Ethics Opinion Search

December 14, 1994


Opinion No. 1994-40


Rodney J. Bieker
4620 Hearthside Drive
Lawrence, Kansas 66049

Dear Mr. Bieker:

This opinion is in response to your letter of November 7, 1994, in which
you request an opinion from the Kansas Commission on Governmental Standards
and Conduct concerning the state conflict of interests law (K.S.A. 46-215
et seq.).

FACTUAL STATEMENT

We understand you request this opinion in your capacity as General Counsel
for the Kansas State Department of Education. You advise us that you have
established a not for profit corporation, The Julius and Shirley Bieker
Public Education Assistance Corporation. You indicate that there are two
projects currently planned by the corporation. The first relates to a
program in the Wichita School District for a pilot project called the
"Edison Plan" by which privatization of local schools is accomplished while
maintaining local school board control. The corporation contemplates
giving a gift to the Wichita School District to assist in funding the
project. The second project concerns the community college out of district
dilemma for counties; specifically, if a resident of a county goes to a
community college in a different county, the county of residence is
required to pay the out of county college. The corporation contemplates a
gift to the state to reduce the budgeting difficulties for counties without
community colleges.

You also advise us that no portion of the contributions to the corporation
will be used for the benefit of any member of the board of directors and
they will serve without compensation.

You have applied for and have received a charitable solicitation
contribution license pursuant to K.S.A. 17-1759 et seq. You also advise us
that you intend to solicit contributions to the corporation from
individuals and entities with which you have contact as a result of your
state duties.
Opinion No. 94-40
December 14, 1994
Page 2




QUESTION

Does K.S.A. 46-236 permit you to solicit contributions for the Julius and
Shirley Bieker Public Education Assistance Corporation from individuals and
entities which have a special interest in your duties as a state officer or
employee?

OPINION

K.S.A. 46-236 states:

"No state officer or employee or candidate for state office shall
solicit any economic opportunity, gift, loan, gratuity, special
discount, favor, hospitality, or service from any person known to
have a special interest, under circumstances where such officer,
employee or candidate knows or should know that a major purpose
of the donor in granting the same could be to influence the
performance of the official duties or prospective official duties
of such officer, employee or candidate.

Except when a particular course of official action is to be
followed as a condition thereon, this section shall not apply to
(1) any contribution reported in compliance with the campaign
finance act; (2) a commercially reasonable loan or other
commercial transaction in the ordinary course of business; or (3)
any solicitation for the benefit of any charitable organization
which is required to file a registration statement with the
secretary of state pursuant to K.S.A. 17-1740 or which is
exempted from filing such statement pursuant to K.S.A. 17-1741 or
for the benefit of any educational institution or such
institution's endowment association, if such association has
qualified as a nonprofit organization under paragraph (3) of
subsection (c) of section 501 of the internal revenue code of
1954, as amended."

In applying exception (3), we note that K.S.A. 17-1740 and 17-1741 were
repealed. In KCGSC Opinion No. 94-15, we held that those repeals did not
by implication repeal this exception, rather we treat those citations as
surplusage. Thus, in applying this exception to your situation, the
question is whether the corporation is a "charitable organization".

While the conflict of interests law does not define "charitable
organization", K.S.A. 17-1759 et seq., which replaced K.S.A. 17-1740 and
17-1741 when these sections were repealed, does define the term as follows:
Opinion No. 94-40
December 14, 1994
Page 3




K.S.A. 17-1760(a) states:

"'Charitable organization' means any person who engages in the
activity of soliciting funds or donations for, or purported to be
for, any fraternal, benevolent, social, educational, alumni,
historical, humane, public health or other charitable purpose.
Charitable organization does not include political parties,
political candidates or committees formed in support of political
candidates or political parties;".

K.S.A. 17-1760(b) states:

"'charitable purpose' means any purpose which promotes, or
purports to promote, directly or indirectly, the well-being of
the public at large or any number of persons, or any humane
purpose, whether such well-being is in general or limited to
certain activities, endeavors or projects;".

For a review of these sections, we are satisfied that an educational
purpose should be included within the definition of "charitable
organization" such that the exception in K.S.A. 46-236(3) applies to the
situation you describe. You may, therefore, make the solicitations you
contemplate so long as they are not conditioned on a particular course of
official action by you.

In closing, we do not believe the Legislature intended this broad an
exception to the no solicitation rule. This situation allows for an
inappropriate opportunity for a state officer or employee to pressure
citizens who have special interests in front of the officer or employee.
We intend to bring this matter to the attention of the Legislature and will
recommend a legislative change to prohibit the situation you describe.

Sincerely,



Richard C. Loux, Chairman

By Direction of the Commission

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