BILL ANALYSIS Ó
SENATE COMMITTEE ON EDUCATION
Senator Carol Liu, Chair
2015 - 2016 Regular
Bill No: AB 709
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|Author: |Gipson |
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|Version: |June 1, 2015 Hearing |
| |Date: July 1, 2015 |
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|Urgency: |No |Fiscal: |No |
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|Consultant:|Lenin Del Castillo |
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Subject: Charter schools
NOTE: This bill has been referred to the Committees on
Education, Judiciary and Appropriations. A "do pass"
motion should include referral to the Committee on
Judiciary.
SUMMARY
This bill requires that charter schools be subject to a variety
of the same open meeting, conflict-of-interest and disclosure
laws as traditional school districts, including the Ralph M.
Brown Act (Brown Act), the California Public Records Act, the
Political Reform Act of 1974, and the state's primary
conflict-of-interest provisions-Government Code § 1090.
BACKGROUND
Existing law, the Charter Schools Act of 1992, provides for the
establishment of charter schools in California for the purpose,
among other things, of improving student learning and expanding
learning experiences for pupils who are identified as
academically low achieving. Existing law declares that charter
schools are part of the public school system as defined in
Article IX of the California Constitution and are "under the
exclusive control of the officers of the public schools." A
charter school is required to comply with statutes governing
charter schools and all of the provisions set forth in its
charter, but is otherwise exempt from most laws governing school
districts except where specifically noted. (Education Code §
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47601 et seq.)
Existing law requires state and local agencies to conduct
business in meetings that are open to the public:
1)The Brown Act requires meetings of a local agency's board of
directors to be open to the public. (Government Code § 54950
et seq.)
2)The Bagley-Keene Open Meeting Act requires meetings of state
bodies to be open to the public. (GC § 11120)
The California Public Records Act declares that the public has a
right to access information that concerns the people's business
and provides that public records shall be available for
inspection, except as provided by an express provision of law.
(GC § 6250 and § 6253)
Existing law prohibits members of the Legislature, state,
county, district, judicial district, and city officers or
employees from being financially interested in any contract made
by them in their official capacity, or by anybody or board of
which they are members.
(Government Code § 1090 et seq.)
The Political Reform Act of 1974, established by the voters
through Proposition 9 in June 1974, requires public officials to
carry out their duties in an unbiased manner, free from
influence by outside interests, and to follow regulations during
elections, as defined. The Political Reform Act also requires
government agencies to adopt a conflict-of-interest code that
requires designated employees of the agency to file an annual
statement of economic interest disclosing any investments,
business positions, interests in real property, or sources of
income that may be affected materially by a decision made, or
participated in, by the designated employee by virtue of his or
her position. (GC § 81000 et seq.)
ANALYSIS
This bill:
1)Provides that a charter school is subject to all of the
following:
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a) The Ralph M. Brown Act, except that a charter school
operated by
an entity governed by the Bagley-Keene Open Meeting Act is
subject to that Act regardless of the authorizing entity.
b) The California Public Records Act.
c) Provisions of the Government Code that prohibit
government officers or employees from being financially
interested in contracts or purchases made by them in their
official capacity.
d) The Political Reform Act of 1974. For purposes of
Government Code § 81000, a charter school shall be
considered an agency.
Provides that an employee of a charter school is not
disqualified because of that employment status from also
serving as a member of the governing body of the charter
school and that such a member shall abstain from voting on, or
influencing or attempting to influence another member of the
governing body concerning, all matters uniquely affecting his
or her own employment.
1)Specifies the intent of the Legislature to do both of the
following:
a) Ensure that charter school governance is transparent.
b) Ensure that monitoring and oversight of charter schools
is conducted to protect the public interest.
STAFF COMMENTS
1)Need for the bill. According to the author's office, though
charter schools are publicly funded, they were established
with the intent to operate separately from the current school
structure as a way of allowing for more creativity in
developing solutions to historic challenges in typical
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educational settings. However, there are several provisions
of law that specifically relate to good governance and
transparency where charter schools should be required to
comply. The bill is intended to require charter schools to be
more transparent and accountable to the public.
