By Travis Ketner
Attorney at Law
San Antonio, Texas
Introduction
The intersection of federal law and local public school districts makes it vital that school board trustees (or those considering a campaign for school board) understand the possible federal criminal ramifications of their actions. This knowledge can assist an honest trustee in avoiding a mistake that carries potential criminal penalties and perhaps dissuade a criminal actor from a career on the school board. In the case of the former, an honest trustee might not have the time or the desire to read the United States Code and search out the laws that he or she could possibly break. A summary of federal criminal law, inserted into the board policy manual, provides a useful reference to consult prior to taking action. In the case of the latter, a dishonest or even criminal trustee should be aware of the stiff penalties (including prison sentences) for breaking federal criminal law. Incorporating federal criminal law into a board policy manual may not prevent a determined criminal trustee from his or her choice of profession, but it could encourage them to pursue it in a different location.
School boards throughout Texas regularly use board policy manuals in the governance of their districts. These manuals contain selections of state and federal law, policies of the Texas Education Agency and other regulatory bodies, and procedures unique to each school district. The purpose of this article is to recommend that school boards add language to their board policy manuals covering the applicable federal criminal law provisions that are of the most concern to school board trustees.
The addition of federal criminal law to school board policy will help an honest trustee in the performance of his or her duty. It will have the added benefit of discouraging a dishonest trustee from pursuing his or her illegal activity at the expense of public school students. A thorough understanding of the author’s recommended changes begins with a look at the current state of board policy manuals.
The Current State of School Board Policy Manuals
The author of this article, a lawyer and holder of a master’s degree in educational administration, is involved in a “study group” with several other academic, education, and law enforcement experts centered on preventing corruption in the public school system. As part of this effort, he surveyed several school board policy manuals. Many Texas school districts take direction on the formulation and use of their board policy manuals from TASB (the Texas Association of School Boards), which has a strong reputation for assisting public school districts.
Many school board policy manuals, in their BBFB(LEGAL) section, focus on Texas law. Texas Penal Code provisions covering the definition of a public servant, the acceptance of gifts by a public servant, abuse of office by a public servant and bribery are all generally included in school board policy manuals. Additional prohibitions included in board policy manuals are Texas statutes that (1) outlaw nepotism, (2) limit the employment of a former school board trustee with the school district he or she represented, (3) proscribe a trustee who is affiliated with a bank from voting on the selection of a depository institution for the school district, and (4) limit the acceptance of gifts by board members from companies or individuals that sell instructional materials.
Districts must also understand federal criminal laws applicable to board member activities. The need to include federal criminal law in school board policy manuals is especially important in light of recent arrests and successful prosecutions of school board trustees by the federal government. An examination of these prosecutions can help illustrate the federal criminal law issues that may arise in public school districts and highlight the need to include federal criminal law in all school board policy.
In the case of actual events, the author will not be using real names of the defendants or the school districts involved. The only two exceptions to this rule are when identifying information that is included in an appellate decision cited in this article or when the facts underlying the crime are a necessary part of a legal explanation of the crime or crimes committed. What is most important is understanding the law involved, the crime or crimes, and how these criminal actions can be prevented in the future.
Jurisdiction, 18 U.S.C. § 666, The Hobbs Act and The Travel Act
Prior to discussing actual criminal prosecutions, from a legal standpoint the first issue is jurisdiction. Jurisdiction is the legal power to act; no law enforcement agency from any level of government may act without jurisdiction. Corruption against a school district is essentially a theft and historically theft was a state crime prosecuted by local law enforcement officials. How then are school district officials arrested and prosecuted by law enforcement agents of the federal government?
The answer lies in jurisdiction. There are several laws that make the theft of school district funds a federal crime. The first of these is section 666 of Title 18 of the United States Code (18 U.S.C. § 666). This statute makes it a crime to defraud the federal government even if the “federal government” exists in the form of a local governmental entity. If a local government receives more than $10,000 from a federal grant, program, contract, or in the form of a guaranty, then defrauding the local government is tantamount to defrauding the federal government.1 In other words, if a school district receives more than $10,000 from the federal government (and what public school district does NOT receive more than $10,000 from the federal government?), then a fraud against the school district can be prosecuted as a fraud against the federal government.
