THE ROLE OF THE CITIZENS’ OVERSIGHT COMMITTEE

THE ROLE OF THECITIZENS’ OVERSIGHT COMMITTEE Presented by: Valerie Pitts Superintendent

PROPOSITION 39 REQUIREMENTS 1. Citizen Oversight Committee 2. Uses of Bond Proceeds 3. Audit Requirements 4. New Cause of Action

CITIZENS’ OVERSIGHT COMMITTEE (“COC”) • What Is Scope of COC Authority? • Who Should Serve on COC? • What Technical Assistance Must Be Provided to COC? • What Information Does the COC Need? • What are Legal Requirements for COC Members and Meetings?

SCOPE OF COC AUTHORITY Roles and Responsibilities • The Board of Trustees • The Citizens’ Oversight Committee • Staff

SCOPE OF COC AUTHORITY THE BOARD OF TRUSTEES: • Evaluates school facilities needs • Approves additions or alterations to existing buildings • Determines when new facilities are needed • Selects and acquires sites • Determines the method of financing

SCOPE OF COC AUTHORITY THE BOARD OF TRUSTEES (cont’d): • Approves selection of architects and engineers • Authorizes projects for bid • Awards contracts for design and construction • Approves change orders to construction contracts • Accepts completed facilities projects

SCOPE OF COC AUTHORITY THE BOARD OF TRUSTEES (cont’d): • For a Prop. 39 Bond: • Places bond measure on ballot • Appoints COC • Establishes guidelines for the COC • Approves bond program project list and an implementation plan

SCOPE OF COC AUTHORITY THE BOARD OF TRUSTEES (cont’d): • Shall ensure Prop. 39 expenditures are for listed projects: • Construction, rehabilitation, or replacement of school facilities • Furniture and equipment • Acquisition or lease of real property

SCOPE OF COC AUTHORITY THE BOARD OF TRUSTEES (cont’d): • For a Prop. 39 Bond, Board must evaluate: • Safety • Class size reduction • Information technology

SCOPE OF COC AUTHORITY DIRECTIVE FOR COC: • Review annual performance audit • Review annual financial audit • Inspection of school facilities and grounds to ensure expenditures are for listed projects • Annual and final reports to Board of Trustees on findings

SCOPE OF COC AUTHORITY COC RESPONSIBILITIES: • Review District efforts to maximize bond revenues through implementation of cost containment measures • Professional fees • Site preparation • Joint use of facilities • Design efficiencies • Reusable facilities plans

SCOPE OF COC AUTHORITY COC RESPONSIBILITIES (cont’d.): • Provide an annual progress report to the Board of Trustees and the public • Provide a final report to the Board of Trustees and the public at the completion of all projects • Review deferred maintenance reports and plans

SELECTION OF COC MEMBERS • Appointed by the Board of Trustees • Within 60 days of certification of election • Required by Proposition 39

SELECTION OF COC MEMBERS • Represent the following • Business organization • Taxpayers organization • Senior citizens organization • Parents and Guardians • Parents active in support of the District, such as a member of a PTA or School Site Council

SELECTION OF COC MEMBERS(cont’d.) • Serve for 2-year term with maximum two consecutive terms • Shall not include: • Any District employee or official • Any District vendor, contractor, or consultant • Any person with a conflict of interest

TECHNICAL ASSISTANCE TO COC • Internet information posting • Brown Act agendas and minutes • Professional advice • Financial and progress reports • Audits

COC LEGAL COMPLIANCE • Brown Act compliance • Conflicts of Interest • Form 700

BROWN ACT COMPLIANCE • Purposes: • To keep the public informed of the actions, debates and views of locally elected representatives; and • To provide the procedural framework for local legislators to meet, debate, act, and listen collectively to their constituents

BROWN ACT COMPLIANCE • Act applies to: • A “member of the legislative body of a local agency” (Gov. Code Section 54952.1) • Commission • Committee • Board or other Body whether • Permanent or Temporary • Decision-making or Advisory • Established by charter, ordinance, resolution, or formal action of the Board (Gov. Code Section 54952)

