74 Op. Att'y Gen. 89 (1985)
 
74 OAG 89 90 91 92 93 94 95 96 END

Wisconsin Attorney General Opinions

Opinion # OAG 19-85,

21 May 1985

Public Officials;
Schools And School Districts;

Section 118.12(1)(a), Stats., applies only to
materials and items that are part of or
reasonably could become part of a school
district's instructional process;

enforcement authority usually lies with the
school board president for the district;
violations of Section 118.12(1)(a) could
possibly constitute violations of Sections
946.12 and 946.13.

DR. HERBERT J. GROVER,
State Superintendent
Department of Public
Instruction

You have sought my opinion on the following
questions relating to Section 118.12(1),
Stats.:

1. Is it a violation of Section
   118.12(1)(a) for a teacher to distribute
   advertising material to students
   offering books and periodicals for
   sale to students when:

   a. the books or periodicals are not
      used for instruction in the
      schools, or

   b. the distributed material has been
      approved by the school board or
      school administration in order to
      promote reading activities by
      students outside the classroom?

2. Is it a violation of Section
   118.12(1)(a) for a school administrator
   or school employe to arrange for:

   a. students to rent from a private
      company graduation caps and gowns
      to be used in the school's
      graduation ceremony?

   b. the in-school sale of graduation
      announcements, class rings, or
      other school jewelry to students?

   c. students to have their yearbook
      pictures taken by a particular
      photographer, who supplies film and
      photographic equipment to the
      school's newspaper and
      journalism classes?

   d. students to sell candy or other
      food products to the public where
      the proceeds go to a school
      program, such as the school band?

74 OAG 89 90 91 92 93 94 95 96 END

3. Is it a violation of Section
   118.12(1)(a) for a school employe who
   develops and owns an educational
   computer program to:

   a. sell the program to the school
      district in which she/he is
      employed? What if the employe
      has no involvement in the
      district's decision to buy the
      program?

   b. sell the program to a cooperative
      educational service agency (CESA)
      which is located in and serves the
      same area as the employing school
      district?

   c. sell the program to students as a
      "study aid"? What if the "study
      aid" is not used by any of the
      employe's students?

4. Is it a violation of Section
   118.12(1)(a) for a teacher to sell items
   which may be used as school books,
   supplies or equipment during the summer
   vacation period?

5. Who is responsible for enforcing
   Section 118.12?

6. Would violations of Section 118.12(1)(a)
   also be considered criminal conduct
   under the provisions of either Section
   946.12, Misconduct in public office or
   Section 946.13, Private interest in
   public contract prohibited?

My general answers, which will be elaborated
upon, are that Section 118.12(1)(a) applies
only to materials and items that are or
reasonably could become part of the
instructional programs of a school district;

that enforcement authority usually lies with
the school board president for the district:
and that violations of Section 118.12(1)(a)
could also constitute violations of
Sections 946.12 and 946.13.

Section 118.12(1) reads as follows:

118.12(1)(a)

Within the school district of his or her
jurisdiction or employment, no school
teacher, agency administrator or
employe, school district administrator
or other school employe connected with
any public school may act as an agent or
solicitor for the sale of school books,
school supplies or school equipment, or
solicit or promote such sales to
individuals or the school district or
receive any fee or reward for any such
sales.

74 OAG 89 90 91 92 93 94 95 96 END

118.12(1)(b)

Any person violating this subsection
shall forfeit not less than $50 nor more
than $200 for each offense and may be
removed from office therefor.

The broad purpose behind this statute was
described by one of my predecessors.

In 12 Op. Att'y Gen. 72 (1923),

it was stated that

   the purpose of the statute is manifestly
   to prevent persons connected with the
   public school system from having their
   judgments warped by financial interest
   in the sale of school supplies.

Similarly, in
27 Op. Att'y Gen. 267, 268-69 (1938),
it was stated:

   From the wording of the statute taken as
   a whole, it is apparent that at the time
   of the enactment thereof the legislature
   recognized that the persons named
   therein might be in a position to take
   an unfair advantage either of the school
   or of the students attending such a
   school and it was to prevent such an
   abuse that the statute was enacted.

The key to answering the majority of your
questions lies in the proper interpretation
of the phrase

   "school books, school supplies
   or school equipment."

As you correctly point out in your request,
the phrase prior to 1961 read "school books,
maps, charts, school library books, school
furniture, apparatus or stationery."

In 1961 this language was changed to read, as
it does currently, "school books, school
supplies or school equipment."

See Chapter 253, Laws of 1961.

The drafting record for chapter 253, Laws of
1961, contains no explanation for the change.

In fact, the drafting file seems to indicate
that the Legislature was focusing only upon
the class of persons to whom Section 118.

12(1)(a) (then, Section 40.93) would apply.

In my opinion, then, the reworking of the
phrase "school books, maps, charts, school
library books, school furniture, apparatus or
stationery" was of little consequence.