In addition to 18 U.S.C. § 666, it is also against the law for any public official to receive a bribe.2 Under federal law, a school board trustee can be considered a “public official” and this means federal jurisdiction.3 In a Louisiana case, heard by the United States Court of Appeals for the Fifth Circuit, which has jurisdiction over Texas, an HVAC shop foreman was held to be a “public official” under federal law because he had “supervisory control” over repair contracts given out by his school district.4 The Fifth Circuit also recently held a civilian employee of the U.S. Army Corps of Engineers to be a “public official” under 18 U.S.C. § 201 because of his control over the distribution of federal funds. While there is no Fifth Circuit or Supreme Court case directly on point concerning whether a school district trustee is a “public official” for the purposes of 18 U.S.C. § 201, there can be little doubt that a trustee’s control over school district funds, into which more than $10,000 of federal monies have been placed, would make the trustee a “public official” and subject to federal criminal law.
Federal jurisdiction also covers traveling in interstate commerce for the purposes of engaging in criminal activity.5 While the “Travel Act” was originally passed to assist then-Attorney General Robert Kennedy in his prosecution of mobsters, it was more recently used by the United States Department of Justice to successfully prosecute Texas school board trustees who accepted free trips to Las Vegas as part of an alleged bribery scheme.6 Thus, the use (or more accurately the misuse) of any facility of interstate commerce to defraud anyone (or any local governmental entity like a public school district) might be a federal crime.
Another federal law, known as the Hobbs Act, is similar to the Travel Act in its invocation of federal jurisdiction in the prohibition of the use of interstate commerce in the commission of a crime. The Hobbs Act prohibits the obstruction of interstate commerce through extortion and includes extortion under the “color of official right.”7 In the case of a school board trustee, “official right” may include the trustee’s lawful actions if those actions are used to further a criminal scheme. A Texas school board member recently pled guilty to violating the Hobbs Act by using his official capacity in the form of votes and procedural motions during school board meetings to deliver school district contracts to specific vendors who allegedly bribed him.8 Not every crime consists solely of illegal actions. Legal acts, like voting during a school board meeting, conducted as part of an illegal scheme can form the basis of a successful Hobbs Act prosecution.
Mail Fraud and Wire Fraud
Non-lawyers commonly misunderstand the crimes of mail fraud and wire fraud. Contrary to the Seinfeld episode titled “The Package,” mail fraud is not fraud against the United States Postal Service. Mail fraud is the use of the United States mail or any private interstate carrier to defraud any individual or entity.9 Common examples of mail fraud are the use of the United States mail to send checks, statements, invoices, and correspondence in furtherance of a corruption scheme. Wire fraud is a related crime wherein the criminal actor uses a telephone, the internet, or television communication as part of a scheme to defraud an individual or entity.10 The term “wire fraud” is antiquated; when the law was passed, all communications over the telephone had to travel via wire. In the modern age, cell phones do not carry communications over a wire, but the use of cell phones or even email11 as part of a criminal plan may still be categorized as wire fraud.
Deprivation of Honest Services
Both mail and wire fraud are often part of a larger federal criminal prosecution against a school board trustee who is charged with depriving the people he or she represents of their “intangible right to honest services.”12 Put simply, a school board trustee who accepts a bribe clearly deprives his or her constituents of their right to have a trustee who acts on their behalf “free from corruption, favoritism, fraud, bribery, undue conflict of interest and deceit.”13 Bribery schemes involving school board trustees often involve cash or campaign contributions sent through the mail (mail fraud) and the discussion of criminal activity over the telephone (wire fraud) as part of a criminal plan to deprive the trustee’s constituents of their “intangible right to honest services.” Also, it is important to remember that there is no practical difference between a campaign contribution and a bribe if the money given leads to a quid pro quo action by the trustee.
The RICO Act
Regular watchers of The Sopranos may be familiar with the terms “RICO Act” or “RICO prosecution.” The Racketeer Influenced and Corrupt Organizations (RICO) Act14 may be used to prosecute school board trustees involved in a bribery scheme, but it is simpler and more straightforward for federal law enforcement officials to use the Hobbs Act, the Travel Act, mail fraud, wire fraud, deprivation of honest services fraud, or 18 U.S.C. § 666 (fraud in a program receiving federal funds). These crimes generally carry the same possible maximum sentence as a RICO conviction and are easier to prove.