BROWN ACT COMPLIANCE • Meetings: • Any congregation of a majority of members of a legislative body at the same time and place to hear, discuss, or deliberate upon any item that is within the subject matter jurisdiction of the legislative body; or • Any use of direct communication, personal intermediaries, or technological devices that is employed by a majority of the members of the legislative body to develop a collective concurrence (Gov. Code Section 54952.2)

BROWN ACT COMPLIANCE • Meetings specifically exclude: • Telephone conversations between a member and “any other person” (including another member); • Appearance of majority at a general conference open to the public involving a discussion of broad issues and attended by a broad spectrum of officials from a variety of governmental agencies; • Attendance at open and publicized meetings, organized to address a topic of local concern by a person or organization other than the local agency;

BROWN ACT COMPLIANCE • Meetings specifically exclude (cont’d): • Social or ceremonial occasions; • Attendance by a majority at open and noticed meetings of another body of the same local agency or any other agency; • Attendance by a majority at an open and noticed meeting of the board, if members of the committee attend only as observers (Gov. Code Section 54952.2)

BROWN ACT COMPLIANCE “Direct communication, personal intermediaries, or technological devices” include: • Telephone, electronic mail, facsimile, internet; • Communication through an intermediary

BROWN ACT COMPLIANCE Common scenarios of which to be aware: • E-mail messages in which majority is copied; • Consecutive conversations through intermediary to poll the committee; • Telephone conference calls involving a majority of the committee; • Internet chat rooms

BROWN ACT COMPLIANCE Agenda Posting • By staff Exceptions to Agenda Requirements: • Emergency (majority vote); • Need to take immediate action arose after agenda posted (2/3 vote, unanimous if less than 2/3 of committee present); • Responding to questions; • Asking for clarification; • Making a brief announcement of report of activity

BROWN ACT COMPLIANCE • Meeting Location • Meeting place must be within District boundaries, with limited exceptions that are not applicable (Gov. Code Section 54954); • Meeting place must be accessible to public (nondiscriminatory, accessible to disabled, no payment or purchase required); • Teleconferencing must be from a publicly accessible location; a quorum must be within District boundaries

BROWN ACT COMPLIANCE • Public Rights • Any person attending may videotape unless disruptive; • Public may comment on agenda items before or during consideration of the item; • Time must be set aside for public comment on any other matters under the committee’s jurisdiction; • The committee may place reasonable time limitations on particular topics or speakers;

BROWN ACT COMPLIANCE • Public Rights • Any person may criticize the policies, procedures, programs, or services of the District; • The public may also criticize committee or Board members or District employees; • The committee need not permit comments or conduct that disrupts the meeting; • Penal Code Section 403 prohibits acts that disturb or break up a lawful assembly or meeting

BROWN ACT COMPLIANCE • Public Rights McMahon v. Albany S.D. (2002) 104 Cal.App.4th 1275: “His conduct of dumping gallons of garbage on the floor of a schoolroom during a school board meeting was sufficient to support an arrest for disturbing a public meeting and was not speech protected by the First Amendment.”

BROWN ACT COMPLIANCE • Closed Session Probably does not apply to the committee

BROWN ACT COMPLIANCE • Liability for Violations • Misdemeanor liability exists if there is “intent to deprive public” • Public can sue to stop violation of Brown Act • Agency must be given opportunity to cure • Nullification of action taken in violation

CONFLICTS OF INTEREST • Four areas of the law control conflicts of interest of California public officials: • The California Political Reform Act of 1974 (Gov. Code Section 87100, et seq., “CPRA”) • Gov. Code Section 1080, et. seq. • Common Law Conflict of Interest • Gov. Code Section 1126, et. Seq. (“Incompatible Offices”)

CONFLICTS OF INTERESTThe CPRA • Public officials/employees may not participate in making, or in any way attempt to use their official position to influence, a governmental decision in which they know or have reason to know they have an economic interest

CONFLICTS OF INTERESTThe CPRA • To determine whether a conflict of interest exists under CPRA, five questions must be asked: • Is a public official involved? • Does the official have a statutory defined economic interest? • Is the official making, participating in the making of, or using his or her official position to influence the making of a governmental decision?

CONFLICTS OF INTERESTThe CPRA (cont’d.) • Is it reasonably foreseeable that the decision could materially affect the official’s economic interest? • Will the effect of the decision on the public official’s economic interest be distinguishable from its effect on the public generally?

