Bill Text: CA AB2279 | 2011-2012 | Regular Session | Amended
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: School districts: emergency apportionments: trustees.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Passed) 2012-09-21 - Chaptered by Secretary of State - Chapter 429, Statutes of 2012. [AB2279 Detail]
Download: California-2011-AB2279-Amended.html
Bill Title: School districts: emergency apportionments: trustees.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Passed) 2012-09-21 - Chaptered by Secretary of State - Chapter 429, Statutes of 2012. [AB2279 Detail]
Download: California-2011-AB2279-Amended.html
BILL NUMBER: AB 2279 AMENDED
BILL TEXT
AMENDED IN SENATE JULY 2, 2012
AMENDED IN ASSEMBLY MAY 2, 2012
INTRODUCED BY Assembly Member Swanson
FEBRUARY 24, 2012
An act to amend Sections 41320.1 and 41326 of the Education Code,
relating to school districts.
LEGISLATIVE COUNSEL'S DIGEST
AB 2279, as amended, Swanson. School districts: emergency
apportionments: trustees.
Existing law authorizes the governing board of a school district
to request an emergency apportionment through the Superintendent of
Public Instruction if the governing board of a school district
determines during a fiscal year that its revenues are less than the
amount necessary to meet its current year expenditure obligations.
Existing law provides that if a school district accepts an emergency
apportionment the Superintendent shall, among other things, appoint a
trustee who has recognized expertise in management and finance, and
may employ, on a short-term basis, any staff necessary to assist the
trustee. Existing law also provides that the trustee, and any
necessary staff, shall serve until the emergency apportionment loan
is repaid, the school district has adequate fiscal systems and
controls in place, and the Superintendent has determined that the
school district's future compliance with an approved fiscal plan is
probable. Existing law authorizes the trustee, during the period of
his or her service, to stay or rescind any action of the local
governing board of the school district that, in the judgment of the
trustee, may affect the financial condition of the school district.
This bill would instead provide that the trustee, and necessary
staff, shall serve until the school district has adequate fiscal
systems and controls in place and , the
Superintendent has determined that the school district's future
compliance with an approved fiscal plan is probable, and the
Superintendent decides to terminate the trustee's appointment,
but in no event, for less than 3 years. The bill would authorize the
county superintendent of schools that has jurisdiction over the
school district , after the trustee's period of service and
until the loan is repaid, to stay or rescind an action of the
governing board of the school district that, in his or her judgment,
may affect the financial condition of the school district. The
bill would require the county superintendent of schools to notify the
Superintendent, as specified, within 5 business days of staying or
rescinding an action of the governing board of the school
district. If the Superintendent receives this notice from the county
superintendent of schools, the bill would require the Superintendent
to report to the Legislature, on or before December 30 of every year,
whether the school district is complying with the fiscal plan
approved for the school district.
Existing law authorizes the Superintendent, within 5 years after
an appointed trustee is removed, to reassume, either directly or
through an administrator, all of the legal rights, duties, and powers
of the governing board of the school district if the school district
violates any provision of specified recovery plans approved by the
Superintendent.
This bill would instead authorize the Superintendent, within 5
years after an appointed trustee is removed or the loan is repaid,
whichever occurs later, to reassume, either directly or through an
administrator, all of the legal rights, duties, and powers of the
governing board of the school district if the school district
violates any provision of specified recovery plans approved by the
Superintendent.
This bill would also make numerous nonsubstantive changes.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 41320.1 of the Education Code is amended to
read:
41320.1. Acceptance by the school district of the apportionments
made pursuant to Section 41320 constitutes the agreement by the
school district to all of the following conditions:
(a) The Superintendent shall appoint a trustee who has recognized
expertise in management and finance and may employ, on a short-term
basis, staff necessary to assist the trustee, including, but not
limited to, certified public accountants, as follows:
(1) The expenses incurred by the trustee and necessary staff shall
be borne by the school district.
(2) The Superintendent shall establish the terms and conditions of
the employment, including the remuneration of the trustee. The
trustee shall serve at the pleasure of, and report directly to, the
Superintendent.
