BILL ANALYSIS                                                                                                                                                                                                    Ó



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          Date of Hearing:  April 8, 2015


                           ASSEMBLY COMMITTEE ON EDUCATION


                              Patrick O'Donnell, Chair


          AB 787  
          (Roger Hernández) - As Amended March 26, 2015


          SUBJECT:  Charter schools:  operation:  nonprofit public benefit  
          corporations


          SUMMARY:  Requires a charter school operated as a nonprofit to  
          nominate, in the charter petition, twice the number of people  
          needed for their board of directors; requires the chartering  
          authority to appoint a majority of the members of the board of  
          directors for such charter schools from the nomination list;  
          and, prohibits a charter school from operating as a for-profit  
          corporation.   Specifically, this bill:  


          1)Requires that an authority that grants a charter school be  
            entitled to a single representative on the board of directors  
            of the nonprofit public benefit corporation.



          2)Requires, for a charter school that elects to operate as a  
            nonprofit benefit corporation, and that submits a charter  
            petition, charter renewal, or material revision application on  
            or after January 1, 2016, all of the following to apply:











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             a)    The initial chartering authority shall appoint a  
               majority of the members of the board of directors of the  
               nonprofit public benefit corporation from persons publicly  
               nominated in the charter petition, charter renewal, or  
               material revision application. The number of persons  
               nominated shall be twice the total number of members that  
               comprise the board of directors. 





             b)    The initial chartering authority, during the term of  
               the charter, shall ensure that a majority of the members of  
               the board of directors of the nonprofit public benefit  
               corporation are members appointed.  In the event that a  
               member appointed no longer serves on the board of  
               directors, for reasons including, but not limited to,  
               death, disability, removal, or resignation, the initial  
               chartering authority shall appoint a new member from  
               persons nominated by the nonprofit public benefit  
               corporation at the time the vacancy occurs, and by  
               submitting a material revision application.





             c)   Nothing limits or supersedes the ability of a charter  
               school to either use an election process or other community  
               involvement process to select nominees for the board of  
               directors of the nonprofit public benefit corporation for  
               consideration by the initial chartering authority or to  
               nominate persons for positions on the board of directors of  
               the nonprofit public benefit corporation by using specified  
               eligibility criteria. It shall be the policy of the state  
               to encourage and to promote parental, educator, and  








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               community participation in the governance of a charter  
               school.





             d)   A member of the board of directors of the nonprofit  
               public benefit corporation is subject to removal from his  
               or her board position pursuant to Article 3 (commencing  
               with Section 3060) of Chapter 7 of Division 4 of Title 1 of  
               the Government Code and as otherwise provided by law.





             e)   A charter school shall not operate as, or be operated  
               by, a for-profit corporation.


          3)Specifies that a charter petition shall contain a reasonably  
            comprehensive description of, if the charter school elects to  
            operate as, or be operated by, a nonprofit public benefit  
            corporation the names and background information for all  
            persons whom the petitioner nominates to serve on the board of  
            directors of that nonprofit public benefit corporation.


          EXISTING LAW:  


          1)Authorizes charter schools to elect to operate as, or be  
            operated by, a nonprofit public benefit corporation, formed  
            and organized pursuant to the Nonprofit Public Benefit  
            Corporation Law.  Specifies the governing board of a school  
            district that grants a charter for the establishment of a  
            charter school shall be entitled to a single representative on  
            the board of directors of the nonprofit public benefit  








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            corporation.  Specifies an authority that grants a charter to  
            a charter school to be operated by, or as, a nonprofit public  
            benefit corporation is not liable for the debts or obligations  
            of the charter school, or for claims arising from the  
            performance of acts, errors, or omissions by the charter  
            school, if the authority has complied with all oversight  
            responsibilities required by law, including, but not limited  
            to, those required by Section 47604.32 and subdivision (m) of  
            Section 47605. (Education Code 47604)

          2)Requires charter school petitions to include a reasonably  
            comprehensive description of the manner by which staff members  
            of the charter schools will be covered by the State Teachers'  
            Retirement System (CalSTRS), the Public Employees' Retirement  
            System (CalPERS), or federal social security. (EC 47605  
            (b)(5)(K))

