BILL ANALYSIS AB 572 Page 1 Date of Hearing: April 29, 2009 ASSEMBLY COMMITTEE ON EDUCATION Julia Brownley, Chair AB 572 (Brownley) - As Amended: April 13, 2009 SUBJECT : Charter schools: governing boards. SUMMARY : Requires charter schools to adopt and comply with a conflict of interest policy that requires its governing board members to abide by substantially similar conflict of interest requirements as local education agency (LEA) governing board members. Specifically, this bill : 1)Requires the governing board of a charter school to adopt and comply with a conflict-of-interest policy and requires the policy to include, but is not necessarily limited to, the requirement that members of the governing board of the charter school abide by Article 4 (commencing with Section 1090) of Chapter 1 of Division 4 of Title 1 of the Government Code and Chapter 7 (commencing with Section 87100) of Title 9 of the Government Code within the Political Reform Act. 2)Requires the governing board of a charter school to comply with the Ralph M. Brown Act; and, requires the governing board of a charter school operated by a state agency to comply with the Bagley-Keene Open Meeting Act. 3)Requires a charter school to comply with the California Public Records Act. 4)Specifies that a member of the governing board of a charter school shall abstain from voting on all matters affecting his or her own employment and shall abstain from voting on personnel matters that uniquely affect a relative of the member but may vote on collective bargaining agreements and personnel matters that affect a class of employees to which the relative belongs; and, specifies for purposes of this section, "relative" means an adult who is related to the person by blood or affinity within the third degree, as determined by the common law, or an individual in an adoptive AB 572 Page 2 relationship within the third degree. 5)Specifies that a person shall be disqualified from serving on the governing board of a charter school if the person is disqualified by the California Constitution or laws of the state from holding a civil office. 6)Declares Legislative intent to provide transparency in the operations of the many charter schools that are providing quality educational options for parents and pupils and renew the faith of parents and the community that their local charter school is acting in the best interests of pupils by establishing conflict-of-interest policies for charter school governing boards that mirror existing conflict-of-interest policies followed by school district governing boards. 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. EXISTING LAW pertaining to school districts: 1)Specifies that Members of the Legislature, state, county, 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. (Government Code 1090) 2)Specifies that an employee of a school district (or local agency) may not be sworn into office as an elected or appointed member of that school district's (or local agency's) governing board unless and until he/she resigns as an employee. (Education Code 35107) 3)Requires members of school district governing boards and designated employees of the school district to file statements of financial interest according to the Political Reform Act. (Government Code 87100 et. seq.) AB 572 Page 3 4)Requires a county, city, whether general law or chartered, city and county, town, school district, municipal corporation, district, political subdivision, or any board, commission or agency thereof, or other local public agency to comply with the Brown Act. (Government Code 54950 et. seq.) 5)Requires a county; city; city and county; school district; municipal corporation; district; political subdivision; or any board, commission or agency thereof; other local public agency; or a board, commission, committee, or other multimember body that governs a private corporation, limited liability company, or other entity that either is created by the elected legislative body in order to exercise authority that may lawfully be delegated by the elected governing body to a private corporation, limited liability company, or other entity; or, receives funds from a local agency and the membership of whose governing body includes a member of the legislative body of the local agency appointed to that governing body as a full voting member by the legislative body of the local agency to comply with the California Public Records Act. (Government Code 6250 et. seq.) FISCAL EFFECT : Unknown COMMENTS : This bill requires charter school governing board 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 board members engaging in inappropriate financial mismanagement have highlighted the need for charter school conflict of interest laws to be clarified. While charter schools are given more autonomy than public schools, their governing boards have authority over public funds to be used for the educational benefit of their students. Charter school governing boards should be held to the same standards as school district governing boards. This bill requires charter school boards to file statements of economic interest according to the Political Reform Act; specifies that charter school board members may not be financially interested in any decision made by the board; requires charter schools to comply with the California Public Records Act; and, requires charter school boards to abide by the Brown Act or the Bagley-Keene Open Meetings Act. AB 572 Page 4 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 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." AB 572 Page 5 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 Political Reform Act, and in so, must file a statement of economic interest, annually. Supporters of the bill, including the California School Boards Association, the Association of California School Administrators, the California Association of School Business Officials, the California State PTA, the California Federation of Teachers, Orange County Department of Education, San Francisco Unified School District, and Antioch Unified School District argue, this measure will strengthen efforts to end financial abuse of public funds in charter schools, provide transparency into the operations of the many charter schools that are providing quality educational options for parents and students, and renew the faith of parents and the community that their local charter school is acting in the best interest of students. The California Teachers Association supports the bill and argues, "CTA believes that all authorizing entities, including school districts, county offices of education and the state board of education, should be free of conflicts of interest in the approval of charter schools. CTA believes that all charter school governing boards also should be free of conflicts of interest in the operation of charter schools and that the Ralph M. Brown Act (open meetings law) and the Public Records Act should apply to the operation of these schools. There is a role AB 572 Page 6 for charter schools in California's education system. That role should be performed to at least the same high standards of integrity, transparency and openness required of traditional public schools." The California Charter Schools Association (CCSA) opposes the bill and argues, "CCSA supports applying appropriate conflict of interest provisions to charter schools, including transparency and recusal by board members with a financial interest in a board decision. In fact, most charter schools are nonprofit corporations and must abide by the Corporations Code that includes conflict of interest provisions. We believe that AB 572's directive that charter schools comply with Government Code Section 87100 et seq applies an inappropriate conflict of interest scheme to charter schools. We are open to crafting a conflict of interest law that is specific to charter schools." Corporations Code . Statute governing 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: a) 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, b) any relative, as specified, of any such person. Advocates of charter schools contend they should abide by conflict of 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 funded charter schools abide by the corporations code rather than the government code with regard to conflict of interest policies. Committee Amendment : Staff recommends the bill be amended to clarify that charter schools shall comply with the Political Reform Act. Previous legislation : AB 2115 (Mullin) from 2008 required charter schools to adopt and comply with a conflict of interest policy that requires its governing board members to abide by the same conflict of interest requirements as local education agency (LEA) governing board members. According to the Assembly Appropriations Committee, AB 2115 had, unknown, minor absorbable state reimbursable mandated costs, likely less than $100,000, to the 585 charter schools in the state to adopt conflict of interest policies and abide by the Brown Act, as specified. The AB 572 Page 7 bill was vetoed by the Governor with the following message: "Not only would this bill create state mandated costs for charter schools to comply with its provisions, the measure runs counter to the intent of charter schools, which were created to be free from many of the laws governing schools districts." AB 1197 (Wiggins) of 2004, specified that individuals who govern charter schools shall file statements of economic interest under the Political Reform Act. The bill failed passage on the Senate Floor. REGISTERED SUPPORT / OPPOSITION : Support Antioch Unified School District Association of California School Administrators (ACSA) California Association of School Business Officials (CASBO) California Federation of Teachers (CFT) California School Boards Association (CSBA) California State PTA California Teachers Association (CTA) Orange County Department of Education Palos Verdes Unified School District Public Advocates Saddleback Valley Unified School District San Bernardino County Office of Education San Diego County Office of Education San Francisco Unified School District Santa Clara County Office of Education St. Helena Unified School District Opposition California Charter Schools Association An Individual Analysis Prepared by : Chelsea Kelley / ED. / (916) 319-2087