BILL ANALYSIS
AB 146
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Date of Hearing: March 18, 2009
ASSEMBLY COMMITTEE ON EDUCATION
Julia Brownley, Chair
AB 146 (Mendoza) - As Introduced: January 22, 2009
SUBJECT : Instructional materials: delivery
SUMMARY : Makes a publisher or manufacturer liable for damages
if it fails to deliver instructional materials within 60 days of
the receipt of a purchase order from a school district.
Specifically, this bill :
1)Provides that if a publisher or manufacturer fails to deliver
instructional materials within 60 days of the receipt of a
purchase order from a school district and the publisher or
manufacturer has not received prior written approval from the
district for a delay in delivery, the publisher or
manufacturer shall be liable for damages in the amount of $500
for each working day that the order is delayed beyond 60
calendar days.
2)Specifies that if late delivery results from circumstances
beyond the control of the publisher or manufacturer, the
publisher or manufacturer shall not be held liable.
3)Prohibits a publisher or manufacturer from being liable for an
amount greater than $20,000 for any individual purchase order
placed by a school district pursuant to this subdivision.
4)Requires districts seeking to recover damages pursuant to this
bill to give the publisher or manufacturer written
notification of the actual delivery date of the instructional
materials and the date upon which damages began to accrue.
EXISTING LAW requires an instructional materials publisher or
manufacturer to guarantee delivery of textbooks and
instructional materials prior to the opening of school in the
year in which the textbooks and instructional materials are to
be used, provided that materials are ordered by the date
specified in the contract.
FISCAL EFFECT : This bill is keyed non-fiscal.
COMMENTS : In August 2004, the state entered into a settlement
AB 146
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agreement in the Williams v. California (Williams) case that
required the state to ensure, among other items, that pupils
have access to reasonably current textbooks and instructional
materials, in useable condition, in each core subject to use in
class and to take home.
School districts are required to make every attempt to
prioritize the provision of instructional materials to schools
affected by the Williams settlement. Nevertheless, the author
suggests that there is no incentive for publishers to make sure
textbooks are delivered on time upon a district placing a
purchase order. This bill provides school districts a tool that
can help them fulfill the requirements of the Williams
settlement.
Prior Title 5 Regulations : A prior version of Section 9530 of
Title 5 of the California Code of Regulations imposed penalties
on publishers that failed to deliver instructional materials
within 60 days of the receipt of a purchase order. Because
there was no statutory authority for districts to impose these
penalties on publishers, a recent revision of the Title 5
Regulations included the deletion of these penalty provisions.
The penalties proposed by this bill are identical to the
penalties in the previous Title 5 Regulations.
The bill states that if late delivery results from circumstances
beyond the control of the publisher or manufacturer, the
publisher or manufacturer shall not be held liable. The
language in the bill is vague as to what would constitute a
circumstance "beyond the control of the publisher or
manufacturer" and who would make the determination that a
publisher or manufacturer is not liable for damages due to such
a circumstance. Staff recommends the bill be amended to either
delete this language, by striking lines 25-27 inclusive from
page 2 of the bill, or to specify in the bill what circumstances
are beyond the control of the publishers.
The author states, "Ensuring that our youth are equipped with
the necessary learning tools should be our primary goal so that
they can be properly educated. AB 146 helps accomplish this
goal by holding the publishers or manufacturers of K-8
instructional materials accountable to the previous California
of Education regulations."
Arguments in support : The American Federation of State, County
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and Municipal Employees writes, "AFSCME supports this bill
because instructional materials are key to classroom instruction
and if these materials are not received in a timely manner,
schools cannot do their job properly. Late delivery of
instructional materials impacts a teacher's ability to properly
prepare for classroom instruction and may affect the schedule of
classroom learning."
Prior legislation : An identical measure, AB 357 (Mendoza) of
2008, makes a publisher or manufacturer liable for damages if it
fails to deliver instructional materials within 60 days of the
receipt of a purchase order from a school district. AB 357 was
vetoed with the following veto message:
"While I am supportive of efforts to ensure that school
districts have instructional materials available for their
students on a timely basis, this bill is unnecessary. Districts
may enter into contractual agreements with publishers and can
negotiate any level of penalty based on a variety of contract
terms, even without statutory mandate."
REGISTERED SUPPORT / OPPOSITION :
Support
American Federation of State, County and Municipal Employees,
AFL-CIO
California Federation of Teachers
Opposition
None on file.
Analysis Prepared by : Marisol Avi?a / ED. / (916) 319-2087