          3)Specifies that if a charter school chooses to make the CalSTRS  
            Plan available, all employees of the charter school who  
            perform creditable service shall be entitled to have that  
            service covered under the plan's Defined Benefit Program or  
            Cash Balance Benefit Program, and all provisions of Part 13  
            (commencing with Section 22000) and Part 14 (commencing with  
            Section 26000) shall apply in the same manner as the  
            provisions apply to other public schools in the school  
            district that granted the charter.  If a charter school offers  
            its employees coverage by CalSTRS or the CalPERS, or both, the  
            charter school shall inform all applicants for positions  
            within that charter school of the retirement system options  
            for employees of the charter school.  The information shall  
            specifically include whether the charter school makes  
            available to employees coverage under CalSTRS, the CalPERS, or  
            both systems, and that accepting employment in the charter  
            school may exclude the applicant from further coverage in the  
            applicant's current retirement system, depending on the  
            retirement options offered by the charter of the charter  
            school. (EC 47611)

          4)Requires charter school petitions to include a reasonably  








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            comprehensive description of a declaration whether or not the  
            charter school shall be deemed the exclusive public school  
            employer of the employees of the charter school for purposes  
            of the Educational Employment Relations Act (Chapter 10.7  
            (commencing with Section 3540) of Division 4 of Title 1 of the  
            Government Code). (EC 47605 (b)(5)(O))

          FISCAL EFFECT:  Legislative Counsel has keyed this bill as a  
          state-mandated local program. According to the Assembly  
          Appropriations Committee, for a substantially similar bill,  


           1)General Fund /Proposition 98 (GF/98) state reimbursable  
            mandated costs in the range of $750,000 to $2.1 million for  
            school districts and county offices of education (charter  
            authorizers) to review and appoint board members. This assumes  
            review of five to 10 board members for each of the 738 charter  
            schools currently operating as nonprofit public benefit  
            corporations. The State Board of Education would also incur GF  
            costs to review board members for at least two statewide  
            public benefit charter schools.  Costs would be incurred as  
            each charter petition is renewed, every five years. 

          2)The 2012-13 Budget Act created the K-12 Mandate Block Grant.   
            A school district, charter school, or county office of  
            education may choose to receive a per-pupil allocation to  
            conduct existing K-12 mandated activities, including  
            activities related to charter school authorization and  
            oversight.  If the Commission on State Mandates determines the  
            activities in this bill to be state mandated activities, these  
            activities could be considered for inclusion in the block  
            grant. Prior to the 2012-13 Fiscal Year, cost claims for  
            mandated activities related to charter school authorization  
            and oversight were approximately $1.9 million GF/98.  

          COMMENTS:  This bill requires governing bodies of charter  
          schools operated as nonprofit corporations to be appointed by  
          the chartering authority.  Specifically, the bill requires a  
          majority of the members of these governing bodies to be  








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          appointed.  Charter schools are required to nominate twice the  
          number of members necessary in their charter petition and the  
          chartering authority shall appoint members to the charter school  
          body from the list of nominated members provided in the  
          petition.  This bill addresses two recent issues. First, the  
          bill addresses an argument made by California Virtual Academy  
          (CAVA) before the Public Employment Relations Board (PERB), that  
          they are not a "political subdivision of the state." Second, the  
          bill addresses a recent Internal Revenue System (IRS) proposed  
          regulation and subsequent response by California Public  
          Employees Retirement System (CalPERS) that could potentially  
          exclude charter schools from the retirement system because  
          nonprofit charter schools do not meet the "tests" which qualify  
          the school as a governmental entity.  This bill also prohibits  
          charter schools from being operated by a for-profit corporation.  
           According to the California Charter School Association, there  
          are currently six for-profit charter schools operating in  
          California.   
           
           National Labor Relations Board & The Chicago Decision: According  
          to the California Teachers Association, "A 2012 decision by the  
          National Labor Relations Board (NLRB) suggests that charter  
          school employees are private employees, subject to the National  
          Labor Relations Act (NLRA).  AB 787 seeks to ensure that all of  
          California's charter schools are considered "political  
          subdivisions of the state" subject to the Education Employment  
          Relations Act (EERA) and not the NLRA.  The EERA, and the  
          extensive Public Employment Relations Board (PERB) law that has  
          developed under it, reflects the unique context of California's  
          public schools.  For example, the scope of bargaining under EERA  
          specifically includes issues like teacher evaluation procedures,  
          and sets forth a duty to consult on curriculum and textbooks."

