BILL ANALYSIS                                                                                                                                                                                                    




                                                                  AB 487
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          Date of Hearing:   April 1, 2009

                           ASSEMBLY COMMITTEE ON EDUCATION
                                Julia Brownley, Chair
                AB 487 (Brownley) - As Introduced:  February 24, 2009
           
          SUBJECT  :   Instructional materials: sale of surplus or  
          undistributed obsolete instructional materials

           SUMMARY  :   Makes changes to the existing restrictions placed on  
          the disposal of surplus or obsolete undistributed instructional  
          materials and establishes the Surplus Instructional Materials  
          (SIM) fund, as specified.  Specifically,  this bill  :   

          1)Establishes the SIM fund under the administration of the  
            Superintendent of Public Instruction (SPI) and provides that  
            the moneys in the SIM fund are available, subject to  
            appropriation, for the purpose of allowing school districts,  
            county offices of education, and charter schools to acquire  
            supplemental instructional materials.

          2)States that all moneys appropriated from the SIM fund shall  
            supplement, rather than supplant, existing funds available for  
            instructional materials, and requires that any deposit made  
            into the SIM fund, and the allocation of any moneys from this  
            fund, including the subsequent use of those moneys, be subject  
            to the annual audit of local educational agencies required by  
            existing law.

          3)Expands application of the provisions related to disposal of  
            undistributed obsolete instructional materials to county  
            offices of education and charter schools.

          4)Deletes a provision authorizing the sale of surplus or  
            undistributed obsolete instructional materials to any  
            organization that agrees to use the materials solely for  
            educational purposes and authorizes districts, county offices  
            of education and charter schools to sell surplus and obsolete  
            materials. 

          5)Requires that 50% of the proceeds of any sale of surplus or  
            undistributed obsolete instructional materials made under the  
            provisions of this bill be remitted to the state and deposited  
            in the SIM fund.










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          6)Deletes a provision requiring an organization or institution  
            receiving obsolete instructional materials to certify that it  
            agrees to make no charge to the persons to whom the  
            organization gives or lends the materials, and requires an  
            organization that receives donated obsolete materials to  
            certify that the materials will be used for educational  
            purposes. 

           EXISTING LAW  

          1)Establishes the Instructional Materials Fund in the State  
            Treasury as a means of annually funding the acquisition of  
            instructional materials as required by the California  
            Constitution.

          2)Requires the State Board of Education (SBE) to adopt basic  
            instructional materials for use in kindergarten and grades one  
            to eight, inclusive consistent with the six and eight year  
            adoption cycles for all subject areas. 

          3)Authorizes the SBE and school districts to dispose of surplus  
            or undistributed obsolete instructional materials that are  
            usable for educational purposes, to specified entities,  
            including by sale to any organization that agrees to use the  
            materials solely for educational purposes and to make no  
            charge of any kind to the persons to whom the organization  
            gives or lends the materials.

           FISCAL EFFECT  :  Unknown

           COMMENTS  :  Current law requires the SBE to adopt Kindergarten to  
          grade 8, inclusive, (K-8) basic instructional materials in  
          language arts, mathematics, science, social science, and  
          bilingual or bicultural subjects not less than two times every  
          six years, and not less than two times every eight years in any  
          other subject for which the SBE determines the adoption of  
          instructional materials to be necessary or desirable.  There has  
          been at least one adoption of instructional materials every year  
          since 2005.  Current law requires local governing boards to  
          provide pupils with standards-aligned textbooks or basic  














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          instructional materials no later than 24 months<1> after those  
          materials have been adopted by the SBE, and therefore districts  
          practically have had to purchase materials every year for the  
          last number of years.  

          The state spends a considerable amount of resources in providing  
          instructional materials.  The 2008-09 revised budget provides  
          $353,367 for instructional materials, a slightly lower amount  
          than what has been allocated in previous years.  According to  
          the author, "Over the last four fiscal years the Legislature has  
          appropriated more than $1.3 billion for the acquisition of  
          instructional materials to be used in California's nearly 10,000  
          schools."  The resources coupled with the frequent adoptions and  
          requirements for districts to purchase new instructional  
          materials, assures that there is and will continue to be a  
          steady abundance of used, surplus, and obsolete instructional  
          materials.  Nevertheless, districts have limited options for the  
          disposal of such materials. 