The old phrase was perhaps more explicit and
more obviously applicable only to items that
are tied to a school's instructional process.

However, in the absence of any legislative
history, other than what I have already
discussed.

I do not believe that the current phrase
should be construed any differently.

Accordingly, I could interpret the phrase
"school books, school supplies or school
equipment" to apply only to books, supplies
and equipment which are or reasonably could
become tied to a school's instructional
process.

74 OAG 89 90 91 92 93 94 95 96 END

I.

Applying this definition to subpart (a) of
your first question, related to a teacher
distributing advertising materials to
students offering books and periodicals for
sale, it is my opinion that a teacher cannot
distribute such materials if the books and
periodicals being advertised are or
reasonably could become instructional
materials within the district.

If the books and periodicals are or
reasonably could be used in the classroom,
or are or reasonably could become part of
the collection in a school library or
instructional materials center, then
they constitute "school books" within
the meaning of Section 118.12(1)(a).

Further, the teacher would be "promoting"
a sale to "an individual."

Even if the teacher did not receive
remuneration of any sort, the statute
still appears to stand in the
way of such advertising.

A person cannot "solicit" or "promote"
or "receive any fee or reward."

The use of disjunctives suggests that
promoting a sale is different than receiving
a payment or royalty or bonus for a sale.

The statute appears to bar even advocating
sales of books and periodicals.

Subpart (b) of your first question asks
whether it makes any difference if the
materials being advertised have been approved
by the school board or school administration
in order to promote reading activities by
students outside the classroom.

In my opinion, a violation of Section
118.12(1)(a) would occur whenever a teacher
distributes advertising materials relating
to books and periodicals which have been
approved by the school board to promote
outside reading.

The reason is that such materials could
very well become part of a district's
instructional program or part of a
district's library collection.

II.

The items set forth in question 2 caps and
gowns, graduation announcements, class rings
and other school jewelry, yearbook pictures
and candy and other food products sold by
students to the public do not, in my
view, constitute "school books, school
supplies or school equipment."

These items are generally sold on a periodic
basis only, are not part of the ongoing
curriculum and are not a part of the
instructional process within a
school district.

Thus, in my opinion, Section 118.12(1)(a)
does not apply to these items.

74 OAG 89 90 91 92 93 94 95 96 END

III.

Your third question focuses upon educational
computer programs and how they are to be
handled under Section 118.12(1)(a).

As a preliminary matter, I would note that
although Section 118.12(1)(a) uses the terms
"school books," "school supplies" and "school
equipment," these terms should not be given a
technical meaning.

In my opinion, the terms were meant
to be comprehensive.

That is, they were meant to encompass
all items which are proper to be
used in the instructional process.

Computer programs, in my opinion, constitute
instructional materials.

Accordingly, in response to subpart (a) of
your third question, it is my opinion that if
a school district employe or other person
specified in Section 118.12(1)(a) develops an
educational computer program, that person
cannot sell the program to the district by
which he or she is employed if the program is
or reasonably could become part of the
district's instructional materials.

In further response to subpart (a) of your
third question, I do not believe that it
makes any difference that the person may not
be involved in the district's decision to buy
the program.

A sale of this nature would still generate a
"fee or reward" for the seller, and thus it
is clearly prohibited by the statute.

In response to subpart (b) of your third
question, selling a computer program to a
cooperative educational service agency (CESA)
is, in my opinion, a nearly indistinguishable
situation, given the agency relationship
between CESAs and the districts they serve.

Hence, programs should not be sold to the
CESA that serves the district by which
the seller is employed or with which
the seller is connected.

Lastly, you ask in subpart (c) whether it
makes any difference if the program
is sold as a "study aid."

Again, I believe that the guiding principle
should be whether or not the program is or
could reasonably become part of the
instructional process that takes
place within the school district.

If it is part of the instructional process or
reasonably could become so in the future,
then in my opinion the educational computer
program, however it may be labelled, falls
within the parameters of the phrase "school
books, school supplies or school equipment."

74 OAG 89 90 91 92 93 94 95 96 END

IV.

Your fourth question asks whether it is a
violation of Section 118.12(1)(a) for a
teacher to sell items which may be used
as school books, supplies or equipment
during the summer vacation period.

I find nothing in Section 118.12(1) that
would lead to a conclusion that sales,
solicitation and promotional activities
related to books, supplies and equipment used
during summer months can be viewed any
differently than sales, solicitations and
promotional activities relating to materials
used during the traditional academic year.

V.

Your fifth question focuses upon
enforcement of Section 118.12(1).

In my opinion, enforcement authority
lies with the school board president
within each district.

The penalty for violating Section
118.12(1)(a) is a forfeiture of not
less than fifty dollars and not more
han two hundred dollars for each offense,
and possible removal from office.

