BILL ANALYSIS Ó
AB 709
Page 1
GOVERNOR'S VETO
AB
709 (Gipson)
As Enrolled August 31, 2016
2/3 vote
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|ASSEMBLY: |47-27 |(June 3, 2015) |SENATE: |21-13 |(August 19, |
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|ASSEMBLY: |46-31 |(August, 24, | | | |
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Original Committee Reference: ED.
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:
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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 that
Act;
b) The California Public Records Act (CPRA);
c) Article 4 (commencing with Section 1090) of Chapter 1 of
Division 4 of Title 1 of the Government Code; and,
d) The Political Reform Act of 1974 (PRA). Specifies that
a charter school shall be considered an agency as it
relates to this Act.
2)Specifies this measure 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.
The Senate amendments specify that notwithstanding any other
law, a public records request made to a charter school that
meets the criteria specified in (a) and (b) shall be executed by
the chartering authority. In order for the chartering authority
to meet the public records request, the charter school shall
provide all relevant documentation to the chartering authority
for the purpose of meeting the public records request.
1)The charter school is located on a federally recognized
California Indian reservation or rancheria.
2)The charter school is operated by a nonprofit public benefit
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corporation that was formed on or before May 31, 2002, and is
currently operated by a federally recognized California Indian
tribe.
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: This bill is keyed non-fiscal.
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 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 Political
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Reform Act; 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 Bagley-Keene
Open Meetings Act. The bill also expressly authorizes charter
school employees to serve on a charter school governing body.
According to the author, AB 709 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 Political Reform Act 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.
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
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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 1090. Government Code 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."
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: 1)
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, 2) any
relative, as specified, of any such person. Advocates of
charter schools contend they should abide by conflict of
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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 Political Reform Act of 1974, a ballot
initiative passed by California voters as Proposition 9. 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
Political Reform Act, 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.
GOVERNOR'S VETO MESSAGE:
I am returning Assembly Bill 709 without my signature.
This bill requires charter schools to be subject to the Brown
Act, Public Records Act, Political Reform Act and Government
Code section 1090.
In 2014, I vetoed AB 913, a virtually identical bill. My
reasons then were:
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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.
That's still my view.
Analysis Prepared by:
Chelsea Kelley / ED. / (916) 319-2087 FN:
0005108