Different motives drive the private and not-for-profit sectors . Consequently, the two entities are j udged differently , both in the court of public opinion and by the law. This is because w hile the profit motive drives the private sector , the no t-for- profit sector is driven by the need to do public good. The treatment of these institutions is therefore anchored on this perception. As a result, when private and no t-for- profit entities violate governance laws they are judged differently. This is viewed as being appropriate due to the cost the public must pay for the existence of the no n profit sector as opposed to the private sector.
Regarding the violation of laws governing conduct, the courts have rendered appropriate judgment concerning the conduct of no t-for- profit officials. This is exemplified in several instances. In United States v. Stevenson , the United States (U.S) Court of Appeals for the Second Circuit affirmed the judgment and orders of the U.S District Court for the Southern District of New York. In its ruling , the court established that Stevenson was justly sentenced to a 36- month imprisonment by the lower court for the crimes of bribery, extortion, and conflict of interest . This was in regard to his role in the establishment and operation of adult day care centers in Bronx (United States, 2016) . Further, the lower court ordered forfeiture equivalent to US$ 22,000 and designated the defendant’s pension contributions as a substitute asset for forfeiture.
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In this case, the court ruled appropriately for several reasons. The offense level for the appellant was correctly determined as stipulated by U.S.S.G. § 2C1.1 given that the defendant was an elected public official convicted of more than one bribery count exceeding US$ 10,000 and but less than US$ 30,000. Secondly , the court ruled that there was a disparity between judgments rendered to the appellant and his co-defendants citing the fact that while the former was a public official, the latter were businessmen and hence the lower sentencing guidelines. Further, the businessmen chose to plead guilty and accept responsibility for their action while the appellant chose to go to trial. With regards to designating the appellant’s pension contributions, the court correctly ruled that when state and federal laws conflict , the latter holds.
In McDougall v. Scoppetta , the court ruled in favor of the petitioner. The court determined that the Fire Department of New York misused its disciplinary discretion as stipulated under All Units Circular (AUC) 202 § 8.3 . This was by rescinding the petitioner’s pension benefits valued at an estimated US$ 2,000,000 and medical benefits in addition to fining him US$ 80,000 and terminating his employment. This determination was made on the basis that the petitioner was an exemplary employee and his drug infraction appeared to be a one-time occurrence as exemplified by witness testimonials presented before the court. Further, given that the petitioner was the only breadwinner in his family, rescinding his pension and medical benefits was bound to disproportionately affect his family’s wellbeing. This is because w hile it is essential to impose financial sanctions on a public officer who has been convicted of felony charges related to official duties, such sanctions must not disproportionately affect the well-being of their family and beneficiaries (McDougall, 2009) .
I n McDonnell v. United States , the Supreme Court imposed higher standards for prosecuting public officials charged with violating the law while in office. This points to the fact that while in some decisions the courts have ruled appropriately in cases involving public officials, in some such as McDonnell v. United States the courts have ruled in a manner to suggest that violations by public officials are justified (Barnes, 2016) . The Supreme Court faulted the expansive definition of official acts with respect to the federal bribery statute, 18 U. S. C. §201 and official action as defined by Hobbs Act 792 F. 3d 478, 505. Specifically , the court ruled that setting up a meeting, calling other public officials and hosting events do not constitute official acts (Mcdonnell, 2016) . Further, the court determined that official actions constitute a public official making a decision or taking action with regards to a lawsuit before a court , determination before an agency or a hearing before a committee. It is t his ruling that triggered the retrial of the corruption prosecutions of D ean Skelos and Sheldon Silver that had already been determined (Weiser, 2016).
Through two separate rulings in 2009, the Supreme Court further raised the bar for corrupt public officials. Specifically, the court cited that the honest services statutes were too vague and prosecutions under these statutes can only be possible when there is clear evidence that an official received a bribe. Also , the Supreme Court defined kickback as anything of value or compensation that is given either directly or indirectly with the aim of improperly obtaining or rewarding positive treatment (Confessore, 2010) . Consequently, these judgments resulted in the retrial of Joseph L. Bruno’s case who had been convicted of fraudulently received bribes disguised as consulting fees from businessmen in 2009. In a new trial, Bruno was consequently acquitted in 2014 .
Another notable contrast between not-for-profit and private institutions pertains to salaries. In this regard, while leaders of private institutions are expected to earn big salaries, the same is not expected of not-for-profit leaders. This is based on the assumption that the money donated to these institutions should be directed towards doing public good. However, Garry (n.d.) holds a different opinion. He argues that since nonprofits exist in a free market, their ability to attract the best talent is based on their competitiveness. On the other hand, the competitiveness and survival of these institutions are driven by strong leadership. Therefore, outstanding leadership, coupled with adequate remuneration not only ensure that a not-for-profit institution is competitive but also facilitates the institution’s ability to be effective and sustainable in doing good.
T he courts have both adequately and disproportionately dealt with case s involving violations of governance laws by public officials. In case s wher e the courts have dealt disproportionately, the threshold for prosecuting corrupt public officials has been raised citing vagueness in the legal statutes applied in prosecution. Vagueness in legal statutes exist s by design to ensure that they apply to a vast array of cases. It is therefore vital for both state and federal prosecutors to specify the specific violations committed by public officers in their prosecution. Moreover, the need for proper remuneration for leaders of not-for-profit institutions cannot be overstated . This is because it is not only essential but also critical to the survival of the institutions .
References
Barnes, R. (2016). Supreme Court overturns corruption conviction of former Va. governor McDonnell . Retrieved from https://www.washingtonpost.com/politics/supreme-court-rules-unanimously-in-favor-of-former-va-robert-f-mcdonnell-in-corruption-case/2016/06/27/38526a94-3c75-11e6-a66f-aa6c1883b6b1_story.html?utm_term=.f8ca82fb505b
Confessore, N. (2010). Conviction in Bruno case is in doubt after ruling. Retrieved from http://www.nytimes.com/2010/06/25/nyregion/25bruno.html
Garry, J. (n.d). Is It OK For Nonprofit Leaders to Make Big Salaries ? Retrieved from http://www.joangarry.com/nonprofit-salaries/
Mcdonnell v . United States (2016). Retrieved from https://www.supremecourt.gov/opinions/15pdf/15-474_ljgm.pdf
Thomas J. McDougall v. Nicholas Scoppetta ( 2009 ). Retrieved from www.nycourts.gov/courts/ad2/calendar/webcal/decisions/2010/D27442.pdf
United States of America v. Eric Stevenson (2016). Retrieved from http://cases.justia.com/federal/appellate-courts/ca2/14-1862/14-1862-2016-08-17.pdf?ts=1471442407
Weiser, B. (2016). Silver, Like Skelos, Can Remain Free While Appealing Graft Conviction. Retrieved from https://www.nytimes.com/2016/08/26/nyregion/silver-like-skelos-can-remain-free-while-appealing-graft-conviction.html?_r=0