          According to the author, "when the PERB sent a notice to CAVA  
          notifying them that the teachers had voted to create a union  
          under the EERA, attorneys from CAVA sent a May 29, 2014 response  
          letter to PERB indicating that "PERB should defer to the NLRB,"  
          citing the 2012 NLRB decision from Chicago. CAVA made the  
          argument that their employees were private employees. If CAVA  








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          management had been successful in making this assertion, there  
          are lingering questions about the ability of their employees to  
          collect a public pension or even for the school to collect  
          public tax dollars. Additionally, a decision like this about a  
          charter school in California would have an impact on many other  
          charter school educators, who have formed their unions within  
          the framework of the EERA."


          According to the California Teachers Association, "The Chicago  
          Mathematics case began when an American Federation of Teachers  
          affiliate organized employees of the charter school under the  
          Illinois public sector bargaining statute, which is applicable  
          to Illinois charter schools by express statutory provision.  In  
          response, the charter school filed a representation petition  
          with the NLRB, arguing that the charter school is not exempt  
          from the NLRB's jurisdiction as a "political subdivision of the  
          state."  The Board unanimously ruled that the charter school is  
          an "employer" under the NLRA and not a "political subdivision of  
          the state."  In so doing, the Board employed a very narrow  
          analysis that looks only to the manner in which the school's  
          governing board is selected. The Board reasoned that because the  
          members of the charter school's governing board were not  
          popularly elected or appointed by public officials and are not  
          removable by the electorate or by public officials, the charter  
          school is not administered by persons who are responsible to  
          government officials or the public so as to constitute an exempt  
          political subdivision.  In California, the Legislature and the  
          charter school community acknowledge that charter schools should  
          be covered in the EERA, and as a result there is a need to  
          change state law to allow continued coverage."


          The NLRB has two additional cases before it regarding their  
          jurisdiction once charter schools in New York and Pennsylvania. 


          CalPERS Application Changes:  In response to advance notice of  
          proposed rulemaking by the IRS, CalPERS changed their  








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          application process in May 2013. They issued a letter explaining  
          the change which states, "Although the Proposed Regulations are  
          not final, and could be revised during the official regulatory  
          process, in order to mitigate potential risks to the CalPERS  
          Plans, its members and employers, CalPERS has decided to  
          incorporate the Proposed Regulations into our existing  
          eligibility review process." Several modifications were made to  
          the CalPERS applicant questionnaire and eligibility criteria,  
          which resulted in new questions to those who seek participation,  
          including but not limited to: 
          1)Please indicate whether the members of the Employer's  
            governing board or body are Elected or Appointed? If  
            appointed, who has the power to appoint members of the  
            Employer's governing board or body? 
          2)Does any person or entity have the power to remove members of  
            the Employer's Governing board or body? 
          3)Is the Employer treated as a governmental entity for any other  
            purposes? Please describe in detail. Examples: Is the Employer  
            subject to open meeting laws (such as the Brown Act), the  
            California Public Records Act or similar laws? Are the  
            Employer's employees subject to the California Political  
            Reform Act? Please provide a copy of the Employer's current  
            Conflict of Interest Code. Has any State or federal court or  
            administrative agency made a formal written determination that  
            the Employer is a governmental entity for any purpose?

          In June of 2013, one month after changing their application  
          process, CalPERS denied employees of a California charter  
          school, the Dehesa Charter School, the opportunity to  
          participate in the state pension plan. This was the first time  
          CalPERS has denied participation to any charter school, and they  
          went on to deny at least 9 others.  

          In January of 2015, the IRS issued a new draft proposal of  
          rulemaking with tests for charter school participation in their  
          State or local retirement system which include the following:
          The entity satisfies either paragraph 1) or 2) below:
          1)The entity's governing board or body is controlled by a State,  
            political subdivision of a State, or agency or instrumentality  








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            of a State or of a political subdivision of a State. For this  
            purpose, either (i) a State, political subdivision of a State,  
            or an agency or instrumentality of a State or political  
            subdivision of a State must have the power to nominate,  
            appoint, remove, and replace a majority of the members of the  
            entity's governing board or body, or (ii) a majority of the  
            members of the entity's governing board or body must be  
            publicly nominated and elected.
          2)In lieu of satisfying the requirements in paragraph 1), the  
            entity satisfies the following requirements:
             a)   The primary source of the entity's funding is from a  
               State, political subdivision of a State, or agency or  
               instrumentality of a State or political subdivision of a  
               State. 
             b)   The rights of the entity's employees to their accrued  
               benefits under the State or local retirement system are not  
               dependent on whether the entity continues to participate in  
               the system and, in the event the entity ceases  
               participation, a governmental entity has responsibility for  
               the accrued benefits of the entity's employees, including  
               the continued funding of the accrued benefits, to no lesser  
               extent than a governmental entity has responsibility for  
               the continued funding of the accrued benefits of the  
               employees of any other participating employer in the system  
               in the event that other employer were to cease to be a  
               participating employer.
             c)   The entity is part of a local educational agency, as  
               defined in 20 U.S.C. 7801(26) (or is its own local  
               educational agency), and is subject to the significant  
               regulatory control and oversight by a State, political  
               subdivision of a State, or agency or instrumentality of a  
               State or political subdivision of a State, as described in  
               paragraphs i) and iii) below:
               i)     The entity is held accountable by an authorized  
                 public chartering agency as defined in 20 U.S.C. §  
                 7221i(4), which has the power to approve, renew, and  
                 revoke the charter of the entity. For this purpose, the  
                 authorized public chartering agency must be authorized  
                 under State law to approve charters for the creation of  








