December

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I love being fondled by my fans afterwards! Even humans. I'm intrigued by that race into whom God was once born, that race created in God's image.

(Kids: buy my whole calendar! $7 at the Family Music Center, 4110 SW 9th, Des Moines Iowa!)

Code of Musical Business Ethics

From the Code of Iowa, with comments

The following comments should not be taken as legal advice. They may not even be the opinion of their author upon further study.

Introduction: Parents trust music teachers to give them honest, impartial, accurate advice in purchasing musical instruments. Human beings being what they are, this creates a temptation for music stores and band directors to profit from this trust, by a "kickback" offered by the music store to the band director for a referral in the store's direction. "Kickbacks" have taken many forms, and are ordinarily indirect and subtle, to avoid flagrant violation of the law; not that subtlety makes them any more legal, but it makes them more difficult to prove.

"Kickbacks" betray not only the trust of parents, ensnaring them into gullibly paying inflated prices for inferior products and services, but eventually it hurts even the teachers accepting the bribes, who are taken for granted by the music store which can now get away with inferior products and services needed by the teachers. Even the offending music store suffers, by having Heaven's gift of music transformed from a source of joy for the youth inspired to excellence, into an underworld of dollar signs where crime is a way of life.

Fortunately, from what I can determine, a minority of teachers succumb to the temptation of kickbacks. Thank you, you who are too honest to accept bribes, or so pure that those ready to pay them knew better than to even approach you, so that you did not even realize they were influencing the preferences of some of your peers.

(Introduction is continued at the end, after the reading of the Iowa Code.)

The Iowa Code

68B.2A Conflicts of interest.

1. Any person who serves or is employed by the state or a political subdivision of the state shall not engage in any outside employment or activity which is in conflict with the person's official duties and responsibilities. In determining whether particular outside employment or activity creates an unacceptable conflict of interest, situations in which an unacceptable conflict shall be deemed to exist shall include, but not to be limited to, any of the following:

a. The outside employment or activity involves the use of the state's or the political subdivision's time, facilities, equipment, and supplies or the use of the state or political subdivision badge, uniform, business card, or other evidences of office or employment to give the person or member of the person's immediate family an advantage or pecuniary benefit that is not available to other similarly situated members or classes of members of the general public. This paragraph does not apply to off-duty peace officers who provide private duty security or fire fighters or emergency medical care providers certified under chapter 147A who provide private duty fire safety or emergency medical services while carrying their badge or wearing their official uniform, provided that the person has secured the prior approval of the agency or political subdivision in which the person is regularly employed to engage in the activity. For purposes of this subsection, a person is not "similarly situated" merely by being or being related to a person who serves or is employed by the state or a political subdivision of the state.

Comments: A music teacher working for a music store when "off duty" from school duties is comparable to a policeman moonlighting "off duty", but the intent of this law is that even in this situation, the moonlighting comes close enough to an appearance of a conflict of interest that it needs to receive official approval from the employer. Applied to teaching, this principle says a teacher should not moonlight for a music store, not even to give lessons, without prior approval from a school board. This puts any potential conflict on the record so parents can know.

b.The outside employment or activity involves the receipt of, promise of, or acceptance of money or other consideration by the person, or a member of the person's immediate family, from anyone other than the state or the political subdivision for the performance of any act that the person would be required or expected to perform as a part of the person's regular duties or during the hours during which the person performs service or work for the state or political subdivision of the state.

Comments: Referring parents to a particular music store is THE most valuable "service" for which that music store could possibly remunerate. For example, a "preferred brands" list which includes brands supplied only by one music store is of immense value to that music store. Other hypothetical examples of "services" which would be of immense value to a music store would be oral recommendation of one store over another, or setting up a rental demonstration night to which only one store is invited. The compiling and distribution of such a list is done on school premises, on school time, by school employees whom the parents depending on this list are trusting to give them unbiased advice. If the music store provides compensation to the teachers ostensibly for other duties, (ie: coming to another school's rental night to endorse the music store, or "hanging around" the store on Saturday mornings for $40, the much greater value of the public endorsement at the teacher's own school must be understood as the ACTUAL service which is being compensated, and the presentation that the compensation is for services of far less value must be understood as diversions.

c. The outside employment or activity is subject to the official control, inspection, review, audit, or enforcement authority of the person, during the performance of the person's duties of office or employment.