CONFLICTS OF INTERESTThe CPRA • If the question to all of the foregoing questions is “yes,” a conflict of interest exists and the conflicted individual may need to resign from the committee • Transactions must be analyzed on a case-by-case basis pursuant to regulations of the Fair Political Practices Commission (“FPPC”)

CONFLICTS OF INTERESTGov. Code Section 1090 • Prohibits public officials/ employees from participating in the process by which a contract is developed, negotiated, or executed if the official or employee has a financial interest in the contract • These contracts are void and cannot be enforced (Gov. Code Section 1092)

CONFLICTS OF INTERESTGov. Code Section 1090 • Section 1090 also prohibits board members and employees from selling goods or services to their school district • Section 1090 does not define when an official is financially interested in a contract; however, courts have applied the prohibition to include a broad range of interests • Section 1090, et. seq., enumerates certain “remote” and “non-interests” that, once disclosed, do not prevent an officer from participating in the making of a contract

CONFLICTS OF INTERESTThe Common Law (Case Law) • Prohibits public officials/employees from placing themselves in a position in which they might be tempted by their own private interest to disregard the interests of the public • The common law conflict of interest doctrine also prohibits conflicts that create the appearance or impression of impropriety • Public officers and employees should avoid interactions or dealings that might suggest that their actions are not in the best interest of the public

CONFLICTS OF INTERESTThe Common Law (Case Law) • The common law conflict of interest doctrine applies even where a decision might otherwise appear to benefit the District • Underlying all conflict of interest provisions is the maxim that a person cannot simultaneously serve two masters

CONFLICTS OF INTERESTGov. Code Section 1126 (“Incompatible Offices”) • Prohibits public officials/employees from engaging in any employment, activity, or enterprise for compensation that is inconsistent, incompatible, in conflict with, or inimical to their duties as public officials/employees.

CONFLICTS OF INTERESTReporting • Annual Report of Economic Interests In order to identify and avoid potential conflicts of interest, the CPRA requires that designated public officials disclose interests that could impact their decision-making by filing a Statement of Economic Interest, Form 700

CONFLICTS OF INTERESTForm 700 • Your Duty to File a Form 700 Statement of Economic Interest • District policy and state law identify public officials who must file a Form 700 • Those public officials must disclose certain assets and income • Certain types of gifts, honoraria and loans are prohibited • Filers may not accept gifts totaling more than $390 in a calendar year from a single source

USES OF BOND PROCEEDS What are permissible uses of Proposition 39 bond funds?

USES OF BOND PROCEEDS • Construction, rehabilitation or replacement of school facilities • Furniture and equipment • Acquisition or lease of real property • Limited to project list adopted by Board before the election • Ballot measure is like a contract with the voters • Projects need not be listed on short ballot measure • Incorporate projects in Implementation Plan

USES OF BOND PROCEEDS For a Proposition 39 bond, what constitutes the list all bond-funded projects? The 75-word ballot measure does not have to list all bond-funded projects

USES OF BOND PROCEEDS The Board can satisfy the Prop. 39 constitutional accountability requirements by preparing and making available the required project list Committee for Responsible School Expansion v. Hermosa Beach City School District (2006) 142 Cal.App.4th 1178

USES OF BOND PROCEEDS The Board can satisfy Prop. 39 accountability requirements by stating in the bond measure: • It evaluated safety, class size reduction, and information technology • It will perform required audits • The types of projects it will perform Foothill-DeAnza Community College District v. Emerich (2007) 158 Cal.App.4th 11

USES OF BOND PROCEEDS • In developing list of projects, Board must evaluate: • Safety • Class size reduction • Information technology • Proceeds may be used for some salaries, but not for: • Teacher or administrator salaries • Other operating expenses

USES OF BOND PROCEEDS • Proposition 39 bond funds may pay: • District employee salaries to the extent employees are engaged in construction-related projects • Bond issuance and preparation costs • Costs incidental, but directly related, to bond-funded projects Community Advocates for Responsible Education v. San Lorenzo Valley Unified School District (May 26, 2006) 139 Cal. App. 4th 1356, affirming 87 Ops. Cal. Atty. Gen. 157 (2004)

THE ROLE OF THE CITIZENS’ OVERSIGHT COMMITTEE