Key Local Agency Transparency Rules Apply To Charter Schools, According to Attorney General
By Procopio Partner John C. Lemmo
After seven years of consideration, the California Attorney General recently issued his opinion that longstanding local agency laws require charter schools to comply with the open meeting and records rules of the Brown Act and Public Records Act, and the conflict of interest disclosure and restrictions of the Political Reform Act. For the vast majority of charters in the state, the opinion will have little or no practical impact in that regard, because compliance with these laws is already standard, usually described in the charter petitions themselves and often the topic of annual board trainings. Moreover, the opinion is not new law; it is merely advisory.
The Attorney General also opined that the more stringent conflict of interest rules of Government Code section 1090 on contracting apply to charter schools in the same manner as other local agencies. The opinion is significant on this topic because many charter authorizers may view the Attorney General’s opinions as conclusive on the topics considered. This means that charter authorizers are now more likely to require that charter officials comply with this law. In short, section 1090 prohibits contracts between the charter school and its board members or administrators, or entities in which a school official has an economic interest. As a result, teachers could be barred from serving on their own charter employer’s governing boards, a charter school founder could be limited in his or her ability to serve as a paid executive director, and charter board members could be limited in philanthropic support to their own charter schools. We believe such consequences are at odds with the intent of the Charter Schools Act and a key reason that repeated legislative efforts to impose this statute on charter schools have failed. There are many exemptions in existing law, such as where the school official’s economic interest derives from his or her position with another nonprofit organization. But before taking steps to serve as a landlord, vendor, or entering into other contracts with a charter school, school officials should check with legal counsel or the Fair Political Practices Commission.
The Attorney General also concluded that district- and county board-authorized charter schools are agencies subject to the longstanding investigative powers of the civil grand jury, much like other local agencies: “the books and records of a California charter school that is chartered by a school district or county board of education are subject to review and inspection by a grand jury….” Generally, the civil grand jury has little enforcement authority. Any impact could vary county-by-county.
Although it affirms the standard practice of most charter schools, the opinion provides little or no guidance on significant compliance matters like geographic boundaries for purposes of board meetings or the appropriate code reviewing body for charters under the Political Reform Act. It’s likely that 2019 may bring legislative efforts to clarify these nuances, and on these topics generally.
John C Lemmo co-chairs the firm’s Education and Charter Schools Practice Group. John provides general and focused counseling to charter schools, nonprofit corporations and municipalities regarding governance, development and replication, conflicts of interest, operational and business matters, and has extensive experience with charter school litigation. He regularly works with and advises clients concerning state and local regulatory matters.