BILL ANALYSIS �
SENATE COMMITTEE ON EDUCATION
Alan Lowenthal, Chair
2011-12 Regular Session
BILL NO: AB 360
AUTHOR: Brownley
AMENDED: June 15, 2011
FISCAL COMM: No HEARING DATE: June 22, 2011
URGENCY: No CONSULTANT:Beth Graybill
NOTE : This bill has been referred to the Committees on
Education and Judiciary. A "do pass" motion should
include referral to the Committee on Judiciary.
SUBJECT : Charter Schools.
SUMMARY
This bill explicitly declares that charter schools are subject
to a variety of open meeting, conflict of interest and
disclosure laws, including the Political Reform Act of 1974.
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 �
47601 et. seq.)
Existing law requires state and local agencies to conduct
business in meetings that are open to the public:
The Ralph M. Brown Act requires meetings of a local
agency's board of directors to be open to the public.
(Government Code � 54950 et seq.)
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The Bagley-Keene Open Meeting Act requires meetings of
state bodies to be open to the public. (GC � 11120)
The California Public Records Act (CPRA) 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 any body or board of
which they are members.
(GC � 1090 et seq.)
The Political Reform Act of 1974 (Act), 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 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) Expresses the intent of the Legislature to establish
conflict of interest policies for governing boards of
charter schools that mirror existing conflict of interest
policies followed by the governing boards of other public
schools, provide transparency in the operations of charter
schools and in the use of public funds by the governing
boards of charter schools for the educational benefit of
their pupils.
2) Declares 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) and Section 35147 of the
Education Code, which requires meetings of councils
and school site advisory committees to be open to the
public.
b) The California Public Records Act.
c) Provisions of statutory law 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.
3) Provides that a member of the governing body of a charter
school must abstain from voting on:
a) All matters uniquely affecting his or her own
employment.
b) Personnel matters that uniquely affect a relative
of the member, although the member may vote on a
collective bargaining agreement or personnel matter
that affects a class of employees to which the
relative belongs.
4) Provides that a person who is disqualified by law from
holding a civil office may not serve on the governing body
of a charter school.
5) Explicitly provides that an employee of a charter school is
not prohibited from serving as a member of the governing
body of that school.
6) Specifies that the governing board of a charter school is
not subject to open meeting laws or the Public Records Act
when conducting activities unrelated to the school's
operation and prohibits the discussion of unrelated
activities in meetings held to discuss operation of the
charter school.
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7) Authorizes the governing body of a charter school to hold
closed sessions to consider matters regarding pupil
discipline.
STAFF COMMENTS
1) Need for the bill : According to the author's office,
"recent news reports of charter school board 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 board members and
designated employees do not consistently file an annual
statement of economic interest, making it difficult to
discern any potential conflicts of interest that individual
board members may have." While the state gives public
charter schools significant autonomy in order to encourage
innovation, the author argues that because charter school
governing boards have authority over public funds to be
used for the educational benefit of their students, they
should be held to the same conflict of interest standards
as the governing boards of other public schools.
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. This bill makes the governing boards of public
charter schools subject to these same requirements.
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
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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 that 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 Act, charter schools would need to respond to
requests for information that is not private in
nature.
c) 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 have expressed concern that this
provision could make it more difficult for
philanthropic board members to provide low-interest or
no-interest loans or make facilities available to
charter schools, which often happens during the
start-up phase of a charter school.
d) Political Reform Act . 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
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
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board members and designated employees having to
disclose their financial interests in annual
statements filed with the FPPC.
The California Charter School Association (CCSA) has argued
that current law allows charter school authorizers to
revoke a charter when a charter school fails to meet
generally accepted accounting principles or engages in
fiscal mismanagement. The CCSA further argues that
imposing these regulations is contrary to the central
premise of autonomy that is provided to charter schools.
Proponents of this bill argue that because charter schools
are public schools and receive public funds, charter school
governing boards have a fiduciary duty to taxpayers with
regard to the use of those funds for the educational
benefit of their pupils. The California School Boards
Association notes that "Unfortunately, fiscal mismanagement
is a common reason for the closure of charter schools. The
most egregious abuses have occurred when charter school
board members have benefited financially from decisions
made by their own board. As public schools, charter
schools should do business in an open, transparent manner,
free of conflicts of interest."
3) Related and prior legislation . This bill is similar to AB
572 (Brownley, 2010) would have required charter schools to
comply with the Brown Act open meeting law, the California
Public Records Act, and the Political Reform Act. AB 572
was passed by the Senate Education Committee and
subsequently vetoed by Governor Schwarzenegger with the
following veto 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
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
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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."
SB 433 (Liu) would require charter schools to comply with
state statutes governing the suspension and expulsion of
pupils. This measure was heard in this Committee on May 4,
2011 and was held at the request of the author.
SB 645 (Simitian) establishes new academic criteria for
charter school renewal. This measure was passed as amended
by this Committee on May 4, 2011 on a 7-1 vote.
AB 86 (Mendoza) expands signature requirements for charter
school petitions to include classified employees. This
measure was passed by this Committee on June 15, 2011 on a
6-2 vote.
AB 440 (Brownley) establishes various academic and fiscal
accountability standards related to charter schools. This
measure is pending before this Committee.
AB 925 (Lara) requires charter schools to provide
classified employees employment benefits and protections
that mirror those provided to classified employees in
school districts. This measure is pending before this
Committee.
AB 1034 (Gatto) requires charter schools to report
specified information relating to pupil demographics and
academic progress, requires charter schools to collect data
regarding pupils who transfer out of the school, and
modifies existing law regarding charter school admissions.
This measure is pending before this Committee.
ABX5 8 (Brownley, Fifth extraordinary session of 2009)
would have deleted the cap on charter schools and would
have made other changes to provisions governing audit and
fiscal standards, and the authorization, renewal and
revocation of charter schools. The Senate Education
Committee hearing for this bill was canceled at the request
of the author and the bill was subsequently held by the
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Committee.
SUPPORT
California County Superintendents Educational Services
Association
California Federation of Teachers
California Newspaper Publishers Association
California School Boards Association
California School Employees Association
California Teachers Association
Californians Aware
Californians Together Coalition
K12, Inc.
Kern County Superintendent of Schools.
Los Angeles County Interim Superintendent of Schools, Jon R.
Gundry
Los Angeles Unified School District
Public Advocates
Riverside County School Superintendents Association
San Bernardino County District Advocates for Better Schools
San Francisco Unified School District
Santa Clara County Superintendent of Schools, Charles Wels
United Teachers Los Angeles
OPPOSITION
California Business for Education Excellence
Charter Schools Development Center
EdVoice