BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  AB 913
                                                                  Page  1

          ASSEMBLY THIRD READING
          AB 913 (Chau) 
          As Amended  May 29, 2013
          Majority vote 

           LOCAL GOVERNMENT    6-3         EDUCATION           5-0         
           
           ----------------------------------------------------------------- 
          |Ayes:|Levine, Alejo, Bradford,  |Ayes:|Buchanan, Campos,         |
          |     |Gordon, Mullin, Stone     |     |Nazarian, Weber, Williams |
          |     |                          |     |                          |
          |-----+--------------------------+-----+--------------------------|
          |Nays:|Achadjian, Melendez,      |     |                          |
          |     |Waldron                   |     |                          |
           ----------------------------------------------------------------- 

           APPROPRIATIONS      12-5                                        
           
           ----------------------------------------------------------------- 
          |Ayes:|Gatto, Bocanegra,         |     |                          |
          |     |Bradford,                 |     |                          |
          |     |Ian Calderon, Campos,     |     |                          |
          |     |Eggman, Gomez, Hall,      |     |                          |
          |     |Ammiano, Pan, Quirk,      |     |                          |
          |     |Weber                     |     |                          |
          |     |                          |     |                          |
          |-----+--------------------------+-----+--------------------------|
          |Nays:|Harkey, Bigelow,          |     |                          |
          |     |Donnelly, Linder, Wagner  |     |                          |
           ----------------------------------------------------------------- 

           SUMMARY  :  Subjects charter schools to the state's existing open  
          meetings, conflict-of-interest and disclosure laws and makes a  
          number of other changes to the permissible activities of charter  
          school governing boards, councils and advisory committees.   
          Specifically,  this bill  :  

          1)Expresses the intent of the Legislature to establish  
            conflict-of-interest policies for the governing body of  
            charter schools that mirror existing conflict-of-interest  
            policies followed by the governing boards of school districts,  
            provide transparency in the operations of charter schools and  
            in the use of public funds by the governing body of charter  
            schools for the educational benefit of their pupils, and  
            establish standards and procedures consistent with the Charter  








                                                                  AB 913
                                                                  Page  2

            Schools Act of 1992 to avoid conflicts of interest in charter  
            schools.  

          2)Provides that a charter school is subject to all of the  
            following:

             a)   The Ralph M. Brown Act (Brown Act) except that a charter  
               school operated by an entity governed by the Bagley-Keene  
               Open Meeting Act (Bagley-Keene Act) is subject to the  
               Bagley-Keene Act regardless of the authorizing entity;

             b)   The California Public Records Act (CPRA);

             c)   Provisions of law that prohibit government officers or  
               employees from being financially interested in contracts or  
               purchases made by them in their official capacity (commonly  
               referred to as Section 1090); and,

             d)   The Political Reform Act of 1974 (Political Reform Act),  
               including a requirement to promulgate a Conflict of  
               Interest Code. 

          3)Provides that an employee of a charter school is not  
            disqualified because of that employment from also serving as a  
            member of the governing body of the charter school, and that a  
            member of the governing body of a charter school shall abstain  
            from voting on, or influencing or attempting to influence  
            another member of the governing body regarding, all matters  
            uniquely affecting his or her own employment.

          4)Provides that a person who provides a loan to a charter school  
            due to a school fiscal emergency is not disqualified, because  
            of that loan agreement, from also serving as a member of the  
            governing body of the charter school or from being an employee  
            of the charter school.  

          5)Prohibits a member of the governing body of a charter school  
            who provides a loan as described above from voting on, or  
            influencing or attempting to influence another member of the  
            governing body regarding, all matters affecting the loan  
            agreement.  The loan agreement shall not disqualify the member  
            from serving on the governing body of the charter school or  
            the person from being an employee of the charter school if the  
            governing body of the charter school, before entering into the  
            loan agreement, declares the existence of and describes the  








                                                                  AB 913
                                                                  Page  3

            fiscal emergency by adopting a resolution at a public meeting  
            of the governing body.

          6)Requires the governing body of the charter school to disclose  
            and approve the loan agreement described above, including the  
            terms of the loan, during a public meeting.  This bill's loan  
            agreement provisions apply to a member of the governing body  
            or an employee of the charter school who signs a guarantor  
            agreement relative to a line of credit, provided that the  
            funds from the line of credit shall not be accessed until a  
            fiscal emergency is declared and described as required  
            pursuant to this bill.

