift" means any gratuity, favor, discount, entertainment, hospitality, loan, forbearance, or other item having monetary value. It includes services as well as gifts of transportation, local travel, lodgings, and meals, whether provided in-kind, by purchase of a ticket, payment in advance or reimbursement after the expense has been incurred. "Gift" does not include any offer of a ticket or other admission or pass unless the ticket, admission, or pass is used. “Gift” shall not include honorary degrees and presents from relatives. For the purposes of this definition “relative” means the donee’s spouse, child, uncle, aunt, niece or nephew; a person to whom the donee is engaged to be married; the donee’s or his spouse’s parent, grandparent, grandchild, brother or sister; or the donee’s brother’s or sister’s spouse.
"Governmental agency" means each component part of the legislative, executive or judicial branches of state and local government, including each office, department, authority, post, commission, committee, and each institution or board created by law to exercise some regulatory or sovereign power or duty as distinguished from purely advisory powers or duties. Corporations organized or controlled by the Virginia Retirement System are “governmental agencies” for purposes of this policy.
"Immediate family" means (i) a spouse and (ii) any other person residing in the same household as the officer or employee, who is a dependent of the officer or employee or of whom the officer or employee is a dependent.
"Officer" means any person appointed or elected to any governmental or advisory agency including local school boards, whether or not he/she receives compensation or other emolument of office.
“Parent-subsidiary relationship” means a relationship that exists when one corporation directly or indirectly owns shares possessing more than 50 percent of the voting power of another corporation.
"Personal interest" means a financial benefit or liability accruing to an officer or employee or to a member of his/her immediate family. Such interest shall exist by reason of:
1. ownership in a business if the ownership interest exceeds three percent of the total equity of the business;
2. annual income that exceeds, or may reasonably be anticipated to exceed, $10,000 from ownership in real or personal property or a business;
3. salary, other compensation, fringe benefits, or benefits from the use of property, or any combination thereof, paid or provided by a business or governmental agency that exceeds, or may reasonably be anticipated to exceed, $10,000 annually;
4. ownership of real or personal property if the interest exceeds $10,000 in value and excluding ownership in a business, income or salary, other compensation, fringe benefits or benefits from the use of property;
5. personal liability incurred or assumed on behalf of a business if the liability exceeds three percent of the asset value of the business; or
6. an option for ownership of a business or real or personal property if the ownership interest will consist of (1) or (4) above.
"Personal interest in a contract" means a personal interest which an officer or employee has in a contract with a governmental agency, whether due to his/her being a party to the contract or due to a personal interest in a business, which is a party to the contract.
"Personal interest in a transaction" means a personal interest of an officer or employee in any matter considered by his/her agency. Such personal interest exists when an officer or employee or a member of his/her immediate family has a personal interest in property or a business, or a governmental agency, or represents or provides services to any individual or business and such property, business, or represented or served individual or business (i) is the subject of the transaction or (ii) may realize a reasonably foreseeable direct or indirect benefit or detriment as a result of the action of the agency considering the transaction. Notwithstanding the foregoing, such personal interest in a transaction shall not be deemed to exist where an elected member of a local governing body serves without remuneration as a member of the board of trustees of a not-for-profit entity and such elected member or member of his/her immediate family has no personal interest related to the not-for-profit entity.
"Transaction" means any matter considered by any governmental or advisory agency, whether in a committee, subcommittee, or other entity of that agency or before the agency itself, on which official action is taken or contemplated.
Special Anti-Nepotism Rules Relating to School Board Members and Superintendents
The School Board may not employ or pay any teacher or other School Board employee from the public funds, federal, state or local, and the division superintendent may not recommend to the School Board the employment of any teacher or other employee if the teacher or other employee is the father, mother, brother, sister, spouse, son, daughter, son-in-law, daughter-in-law, sister-in-law, or brother-in-law, of the division superintendent or of a School Board member. This provision shall apply to any person employed by the School Board in the operation of the public free school system, adult education programs or any other program maintained and operated by the School Board. This provision shall not be construed to prohibit the employment, promotion, or transfer within the school division, of any person within a relationship described above when such person:
1. has been employed pursuant to a written contract with the School Board or employed as a substitute teacher or teacher's assistant by the School Board prior to the taking of office of any member of the School Board or the division superintendent; or
2. has been employed pursuant to a written contract with the School Board or employed as a substitute teacher or teacher's assistant by the School Board prior to the inception of such relationship; or
3. was employed by the School Board at any time prior to June 10, 1994, and had been employed at any time as a teacher or other employee of any Virginia school board prior to the taking of office of any member of the School Board or division superintendent.
A person employed as a substitute teacher may not be employed to any greater extent than he/she was employed in the last full school year prior to the taking of office of the division superintendent or such School Board member or the inception of the relationship.