Section 120.15(4) states clearly that the
school district president (the president of a
school board) of a common or union district
is responsible for prosecuting

   "any action for the recovery of
   any forfeiture incurred under
   Chapters 115 to 121 in which
   the school district is interested."

If the school district president has incurred
the forfeiture, then Section 120.15(4) hands
prosecutorial authority to the school
district treasurer.

While by its terms Section 120.15 applies
only to common or union high school
districts, the Section is also made
applicable to city school districts
and unified school districts by
Sections 120.49 and 120.75.

These Sections specify that the school boards
and school officers of city districts and
union districts have the same powers and
duties as the boards and officers of a
common school district.

One situation unique to a city district,
however, is that if the board president is
the one who incurs a forfeiture for violating
Section 118.12(1)(a), prosecutorial authority
then passes to the city treasurer.

The reason is that under Section 120.48(2)
the city treasurer serves as the treasurer of
the school board in a city school district.

I would also note that if a person charged
with prosecuting violations of Section
118.12(1)(a) fails to prosecute within ten
days after being requested in writing by
an elector of the school district to do so,
any elector of the school district may then
prosecute the action.

Section 118.12(3), Stats.

74 OAG 89 90 91 92 93 94 95 96 END

An action under Section 118.12(1)(a) would,
in my opinion, be covered by chapter 778.
Section 778.01 states that

  "where a forfeiture imposed by statute
   shall be incurred it may be recovered
   in a civil action . . . ."

Section 778.02 states that

  "every such forfeiture action shall be
   in the name of the state of Wisconsin."

The persons authorized to "prosecute"
violations of Section 118.12(1)(a),
however, may not proceed alone
in filing a civil action.

In
State v. Wisconsin Telephone Co.,
91 Wis.2d 702, 713,
284 N.W.2d 41 (1979),
the Wisconsin Supreme Court noted its

  "disapproval of private persons
   purporting to bring actions
   on behalf of the state."

In regard to a statutory Section which
contained the phrase "the person or
corporation prosecuting thereof," the court
concluded that the phrase cannot be construed
to mean that a private person could commence
a forfeiture action alone, and thus force the
state to become a party.

Rather, it must be held to mean that a
private person could prosecute in conjunction
with the state pursuant to Section 288.04
[now Section 778.04], which provides in part,

  "In case a portion of any forfeiture
   shall belong or shall be payable to any
   person, he may join with the state as a
   plaintiff; . ."

Wisconsin Telephone, 91 Wis.2d at 713-14.

Based upon this case, I conclude that the
authority to "prosecute" violations of
Section 118.12(1)(a) means that the persons
given this authority may only make the sworn
relation upon which a prosecuting authority
of the state bases a forfeiture action; no
independent prosecutorial authority exists
under Section 118.12.

VI.

Your sixth and final question asks whether
violations of Section 118.12(1)(a) could also
constitute criminal conduct under Sections
946.12 (misconduct in public office) and
946.13 (private interest in a public
contract).

In my opinion, violations of Section
118.12(1)(a) could constitute violations of
the latter statutes.

Both Sections 946.12 and 946.13 apply to
public officers and public employes.

The definitions of the terms "public officer"
and "public employe" are set forth in Section
939.22(30).

A "public officer" is any person "appointed
or elected according to law to discharge a
public duty for the state or one of its
subordinate governmental units."

74 OAG 89 90 91 92 93 94 95 96 END

A "public employe" is any person, not an
officer, who "performs any official function
on behalf of the state or one of its
subordinate governmental units and who
is paid from the public treasury of the
state or subordinate governmental unit."

In my opinion, those categories of persons
bound by Section 118.12(1)(a):school
teachers, agency administrators or employes,
school district administrators or other
school employes easily fall within
the definitions of either a public
officer or public employe.

An analysis of a predecessor to Sections
946.12 and 946.13 supports this conclusion.

Section 348.28, Stats. (1953), whose
principles were incorporated into Sections
946.12 and 946.13 by chapter 696, Laws of
1955, specified that the Section applied to,
among others, "any officer, agent or clerk of
. . any school district or school board . . .
or in the employment thereof."

It appears that the Legislature, when
adopting Sections 946.12 and 946.13,
simply condensed the lengthy list
down into two general categories:
public officers and public employes.

There is no indication that school district
officers, teachers or other district
employes were to be excluded.

Given that the persons described in Section
118.12(1)(a) are also covered by Sections
946.12 and 946.13, it is conceivable that
conduct punishable under Section 118.12(1)(a)
could be punishable also under the other two
statutory Sections, depending upon the facts.

No double jeopardy problem arises since the
penalties under Section 118.12 are civil.

Double jeopardy problems only arise if a
person is subjected to two possible criminal
penalties for the same conduct.

State v. Roggensack,
15 Wis.2d 625, 633,
13 N.W.2d 389 (1962).

BCL:RCB

74 OAG 89 90 91 92 93 94 95 96 END