(3) The trustee, and necessary staff, shall serve until the school
district has adequate fiscal systems and controls in place
and , the Superintendent has determined that the
school district's future compliance with the fiscal plan approved
for the school district under Section 41320 is probable, and the
Superintendent decides to terminate the trustee's appointment,
but in no event, for less than three years. The Superintendent shall
notify the county superintendent of schools, the Legislature, the
Department of Finance, and the Controller no less than 60 days before
the time that the Superintendent expects these conditions to be met.
(4) Before the school district repays the loan, including
interest, the recipient of the loan shall select an auditor from a
list established by the Superintendent and the Controller to conduct
an audit of its fiscal systems. If the fiscal systems are deemed to
be inadequate, the Superintendent may retain the trustee until the
deficiencies are corrected. The cost of this audit and any additional
cost of the trustee shall be borne by the school district.
(5) Notwithstanding any other law, all reports submitted to the
trustee are public records.
(6) To facilitate the appointment of the trustee and the
employment of necessary staff, for purposes of this section, the
Superintendent is exempt from the requirements of Article 6
(commencing with Section 999) of Chapter 6 of Division 4 of the
Military and Veterans Code and Part 2 (commencing with Section 10100)
of Division 2 of the Public Contract Code.
(7) Notwithstanding any other law, the Superintendent may appoint
an employee of the department to act as trustee for up to the
duration of the trusteeship. The salary and benefits of that employee
shall be established by the Superintendent and paid by the school
district. During the time of appointment, the employee is an employee
of the school district, but shall remain in the same retirement
system under the same plan as if the employee had remained in the
department. Upon the expiration or termination of the appointment,
the employee shall have the right to return to his or her former
position, or to a position at substantially the same level as that
position, with the department. The time served in the appointment
shall be counted for all purposes as if the employee had served that
time in his or her former position with the department.
(b) (1) The trustee appointed by the
Superintendent shall monitor and review the operation of the school
district. During the period of his or her service, the trustee may
stay or rescind an action of the governing board of the school
district that, in the judgment of the trustee, may affect the
financial condition of the school district. After
(2) After the trustee's period of
service, and until the loan is repaid, the county superintendent of
schools that has jurisdiction over the school district may
stay or rescind an action of the governing board of the school
district that, in his or her judgment, may affect the financial
condition of the school district. The The
county superintendent of schools shall notify the Superintendent,
within five business days, if he or she stays or rescinds an action
of the governing board of the school district. The notice shall
include, but not be limited to, both of the following:
(A) A description of the governing board of the school district's
intended action and its financial implications.
(B) The rationale and findings that support the county
superintendent of school's decision to stay or rescind the action of
the governing board of the school district.
(3) If the Superintendent is notified by the county superintendent
of schools pursuant to paragraph (2), the Superintendent shall
report to the Legislature, on or before December 30 of every year,
whether the school district is complying with the fiscal plan
approved for the school district.
(4) The Superintendent may
establish timelines and prescribe formats for reports and other
materials to be used by the trustee to monitor and review the
operations of the school district. The trustee shall approve or
reject all reports and other materials required from the school
district as a condition of receiving the apportionment. The
Superintendent, upon the recommendation of the trustee, may reduce an
apportionment to the school district in an amount up to two hundred
dollars ($200) per day for each late or unacceptable report or other
material required under this part, and shall report to the
Legislature a failure of the school district to comply with the
requirements of this section. If the Superintendent determines, at
any time, that the fiscal plan approved for the school district under
Section 41320 is unsatisfactory, he or she may modify the plan as
necessary, and the school district shall comply with the plan as
modified.
(c) At the request of the Superintendent, the Controller shall
transfer to the department, from an apportionment to which the school
district would otherwise have been entitled pursuant to Section
42238, the amount necessary to pay the expenses incurred by the
trustee and associated costs incurred by the county superintendent of
schools.
