Question: I am looking for district or county revolving fund policies. Please send me copies of forms and sample board resolutions for establishing revolving funds. Also what type of revolving funds do districts have?
Response: This request for samples of revolving cash policies and board resolutions was responded to by faxing the information to the person who made the request. The information included two samples of board policy and four different types of resolutions to establish a revolving cash fund.
Districts typically have revolving cash funds at the administrative office, school site offices, and perhaps for the child nutrition program.
Those interested in obtaining copies of the sample information noted above can call FCMAT at (805) 636-4611.
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Question: I have a question about when board members elected in this election take office. In a recent COE advisory posted to your resource section, it was stated that board members take office the first Friday in December, i.e., December 6. This is what Ed. Code 5017(a) indicates. However, our election office told me that in this election 5017(b) applies and that December 1st is the day members take office. Am I missing something?
Response: Ed. Code Section 5017(b) relates to an election as designated in E.C. 5000. The Ed. Code Section 5000(b) is specific to Long Beach Community College and Long Beach Unified School District. Check with your legal counsel to determine if your local election has circumstances that tie you to this code section.
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Question: Can school board members use the Internet (or e-mail) to communicate with each other?
Response: Individual board members are not prevented from discussing school district business in person, by phone, or electronically. However, the discussion must be of an informational character and must not be held for the purpose of obtaining a commitment or decision if the trustee understands that similar commitments or decisions are being sought from other members of the board for the purpose of obtaining a consensus outside of the context of a duly noticed meeting. The discussion also cannot be held if it contains a quorum of the board.
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Question: I'm trying to find 1995-96 J-90s somewhere on the Internet. Can you help?
Response: A method of obtaining the software would be to log onto the FCMAT web site at <www.kern.org/fcmat/>. The web site has links to various other educational sites, including the state software.
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Question: With regards to the $66/ADA ($25,000/site minimum) allocation, will sites be allowed to carry over unexpended funds to the next fiscal year?
Response: In answer to your question, I am citing AB3488, Section 44.
The most recent estimates of the amounts per ADA that districts would receive have now been reduced the $60, according to SSC's most recent estimates. The reason for this reduction is that more sties have been recognized that will receive the minimum, thereby reducing the remaining pool that will be paid by ADA.
We understand that if the governing board and site councils (school-wide advisory groups or support groups where no site council exists) cannot agree on the use of the funds by 5/1/97, then the county superintendent shall so notify SPI and the funds shall be returned to the state. This suggests that a formal action of the two groups is required to document the agreement.
It seems that agreement, not actual obligation of the funds, is required to retain the funds. We will continue to research the issue of carryover and timelines to obligate the funds and let you know anything we find out.
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Question: I understand that Public Contract Code Section 22300 required public agencies to set aside in escrow the 10% contractor's retention upon the request of the contractor, and that all interest would be paid to the contractor. I also understand that this section of that code sunsetted a few years ago and was not re-enacted. Is my understanding of these two items correct?
Response: Public Contract code 22300 specifically discusses the substitution of securities as the retention amount rather that any moneys withheld by a public agency to ensure performance under a contract. And yes, the contractor does earn the interest earned during the time that the asset is held. FCMAT is unable to verify that this section has sunsetted. What did happen in 1993 is that there were changes to public contract code sections that affect payments made to contractors. Section 7107 was added relating to payment of retention amounts. The section is included here:
7107. (a) This section is applicable with respect to all contracts entered into on or after January 1, 1993, relating to the construction of any public work of improvement.
(b) The retention proceeds withheld from any payment by the public entity from the original contractor, or by the original contractor from any subcontractor, shall be subject to this section.
(c) Within 60 days after the date of completion of the work of improvement, the retention withheld by the public entity shall be released. In the event of a dispute between the public entity and the original contractor, the public entity may withhold from the final payment an amount not to exceed 150 percent of the disputed amount. For purposes of this subdivision, "completion" means any of the following:
(1) The occupation, beneficial use, and enjoyment of a work of improvement, excluding any operation only for testing, startup, or commissioning, by the public agency, or its agent, accompanied by cessation of labor on the work of improvement.
(2) The acceptance by the public agency, or its agent, of the work of improvement.
(3) After the commencement of a work of improvement, a cessation of labor on the work of improvement for a continuous period of 100 days or more, due to factors beyond the control of the contractor.
(4) After the commencement of a work of improvement, a cessation of labor on the work of improvement for a continuous period of 30 days or more, if the public agency files for record a notice of cessation or a notice of completion.
(d) Subject to subdivision (e), within 10 days from the time that all or any portion of the retention proceeds are received by the original contractor, the original contractor shall pay each of its subcontractors from whom retention has been withheld, each subcontractor's share of the retention received. However, if a retention payment received by the original contractor is specifically designated for a particular subcontractor, payment of the retention shall be made to the designated subcontractor, if the payment is consistent with the terms of the subcontract.
