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