          Some school districts dispose of used obsolete instructional  
          materials by donating them to non-profit entities that, in turn,  
          pass the books on to others such as individuals, home schooling  
          groups or overseas organizations.  Districts may also donate  
          them to libraries, children or adults for the purpose of  
          increasing the general literacy of people or districts may sell  
          them to an organization that agrees to use the materials solely  
          for educational purposes and that agrees will not charge for  
          those materials.  This bill does not limit the ability of school  
          districts to donate or transfer their surplus or obsolete  
          materials directly to any other party or for any other use  
          currently allowed.  In fact, the bill extends that same  
          authority to county offices of education and charter schools.

          Other school districts dispose of the materials as a combination  
          of solid waste disposal and recycling and others pay for storage  
          of these materials.   

          Districts are currently prohibited from selling or donating  
          surplus and obsolete materials to organizations that will resell  
          them.  This bill would allow districts to sell such materials to  
          any organization but remit 50% of the proceeds to the state to  
          ---------------------------
          <1> The enactment of SB 4 X3 (Ducheny), Chapter 12, Statutes of  
          2009, the education budget trailer bill, provides districts  
          flexibility with regards to the 24-month purchasing requirement  
          until July 1, 2010.  








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          be deposited in a special fund for the Legislature to  
          appropriate for purposes of purchasing supplemental  
          instructional materials.  The other 50% would remain with the  
          school districts.  To the extent that districts choose to sell  
          their surplus or obsolete instructional materials, this measure  
          will create a revenue source for school districts and the state.  


          Prior legislative attempts to change the existing restrictions  
          in the disposal of surplus or obsolete materials have been  
          unsuccessful.  Two bills that sought to allow the sale of  
          materials to organizations that would then sell them for a  
          profit were held in different Committees along the legislative  
          process.  The opponents of such legislation argued that it would  
          not be appropriate to allow for profit organizations to benefit  
          from materials that were purchased with public funds.  

          Conversely, a bill that sought to emphasize that surplus or  
          obsolete materials could only be sold to organizations that  
          agreed to use the materials solely for educational purposes and  
          that agreed  not to resell them for a profit  also faced  
          opposition.  The opposition came from Follet Educational  
          Services arguing, "it would eliminate our ability to do business  
          with the California schools and districts since we are a 'for  
          profit' organization.  It would also eliminate a much-needed  
          source of revenue back into our California schools."  From these  
          arguments, one can conclude that despite provisions in the code  
          prohibiting the sale of surplus materials to organizations that  
          resell them, that such transactions could be taking place out of  
          compliance with current law. 

           Waiver request  : In 2005, the State Board of Education (SBE)  
          rejected a request from a school district seeking to waive  
          provisions of the Education Code (EC) restricting the sale of  
          surplus or obsolete instructional materials "solely for  
          educational purposes" and to agencies that do not intend to  
          charge a fee to the recipient. The district wanted to sell such  
          materials, for a profit, to an organization that intended to  
          resell them to educational agencies in other states.  The  
          district alleged that "approval of this waiver would allow it to  
          resell obsolete instructional materials that it current sells  
          for scrap for approximately $420/year, to a for-profit textbook  
          reseller."  The district anticipated that it could make $6-8  
          million dollars from these sales.  The basis for SBE's denial of  
          the waiver according to information on the SBE's agenda is the  









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          following: 

               The fact that the district can be motivated by profit  
               to make this resale should not be considered an excuse  
               for not pursuing the current option that the district  
               has of donating these materials to other needy  
               students. Approval of this waiver would likely result  
               in a surge of other districts seeking to dump their  
               old materials onto the resale market in other states. 

               The district has stated how much they hope to recover  
               from a waiver of these sections, but what is unknown  
               is the amount of profit that the "national book  
               vendors" noted in its waiver application would make by  
               selling materials that California has deemed  
               "obsolete" to students in other states.

               The waiver of EC sections designed to protect the  
               interests of students in order to facilitate corporate  
               profits, with the justification that the obsolete  
               materials are not being sold in California, seems to  
               run counter to the intent of these statutes. 

