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 Page 2 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 Page 3 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