BILL ANALYSIS                                                                                                                                                                                                    



                                                                  AB 339
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          Date of Hearing:   April 15, 2009

                           ASSEMBLY COMMITTEE ON EDUCATION
                                Julia Brownley, Chair
                 AB 339 (Torres) - As Introduced:  February 18, 2009
           
          SUBJECT  : Education finance: county offices of education

           SUMMARY : Makes county offices of education (COEs) eligible for  
          any state allocation of federal funds for which school districts  
          are currently eligible and eligible for any state funding  
          available to school districts, unless explicitly excluded by  
          statute.  Specifically,  this bill  :

          1)Makes findings and declarations regarding the purposes for,  
            the contributions made by, and the treatment of COEs.

          2)Requires the Superintendent of Public Instruction (SPI) to  
            ensure that each COE is eligible for any funding opportunity  
            that would benefit pupils, parents or caregivers, or educators  
            and that would be available to a school district in  
            circumstances that are substantially similar to those  
            pertaining to that COE, unless the exclusion of a COE would be  
            required by statute.

          3)Requires the State Board of Education (SBE) to include COEs in  
            any application for federal aid to education, any allocation  
            of federal funds currently made to school districts, and in  
            any rules and regulations adopted governing the allocation of  
            those funds.

           EXISTING LAW  :

          1)Provides base funding by requiring the SPI to make prescribed  
            calculations for the apportionment of state aid to COEs.

          2)Establishes and funds categorical programs that focus  
            resources and/or compliance requirements on specific classes  
            of students or schools, or on specific uses of funds,  
            identified by the Legislature as priorities.

          3)Authorizes the allocation and apportionment of federal funds  
            to recipients and for uses as specified in federal and state  
            law.









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          4)Requires the SBE to make timely application for federal  
            education funds and to direct the allocation of federal funds  
            to local education agencies.

           FISCAL EFFECT  : Unknown, but potential costs and cost pressure if  
          COEs become eligible for funding that they were previously  
          ineligible for or that they would be ineligible for in the  
          future.

           COMMENTS : This bill makes two related proposals with respect to  
          changing COE eligibility for funding that may otherwise be  
          available to school districts.  The first proposal requires the  
          SPI to make COEs eligible for all funding for which a school  
          district in substantially similar circumstances is eligible,  
          unless COEs are excluded by statute.  This proposal suffers from  
          three problems:

          1)Overly broad scope:  As an example, since COEs are not  
            explicitly exempted in current law, this proposal could be  
            interpreted to mean that COEs should be eligible for school  
            district revenue limit funding (even though COEs currently  
            receive their own base funding separate from districts) or  
            other funding clearly targeted at school districts (e.g., the  
            Targeted Instruction Improvement Block Grant, where the  
            majority of the funds tie back to court-ordered desegregation  
            programs and any voluntary desegregation programs historically  
            implemented in school districts).  In the first example,  
            providing COEs access to district revenue limit funding would  
            effectively lead to a double funding of the base program for  
            COEs; in the second example, COEs would receive funding  
            despite not having the historical rationale for receiving  
            these funds.

          2)Ambiguity with respect to funding source creates a statutory  
            conflict: This proposal seems to have the intent of requiring  
            that COEs would be eligible for all funding opportunities  
            available to districts, and does this by placing a mandate on  
            the SPI to ensure this.  While the SPI is authorized to  
            administer the California Department of Education (CDE) in its  
            duties allocating and apportioning state education funds, the  
            authority to apply for and administer the allocation and  
            apportionment of federal funds is granted to the SBE.  By  
            requiring the SPI to "ensure" COEs are "eligible for any  
            funding opportunity", this bill creates a conflict between the  
            authority granted to the SPI and the SBE over state and  








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            federal funds, respectively.  The question that is raised is,  
            "How can the SPI ensure that eligibility, when determining  
            that eligibility, within the constraints of statute, is placed  
            under the regulatory authority of the SBE?"  In addition, this  
            requirement on the SPI potentially places the SPI at odds with  
            Congressional intent with respect to the allocation of federal  
            funds.