          7)Provides that a person who signs a guarantor agreement  
            relative to the lease of real property to be occupied by a  
            charter school is not disqualified, because of that agreement,  
            from also serving as a member of the governing body of the  
            charter school or from being an employee of the charter  
            school.  

          8)Prohibits a member of the governing body of a charter school  
            who is a guarantor as described above from voting on, or  
            influencing or attempting to influence another member of the  
            governing body regarding all matters affecting the real  
            property lease agreement.  The governing body of the charter  
            school shall disclose and approve the real property lease  
            agreement, including the terms of the lease and guaranty,  
            during a public meeting.

          9)Defines the loan and lease provisions described above as  
            "remote interests" for purposes of Section 1090 exemptions, as  
            specified.

          10)Prohibits a member of the governing body of a charter school  
            from voting on, or influencing or attempting to influence  
            another member of the governing body regarding, personnel  
            matters that uniquely affect a relative of the member, but  
            allows a vote on collective bargaining agreements and  
            personnel matters that affect a class of employees to which  
            the relative belongs.  

          11)Defines "relative" to mean an adult who is related to the  
            person by blood or affinity within the third degree, as  
            determined by the common law, or an individual in an adoptive  
            relationship within the third degree.








                                                                  AB 913
                                                                  Page  4


          12)Prohibits a person from serving on the governing body of a  
            charter school if the person is disqualified by the California  
            Constitution or laws of the state from holding a civil office.

          13)Specifies that, to the extent that the governing body of a  
            charter school engages in activities that are not related to  
            the operation of the charter school, this bill does not make  
            those unrelated activities subject to Section 1090, the Brown  
            Act, the Bagley-Keene Act, or the Political Reform Act.  

          14)Prohibits a meeting of the governing body of a charter school  
            that is held to discuss items related to the operation of the  
            charter school from including discussion of any item regarding  
            an activity of the governing body that is not related to the  
            operation of the charter school.

          15)Authorizes the governing body of a charter school to meet  
            within the physical boundaries of the county or counties in  
            which one or more of the school's facilities are located  
            provided that proper notices pursuant to the Brown Act or the  
            Bagley-Keene Act are posted within the physical boundaries of  
            each of the counties in which any of the school's facilities  
            are located.  A charter school also may meet in a county  
            contiguous to the county where one or more of the school's  
            facilities are located if at least 10% of the pupils who are  
            enrolled in the school reside in that contiguous county. 

          16)Allows a nonclassroom-based charter school that does not have  
            a facility to meet within the boundaries of the county in  
            which the greatest number of pupils who are enrolled in the  
            school reside.

          17)Provides that this bill's meeting location requirements shall  
            not limit the authority of the governing body to meet outside  
            the bill's specified boundaries to the extent authorized by  
            the Brown Act, as specified.

          18)Allows the governing body of a charter school to hold closed  
            sessions to consider a matter regarding pupil discipline  
            pursuant to current law.

          19)Provides that a statement of economic interest that is filed  
            by a designated person at a charter school after the required  
            deadline pursuant to the Political Reform Act shall not be the  








                                                                  AB 913
                                                                  Page  5

            sole basis for revocation of a charter pursuant to current  
            law.

          20)Defines "facility" to mean a charter school campus, resource  
            center, meeting space, or satellite facility.

          21)Specifies that this bill's provisions shall not apply to  
            actions taken before this bill's operative date.

          22)Provides an operative date of July 1, 2014.

           FISCAL EFFECT  :  According to the Assembly Appropriations  
          Committee, General Fund/Proposition 98 (GF/98) cost pressure,  
          likely less than $100,000, to charter schools to comply with the  
          requirements of this bill.  There were 1,062 charter schools in  
          2012-13.  Charter schools participating in the K-12 Mandate  
          Block Grant (93% of the 1,062) receive reimbursement for the  
          RBA/Bagley Keen mandate.  If the CPRA is added to the block  
          grant, participating charter schools will receive reimbursement  
          for this activity as well.

