Virginia corruption case may resonate in California

The U.S. Supreme Court’s recent decision to vacate the bribery conviction of former Virginia Gov. Bob McDonnell has implications for California and its anti-corruption statute.

The trial jury found that McDonnell performed official acts in exchange for gifts. But the Supreme Court decided that the jury was incorrectly instructed on the definition of the “official act” element of the federal corruption statute. The high court held that an “official act” involves a formal exercise of government power on something “pending” before a public official.

The crux of the case is whether arranging meetings, contacting officials, hosting events and product promotion were “official acts.”

For California school officials, the decision in United States v. McDonnell is instructive. The McDonnell reasoning will be applied not only to gubernatorial extravagances, but also to the statutory obligations of school board trustees. Understanding the definition of “official acts” is necessary to ensure that “pay to play” politics do not pollute California schools.

The McDonnell Case
Gov. McDonnell admitted receiving $177,000 in “gifts,” to “help” Jonnie Williams obtain state scientific studies to reclassify his supplement as a pharmaceutical. In return, he asked his Health Secretary to meet with Mr. Williams. His wife arranged a lunch where Mr. Williams distributed grants. He invited Mr. Williams to a health reception and publicly recommended the supplement for Virginia employees.

He was prosecuted under the Hobbs Act, which makes it a crime for “a public official … to accept or agree to receive or accept anything “of value” in return for being “influenced in the performance of any official act.” The District Court instructed the jury that in order to convict Gov. McDonnell, it must find that he agreed “to accept a thing of value in exchange for an official action.” Gov. McDonnell did not receive any instruction that an “official act” must “in fact influence a specific official decision.” His defense was that promoting Williams’ business did not involve the exercise of sovereign power.           

The crux of the case is whether arranging meetings, contacting officials, hosting events and product promotion were “official acts.”

Chief Justice Roberts reasoned that the words “question, matter, cause, suit, proceeding or controversy” connoted a formal exercise of power. Roberts similarly opined that “pending” connotes something that can be put on an agenda, tracked and completed. United States v. Birdsall held that an official may act by agreeing to use their position to pressure another official to perform an “official act.”

Therefore, an official can receive money for advocacy unless the government formally acts.

Really?

California Bribery Law
The California equivalent to the Hobbs Act is Penal Code § 68. The elements are virtually identical to the Hobbs Act, proscribing agreement to accept a “bribe” to perform an official “action” on any “pending” matter.

In light of McDonnell, what constitutes an “official act” for a California board trustee? The Education Code provides: “[E]very official action taken… shall be affirmed by a formal vote,” and “[T]he…board shall act by majority vote. ” The Government Code says a board may only act at a meeting on matters posted on the agenda. Under law, individual trustees have limited authority to commit “official act(s)”, but we all know that does not reflect reality. Trustees exercise influence by “providing direction” on many daily school matters.

Does McDonnell insulate them from committing bribery in their less formal acts?

Let us review a common scenario. Assume a trustee accepts lunches from a person wanting an administrator fired. The trustee agrees to “do what they can” and arranges a lunch with a board colleague. The trustee questions the administrator’s competence at a PTA meeting and a Board meeting. At this point, there is clearly an agreement to accept something of value for the exercise of influence, but there is no government act. However, assume that the trustee informs the superintendent that the administrator should be fired. At the next board meeting, the Board places the administrator on leave. The vote thus creates an “official act.”

Although not as opulent as Gov. McDonnell, the trustee’s conduct is arguably more criminal.

Be Careful What You Ask For …
The ironic byproduct of McDonnell is that political effectiveness becomes related to criminal culpability. Our trustee got the administrator fired, yet Gov. McDonnell did not deliver the university studies. Had he done so, he undoubtedly would have committed an “official act.” The likely scenario is that Gov. McDonnell consulted his counsel and was advised on just how far he could go. He may not go to jail, but his political career is over. Trustees intermittently receive training on “conflict of interest”, but not bribery. Personal gifts are treated differently than campaign contributions. Meeting with a constituent is fraught with peril when constituents provide value.

The real message is this: Meet your constituents, but split the tab.
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Ed’s Note:  Gregory J. Rolen is a partner in the San Francisco office of Haight Brown & Bonesteel LLP. He advises public entities in legal governance, as well as in political and public relations situations.