          3)Asking the legislature to make appropriations of funds by  
            default:  Section 6 of Article IX of the California  
            Constitution reads:

               "The entire State School Fund shall be apportioned in  
               each fiscal year in such manner as the Legislature may  
               provide, through the school districts and other agencies  
               maintaining such schools, for the support of, and aid to,  
               kindergarten schools, elementary schools, secondary  
               schools, and technical schools?"
            Thus the Constitution requires state funding for education to  
            be apportioned according to provisions annually specified by  
            the Legislature.  Those provisions might take the form of an  
            explicit exclusion of some party from eligibility for  
            receiving those funds, or may take the form of a listing of  
            eligible recipients to the implicit exclusion of other  
            parties.  This latter approach is foreseen by the usual rules  
            of statutory construction that presume that any action taken  
            by the Legislature in a bill, including an act that leaves  
            something out (such as an ineligible party), is taken with  
            full intent.  This proposal effectively directs the SPI to add  
            COEs to the Legislature's action by default whenever the  
            Legislature creates an appropriation to school districts but  
            does not explicitly exclude COEs; this proposal not only  
            reverses the presumption that the Legislature intentionally  
            takes the actions that it does, but also encroaches on the  
            Legislature's Constitutional authority and responsibility to  
            apportion education funds according to provisions that it  
            specifies.  This proposal could be interpreted as an  
            invitation to the SPI to violate the Constitutional separation  
            of powers between the legislative and executive branches.

          For these reasons Committee staff recommends that this first  
          proposal be deleted from the bill.

          The second proposal made by this bill requires the SBE to  
          include COEs in any application for federal aid to education, in  








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          any allocation of federal funds currently made to school  
          districts, and in any rules and regulations adopted governing  
          the allocation of those funds.  This proposal has pointed out  
          inconsistencies in statute. In the code sections amended by this  
          bill, regarding the SBE making applications for federal funds or  
          allocating those funds, there are references to "school  
          districts", "local education agencies", and "local school  
          districts and other agencies entitled to receive federal funds  
          for the support of schools."  These different references do not  
          appear to be related to any substantive difference in the  
          treatment of those agencies in terms of the application for or  
          allocation of federal funds.  Five observations can be made  
          about this issue: i) these terms are used in an ambiguous and  
          interchangeable manner in these sections of code; ii) these code  
          sections exist the context of the authorization of the state's  
          full participation in Federal Programs and Interstate  
          Agreements; iii) the federal government generally focuses  
          education funding on schools and students rather than on school  
          districts, county, or regional education agencies (note that the  
          federal government has to take a one-size-fits-all approach to  
          local education governance, since there are many organizational  
          models across the states); iv) according to the CDE, there are  
          no instances where federal education funds are currently made  
          available to school districts, but not to COEs, unless there is  
          federal or state statute requiring that differentiation; and v)  
          these sections of the code were enacted by AB 3100 (Greene),  
          Chapter 1010, Statutes of 1976, which implemented a complete  
          revision of the education code and have not been clarified  
          since.  Given these observations, it could be concluded that the  
          proposal made in this bill, to have the students and schools  
          under the administration of COEs included in applications and  
          eligible for the receipt of federal funds, unless specifically  
          excluded, is consistent with the intent of the Legislature in  
          the Education Code sections amended by this bill.  If the  
          Committee chooses to make this conclusion, then the second  
          proposal in this bill is of a technical nature in that it would  
          serve to clarify that COEs be considered eligible for federal  
          education funds during application or allocation, unless  
          excluded by statute.

