6 minute read
Ethically Speaking
Don't Make Money Off Your Students
Mark Boardman, Attorney,Boardman, Carr, Petelos, Watkins & Ogle & Howard, P.C. and Christy Boardman, Kuklinski Attorney Balch & Bingham LLP
The Alabama Ethics Act was originally passed in 1973, with a major revision in 1995 and another in 2010. There have been many changes to the Act, as the Legislature has finetuned it over the years. The Legislature considered a major rehaul of the Act this past legislative session but did not enact that legislation.
Although the Ethics Act, like any detailed legislation, can be confusing, the Act has consistently throughout its history prohibited public officials and public employees from using their public position to gain any money or a thing of value through any side hustle, fundraising event, or task. Violation of this prohibition subjects the public official or public employee to criminal penalties, including imprisonment and fines.
One basic rule from the Act has generally applied to educators: as an educator, you should not make money off your students. This rule applies whether the school board pays the money (for something other than your salary as a school employee) or a parent, the student himself or herself, or an outside organization, pays the money. Reimbursing a public educator’s expenses, such as on a field trip, is acceptable, but profiting from a public educator’s students is forbidden.
Over a dozen years ago, the Alabama Ethics Commission explained in Advisory Opinion 2011-12 that the Ethics Act applies not only to politicians but also to public educators:
There is no distinction, therefore, between school teachers and legislators, or county commissioners and school bus drivers. They are all public officials or public employees. If the Commission were to say that it is permissible to give school teachers gifts that fall outside the parameters set out in the law, it would not be long before an attempt is made to open that up to include city council members, county commissioners and then legislators. In other words, if a student can give a gift to a teacher, why can’t a farmer from Winston County give a shotgun to a county commissioner?
While it is clearly understood that nothing may be given in an attempt to corruptly influence official action, there are subtle ways to attempt to influence official action.
Suppose for example that a Junior High School child is struggling and hopes by giving a nice gift to the teacher, the teacher will reward them with a better grade. Or that the High School Senior who is attempting to get into a quality college, does the same thing.
Finally, what of a college senior who is attempting to get into Harvard Law School?
These examples illustrate the potential for abuse. What started off as a simple gift now may be attempting to corruptly influence official action.
As previously stated, if the door is opened to allow these activities for school teachers, what is to prevent it from being extended to city council members receiving gifts, or legislators receiving free tickets to the Iron Bowl, as has been done in the past?
To allow this interpretation of the Ethics Law denies and rejects the intent of the leadership at the Special Session and the sponsors of the Ethics reform bills. It, in effect, would open the door to allow things to become as they were before the Ethics reform of 2010.
Thus, as noted in a previous edition of Ethically Speaking, a public school teacher cannot tutor a student with pay from a parent. However, the educator would not violate the Ethics Act if the school board paid the educator to tutor the student as part of his/her salary or a supplemental contract. Likewise, a public school educator would violate the Ethics Act if, in an extracurricular activity, the educator made money by his or her own students’ participation. For example, consider a high school bowling team that travels to a bowling alley for practice or tournaments. If the bowling team coach has even a five percent ownership in the bowling alley, that coach violates the Ethics Act when the board of education pays the bowling alley.
Likewise, as a public school educator, you cannot receive something of value for free when others pay for it, because of your position. College football tickets are an example many people think about, but there are less obvious violations of the Ethics Act, too. For instance, suppose your daughter, a high school senior, is having her senior portrait made. The school photographer, who will provide the photographs to the yearbook and perhaps even the newspaper, also sells those photographs to parents, grandparents, and others. Suppose further the photographer says to your daughter (or you) something akin to, “You’re the principal, no charge for you. Thanks for doing such a good job.” If you (or your daughter) receive free photographs, you would be in violation of the Ethics Act because, although no money is exchanged, you are receiving a “thing of value.” In other words, if others must pay for some service or good, you cannot receive that service or good for free because of your governmental position. In this situation with the photographer, the photographer has a reason to curry favor with the school principal because the photographer wants the school’s business next year.
Even if a public school educator would not personally profit from his or her students, that educator still may not solicit a donation, or, as the Ethics Commission defines it, a “thing of value,” from a student as Alabama Code Section 36-25-5.1 prohibits public educators from soliciting any thing of value from their students. Thus, a public school educator selling Boston butts for his or her church cannot ask students to buy those Boston butts from the church without violating Alabama law. This rule applies even if the educator’s church traditionally sold barbeque and the student’s family previously participated in donating to the church. Additionally, a public school educator cannot use public space or public equipment for his or her own use. Just as it is improper for an educator
to sell jewelry, books, clothing, barbeque sandwiches, or other items from his or her classroom or the school’s conference room, an educator also cannot borrow the school’s pressure washer to pressure wash the educator’s driveway. Doing so would be using public space or public equipment for personal gain, a violation of Alabama law.
Although the Ethics Act is complex, its rules are simple: Don’t do business with your students, whether for yourself or for a charity. Don’t use school equipment or space for your own personal benefit or gain. Don’t accept gifts from vendors.