2. If the outside employment or activity is employment or activity described in subsection 1, paragraph "a" or "b", the person shall immediately cease the employment or activity. If the outside employment or activity is employment or activity described in subsection 1, paragraph "c", or constitutes any other unacceptable conflict of interest, unless otherwise provided by law, the person shall take one of the following courses of action:

a. Cease the outside employment or activity.

b. Publicly disclose the existence of the conflict and refrain from taking any official action or performing any official duty that would detrimentally affect or create a benefit for the outside employment or activity. For purposes of this paragraph, "official action" or "official duty" includes, but is not limited to, participating in any vote, taking affirmative action to influence any vote, granting any license or permit, determining the facts or law in a contested case or rulemaking proceeding, conducting any inspection, or providing any other official service or thing that is not available generally to members of the public in order to further the interests of the outside employment or activity.

3. Unless otherwise specifically provided the requirements of this section shall be in addition to, and shall not supersede, any other rights or remedies provided by law.

722.10 Commercial bribery.

1. As used in subsection 2, the following definitions shall apply unless the context otherwise requires:

a. "Employer" means any sole proprietor, partnership, corporation, association, or other entity or organization.

b. "Employee" includes every officer, employee, agent or representative.

c. "Gratuity" means consideration in any form, including but not limited to a gift, commission, discount and bonus.

2. It is unlawful for a person to offer or deliver directly or indirectly for the personal benefit of an employee acting on behalf of the employee's employer in a business transaction or course of transactions with the person a gratuity in consideration of an act or omission which the person has reason to know is in conflict with the employment relation and duties of the employee to the employer. It is unlawful for an employee acting on behalf of the employee's employer in a business transaction or course of transactions with a person to solicit or receive from the person a gratuity directly or indirectly for the personal benefit of the employee in consideration of an act or omission which the employee has reason to know is in conflict with the employment relation and duties of the employee to the employer.

3.A violation of subsection 2 is a class "D" felony.

722.1 Bribery.

A person who offers, promises, or gives anything of value or any benefit to a person who is serving or has been elected, selected, appointed, employed, or otherwise engaged to serve in a public capacity, including a public officer or employee, a referee, juror, or jury panel member, or a witness in a judicial or arbitration hearing or any official inquiry, or a member of a board of arbitration, pursuant to an agreement or arrangement or with the understanding that the promise or thing of value or benefit will influence the act, vote, opinion, judgment, decision, or exercise of discretion of the person with respect to the person's services in that capacity commits a class "D" felony. In addition, a person convicted under this section is disqualified from holding public office under the laws of this state.

Comment: Compensation of teachers by a music store, especially on terms which are not made public, obviously would, hypothetically, shape the "opinion, judgment, decision, or exercise of discretion" of the teachers as they perform their jobs. This code section identifies such activity as a class "D" felony for the music store, and the following code section identifies it as a class "C" felony for the hypothetical music teacher, and grounds for revocation of license.

722.2 Accepting bribe.

A person who is serving or has been elected, selected, appointed, employed, or otherwise engaged to serve in a public capacity, including a public officer or employee, a referee, juror, or jury panel member, or a witness in a judicial or arbitration hearing or any official inquiry, or a member of a board of arbitration who solicits or knowingly accepts or receives a promise or anything of value or a benefit given pursuant to an understanding or arrangement that the promise or thing of value or benefit will influence the act, vote, opinion, judgment, decision, or exercise of discretion of the person with respect to the person's services in that capacity commits a class "C" felony. In addition, a person convicted under this section is disqualified from holding public office under the laws of this state.

720.1 Compounding a felony.

A person having knowledge of the commission by another of a felony indictable in this state who receives any consideration for a promise to conceal such crime, or not to prosecute or aid or give evidence to the prosecution of such crime, compounds that felony. Compounding any felony is an aggravated misdemeanor.

Comment: A hypothetical music teacher who is guilty of taking compensation for alteration of his discretion and opinions, commits an additional crime if he does not cooperate with authorities by providing evidence of fellow music teachers who share the same guilt.

721.2 Nonfelonious misconduct in office.

Any public officer or employee, or any person acting under color of such office or employment, who knowingly does any of the following, commits a serious misdemeanor:

1. Makes any contract which contemplates an expenditure known by the person to be in excess of that authorized by law.

2. Fails to report to the proper officer the receipt or expenditure of public moneys, together with the proper vouchers therefor, when such is required of the person by law.

