Leadership magazine Nov/Dec 2016 V46 No. 2 | Page 35

the justices’ respective backgrounds shaped their viewpoints on this far-reaching issue. The article will further analyze McDonnell v. United States’ relevance to California’s anti-corruption statutes. Finally, the court’s reasoning will be applied not to the lavish extravagances of a powerful governor, but instead to the statutory obligations and the workaday functions of California school board trustees. In so doing, we will seek to determine what official acts actually are, and what is necessary to ensure pay-to-play politics does not pollute public school districts. Access or excess? As Justice Roberts acknowledged, McDonnell’s activities were “dishonest” and “distasteful.” The governor and his wife, Maureen, became involved with businessman Jonnie Williams, who testified that he provided the McDonnell family with approximately $177,000 in “gifts,” including the use of vacation properties and a $50,000 loan to obtain the governor’s “help” to gain state-sponsored scientific studies to classify his tobacco-based dietary supplement as a pharmaceutical. The governor admitted that he requested the $50,000 loan and accepted gifts from Williams. That is the “quid.” In return, McDonnell provided five separate services. First, he asked his secretary of health to meet with Williams regarding clinical trials at Virginia universities. Second, Maureen McDonnell arranged a lunch with her husband at which Williams distributed grants to university doctors. Third, after becoming aware that university doctors were nonresponsive to Williams, Gov. McDonnell sent an email to his counsel requesting a meeting to discuss university research studies. Fourth, the governor invited Williams to a “health care leaders” reception at his residence. And fifth, at a Virginia employee health plan meeting, McDonnell publicly commented that the supplement was working well for him and that it “would be good for state employees.” Again, the governor admitted performing those services for Williams, but explained he had done similar things for others “literally thousands of times.” That was the “quo.” McDonnell was prosecuted under the A bounded definition of ‘official act’ can still allow room for prosecuting corruption, while at the same time some dishonest behavior may not be prosecuted. federal Hobbs Act, which makes it a crime for “a public official… directly or indirectly, to demand, seek, receive, accept or agree to receive or accept anything of value” in return for being “influenced in the performance of any official act.” An official act is defined as, “any decision or action on any question, matter, cause, suit, proceeding or controversy… which may be brought before any public official, in such official’s official capacity, or in such official’s place of trust or profit.” Thus, prosecutors needed to prove that a public official performed an official act in exchange for loans or gifts. At the trial, the district court instructed jurors that to convict McDonnell, they must find that he agreed “to accept a thing of value in exchange for official action.” The governor requested, and did not receive, an instruction that an official act must try to or “in fact influence a specific official decision that the government actually makes.” McDonnell’s defense was that promoting Williams’ business did not involve the exercise of actual sovereign power, so it was not an official act. The jury convicted McDonnell on 11 counts of bribery. Supreme Court reasoning The primary issue before the Supreme Court was whether arranging meetings, contacting public officials, hosting an event or publicly promoting a product were official acts. As usual, Justice Roberts displayed his preternatural brilliance at deconstructing statutes. Roberts reasoned that since the Hobbs Act refers to a “question, matter, cause, suit, proceeding or controversy…,” those words connote a formal exercise of governmental power, such as a lawsuit, hearing or administrative determination. Employing like reasoning, he reasoned requiring questions to be “pending” or “may be brought” before any public official means a thing that can be put on an agenda, tracked for progress, and then checked off as complete. Roberts’ narrow interpretation was broadened by previous Supreme Court decisions. United States v. Birdsall, 233 U.S. 223, 234 (1914), found that a public official may act by using his or her position to exert pressure on another official to perform an official act. An official can also act by using their position to provide advice to another official, knowing or intending that such advice will form the November | December 2016 35