BILL ANALYSIS                                                                                                                                                                                                    



                                                                       



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          |SENATE RULES COMMITTEE            |                   AB 146|
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                                 THIRD READING


          Bill No:  AB 146
          Author:   Mendoza (D)
          Amended:  9/1/09 in Senate 
          Vote:     21

           
           SENATE EDUCATION COMMITTEE  :  5-1, 6/17/09
          AYES:  Romero, Alquist, Hancock, Simitian, Wyland
          NOES:  Huff
          NO VOTE RECORDED:  Liu, Maldonado, Padilla

           ASSEMBLY FLOOR  :  52-22, 4/2/09 - See last page for vote


           SUBJECT  :    Instructional materials:  delivery

           SOURCE  :     Author


           DIGEST  :    This bill 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, as specified.

           Senate Floor Amendments  of 9/1/09 limit the application of  
          the bill's provisions to districts with fewer than 25,000  
          pupils enrolled.

           ANALYSIS  :    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  
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          materials are ordered by the date specified in the  
          contract. 

          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 natural  
               disasters, terrorist attacks, acts of war, or worker  
               strikes that prevent the normal transit of  
               instructional materials, or there is a delay in the  
               implementation of governing board requirements, 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.

           5.   Applies only to contracts with districts enrolling  
               25,000 or fewer pupils.

           Comments
           
          In August 2004, the state entered into a settlement  
          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  

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          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. 

          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. 

          According to the author's office, "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 [Code of Regulations]." 

           Prior Legislation  

          A similar bill, AB 357 (Mendoza) of 2008, would have made 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 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.


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           FISCAL EFFECT  :    Appropriation:  No   Fiscal Com.:  No    
          Local:  No

           SUPPORT  :   (Verified  9/3/09)

          American Federation of State, County and Municipal  
          Employees, AFL-CIO
          Antioch Unified School District
          Association of California School Administrators 
          California Federation of Teachers
          Riverside County Schools Advocacy Association

           OPPOSITION  :    (Verified  9/3/09)

          Governor's Office of the Secretary of Education

           ARGUMENTS IN SUPPORT  :    The American Federation of State,  
          County 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." 

           ARGUMENTS IN OPPOSITION  :    The Governor's Office of the  
          Secretary of Education refers to the veto message of AB 357  
          why they are opposed.  They state that districts purchase  
          directly from publishers and should negotiate any terms  
          related to damages and delays in deliveries.  
           

           ASSEMBLY FLOOR  : 
          AYES:  Ammiano, Arambula, Beall, Bill Berryhill, Blakeslee,  
            Block, Blumenfield, Brownley, Buchanan, Caballero,  
            Carter, Chesbro, Coto, De Leon, Eng, Evans, Feuer,  
            Fletcher, Fong, Fuentes, Furutani, Galgiani, Garrick,  
            Gilmore, Hayashi, Hernandez, Hill, Huber, Huffman, Jones,  
            Krekorian, Lieu, Bonnie Lowenthal, Mendoza, Monning,  
            Nava, Nestande, John A. Perez, V. Manuel Perez,  
            Portantino, Price, Ruskin, Salas, Saldana, Skinner,  
            Solorio, Swanson, Torlakson, Torres, Torrico, Yamada,  
            Bass

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          NOES:  Adams, Anderson, Tom Berryhill, Conway, Cook,  
            DeVore, Duvall, Emmerson, Fuller, Gaines, Hagman, Harkey,  
            Jeffries, Knight, Logue, Miller, Niello, Nielsen, Silva,  
            Smyth, Audra Strickland, Villines
          NO VOTE RECORDED:  Charles Calderon, Davis, De La Torre,  
            Hall, Ma, Tran


          DLW:nl  9/3/09   Senate Floor Analyses 

                         SUPPORT/OPPOSITION:  SEE ABOVE

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