Conspiracy
An individual may be prosecuted for a completed or “choate” conspiracy when the criminal objective is complete15 or an incomplete or “inchoate” conspiracy when the criminal objective is incomplete.16 The logic behind the prosecution of inchoate crimes is clear; the law permits both “law enforcement” actions after a crime has been committed and “crime prevention” actions prior to a crime being committed in order to protect people from being hurt and property from being damaged. Based on this principle, conspiracy to commit an offense is punished under federal law as if the underlying crime was completed.17 Also, regardless of an individual’s role in a larger criminal conspiracy, federal law permits all members of a conspiracy to be punished as principal actors.18 To paraphrase acclaimed theater director Constantin Stanislavski, there are no “small parts” in federal criminal law.
Conclusion
The most obvious recommendation to be gleaned from this article is not to break the law. A familiarity with federal criminal law, gained through a review of a school board policy manual and consultation with school district counsel, should be sufficient to keep honest trustees out of trouble. The punishment for breaking federal law (where prison sentences can run as long as twenty years) will hopefully act as a deterrent for all but the most determined criminals.
On a practical note, the author strongly encourages all school boards to include these federal criminal statutes in their board policy manual for all of the reasons listed in this article. This addition should only be made with the assistance of the school district’s attorney in order to make sure that it is done clearly and properly. No structural or fundamental changes to a school board policy manual should ever be made without the advice of counsel.
Additionally, from a “crime prevention” perspective, local agents of the Federal Bureau of Investigation are often available for presentations on the topic of governmental corruption. School board trustees and district employees should be vigilant about preventing corruption within the district. Finally, an innovative school board could secure positive news for their district by adopting widespread ethical governance rules and regulations that would include the incorporation of federal criminal law into board policy. This effort would be seen as a tangible demonstration of good faith by a school board seeking to cultivate a reputation as a solid steward of public funds.
In a time of shrinking school budgets, it is clear that every dollar counts. Corruption against a school district is a crime again the students who are constantly being asked to learn more with less money. Adopting this author’s recommendations is a small step towards more ethical school board governance and, most importantly, better management of the students’ educational future.
Travis Ketner is a lawyer in San Antonio, Texas. He is a graduate of Texas Tech University School of Law and a recent recipient of a Master’s Degree in Educational Administration from Texas A&M-San Antonio. In addition to this article, he has been published in the Texas Bar Journal. His email address is tketner@gmail.com.
Endnotes
1. 18 U.S.C. § 666 (2012). This statute is colloquially referred to as “fraud in a program receiving federal funds.”
2. 18 U.S.C. § 201 (2012).
3. U.S. v. Franco, 632 F.3d 880 (5th Cir. 2011), U.S. v. Wilson, 453 F.App’x 498 (5th Cir. 2011), and U.S. v. Wilson, 408 F. App’x 798 (5th Cir. 2011).
4. U.S. v. Wilson, 453 F.App’x 498 (5th Cir. 2011).
5. 18 U.S.C. § 1952 (2012).
6. This information was drawn from news reports concerning an actual Texas school district.
7. 18 U.S.C. § 1951(a) (2012).
8. This information was drawn from news reports concerning an actual Texas school district.
9. 18 U.S.C. § 1341 (2012).
10. 18 U.S.C. § 1343 (2012).
11. U.S. v. Jeong, 624 F.3d 706 (5th Cir. 2010).
12. 18 U.S.C. § 1346 (2012).
13. Skilling v. U.S., 130 S.Ct. 2896 (2010) and Black v. U.S., 130 S.Ct. 2963 (2010).
14. 18 U.S.C. §§ 1961-1963 (2012).
15. Black’s Law Dictionary 241 (6th ed. 1990).
16. Black’s Law Dictionary 761 (6th ed. 1990).
17. Ianelli v. U.S., 420 U.S. 770 (1975).
18. 18 U.S.C. § 2 (2012).