(d) For the fiscal year in which the apportionments are disbursed
and every year thereafter, the Controller, or his or her designee,
shall cause an audit to be conducted of the books and accounts of the
school district, in lieu of the audit required by Section 41020. At
the Controller's discretion, the audit may be conducted by the
Controller, his or her designee, or an auditor selected by the school
district and approved by the Controller. The costs of these audits
shall be borne by the school district. These audits shall be required
until the Controller determines, in consultation with the
Superintendent, that the school district is financially solvent, but
in no event earlier than one year following the implementation of the
plan or later than the time the apportionment made is repaid,
including interest. In addition, the Controller shall conduct quality
control reviews pursuant to subdivision (c) of Section 14504.2.
(e) For purposes of errors and omissions liability insurance
policies, the trustee appointed pursuant to this section is an
employee of the local educational agency to which he or she is
assigned. For purposes of workers' compensation benefits, the trustee
is an employee of the local educational agency to which he or she is
assigned, except that a trustee appointed pursuant to paragraph (7)
of subdivision (a) is an employee of the department for that purpose.
(f) Except for an individual appointed by the Superintendent as
trustee pursuant to paragraph (7) of subdivision (a), the
state-appointed trustee is a member of the State Teachers' Retirement
System, if qualified, for the period of service as trustee, unless
the trustee elects in writing not to become a member. A person who is
a member or retirant of the State Teachers' Retirement System at the
time of appointment shall continue to be a member or retirant of the
system for the duration of the appointment. If the trustee chooses
to become a member or is already a member, the trustee shall be
placed on the payroll of the school district for purposes of
providing appropriate contributions to the system. The Superintendent
may also require that an individual appointed as trustee pursuant to
paragraph (7) of subdivision (a) be placed on the payroll of the
school district for purposes of remuneration, other benefits, and
payroll deductions. For purposes of workers' compensation benefits,
the state-appointed trustee is deemed an employee of the local
educational agency to which he or she is assigned, except that a
trustee who is appointed pursuant to paragraph (7) of subdivision (a)
is an employee of the department for that purpose.
SEC. 2. Section 41326 of the Education Code is amended to read:
41326. (a) Notwithstanding any other provision of this code, the
acceptance by a school district of an apportionment made pursuant to
Section 41320 that exceeds an amount equal to 200 percent of the
amount of the reserve recommended for that school district under the
standards and criteria adopted pursuant to Section 33127 constitutes
the agreement by the school district to the conditions set forth in
this article. Before applying for an emergency apportionment in the
amount identified in this subdivision, the governing board of a
school district shall discuss the need for that apportionment at a
regular or special meeting of the governing board of the school
district and, at that meeting, shall receive testimony regarding the
apportionment from parents, exclusive representatives of employees of
the school district, and other members of the community. For
purposes of this article, "qualifying school district" means a school
district that accepts a loan as described in this subdivision.
(b) The Superintendent shall assume all the legal rights, duties,
and powers of the governing board of a qualifying school district.
The Superintendent, in consultation with the county superintendent of
schools, shall appoint an administrator to act on his or her behalf
in exercising the authority described in this subdivision in
accordance with all of the following:
(1) The administrator shall serve under the direction and
supervision of the Superintendent until terminated by the
Superintendent at his or her discretion. The Superintendent shall
consult with the county superintendent of schools before terminating
the administrator.
(2) The administrator shall have recognized expertise in
management and finance.
(3) To facilitate the appointment of the administrator and the
employment of necessary staff, for purposes of this section, the
Superintendent is exempt from the requirements of Article 6
(commencing with Section 999) of Chapter 6 of Division 4 of the
Military and Veterans Code and Part 2 (commencing with Section 10100)
of Division 2 of the Public Contract Code.
(4) Notwithstanding any other law, the Superintendent may appoint
an employee of the state or the office of the county superintendent
of schools to act as administrator for up to the duration of the
administratorship. During the tenure of his or her appointment, the
administrator, if he or she is an employee of the state or the office
of the county superintendent of schools, is an employee of the
school district, but shall remain in the same retirement system under
the same plan that has been provided by his or her employment with
the state or the office of the county superintendent of schools. Upon
the expiration or termination of the appointment, the employee shall
have the right to return to his or her former position, or to a
position at substantially the same level as that position, with the
state or the office of the county superintendent of schools. The time
served in the appointment shall be counted for all purposes as if
the administrator had served that time in his or her former position
with the state or the office of the county superintendent of schools.