3.Requests, demands, or receives from another for performing any service or duty which is required of the person by law, or which is performed as an incident of the person's office or employment, any compensation other than the fee, if any, which the person is authorized by law to receive for such performance.

Comment: This code penalty contains the penalty for the violation described previously. If a hypothetical music teacher were to receive payment for doing no more than what his/her contract already requires, even if, ostensibly, it is for other services which actually are of little relative value, the penalty is a serious misdemeanor.

4. By color of the person's office and in excess of the authority conferred on the person by that office, requires any person to do anything or to refrain from doing any lawful thing.

5.Uses or permits any other person to use the property owned by the state or any subdivision or agency of the state for any private purpose and for personal gain, to the detriment of the state or any subdivision thereof.

Comment: If a rental demonstration night were to hypothetically impose conditions for participation which can only be met by one music store, which conditions cannot clearly be justified as in the interest of parents or of the school, then a monopoly situation is created for the music store, on school premises, which could violate this code section.

6. Fails to perform any duty required of the person by law.

7. Demands that any public employee contribute or pay anything of value, either directly or indirectly, to any person, organization or fund, or in any way coerces or attempts to coerce any public employee to make any such contributions or payments, except where such contributions or payments are expressly required by law.

8. Permits persons to use the property owned by the state or a subdivision or agency of the state to operate a political phone bank for any of the following purposes:

a. To poll voters on their preferences for candidates or ballot measures at an election; however, this paragraph does not apply to authorized research at an educational institution.

b. To solicit funds for a political candidate or organization.

a. To urge support for a candidate or ballot measure to voters.

STATUTE OF LIMITATIONS: SEE 614.1(4) & 614.4. 5 years, starting when fraud is discovered.

Introduction, Continued:

Incident #1: In 1968 my father, now deceased, taught in a public school and allowed Hospe's music to give the "rental demonstration", the most lucrative thing a music store can do, where in a single night a store "demonstrates" and rents dozens to hundreds of musical instruments in a single night to the parents of the community. At the end of the year, without a word spoken to prepare my father for it, Hospe's sent him a check for $200. That was patently illegal, in violation of the preceding laws.

Incident #2: In about 1983, a teacher (now deceased) from West Des Moines, and even a friend of our family, asked my mother, the owner of our family music business from 1972-1999, if she would give West Des Moines band directors $5 for each "upper unit referral" (for each time a teacher persuades a parent to come to our store to buy a "step-up" or upgrade, higher priced instrument). She refused, it being unethical and illegal. From that very moment, we lost our considerable business in music and supplies with the West Des Moines music department, and the number of parents coming to our store to rent instruments for beginners was slashed. From that point, West Des Moines business went primarily to Rieman's.

Incident #3: In about 1974, I attended a workshop given by a Yamaha clinician at the University of Northern Iowa. He compared his Selmer tenor with his Yamaha. He told us that in recording studios, he uses his Selmer alto sax, but prefers his Yamaha tenor sax. I waited until everyone else had left, and approached him. I introduced myself as a repairman who, in the course of repairing Yamahas, had discovered their brass was an inferior grade, and had seen more repair problems generally in that brand; how could he then say a Yamaha was superior to a Selmer? Since everyone had already gone, both students and band directors, he actually confessed to me that he played his Selmer alto and tenor, both, in recording studios; he had lied for the money paid him by Yamaha. Of course, it mattered little what he admitted to me. His payment was for persuading the scores of band directors who had already left, that Yamaha was the choice of the finest recording studio artists.

These are the most direct evidences of kickbacks which my family has personally experienced. But they made us sensitive enough to take seriously the many reports from band directors, salesmen, customers, and other music retailers about the many varieties of kickbacks.

For example, for the past two years, West Des Moines music teachers have given parents a "preferred brands" list which just happens to have brands carried only by Rieman's. A "preferred brands" list that favors a music store is not, by itself, illegal; unless it can be proven at least one of the teachers is rewarded. But suspicions are raised by the fact that there is absolutely no sense behind a "preferred brands" list which lists only two "preferred brands", of the many excellent brands available, for each band instrument. The absurdity of such a list is exposed by observing the variety of brands used by professionals! Or even by high school musicians in the All State band and orchestra! And on this list of only two brands per instrument, Yamaha is one of the two, crowding out such top brands as Selmer, Leblanc, and Armstrong! Yamaha may be decent enough for beginners, but I cannot imagine any criteria by which it merits be ranked that high! Yamaha took the market by storm in the 60's by claiming it was a professional quality instrument, which it was not, but at a price midway between a student and professional price. Some music stores were motivated to push that "line" because while Yamaha's "suggested retail" placed them midway between the student and professional model prices, the wholesale was equal to student prices. In other words, while American made manufacturers might sell a student trumpet for a wholesale of, for example, $125, with a "suggested retail" of $250, Yamaha sold for $125, with a suggested retail of $400. No wonder some music stores were enthusiastic about them, enough to "persuade" key band directors to share their enthusiasm!