2)Public accountability laws. County boards of education and
school district governing boards are required to conduct
public meetings and make information available to the public,
upon request. Members of these boards are also subject to
conflict-of-interest statutes contained in Government Code §
1090 and the Political Reform Act of 1974.
a) Open meeting laws - entitles the public to have access to
meetings of multi-member public bodies. The Brown Act and
the Bagley-Keene Act recognize the need to balance the
public's right to open government with the need for boards,
on occasion to have closed session discussions in certain
matters such as personnel or litigation. By making charter
schools subject to open meeting laws, charter school boards
would need to provide advance notice of meetings and
conduct their meetings in public.
b) Public records - the purpose of the California Public
Records Act (CPRA) is to give the public an opportunity to
monitor the functioning of their local and state
government. The fundamental precept of CPRA is that
governmental records are to be disclosed to the public when
requested, unless there is a specific reason not to do so.
The CPRA allows for certain exemptions, such as matters
relating to individual privacy. Under CPRA, agencies must
segregate or redact exempt information and disclose the
remainder of the record. Under the provisions of this
bill, charter schools would need to respond to requests for
information that is not private in nature.
c) The Political Reform Act of 1974 established the Fair
Political Practices Commission (FPPC) to administer its
requirements and receive annual conflict-of-interest
statements. According to the FPPC, the CPRA is designed to
assure that public officials perform their duties
impartially without bias because of personal financial
interests or the interests of financial supporters; and
that public officials disclose income and assets that could
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be affected by official actions and to assure that public
officials disqualify themselves from participating in
decisions when they have conflicts-of-interest. This bill
would result in charter school board members and designated
employees having to disclose their financial interests in
annual statements filed with the FPPC.
d) Government Code § 1090 is the state's central
conflict-of-interest Act. It applies to public officials
from members of the Legislature to local officials and
employees, including those of school districts. 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 capacity." In addition to prohibiting public
officials from having personal financial interest in a
contract made in an official capacity, this Act specifies
that such contracts are void and cannot be enforced.
Opponents of the bill have expressed concern with
subjecting charter schools to the provisions of Government
Code § 1090 because it could make it more difficult for
philanthropic board members to provide financial assistance
or low-interest loans or make facilities available to
charter schools, which may happen during the start-up phase
of a charter school. However, supporters of the bill argue
that since charter schools are considered to be public
schools and receive public funds, they have a fiduciary
duty to taxpayers with regards to the use of those funds
and should be subject to the same conflict-of-interest and
disclosure requirements as traditional school districts.
3)No substantive changes from previous similar legislation. As
referenced below under Comment No. 5, the Governor vetoed a
nearly identical measure in 2014-AB 913 (Chau). This measure
does not include any substantive changes that seek to address
the Governor's veto message which the Committee may wish to
consider as part of its review.
4)Fiscal impact. Staff notes that Legislative Counsel has
identified this bill as non-fiscal. However, the Senate Rules
Committee has referred the bill to the Senate Appropriations
Committee, at their request, as well as to the Judiciary
Committee.
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5)Related and prior legislation.
SB 1317 (Huff, 2014) proposed to require that charter schools
be subject to a variety of the same open meeting,
conflict-of-interest and disclosure laws as school districts,
including the Ralph M. Brown Act (Brown Act), the California
Public Records Act, and the Political Reform Act of 1974.
This bill failed passage in the Senate Appropriations
Committee.
AB 913 (Chau, 2014) was substantially similar to this bill and
proposed to subject charter schools to a variety of the same
open meetings, conflict-of-interest, and disclosure laws. AB
913 was vetoed by the Governor with the following message:
"Starting a charter school requires the strong
commitment of dedicated individuals willing to serve
on a governing board. While I support transparency,
this bill goes further than simply addressing issues
of potential conflicts-of-interest and goes too far in
prescribing how these boards must operate."
AB 360 (Brownley, 2011), similar to this bill, required
charter schools to comply with the same conflict-of-interest
requirements as school district governing board members. AB
360 died on the Assembly inactive file on concurrence.
AB 572 (Brownley, 2010), also similar to this bill, 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 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
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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
stifle efforts to aid the expansion of charter
schools."
SUPPORT
Association of California School Administrators
California Association of School Business Officials
California Federation of Teachers
California Labor Federation
California School Boards Association
California School Employees Association (co-sponsor)
California State PTA
California Teachers Association (co-sponsor)
Charter Schools Development Center
LIUNA Local 777
Public Advocates
San Francisco Unified School District
School Employers Association of California
OPPOSITION
California Charter Schools Association
Charter Schools Development Center
EdVoice
KIPP LA Schools
Letters from individuals
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