           COMMENTS  :  This bill requires charter schools to comply with the  
          Brown Act or the Bagley-Keene Act, the CPRA, existing  
          conflict-of-interest laws that prohibit specified government  
          officers or employees from having a financial interest in  
          contracts made by them in their official capacity, and the  
          Political Reform Act.  This bill also prohibits charter school  
          board members who are employees of the charter school from  
          voting on employment matters affecting them or their relatives,  
          and specifies rules and procedures board members must follow if  
          they extend a loan to, or sign a guarantor agreement relative to  
          the lease of property that will be occupied by, a charter  
          school.  This bill also outlines allowable meeting locations for  
          charter school governing bodies.  This bill is co-sponsored by  
          the California School Boards Association and the California  
          Teachers Association.   

          According to the author's office, "Overall, the goal of AB 913  
          is to have charter schools operate with integrity and  
          transparency, and to ensure that their employees are not deemed  
          ineligible to participate in governmental pension plans.   
          Charter school employees are part of the public education system  
          and should be treated equitably by receiving the protections and  
          benefit plans afforded to all public educational employees,  
          including participation in CalSTRS and CalPERS?Unless we take  








                                                                  AB 913
                                                                  Page  6

          immediate action, the retirement benefits of these employees is  
          in jeopardy."

          The IRS treats government pension plans differently from private  
          pension plans.  Some government plans are completely set aside  
          from the tax rules that apply to private sector plans, while  
          other government plans are subject to tailored tax rules to  
          reflect their unique circumstances and the state or local  
          government sector they serve.

          To help clarify which government plans are eligible for special  
          tax rules, the United States Internal Revenue Service (IRS) in  
          November 2011 issued an advance notice of rulemaking to solicit  
          feedback from affected parties as it developed proposed  
          regulations to define the term "governmental plan" under the  
          Internal Revenue Code.  In response to this proposed rulemaking,  
          the California State Teachers Retirement System (CalSTRS) issued  
          a fact sheet explaining the proposed regulations and analyzing  
          their possible impact on charter schools.

          CalSTRS reported that the proposed regulations were likely to  
          list a number of facts and circumstances tests, categorized as  
          "main factors" and "other factors," that would determine whether  
          an entity is an instrumentality of a state or political  
          subdivision and therefore eligible to have its employees  
          participate in a government pension plan.  CalSTRS concluded  
          that public charter schools in California operated by nonprofit  
          organizations probably would not pass most of those tests, and  
          that CalSTRS would then have to prohibit those employees from  
          participating in CalSTRS in order to maintain CalSTRS'  
          government plan status.

          CalSTRS reported that the IRS was considering the following list  
          of "main factors" to determine whether an entity's employees are  
          eligible for a government plan:

          1)The entity's governing board or body is controlled by a state  
            or political subdivision.

          2)The members of the entity's governing board or body are  
            publicly nominated or elected.

          3)A state or political subdivision has fiscal responsibility for  
            the general debts and other liabilities of the entity,  
            including the responsibility for the funding of benefits under  








                                                                  AB 913
                                                                  Page  7

            the entity's employee benefits plans.

          4)The entity's employees are treated in the same manner as  
            employees of the state or political subdivision for purposes  
            other than providing employee benefits.

          5)The entity is designated the authority to exercise sovereign  
            powers, which generally means the power of taxation, eminent  
            domain or police power.

          CalSTRS concluded that charter schools would be unlikely to pass  
          most of these tests, because a nonprofit operator is a layer of  
          oversight and management separate from the school district,  
          which would lead to ineligibility.

          The list of "other factors" reported by CalSTRS includes:

          1)The entity's operations are controlled by a state or political  
            subdivision.

          2)The entity is directly funded through tax revenues or other  
            public sources.

          3)The entity is created by a state government or political  
            subdivision pursuant to a specific enabling statute that  
            prescribes the purposes, powers and manners in which the  
            entity is to be established and operated.

          4)The entity is treated as a governmental entity for federal  
            employment tax or income tax purposes, such as the authority  
            to issue tax-exempt bonds.

          5)The entity is determined to be an agency or instrumentality of  
            a state or political subdivision for purposes of state laws:   
            for example, the entity is subject to open meetings laws or  
            the requirement to maintain public records that apply only to  
            governmental entities, or the state attorney general  
            represents the entity in court under state statute that only  
            permits representation of state entities.

          6)The entity is determined to be an agency or instrumentality of  
            a state or political subdivision by a state or federal court.

          7)A state or political subdivision has the ownership interest in  
            the entity and no private interests are involved.








                                                                  AB 913
                                                                  Page  8


          8)The entity serves a governmental purpose.