General Rules Governing Public Conduct by School Board Members Regarding Gifts and Favors
Prohibited Conduct
Neither the School Board collectively, nor any member of the School Board, shall:
1. solicit or accept money, or anything else of value, for services performed within the scope of his/her official duties other than his/her regular compensation, expenses or other remuneration. This prohibition shall not apply to the acceptance of special benefits that may be authorized by law;
2. offer or accept money, or anything else of value, for or in consideration of obtaining employment, appointment, or promotion in the school division;
3. offer or accept any money or anything else of value for or in consideration of the use of his/her public position to obtain a contract for any person or business with the school division;
4. use for his/her own economic benefit, or anyone else's, confidential information gained by reason of his/her office, and which is not available to the public;
5. accept any money, loan, gift, favor or service that might reasonably tend to influence the discharge of duties. This prohibition shall not apply to any political contribution actually used for political campaign or constituent service purposes and reported as required by applicable law;
6. accept any business or professional opportunity from which a School Board member may gain a financial benefit, where the member knows or should know that there is a reasonable likelihood that the opportunity is being offered with intent to influence his/her conduct in the performance of official duties;
7. accept a gift from a person who has interests that may be substantially affected by the performance of the officer’s or employee’s official duties under circumstances where the timing and nature of the gift would cause a reasonable person to question the officer’s or employee’s impartiality in the matter affecting the donor; and/or
8. accept gifts from sources on a basis so frequent as to raise an appearance of the use of his/her public office for private gain.
Exclusion of Teacher Awards
The provisions of this policy and corresponding applicable law shall not be construed to prohibit or apply to the acceptance by a teacher or other employee of the School Board of an award or payment in honor of meritorious or exceptional services performed by the teacher or employee.
Prohibited Conduct Regarding Contracts
No School Board member shall have a personal interest in (i) any contract with the School Board or (ii) any contract with any government agency, which is subject to the ultimate control of the School Board.
Exceptions
The above prohibition shall not be applicable to:
1. a School Board member's personal interest in a contract of employment provided the employment first began prior to the member becoming a member of the School Board;
2. contracts for the sale by a governmental agency of services or goods at uniform prices available to the general public;
3. a contract awarded to a member of the School Board as a result of competitive sealed bidding where the School Board has established a need for the same or substantially similar goods through purchases prior to the election or appointment of the member to serve on the School Board. However, the member shall have no involvement in the preparation of the specifications for such contract, and the remaining members of the School Board, by written resolution, shall state that it is in the public interest for the member to bid on such contract;
4. the sale, lease or exchange of real property between an officer or employee and a governmental agency, provided the officer or employee does not participate in any way as such officer or employee in such sale, lease or exchange, and this fact is set forth as a matter of public record by the governing body of the governmental agency or by the administrative head thereof;
5. the publication of official notices;
6. contracts between the government or School Board of a town or city with a population of less than 10,000 and an officer or employee of that town or city government or School Board when the total of such contracts between the town or city government or School Board and the officer or employee of that town or city government or School Board or a business controlled by him/her does not exceed $10,000 per year or such amount exceeds $10,000 and is less than $25,000 but results from contracts arising from awards made on a sealed bid basis, and such officer or employee has made disclosure as provided for in Virginia Code § 2.2-3115;
7. an officer or employee whose sole personal interest in a contract with the governmental agency is by reason of income from the contracting firm or governmental agency in excess of $10,000 per year, provided the officer or employee or a member of his/her immediate family does not participate and has no authority to participate in the procurement or letting of such contract on behalf of the contracting firm and the officer or employee either does not have authority to participate in the procurement or letting of the contract on behalf of his/her governmental agency or he/she disqualifies himself/herself as a matter of public record and does not participate on behalf of his/her governmental agency in negotiating the contract or in approving the contract;
8. contracts between the School Board and a public service corporation, financial institution, or company furnishing public utilities in which the School Board officer or employee has a personal interest provided the officer or employee disqualifies himself/herself as a matter of public record and does not participate on behalf of the School Board in negotiating or approving the contract;
9. contracts for the purchase of goods or services when the contract does not exceed $500;
10. grants or other payment under any program wherein uniform rates for, or the amounts paid to, all qualified applicants are established solely by the administering governmental agency; or
11. an officer or employee whose sole personal interest in a contract with the School Board is by reason of his/her marriage to his/her spouse who is employed by the School Board, if the spouse was employed by the School Board for five or more years prior to marrying such officer or employee.
