BILL ANALYSIS Ó
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Date of Hearing: April 18, 2012
ASSEMBLY COMMITTEE ON EDUCATION
Julia Brownley, Chair
AB 1662 (Fong)) - As Introduced: February 14, 2012
SUBJECT : County boards of education: members
SUMMARY : Makes any employee of a school district eligible to
be a member of a county board of education.
EXISTING LAW
1)Prohibits an employee of a local agency, including local
education agencies, from being a member of the governing board
or legislative body of that agency.
2)Prohibits a county superintendent of schools, any member of
his or her staff, or any employee of a school district from
being a member of the county board of education.
3)Prohibits a local agency officer (defined to include governing
board members) from engaging in any employment that is
inconsistent, incompatible, in conflict with, or inimical to
his or her duties as a local agency officer (incompatibility
of office doctrine).
FISCAL EFFECT : This bill is keyed non-fiscal.
COMMENTS : This bill would allow school district
employees-including classified employees, teachers, and
administrators-to serve on county boards of education. County
boards of education and county superintendents of schools have
various oversight responsibilities over schools within their
jurisdiction, including:
1)Serving as appellant bodies for decisions made by school
district governing boards regarding pupil suspensions and
expulsions and charter school proposals.
2)Reviewing school district budgets and certifying them as
positive, qualified, or negative.
3)Exercising increased authority over the adoption of the
district budget for districts that have a qualified or
negative budget certification or that have an outstanding
emergency loan from the state.
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4)Monitoring school district compliance with the settlement in
the case of Williams v. California with respect to equal
access to: instructional materials, safe and decent school
facilities, and qualified teachers.
Prior legislation. Similar legislation, AB 1212 (Thompson), was
vetoed in 1999 by Governor Gray Davis. The veto message read:
"This bill would violate the common law rule against
the holding of incompatible offices. The purpose of
this rule is to disallow a person from holding two or
more offices in which he or she is in a position in
one office to review and approve his or her actions in
the other office, and to disallow the holding of
offices wherein his or her duties and loyalties are
incompatible. County boards of education have
jurisdiction over several areas which would present
such a conflict, such as fiscal oversight, budgeting,
and student discipline and transfer.
Moreover, I note that current law prohibits school
district employees from being elected or appointed
members of their school district governing boards.
For this reason, I cannot support this measure."
Arguments in support . Proponents argue that the prohibition
against public school employees serving on a county board of
education is unconstitutional, and they cite two court decisions
to support this position. The first is a California Supreme
Court decision in Bagley vs. Washington Township Hospital
District, 65 Cal.2d 499, 501 (1966) in which the court ruled
that "only a compelling public interest can justify the
imposition of restraints upon the political activities of public
employees." In the second case, the Ninth Circuit Court of
Appeals ruled in Davies vs. Grossmont Union High School et al.,
930 F.2d 1390 (1991) that a legal settlement agreement cannot
prohibit a person from running for public office.
Although neither of these decisions deals directly with
employees on public boards, proponents argue that they establish
the ability to seek and hold public office as a fundamental
right that can only be abridged because of a compelling public
interest. The potential for conflict of interest is not
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compelling, they argue, because (1) such conflicts are rare and
(2) when a conflict arises the board member can recuse himself
or herself.
In addition, supporters argue that "classified school employees
should be allowed to serve on county boards of education because
they can offer unique insight on the operations of our schools
to provide a safe, clean learning environment with all the
necessary services to help our students succeed."
Arguments in opposition. Opponents argue that, despite the
ability of a board member to recuse him or herself from a vote,
"the county board has a tremendous amount of oversight of school
districts that could result in compromising some of the most
important work the county board conducts." In addition, "the
potential for?conflicts could result in the school
employee/county board member recusing themselves from a fair
amount of the decisions facing the board, which would limit
their input and the voice of the voters. As a recusal
essentially counts as a no vote and a majority of the entire
board is still needed to approve any actions, this could
complicate things further if there are absent members."
Committee amendments. Proponents of this bill argue that
potential conflicts of interest can be resolved through recusal.
However, this will not work if a majority of the county board
of education members are school district employees. Under this
bill, a majority of board members could be school district
employees and they could even be from the same district. In
such a case the board would be unable to take any action at all
where a conflict of interest is present. To prevent this, as
well as to avoid violating the doctrine of incompatibility of
office, staff recommends that the bill be amended to allow only
employees of school districts that are not within the
jurisdiction of the county office of education to serve on that
county's board of education.
REGISTERED SUPPORT / OPPOSITION :
Support
California School Employees Association (Sponsor)
California Federation of Teachers
American Federation of State, County and Municipal Employees,
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AFL-CIO
California Labor Federation
Service Employees International Union California
Opposition
Association of California School Administrators (unless amended)
California School Boards Association
California County Superintendents Educational Services
Association
Kenneth M. Young, Riverside County Superintendent of Schools
(unless amended)
Analysis Prepared by : Rick Pratt / ED. / (916) 319-2087