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                 independent public schools and to hold the entity  
                 accountable for results. 
               ii)    The entity is required to comply with health and  
                 safety standards, as well as academic and financial  
                 accountability standards, that are similar to those that  
                 are generally applicable to other public schools in the  
                 State.
          Based on this draft rulemaking, CalPERs is planning to update  
          their application criteria and review the 10 charter schools  
          they previously denied as well as the additional 33 applications  
          they have currently pending.  It is unclear whether all charter  
          schools will meet the test above. The committee should consider  
          whether all charter schools will meet paragraph 2) above, or  
          whether this bill is a more appropriate solution to this  
          problem.

          Appointed Chartering Authorities:  While the vast majority of  
          school boards and county boards of education are elected bodies,  
          there are a few charter authorizers that are appointed boards  
          instead of elected boards.  These appointed boards include the  
          State Board of Education and the Los Angeles County Board of  
          Education. The committee should consider whether this bill will  
          correct the situation for nonprofit charters authorized by these  
          boards.

          Authorizer Liability:  The committee should consider whether  
          charter authorizers that authorize nonprofit charter schools and  
          appoint a majority of the charter school's governing body  
          members will be assuming more financial liability if the charter  
          school closes.  Under existing law, it appears that charter  
          authorizers have some protection from liability of nonprofit  
          charters they authorize, if they perform proper oversight;  
          however, it is unclear whether this bill erodes that protection  
          from liability since the authorizer would be appointing the  
          governing body of the charter school. 

          Arguments in Support: The California Teachers Association  
          supports the bill and states, "Many charter schools are publicly  
          funded but privately governed. This private governance is  








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          causing confusion about whether charter school employees are  
          public or private. This important legislation will ensure that  
          charter school employees are public employees, with the ability  
          to participate in public pension programs, working in schools  
          that can receive public tax dollars, and are covered by the  
          state's collective bargaining laws that apply to other public  
          education employees."


          Arguments in Opposition: The California Charter School  
          Association Advocates opposes the bill and states, "According to  
          his fact sheet on the bill, the author claims that the bill is  
          intended to ensure that charter school employees are covered  
          under the state's Education Employment Relations Act (EERA). We  
          are perplexed as to what is actually missing in the law, since  
          the EERA already expressly applies to charter school employees.   
          We are further perplexed as to what relationship this bill has  
          to EERA, since EERA is not mentioned in the bill."


          Committee Amendment: Staff recommends the bill be amended to  
          specify in Education Code Section 47604 (3): "It shall be the  
          policy of the state to encourage and to promote parental,  
          educator, geographic & ethnic diversity and community  
          participation in the governance of a charter school."


          REGISTERED SUPPORT / OPPOSITION:




          Support


          California Federation of Teachers


          California Labor Federation








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          California Teachers Association


          


          Opposition





          Caliber Schools


          California Charter Schools Association Advocates


          Clayton Valley Charter High School


          EdVoice


          KIPP Academy of Innovation


          KIPP Bay Area Schools


          KIPP Empower Academy


          KIPP Iluminar Academy


          KIPP Vida Preparatory Academy








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          KIPP: LA Schools


          Odyssey Charter School


          Orange County Conservation Corps


          Palisades Charter High School


          Partnerships to Uplift Communities


          San Jose Charter Academy


          Shasta Charter Academy


          SIATech


          StudentsFirst


          The Language Academy of Sacramento


          Valley Preparatory Academy Charter School


          Ventura Charter School


          Willow Creek Academy








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          Numerous Individuals


          




          Analysis Prepared by:Chelsea Kelley / ED. / (916) 319-2087