Meanwhile in the Des Moines Schools, about two years ago, the position of head of the music department was eliminated. Previously, the head of the music department scrupulously avoided any appearance of conflict of interest by making sure no music store was given greater access to parents than any other, through teacher referrals, or informational fliers. There were no "rental demonstrations"; parents were left to shop for themselves. Parents received fliers giving prices and terms of the music stores, which were presented accurately and fairly. But now that the music coordinator position has been eliminated, band directors are on their own to pass information to parents, and some of them are sending information to parents that lists only one store, perhaps not even aware of Conflict of Interest issues. One band director last year even held a rental demonstration, at Roosevelt, to which only one store was invited. (Not ours.) This ethical chaos, in the absense of the music coordinator, in the Des Moines Schools, is one reason I am writing this now.

One common local practice in the 70's was for Band Director "A" to be hired to conduct the "rental demonstration" at school B, while the band director for school B was hired to conduct the "rental demonstration" at school A. It was done that way to make it harder to prove that a band director was being paid to conduct a rental demonstration at his own school. But it was just as illegal.

A parent from Ankeny told me last year the parents were told NOT to purchase an instrument until the rental demonstration, where they could see all their options. Rieman had the demonstration. Then that night, they were told that the most important lesson of the year would be the next morning, so their child should not be without! On top of this outrage, the only clarinets Rieman had were expensive wood clarinets!

Notice that this last story was not evidence of a kickback; all we have is a monopoly for one store, courtesy of teacher policy, which creates an appearance of a conflict of interest; or a suspicion that only a "kickback" could account for such teacher behavior.

I am well aware that by writing this, and giving a name or two, I might well provoke a backlash that might rob me of the rest of my business. But after 25 years of publicly opposing corruption in the abortion industry, in the Department of Human Services Child Abuse division, and in a few weird education movements, and in politics in general, through my Prayer & Action News since 1989 and my Uncle Ed. Show since 1995, I have learned to trust God for my provision; which means standing for what He stands for, that being the safest way to assure me of the resources I need. At 56, it is probably too late for me to retire a wealthy man. So I will settle for a legacy of ethics. I have considered the possibility of being sued. But I have been careful to say no more than I could prove in court if challenged. It would be foolish for anyone to sue me, because the publicity of such a lawsuit would dwarf the small circulation I expect this to have. The greater risk of someone who might attempt to sue me is that through the "Discovery" that would allow me, (the right of the accused to cross examine the accuser, and to have access to the accuser's relevant records), I would be able to accumulate the evidence needed to prosecute them in criminal court. As for the expense of defending myself, I have had enough courtroom experience that my need for professional help would not be prohibitive.

I urge you, parents and teachers both, to treasure the information here as information you are never likely to see again, "on the record", with the author's name attached; because literature like this is financially dangerous. But anyone who has followed my career knows I am not motivated by financial security. Actually I feel God has used corruption in music retailing to shake me loose from a life lived only for self. It reduced our family business about the same time corruption in divorce court tore my mind away from my own comfortable way of life and focused it on general political corruption. So I dropped back to part time in retailing from about 1980 to 1996, spending the rest of my time in politics, until my mother had her stroke and my father died. I believe God wanted me butting my head against political walls all those years, and I believe it was God's timing when circumstances returned me to full time music retailing. But that is another story.

My hope for the music world is the same as my hope for the political world: that Christians, and all those who are honest, among my readers, will use the information I help provide, to cleanse the industry; that children may once again be the ones we work for; that children will be not treated as objects for our personal convenience, but as a precious glimpse of the Kingdom of Heaven.

Luke18:15-17 And they brought unto him also infants, that he would touch them: but when his disciples saw it, they rebuked them. But Jesus called them unto him, and said, Suffer little children to come unto me, and forbid them not: for of such is the kingdom of God. Verily I say unto you, Whosoever shall not receive the kingdom of God as a little child shall in no wise enter therein.

 

 

 

 

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