(5) Except for an individual appointed as an administrator by the
Superintendent pursuant to paragraph (4), the administrator shall be
a member of the State Teachers' Retirement System, if qualified, for
the period of service as administrator, unless he or she elects in
writing not to become a member. A person who is a member or retirant
of the State Teachers' Retirement System at the time of appointment
shall continue to be a member or retirant of the system for the
duration of the appointment. If the administrator chooses to become a
member or is already a member, the administrator shall be placed on
the payroll of the school district for purposes of providing
appropriate contributions to the system. The Superintendent may also
require the administrator to be placed on the payroll of the school
district for purposes of remuneration, other benefits, and payroll
deductions.
(6) For purposes of workers' compensation benefits, the
administrator is an employee of the qualifying school district,
except that an administrator appointed pursuant to paragraph (4) may
be deemed an employee of the state or office of the county
superintendent of schools, as applicable.
(7) The qualifying school district shall add the administrator as
a covered employee of the school district for all purposes of errors
and omissions liability insurance policies.
(8) The salary and benefits of the administrator shall be
established by the Superintendent and paid by the qualifying school
district.
(9) The Superintendent or the administrator may, on a short-term
basis, employ at school district expense staff necessary to assist
the administrator, including, but not limited to, a certified public
accountant.
(10) The administrator may do all of the following:
(A) Implement substantial changes in the fiscal policies and
practices of the school district, including, if necessary, the filing
of a petition under Chapter 9 (commencing with Section 901) of Title
11 of the United States Code for the adjustment of indebtedness.
(B) Revise the educational program of the school district to
reflect realistic income projections and pupil performance relative
to state standards.
(C) Encourage all members of the school community to accept a fair
share of the burden of the fiscal recovery of the school district.
(D) Consult, for purposes described in this subdivision, with the
governing board of the school district, the exclusive representatives
of the employees of the school district, parents, and the community.
(E) Consult with, and seek recommendations from, the
Superintendent, county superintendent of schools, and the County
Office Fiscal Crisis and Management Assistance Team authorized
pursuant to subdivision (c) of Section 42127.8 for purposes described
in this article.
(F) With the approval of the Superintendent, enter into agreements
on behalf of the school district and, subject to any contractual
obligation of the school district, change existing school district
rules, regulations, policies, or practices as necessary for the
effective implementation of the recovery plans referred to in
Sections 41327 and 41327.1.
(c) (1) For the period of time during which the Superintendent
exercises the authority described in subdivision (b), the governing
board of the qualifying school district shall serve as an advisory
body reporting to the state-appointed administrator, and has no
rights, duties, or powers, and is not entitled to any stipend,
benefits, or other compensation from the school district.
(2) Upon the appointment of an administrator pursuant to this
section, the district superintendent of schools is no longer an
employee of the school district.
(3) A determination of the severance compensation for the district
superintendent of schools shall be made pursuant to subdivision (j).
(d) Notwithstanding Section 35031 or any other law, the
administrator may, after according the employee reasonable notice and
the opportunity for a hearing, terminate the employment of any
deputy, associate, assistant superintendent of schools, or any other
school district level administrator who is employed by a school
district under a contract of employment signed or renewed after
January 1, 1992, if the employee fails to document, to the
satisfaction of the administrator, that before the date of the
acceptance of the apportionment he or she either advised the
governing board of the school district, or his or her superior, that
actions contemplated or taken by the governing board of the school
district could result in the fiscal insolvency of the school
district, or took other appropriate action to avert that fiscal
insolvency.
(e) The authority of the Superintendent, and the administrator,
under this section shall continue until all of the following occur:
(1) (A) After one complete fiscal year has elapsed following the
school district's acceptance of a loan as described in subdivision
(a), the administrator determines, and so notifies the Superintendent
and the county superintendent of schools, that future compliance by
the school district with the recovery plans approved pursuant to
paragraph (2) is probable.
(B) The Superintendent may return power to the governing board of
the school district for any area listed in subdivision (a) of Section
41327.1 if performance under the recovery plan for that area has
been demonstrated to the satisfaction of the Superintendent.
