Wisconsin Legislature: Public Officials; Schools And School Districts;

74 Op. Att'y Gen. 89, 90 (1985)

Section 118.12(1) reads as follows:

74 Op. Att'y Gen. 89, 90-91 (1985)

(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 Op. Att'y Gen. 89, 91 (1985)

(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.

74 Op. Att'y Gen. 89, 91 (1985)

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 "[t]he 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:

74 Op. Att'y Gen. 89, 91 (1985)

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.

74 Op. Att'y Gen. 89, 91 (1985)

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

ch. 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 would 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 Op. Att'y Gen. 89, 92 (1985)

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"

"promote"

"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.

74 Op. Att'y Gen. 89, 92 (1985)

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.

74 Op. Att'y Gen. 89, 92 (1985)

II.

74 Op. Att'y Gen. 89, 92 (1985)

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 Op. Att'y Gen. 89, 93 (1985)

III.

74 Op. Att'y Gen. 89, 93 (1985)

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.

74 Op. Att'y Gen. 89, 93 (1985)

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.

74 Op. Att'y Gen. 89, 93 (1985)

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.

74 Op. Att'y Gen. 89, 93 (1985)

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."