Bribery Is Not a Free Speech Right, Judge Says

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In late 2012, a California district attorney’s office obtained an indictment charging 18 defendants, including school board members, administrators and contractors, with conspiracy, bribery, perjury, filing false gift reports and influencing an elected school board member. The indictment stemmed from a “pay-to-play” culture in which the contractors were awarded construction business worth 10s of millions of dollars while providing lavish meals, sports and entertainment tickets, travel and other “gifts” and campaign donations to board members and administrators, often at their request. The officials failed to report the gifts as required by law and the gifts often exceeded the legal limits for gifts to public officials.

While prosecutors obtained eight felony and 12 misdemeanor pleas, none were for felony bribery, although the contractors did plead guilty to a misdemeanor charge of providing something of value to a school board member to influence a decision, an offense akin to bribery. The prosecution wrapped up in mid-2014.

The school district, now lead by a whole new board, filed suit under Government Code section 1090 to have the contracts with the contractors declared void and to recover all public money paid to the contractors, amounting to $26 million. Government Code section 1090 provides that, when a public official makes a contract in which he or she has a financial interest, the contract is void and any public money under the contract has to be returned to the public entity. The school board’s theory is that the gifts provided to the board members and administrators by the contractors gave them a prohibited financial interest in the contracts.

In their defense, the contractors claimed t the gifts were not bribes, pointing out that no contractor or public official had been convicted of offering or receiving a bribe. The contractors claimed that gifts were protected by their First Amendment right to free speech to “petition” the government.

Last week, a Superior Court judge flatly rejected this defense. The court held that, because the gifts were part of an illegal scheme to influence official action, as confirmed by the guilty pleas of both the contractors and the public officials, the First Amendment rationale did not apply, as it was not a valid, legal exercise of the asserted constitutional right in the first instance. The parties will now proceed to litigate the core claims in the school board’s lawsuit that the public officials had a prohibited financial interest when they made the contracts.

- See more at: http://www.bbknowledge.com/publicpolicy-ethics/bribery-is-not-a-free-speech-right-judge-says/#sthash.tHqkTxiY.dpuf

In late 2012, a California district attorney’s office obtained an indictment charging 18 defendants, including school board members, administrators and contractors, with conspiracy, bribery, perjury, filing false gift reports and influencing an elected school board member. The indictment stemmed from a “pay-to-play” culture in which the contractors were awarded construction business worth 10s of millions of dollars while providing lavish meals, sports and entertainment tickets, travel and other “gifts” and campaign donations to board members and administrators, often at their request. The officials failed to report the gifts as required by law and the gifts often exceeded the legal limits for gifts to public officials.

While prosecutors obtained eight felony and 12 misdemeanor pleas, none were for felony bribery, although the contractors did plead guilty to a misdemeanor charge of providing something of value to a school board member to influence a decision, an offense akin to bribery. The prosecution wrapped up in mid-2014.

The school district, now lead by a whole new board, filed suit under Government Code section 1090 to have the contracts with the contractors declared void and to recover all public money paid to the contractors, amounting to $26 million. Government Code section 1090 provides that, when a public official makes a contract in which he or she has a financial interest, the contract is void and any public money under the contract has to be returned to the public entity. The school board’s theory is that the gifts provided to the board members and administrators by the contractors gave them a prohibited financial interest in the contracts.

In their defense, the contractors claimed t the gifts were not bribes, pointing out that no contractor or public official had been convicted of offering or receiving a bribe. The contractors claimed that gifts were protected by their First Amendment right to free speech to “petition” the government.

Last week, a Superior Court judge flatly rejected this defense. The court held that, because the gifts were part of an illegal scheme to influence official action, as confirmed by the guilty pleas of both the contractors and the public officials, the First Amendment rationale did not apply, as it was not a valid, legal exercise of the asserted constitutional right in the first instance. The parties will now proceed to litigate the core claims in the school board’s lawsuit that the public officials had a prohibited financial interest when they made the contracts.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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