Greg has been the leading and best source in Ohio about the conduct of School Superintendent Stan Heffner.
The Ohio Inspector General found:
By providing testimony to the Legislature as the state’s principal employee for leadership in education, in support of a bill that could and ultimately did benefit a corporation with which he had entered into an agreement of employment, Heffner failed to meet the standards of proper governmental conduct as are commonly accepted in the community and subverts the process of government. Accordingly, the Office of the Ohio Inspector General finds reasonable cause to believe wrongful acts or omissions occurred in these instances. (Report p. 8, emphasis omitted.)
Notably, the Inspector General Report does not refer Heffner’s actions to the county prosecuting attorney. In other, seemingly less serious, matters the Inspector General has made such referrals. See our coverage here and here.
Did Heffner violate any criminal statutes?
Ohio received about $400 million in Race to the Top money. The Department of Education (ODE), as part of this program, sought to implement a system of assessment testing. Heffner testified before the House Finance Committee while holding the position of interim superintendent. According to the report, “the bill before the House included language requiring each teacher of a core subject area in a building that is ranked in the lowest 10 percent of all public school buildings according to performance index score, to retake all exams needed.” Educator testing services are provided by a private company, Educational Testing Service (ETS).
The problem is that ETS and Heffner had entered into an employment agreement about one month after his testimony. Heffner was a candidate for a position with ETS, and was interviewed, months before his testimony. According to emails released by the IG’s office, Heffner was in direct communication with ETS at the time.
There are two possible criminal violations here.
First, Heffner apparently used both his state-issued cell phone and his state email account to negotiate his agreement with ETS. This also means that he was likely conducting private business while on state time. The use of state equipment for personal use or for any activity undertaken for profit or gain is, essentially, theft of state resources. This is a common charge brought by prosecutors. The Inspector General recently referred for prosecution some ODNR who were conducting private business (hunting) while on state time. And, in this recent post, we highlighted theft of time prosecutions around the state that appear to be less serious than Heffner’s conduct.
Second, Ohio Revised Code 2921.42(A)(1), prohibits a public official from employing “the authority or influence of the public official’s office to secure authorization of any public contract in which the public official, a member of the public official’s family, or any of the public official’s business associates has an interest.” The Ohio Ethics Laws, R.C. 102.03(D) also prohibit a public official or employee from using “the authority or influence of office or employment to secure anything of value or the promise or offer of anything of value that is of such a character as to manifest a substantial and improper influence upon the public official or employee with respect to that person’s duties.”
Here are some examples from an old opinions from the Ohio Ethics Commission:
A township trustee who serves as an employee of a private fire company which is under contract to provide fire protection services to the township from discussing, deliberating, voting, or otherwise using the authority or influence of his position, either formally or informally, to authorize, secure, renew, modify, or renegotiate a contract between his employing fire company and the township, and from signing warrants and checks to the company for services provided under the contract. Ohio Ethics Commission Advisory Opinion No. 91-001 (1991).
a city council member is prohibited from authorizing or otherwise using the authority or influence of his office to secure approval of a public contract between the city and his employer, including any renewal, extension, or material change in the terms or conditions of the existing franchise agreement. Ohio Ethics Commission Advisory Opinion No. 85-008 (1985).
A member of city council is prohibited from knowingly authorizing, voting, or otherwise using the authority or influence of his office to secure approval of a public contract in which his employer has an interest. Ohio Ethics Commission Advisory Opinion No. 81-001 (1981).
A county sheriff or deputy sheriff is prohibited from authorizing, or using the authority or influence of his position to secure authorization of, a public contract between his county and the Buckeye State Sheriffs’ Association where he serves as an officer or director of the Association. Ohio Ethics Commission Advisory Opinion No. 92-004 (1992).
There are no really similar cases to rely upon, so it is hard to give a definite opinion. But a prosecutor willing to be aggressive in ethics prosecutions certainly could argue that the statute applies because the testimony before the state, in his capacity as interim superintendent, was designed to influence legislation which would result in a large contract to his employer.
An attorney who used to serve as Chief Ethics Officer for a state agency referred to this as a “close call.” Another attorney we consulted suggested that if there was a legitimate competitor to ETS in the market, then a conviction is less likely. However, if ETS is essentially the sole provider of services, such that the bill would inevitably lead to a contract with ETS, then the statute is more likely to apply. We don’t know the answer to this factual question.
The potential problem with a prosecution is that Heffner didn’t testify in favor of a contract with ETS, nor did he directly approve the contract. However, he did provide testimony, and he was in direct negotiations with ETS at the time of his testimony. Think of it this way: would ETS still have offered him the job if he provided testimony that was damaging to its chances of receiving the contract from Ohio?
Conclusion: Greg is likely correct in his calls for a review for prosecution. At a minimum, the Inspector General should have referred this matter to the prosecutor for review.