BILL ANALYSIS Ó
AB 709
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ASSEMBLY THIRD READING
AB
709 (Gipson)
As Amended June 1, 2015
Majority vote
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|Committee |Votes |Ayes |Noes |
| | | | |
| | | | |
|----------------+------+--------------------+--------------------|
|Education |5-2 |O'Donnell, McCarty, |Chávez, Kim |
| | |Santiago, Thurmond, | |
| | |Weber | |
| | | | |
| | | | |
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SUMMARY: Requires charter schools to comply with the same
conflict of interest requirements as school districts.
Specifically, this bill:
1)Declares charter schools are 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 (BKOMA) is subject to BKOMA;
b) The California Public Records Act (CPRA);
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c) Government Code Title 1, Division 4, Chapter 1, Article 4
(commencing with Section 1090); and,
d) The Political Reform Act of 1974 (PRA). Specifies that a
charter school shall be considered an agency as it relates to
the PRA.
2)Specifies this bill does not prohibit an employee of a charter
school from serving as a member of the governing body of that
charter school; and, specifies such a member of the governing
body of a charter school shall abstain from voting on all
matters affecting his or her own employment.
EXISTING LAW pertaining to charter schools:
1)Provides no specific requirement for charter school governing
board conflict of interest policies.
2)Deems charter schools as school districts for the purposes of
receiving state education funds.
FISCAL EFFECT: Unknown. This bill is keyed non-fiscal by the
Legislative Counsel.
COMMENTS: This bill requires charter school governing body
members to comply with substantially similar conflict of interest
policies by which school district governing board members
currently abide. Recent news reports of charter school governing
body members engaging in inappropriate financial mismanagement
have highlighted the need for charter school conflict of interest
laws to be clarified. Currently, these investigations can take
many months to resolve partly due to the fact that charter school
governing body members and designated employees do not
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consistently file an annual statement of economic interest, which
makes public any potential conflicts of interest that individual
may have in their official capacity. While charter schools are
given more autonomy than public schools, their governing bodies
have authority over public funds to be used for the educational
benefit of their students. Charter school governing bodies should
be held to the same conflict of interest standards as school
district governing boards.
This bill requires charter school governing bodies to file
statements of economic interest according to the PRA; specifies
that charter school governing body members may not be financially
interested in any decision made by the governing body; requires
charter schools to comply with the California Public Records Act;
and, requires charter school governing bodies to abide by the
Brown Act or the BKOMA. This bill also expressly authorizes
charter school employees to serve on a charter school governing
body.
According to the author, this bill seeks to clarify current law
and explicitly require California's charter schools to be more
transparent and accountable to the public. Specifically, this
bill will require that charter school meetings are open to the
public and allow for public records requests. In addition, this
bill seeks to provide that charter schools comply with conflict of
interest provisions of the PRA and prohibits officers or employees
from engaging in contracts where they have a financial interest.
The Brown Act. The Brown Act governs meetings conducted by local
legislative bodies, such as boards of supervisors, city councils
and school boards. The Brown Act represents the Legislature's
determination of how the balance should be struck between public
access to meetings of multi-member public bodies and the need for
confidential candor, debate, and information gathering. The Brown
Act requires meetings of the board to be publicly noticed 72 hours
before their meetings, among other requirements.
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California Public Records Act (CPRA). The CPRA was enacted in
1968 and according to the Attorney General, in enacting the CRPA,
the Legislature stated that access to information concerning the
conduct of the public's business is a fundamental and necessary
right for every person in the state. Cases interpreting the CRPA
also have emphasized that its primary purpose is to give the
public an opportunity to monitor the functioning of their
government. The greater and more unfettered the public official's
power, the greater the public's interest in monitoring the
governmental action. The fundamental precept of CPRA is that
governmental records shall be disclosed to the public, upon
request, unless there is a specific reason not to do so. Most of
the reasons for withholding disclosure of a record are set forth
in specific exemptions contained in the CPRA. Several CPRA
exemptions are based on a recognition of the individual's right to
privacy. If a record contains exempt information, the agency
generally must segregate or redact the exempt information and
disclose the remainder of the record.
Government Code Section 1090. Government Code Section 1090 states
that members of the Legislature, state, county, district, judicial
district, and city officers or employees shall not be financially
interested in any contract made by them in their official
capacity, or by any body or board of which they are members. In a
1983 opinion the Attorney General stated, "Section 1090 of the
Government Code codifies the common law prohibition and the
general policy of this state against public officials having a
personal interest in contracts they make in their official
capacities. Mindful of the ancient adage, that 'no man can serve
two masters,' the section was enacted to ensure that public
officials 'making' official contracts not be distracted by
personal financial gain from exercising absolute loyalty and
undivided allegiance to the best interest of the entity which they
serve."
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Corporations Code. Statute governing corporations (including
charter schools operated by non-profit or for-profit corporations)
requires not more than 49% of persons serving on the board of any
corporation to be "interested persons." "Interested persons" is
defined as either of the following: a) any person currently
compensated by the corporation for services rendered to it within
the previous 12 months (excluding any reasonable compensation paid
to a director); or, b) any relative, as specified, of any such
person. Advocates of charter schools contend they should abide by
conflict of interest provisions related to corporations not local
education agencies due to the fact that some charter schools are
operated by non-profit corporations. The committee should
consider whether it is appropriate to have public taxpayer funded
charter schools abide by the corporations code rather than the
government code with regard to conflict of interest policies.
Political Reform Act. The Fair Political Practices Commission
(FPPC) was created by the PRA, a ballot initiative passed by
California voters as Proposition 9 of 1974. The FPPC provides
written and oral advice to public agencies and officials; conducts
seminars and training sessions; develops forms, manuals and
instructions; and receives and files statements of economic
interests from many state and local officials. The FPPC
investigates alleged violations of the PRA, imposes penalties when
appropriate, and assists state and local agencies in developing
and enforcing conflict-of-interest codes. The FPPC regulates
campaign financing and spending; financial conflicts of interest;
lobbyist registration and reporting; post-governmental employment;
mass mailings at public expense; and, gifts and honoraria given to
public officials and candidates. School board members are
required to comply with the PRA, and in so, must file a statement
of economic interest, annually.
Analysis Prepared by:
Chelsea Kelley / ED. / (916) 319-2087 FN: 0000860
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