          According to the Los Angeles County Office of Education, the  
          sponsor of this bill, "Over the past several years, county  
          offices of education have been excluded from funding  
          opportunities which greatly impact the students they serve.  For  
          example, most recently county offices of education were excluded  








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          from the Middle and High School Supplement Counseling Program  
          which provided for additional counselors.  Students served by  
          county offices are at risk students and are the very students  
          the program was intended to serve, yet they have been excluded."  
           The example cited by the bill's sponsor is relevant.  AB 1802  
          (Laird), Chapter 79, Statutes of 2006, established the Middle  
          and High School Supplemental Counseling Program to increase  
          counseling services provided to students in school districts in  
          grades 7-12, especially for students who may find it difficult  
          to pass the high school exit examination.  The Legislature  
          explicitly provided these funds for school districts alone (and  
          this action must be interpreted as intentional); COEs are not  
          eligible to apply for funds under this program. In 2007 AB 131  
          (Beall) would have extended eligibility for this program to  
          COEs, however, that bill failed to pass out of the Legislature.   
          COEs offer a variety of programs for students, including county  
          community schools, community day schools, and juvenile court  
          schools.  As this bill's sponsor indicated, most students  
          participating in these programs are considered at-risk of  
          dropping out of school; at-risk students also require higher  
          cost educational services, such as lower class sizes and more  
          remediation services.  However, as the Senate Appropriations  
          Committee commented in its 2007 bill analysis of AB 131 (Beall),  
          "it is also the case that these programs are funded at higher  
          rates than are district programs, earning apportionments between  
          $9,500 and $11,500 per pupil"; those per pupil funding rates are  
          well above the per pupil revenue limits earned by school  
          districts.  Supporters of this bill suggest that COE programs  
          that receive this higher level of funding require much smaller  
          class sizes and additional support that is not typical of  
          education programs in traditional schools.  To the extent that  
          it is true that COEs provide a unique set of programs, it  
          suggests that a targeted restructuring of state funding for COEs  
          is called for; instead this bill, specifically the first  
          proposal, calls for increasing state funding to COEs by  
          providing funding at the same level and for the same programs as  
          school districts.

          Committee amendments:  Committee staff recommends the following  
          amendments to this bill:

          1)Uncodify the findings and declarations, so that these  
            statements remain in the legislation, but are not place in the  
            Education Code.









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          2)Delete the proposal made in subdivision (b) of Section 1 of  
            this bill requiring the SPI to ensure that each COE is  
            eligible for any funding opportunity.

          3)Make ambiguous and seemingly interchangeable references to  
            "school districts" and "local education agencies" in Section 2  
            and 3 of the bill, read "school districts" in each instance,  
            and define school districts for the purposes of this article  
            to include school districts and county offices of education.   
            "Local education agencies" is not a generally defined term in  
            statute; therefore this approach satisfies the intent of the  
            author without creating additional ambiguity.

          Previous legislation: AB 131 (Beall), would have authorized COEs  
          to participate in the Middle and High School Supplemental  
          Counseling program; this version of the bill was held in the  
          Senate Appropriations Committee.  The bill was later amended to  
          a different subject, and enacted as Chapter 487, Statutes of  
          2008.  AB 1802 (Laird), Chapter 79, Statutes of 2006,  
          established the Middle and High School Supplemental Counseling  
          Program.  AB 3100 (Greene), Chapter 1010, Statutes of 1976,  
          implemented a complete revision of the education code, including  
          the statute related to which educational entities would be  
          included by the SBE in any applications for or allocations of  
          federal education funds.

           REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           
          Alameda County Office of Education
          American Federation of State, County and Municipal Employees,  
          AFL-CIO
          California Association of School Business Officials
          California County Superintendents Educational Services  
          Association
          Contra Costa County Superintendent of Schools and 18 School  
          District Superintendents
          Los Angeles County Office of Education (Sponsor)
          Riverside County Office of Education
          San Diego County Office of Education
          Santa Clara County Office of Education

           Opposition 
           








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          None on file
           
          Analysis Prepared by  :    Gerald Shelton / ED. / (916) 319-2087