BILL ANALYSIS                                                                                                                                                                                                    



                                                                  AB 146
                                                                  Page  1

          Date of Hearing:   March 18, 2009

                           ASSEMBLY COMMITTEE ON EDUCATION
                                Julia Brownley, Chair
                 AB 146 (Mendoza) - As Introduced:  January 22, 2009
           
          SUBJECT  :   Instructional materials: delivery

           SUMMARY  :  Makes a publisher or manufacturer liable for damages  
          if it fails to deliver instructional materials within 60 days of  
          the receipt of a purchase order from a school district.    
          Specifically,  this bill  :   

          1)Provides that if a publisher or manufacturer fails to deliver  
            instructional materials within 60 days of the receipt of a  
            purchase order from a school district and the publisher or  
            manufacturer has not received prior written approval from the  
            district for a delay in delivery, the publisher or  
            manufacturer shall be liable for damages in the amount of $500  
            for each working day that the order is delayed beyond 60  
            calendar days. 

          2)Specifies that if late delivery results from circumstances  
            beyond the control of the publisher or manufacturer, the  
            publisher or manufacturer shall not be held liable. 

          3)Prohibits a publisher or manufacturer from being liable for an  
            amount greater than $20,000 for any individual purchase order  
            placed by a school district pursuant to this subdivision. 

          4)Requires districts seeking to recover damages pursuant to this  
            bill to give the publisher or manufacturer written  
            notification of the actual delivery date of the instructional  
            materials and the date upon which damages began to accrue.

           EXISTING LAW  requires an instructional materials publisher or  
          manufacturer to guarantee delivery of textbooks and  
          instructional materials prior to the opening of school in the  
          year in which the textbooks and instructional materials are to  
          be used, provided that materials are ordered by the date  
          specified in the contract.

           FISCAL EFFECT  :  This bill is keyed non-fiscal.

           COMMENTS  :  In August 2004, the state entered into a settlement  








                                                                  AB 146
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          agreement in the Williams v. California (Williams) case that  
          required the state to ensure, among other items, that pupils  
          have access to reasonably current textbooks and instructional  
          materials, in useable condition, in each core subject to use in  
          class and to take home.  

          School districts are required to make every attempt to  
          prioritize the provision of instructional materials to schools  
          affected by the Williams settlement.  Nevertheless, the author  
          suggests that there is no incentive for publishers to make sure  
          textbooks are delivered on time upon a district placing a  
          purchase order.  This bill provides school districts a tool that  
          can help them fulfill the requirements of the Williams  
          settlement.  

           Prior Title 5 Regulations  :  A prior version of Section 9530 of  
          Title 5 of the California Code of Regulations imposed penalties  
          on publishers that failed to deliver instructional materials  
          within 60 days of the receipt of a purchase order.  Because  
          there was no statutory authority for districts to impose these  
          penalties on publishers, a recent revision of the Title 5  
          Regulations included the deletion of these penalty provisions.   
          The penalties proposed by this bill are identical to the  
          penalties in the previous Title 5 Regulations. 

          The bill states that if late delivery results from circumstances  
          beyond the control of the publisher or manufacturer, the  
          publisher or manufacturer shall not be held liable.  The  
          language in the bill is vague as to what would constitute a  
          circumstance "beyond the control of the publisher or  
          manufacturer" and who would make the determination that a  
          publisher or manufacturer is not liable for damages due to such  
          a circumstance.   Staff recommends  the bill be amended to either  
          delete this language, by striking lines 25-27 inclusive from  
          page 2 of the bill, or to specify in the bill what circumstances  
          are beyond the control of the publishers.  

          The author states, "Ensuring that our youth are equipped with  
          the necessary learning tools should be our primary goal so that  
          they can be properly educated.  AB 146 helps accomplish this  
          goal by holding the publishers or manufacturers of K-8  
          instructional materials accountable to the previous California  
          of Education regulations."

           Arguments in support  :  The American Federation of State, County  








                                                                  AB 146
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          and Municipal Employees writes, "AFSCME supports this bill  
          because instructional materials are key to classroom instruction  
          and if these materials are not received in a timely manner,  
          schools cannot do their job properly.  Late delivery of  
          instructional materials impacts a teacher's ability to properly  
          prepare for classroom instruction and may affect the schedule of  
          classroom learning." 

           Prior legislation  :  An identical measure, AB 357 (Mendoza) of  
          2008, makes a publisher or manufacturer liable for damages if it  
          fails to deliver instructional materials within 60 days of the  
          receipt of a purchase order from a school district.  AB 357 was  
          vetoed with the following veto message:

          "While I am supportive of efforts to ensure that school  
          districts have instructional materials available for their  
          students on a timely basis, this bill is unnecessary.  Districts  
          may enter into contractual agreements with publishers and can  
          negotiate any level of penalty based on a variety of contract  
          terms, even without statutory mandate."

           REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           
          American Federation of State, County and Municipal Employees,  
          AFL-CIO
          California Federation of Teachers 

           Opposition 
           
          None on file. 
           
          Analysis Prepared by  :    Marisol Avi?a / ED. / (916) 319-2087