(2) The Superintendent has approved all of the recovery plans
referred to in subdivision (a) of Section 41327 and the County Office
Fiscal Crisis and Management Assistance Team completes the
improvement plans specified in Section 41327.1 and has completed a
minimum of two reports identifying the school district's progress in
implementing the improvement plans.
(3) The administrator certifies that all necessary collective
bargaining agreements have been negotiated and ratified, and that the
agreements are consistent with the terms of the recovery plans.
(4) The school district has completed all reports required by the
Superintendent and the administrator.
(5) The Superintendent determines that future compliance by the
school district with the recovery plans approved pursuant to
paragraph (2) is probable.
(f) When the conditions stated in subdivision (e) have been met,
and at least 60 days after the Superintendent has notified the
Legislature, the Department of Finance, the Controller, and the
county superintendent of schools that he or she expects the
conditions prescribed pursuant to this section to be met, the
governing board of the school district shall regain all of its legal
rights, duties, and powers, except for the powers held by the trustee
provided for pursuant to Article 2 (commencing with Section 41320).
The Superintendent shall appoint a trustee under Section 41320.1 to
monitor and review the operations of the school district until the
conditions of subdivision (b) of that section have been met.
(g) Notwithstanding subdivision (f), if the school district
violates a provision of the recovery plans approved by the
Superintendent pursuant to this article within five years after the
trustee appointed pursuant to Section 41320.1 is removed or after the
loan is repaid, whichever occurs later, the Superintendent may
reassume, either directly or through an administrator appointed in
accordance with this section, all of the legal rights, duties, and
powers of the governing board of the school district. The
Superintendent shall return to the governing board of the school
district all of its legal rights, duties, and powers reassumed under
this subdivision when he or she determines that future compliance
with the approved recovery plans is probable, or after a period of
one year, whichever occurs later.
(h) Article 2 (commencing with Section 41320) shall apply except
as otherwise specified in this article.
(i) It is the intent of the Legislature that the legislative
budget subcommittees annually conduct a review of each qualifying
school district that includes an evaluation of the financial
condition of the school district, the impact of the recovery plans
upon the school district's educational program, and the efforts made
by the state-appointed administrator to obtain input from the
community and the governing board of the school district.
(j) (1) The district superintendent of schools is entitled to a
due process hearing for purposes of determining final compensation.
The final compensation of the district superintendent of schools
shall be between zero and six times his or her monthly salary. The
outcome of the due process hearing shall be reported to the
Superintendent and the public. The information provided to the public
shall explain the rationale for the compensation.
(2) This subdivision applies only to a contract for employment
negotiated on or after June 21, 2004.
(k) (1) When the Superintendent assumes control over a school
district pursuant to subdivision (b), he or she shall, in
consultation with the County Office Fiscal Crisis and Management
Assistance Team, review the fiscal oversight of the school district
by the county superintendent of schools. The Superintendent may
consult with other fiscal experts, including other county
superintendents of schools and regional fiscal teams, in conducting
this review.
(2) Within three months of assuming control over a qualifying
school district, the Superintendent shall report his or her findings
to the Legislature and shall provide a copy of that report to the
Department of Finance. This report shall include findings as to
fiscal oversight actions that were or were not taken and may include
recommendations as to an appropriate legislative response to improve
fiscal oversight.
(3) If after performing the duties described in paragraphs (1) and
(2), the Superintendent determines that the county superintendent of
schools failed to carry out his or her responsibilities for fiscal
oversight as required by this code, the Superintendent may exercise
the authority of the county superintendent of schools who has
oversight responsibilities for a qualifying school district. If the
Superintendent finds, based on the report required in
by paragraph (2), that the county superintendent
of schools failed to appropriately take into account particular
types of indicators of financial distress, or failed to take
appropriate remedial actions in the qualifying school district, the
Superintendent shall further investigate whether the county
superintendent of schools failed to take into account those
indicators, or similarly failed to take appropriate actions in other
school districts with negative or qualified certifications, and shall
provide an additional report on the fiscal oversight practices of
the county superintendent of schools to the appropriate policy and
fiscal committees of each house of the Legislature and the Department
of Finance.