           Suggested amendments  : There has been interest in expanding  
          access to technology-based electronic instructional materials,  
          but lack of funding for such resources and equipment has made it  
          difficult.   Staff recommends  the bill be amended to expand the  
          allowable uses of the SIM fund to include technology-based  
          materials.  On page 2 line 16 after "materials" add: "or  
          technology-based materials"

          The bill requires that 50% of the revenue generated by the sale  
          of surplus or obsolete instructional materials be remitted to  
          the state and deposited in the SIM fund but it does not specify  
          what the allowable uses are for the remainder of the funds.   
          Staff recommends that the revenue generated from the sale of  
          these materials be used for purchasing instructional materials.   
           Staff recommends  the bill be amended to specify that the school  
          district shall use the remaining 50% of revenue generated by the  
          sale of surplus or obsolete materials for the purchase of  
          instructional materials, supplemental instructional materials or  
          technology-based materials.  

          Current law requires any organization that receives obsolete  
          instructional materials either by sale or donation to certify to  









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          the school district that it agrees to use the materials for  
          educational purposes and that it agrees not to charge persons to  
          whom the organization gives or lends the materials.  This bill  
          deletes the requirement that the materials be used for  
          educational purposes when an organization purchases these  
          materials, but maintains the requirement for organizations that  
          receive these materials by donation.  The inclusion of this  
          language is relevant to the existing restrictions on the sale of  
          surplus and obsolete materials, but because this bill now allows  
          the sale of these materials to any organization without regard  
          to whether the materials will be used for an educational purpose  
          or not, the same rules on usage should apply to organizations  
          that acquire the materials by donation.   Staff recommends  the  
          bill be amended to delete the requirement that organizations  
          that acquire instructional materials by donation agree to use  
          such materials for educational purposes. 

          This bill also allows organizations that acquire surplus or  
          obsolete instructional materials by donation to resell the  
          materials.  This raises the question of whether organizations  
          that acquire these materials by donation should be allowed to  
          resell or to charge for lending the materials, especially  
          because these materials were purchased with public funds.   Staff  
          recommends  the bill be amended to reinstate language requiring  
          an organization that acquires obsolete instructional materials  
          by donation to certify that it will not make a charge of any  
          kind to the persons to whom the organization gives or lends such  
          materials. 

          The author states, "Some school districts dispose of used  
          instructional materials by donating the materials to non-profit  
          entities that, in turn, pass the books on to others such as  
          individuals, home schooling groups or overseas organizations for  
          educational purposes.  Other school districts dispose of the  
          materials as a combination of solid waste disposal (cover stock  
          and glued bindings) and recycling (paper).  Some districts even  
          pay for warehouse storage space to house obsolete instructional  
          materials.  During these tough economic and budget strapped  
          times these obsolete instructional materials are wasted  
          resources that schools should be utilizing."

           Related legislation:   AB 525 (Anderson) authorizes school  
          districts to sell surplus or obsolete instructional materials to  
          any organization.  AB 525 (Anderson) does not include provisions  
          requiring districts to remit any of the funds back to the state,  









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          nor does it require assurances that the materials be used solely  
          for educational purposes and not resold when the materials have  
          been donated.  These materials were purchased with public funds  
          and donating them to organizations that could in turn sell them  
          and make a profit out these materials may raise concerns.  AB  
          525 (Anderson) is in direct conflict with this bill.   Staff  
          recommends  the Committee consider approving one of the two  
          measures and avoid passing competing measures that are in direct  
          conflict with one another.  
           
          Previous legislation  :  AB 1342 (Mendoza) of 2007 changes the  
          restrictions placed on the State Board of Education and school  
          districts in the disposal of surplus or undistributed obsolete  
          instructional materials.  AB 1342 was held in the Assembly  
          Education Committee. 

          AB 2654 (Coto) of 2006 authorizes the sale of usable surplus or  
          undistributed obsolete instructional materials by school  
          districts to organizations that would be permitted, with an  
          assurance the materials will be used for educational purposes,  
          to sell the materials for a profit.  AB 2654 was held in the  
          Senate Appropriations Committee. 

          AB 93 (J. Horton) of 2005 Allows school districts to sell  
          surplus and obsolete instructional materials to any organization  
          that agrees to use the materials only for educational purposes  
          and that agrees not to resell the materials for a profit. AB 93  
          was held in the Assembly Education Committee. 

           REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           
          American Federation of State, County and Municipal Employees

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