          CalSTRS concluded that charter schools would likely pass tests  
          2), 3) and 8), but passing the other tests was either unknown or  
          unlikely.  With regard to test 5), which pertains to the  
          provisions of this bill, CalSTRS stated that "while school  
          districts strongly encourage charter schools to comply with open  
          meeting laws and public records laws, these laws do not apply to  
          nonprofit boards operating charter schools" and that, therefore,  
          charter schools would not pass this test.  The comment period on  
          the IRS' proposed rulemaking closed February 6, 2012.

          Approximately 88% of the charter school workforce participates  
          in CalSTRS.  Out of the 908 charter schools that elected to join  
          CalSTRS, 590 are run by nonprofit corporations.  These schools  
          account for about 10,000 employees, who CalSTRS anticipated  
          could become ineligible under the IRS' proposed regulations.

          Supporters state that AB 913 "has become necessary because the  
          IRS is evaluating the status of charter schools, among other  
          entities, and the eligibility of affected employees for  
          governmental pension plans.  Under the IRS proposed regulations,  
          all individuals who benefit from a state retirement system would  
          have to be employed by a government entity, such as a state, an  
          elected school board or the federal government and no private  
          interests are involved.  Though the law considers charters to be  
          independently run public schools, their governing boards are not  
          'publicly nominated and elected' nor are they subject to open  
          meeting laws or the requirements to maintain public records that  
          apply only to government entities.  That excludes them from the  
          IRS' definition of a governmental entity and would seem to make  
          their employees ineligible to participate in the state pension  
          plan."

          Supporters also note that "the intent of our laws is not to  
          allow charter school governing boards to determine what they  
          want to share and not share with the public.  To the contrary,  
          the public must remain informed so that the public may retain  
          control over charter schools and their governing boards."

          Opponents argue that "charter school teachers are not at risk of  
          losing their eligibility for CalSTRS.  More than a year ago, the  
          IRS issued an early draft of possible regulations that made  
          incorrect assumptions about charter schools and its employees.   








                                                                  AB 913
                                                                 Page  9

          The IRS received substantial public comment from charter schools  
          on that draft and has been completely silent on the issue ever  
          since.  Moreover, AB 913 does not directly address any of the  
          factors identified in the IRS notice.  As such, it has no  
          practical or legal impact on charter school employees'  
          participation in CalSTRS."

          Opponents are also concerned with the bill's requirement that  
          charter schools comply with Section 1090 conflict-of-interest  
          provisions, stating that "the threshold for determining whether  
          each exemption (provided for in the bill) applies is subject to  
          interpretation, which may put charter school board members at  
          risk of criminal or civil penalties if an enforcement body  
          disagrees that the charter school board member complied with the  
          threshold requirements.  This uncertainty would chill efforts by  
          board members to provide financial assistance to the charter  
          school."

          This bill is nearly identical to AB 360 (Brownley) of 2011,  
          which died on concurrence on the Assembly Floor.  This bill is  
          also similar to AB 572 (Brownley) of 2010, which would have  
          required charter schools to comply with the Brown Act, the  
          California Public Records Act, and the Political Reform Act.  AB  
          572 was vetoed by Governor Schwarzenegger with the following  
          veto message:  

               Charter school educators have proven that poverty is  
               not destiny for students that attend public schools in  
               California.  Repeatedly, charter schools with high  
               proportions of disadvantaged students are among the  
               highest performing public schools in California.  Any  
               attempt to regulate charter schools with incoherent  
               and inconsistent cross-references to other statutes is  
               simply misguided.  Parents do not need renewed faith  
               in charter schools as suggested in this bill.  On the  
               contrary, tens of thousands of parents in California  
               have children on waiting lists to attend a public  
               charter school.  Legislation expressing findings and  
               intent to provide "greater autonomy to charter  
               schools" may be well intended at first glance.  A  
               careful reading of the bill reveals that the proposed  
               changes apply new and contradictory requirements,  
               which would put hundreds of schools immediately out of  
               compliance, making it obvious that it is simply  
               another veiled attempt to discourage competition and  








                                                                  AB 913
                                                                  Page  10

               stifle efforts to aid the expansion of charter  
               schools.  


           Analysis Prepared by  :    Angela Mapp / L. GOV. / (916) 319-3958 


                                                                FN: 0001014