Neither the provisions of this policy and of Chapter 31 of Title 2.2 of the Code of Virginia nor, unless expressly provided otherwise, any amendments thereto, shall apply to those employment contracts or renewals thereof or to any other contracts entered into prior to August 1, 1987, which were in compliance with either the former Virginia Conflict of Interests Act, Chapter 22 (Section 2.1-347 et seq.) or the former Comprehensive Conflict of Interests Act, Chapter 40 (Section 2.1-599 et seq.) of Title 2.1 at the time of their formation and thereafter. Those contracts shall continue to be governed by the provisions of the appropriate prior act. The employment by the School Board of an officer or employee and spouse or any other relative residing in the same household shall not be deemed to create a material financial interest except when one of such persons is employed in a direct supervisory and/or administrative position with respect to such spouse or other relative residing in his household and the annual salary of the subordinate is $22,500 or more.
Prohibited Conduct Regarding Transactions
Each School Board officer or employee who has a personal interest in a transaction:
1. shall disqualify himself/herself from participating in the transaction if the transaction has application solely to property or a business or governmental agency in which he/she has a personal interest or a business that has a parent-subsidiary or affiliated business entity relationship with the business in which he/she has a personal interest, or he/she is unable to participate pursuant to (2), (3), and (4) immediately below. Any disqualification under this section shall be recorded in the public records of the School Board. The officer or employee shall disclose his/her personal interest as required by applicable law and shall not vote or in any manner act on behalf of his/her agency in the transaction. The member or employee shall not (a) attend any portion of a closed meeting authorized by the Virginia Freedom of Information Act when the matter in which he/she has a personal interest is discussed; or (b) discuss the matter in which he/she has a personal interest with other governmental officers or employees at any time;
2. may participate in the transaction if he/she is a member of a business, profession, occupation, or group of three or more members, the members of which are affected by the transaction, and he/she complies with the declaration requirements of applicable law;
3. may participate in the transaction when a party to the transaction is a client in his/her firm if he/she does not personally represent or provide services to such client and he/she complies with the declaration requirements of applicable law; or
4. may participate in the transaction if it affects the public generally, even though his/her personal interest, as a member of the public, may also be affected by that transaction.
Disqualification under the provisions of this policy shall not prevent any employee having a personal interest in a transaction in which his/her agency is involved from representing himself/herself or a member of his/her immediate family in such transaction provided he/she does not receive compensation for such representation and provided he/she complies with the disqualification and relevant disclosure requirements of applicable law.
If disqualifications of officers or employees in accordance with this policy leaves fewer than the number required by law to act, the remaining member or members of the School Board shall constitute a quorum for the conduct of business and have authority to act for the School Board by majority vote, unless a unanimous vote of all members is required by law, in which case authority to act shall require a unanimous vote of the remaining members.
The provisions of this policy shall not prevent a School Board member or employee from participating in a transaction merely because such a Board member or employee is a defendant in a civil legal proceeding concerning such transaction.
Disclosure Requirements for School Board Members
1. School Board members in each county, city or town with populations in excess of 3,500 will file, as a condition of assuming office, with the clerk of the School Board a disclosure statement of their personal interests and other information as is specified on the form set forth in Virginia Code § 2.2-3117 and shall thereafter file such statement annually on or before January 15.
2. Any School Board member or employee who is disqualified from participating in a transaction under this policy, or otherwise elects to disqualify himself/herself, shall forthwith make disclosure of the existence of his/her interest, including the full name and address of the business and the address and parcel number for the real estate if the interest involves a business or real estate, and such disclosure shall be reflected in the School Board's public records in the division superintendent’s office for a period of five (5) years.
3. Any School Board member or employee who is required to disclose his/her interest under paragraph 2 of the section of this policy governing “Prohibited Conduct Regarding Transactions” shall declare his/her interest by stating:
a. the transaction involved,
b. the nature of the School Board member's or employee’s personal interest affected by the transaction,
c. that he/she is a member of a business, profession, occupation, or group the members of which are affected by the transaction, and
d. that he/she is able to participate in the transaction fairly, objectively, and in the public interest.
4. Any School Board member or employee who is required to disclose his/her interest under paragraph 3 of the section of this policy governing “Prohibited Conduct Regarding Transactions” shall declare his/her interest by stating:
a. the transaction involved,
b. that a party to the transaction is a client of his/her firm,
c. that he/she does not personally represent or provide services to the client, and
d. that he/she is able to participate in the transaction fairly, objectively, and in the public interest.
The School Board member or employee shall either make his/her declaration orally to be recorded in written minutes of the School Board or file a signed written declaration with the clerk of the School Board who shall, in either case, retain and make available for public inspection such declaration for a period of five (5) years from the date of recording or receipt. If reasonable time is not available to comply with this requirement prior to participation in the transaction, the School Board member or employee shall prepare and file the required declaration by the end of the next business day. The School Board member or employee shall also orally disclose the existence of the interest during each School Board meeting at which the transaction is discussed and such disclosure shall be recorded in the minutes of the meeting.
LEGAL REFERENCE: Code of Virginia, 1950, as amended, §§ 2.2-3100, et seq.
Adopted: April 2004
Revised: August 2004, August 2007
