BILL ANALYSIS
SENATE COMMITTEE ON EDUCATION
Gloria Romero, Chair
2009-2010 Regular Session
BILL NO: AB 146
AUTHOR: Mendoza
AMENDED: March 25, 2009
FISCAL COMM: No HEARING DATE: June 17, 2009
URGENCY: No CONSULTANT: James Wilson
SUBJECT : Instructional Materials
SUMMARY
This bill provides that a publisher or manufacturer that
fails to deliver instructional materials within 60 days of
the receipt of a purchase order from a school district is
liable for damages in the amount of $500 for each working
day that the order is delayed beyond 60 calendar days,
unless the district approves the delay or the delay has
resulted from a disaster.
BACKGROUND
Current 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. Current law does not
specify penalties for failure to meet the delivery
guarantee.
ANALYSIS
This bill:
1) Provides that a publisher or manufacturer that fails
to deliver instructional materials within 60 days of
the receipt of a purchase order from a school district
liable for damages in the amount of $500 for each
working day that the order is delayed beyond 60
calendar days, except as specified.
2) Provides that a publisher or manufacturer is not
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liable for late delivery of instructional materials if
a natural disaster, terrorist attack, act of war, or
worker strike caused the late delivery.
3) Provides that a publisher or manufacturer is not
liable for late delivery if the publisher or
manufacturer has received prior written approval from
the district for a delay in delivery.
4) Provides that a publisher or manufacturer may not be
held liable for an amount greater than $20,000 for any
single purchase order.
5) Requires a school district that seeks to recover
damages must 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.
STAFF COMMENTS
1) Author's Amendments. The author's office has
indicated that the author is agreeable to accepting an
amendment to hold publishers harmless for delays
caused by the adopting agency (either the State Board
for K-8 materials or local boards for grade 9 - 12
materials). Last minute change orders, for example,
can force delays that are not within the control of
the publishers. Accordingly, staff recommends the
following amendment:
On page 2, line 30, between the comma and "neither",
insert:
or if there is a delay in the implementation of governing
board requirements,
2) Williams case requirements . In August 2004, the state
entered into a settlement in the Williams v.
California 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 for homework. One of
the bills that implemented the Williams settlement,
SB 550 of 2004 (Chapter 900, Vasconcellos) required
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that each County Superintendent annually visit schools
ranked in deciles 1, 2, or 3 of the Academic
Performance Index (API) during the first month of
school to insure that all pupils have sufficient
textbooks for all core subject classes. In the event
at a failure to provide sufficient quality
instructional materials is identified by the County
Superintendent, or by other means, then the State
Superintendent is required to purchase the materials
for the schools that lack them and charge the district
for the expense.
3) Previous legislation . A similar bill, AB 357
(Mendoza) of 2008, would have made a publisher or
manufacturer liable for damages if it failed to
deliver instructional materials within 60 days of the
receipt of a purchase order from a school district.
AB 357 was vetoed by Governor Schwarzenegger 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."
4) Previous regulation. A regulation adopted by the
State Board of Education (Section 9530 of Title 5 of
the California Code of Regulations) used to impose
penalties on publishers that failed to deliver
instructional materials within 60 days of the receipt
of a purchase order. The Title 5 regulation was
repealed for lack of statutory authority. This bill
mirrors the repealed regulation.
SUPPORT
American Federation of State, County and Municipal
Employees
Association of California School Administrators
California Federation of Teachers
San Francisco Unified School District
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OPPOSITION
Secretary of Education