(e) The original contractor may withhold from a subcontractor its portion of the retention proceeds if a bona fide dispute exists between the subcontractor and the original contractor. The amount withheld from the retention payment shall not exceed 150 percent of the estimated value of the disputed amount.
(f) In the event that retention payments are not made within the time periods required by this section, the public entity or original contractor withholding the unpaid amounts shall be subject to a charge of 2 percent per month on the improperly withheld amount, in lieu of any interest otherwise due. Additionally, in any action for the collection of funds wrongfully withheld, the prevailing party shall be entitled to attorney's fees and costs.
(g) If a state agency retains an amount greater than 125 percent of the estimated value of the work yet to be completed pursuant to Section 10261 of the Public Contract Code, the state agency shall distribute undisputed retention proceeds in accordance with subdivision (c). However, notwithstanding subdivision (c), if a state agency retains an amount equal to or less than 125 percent of the estimated value of the work yet to be completed, the state agency shall have 90 days in which to release undisputed retentions.
(h) Any attempted waiver of the provisions of this section shall be void as against the public policy of this state.
Please contact legal counsel if you have specific questions regarding retention in a current contract.
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Question: What is the statute of limitations on a claim by an employee for back wages, specifically with an employee who was not placed correctly on the salary schedule?
Response: FCMAT is not aware of any statute of limitations which would deny the employee due compensation for services provided. Contact your legal counsel to determine action that should be taken.
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Question: Per ed. code, districts must deduct from board member compensation a pro-rata portion for any board meetings missed. Does a closed-session only meeting constitute a meeting for this purpose? Does a "hastily" called meeting? What is the common practice in this area?
Response: Ed. Code Section 35120 addresses the compensation for board members and the method to deduct from that compensation for missed meetings. A closed session only meeting does constitute a meeting under these circumstances. The subject of the meeting must fall under the guidelines of the Government Code 54962, authorized by the Brown Act, or through provisions of the ed. code. Notice of this meeting must be posted 24 hours in advance. A board member can be excused if he/she is involved in performing district services at the time of the meeting. In addition, a board member may be paid for two meetings during which he/she is ill, if the board by resolution adopts and includes in its minutes that the illness is in effect.
In terms of a "hastily" called meeting, an emergency meeting can only be called for two reasons: 1) a work stoppage severely impairs public health or safety, or 2) a crippling disaster occurs, both as determined by a majority of the board. Any other "hastily" called meeting would constitute a special meeting and is governed by rules of the Brown Act and counted as a missed meeting if a board member is not present for reasons other than those addressed above.
Each district should review their district policy to determine any specific policies in place.
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Question: Can a local school board establish regulations regarding campaign contributions, spending limits, and disclosure requirements for candidates seeking election to the board (along the lines of Prop 208)?
Response: The CSBA manual of policies, regulations, and bylaws includes language addressing this issue in Board Bylaw Section 9220 ( b). Under the heading of limitation of campaign expenditures or contributions, the following note is provided:
"The following optional section is provided for districts that wish to limit campaign expenditures or contributions in board elections as authorized by Education Code 35177 and Government Code 85101. A board resolution is required when taking this action." It states further that the section may be revised to limit only expenditures or contributions.
Government Code 85300-85307 (Prop 73) states limits on campaign contributions. A federal appeals court recently held that these limits are not enforceable. Please work with your legal counsel prior to adopting any resolution imposing limitations on school board candidates and keep track of any Supreme Court comments on Prop 73.
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Question: Where can I find a definition of collective bargaining unit for purposes of the AB1200 public disclosure requirements?
Response: AB3141, follow up legislation to AB1200, included language regarding the disclosure of collection bargaining agreements. E.C. 42142 states that the district must notify the COE within 45 days of "adopting a collective bargaining agreement....." Since the purpose is to identify the additional costs to the district caused by the new agreement, FCMAT believes that any or all unit agreements are subject to the disclosure rule. The impact on the district budget is the primary concern.
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Question: A district has asked about the legality of paying a new employee a relocation allowance as part of an employment contract. Is this legal for school districts or is it considered a gift of public funds since it does not involve any service provided by the person to the district other than taking on the job? The district is remotely located.
Response: The school district board can include certain fringe benefits in the offer of employment. These benefits may include a moving allowance, a residence at minimal cost, or housing for a specified period. These benefits should be specifically identified in the contract and reviewed by legal counsel prior to the offer being made.
The board has an obligation to take steps to provide a quality educational program to the students and community. In a remote location, incentives may improve the ability of the district to attract candidates. While this method is more common in the hiring of a superintendent, it can be included in contracts to other positions. Any contract should be reviewed by legal counsel prior to the presentation of the offer.
The contract should stipulate the length of time the employee must serve in order to receive the full reimbursement from the district.
The school district shall include the amount of the reimbursement as supplemental wages on the employees W-2.
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Question: A district asked for assistance in responding to an audit finding from their FY 1995-96 independent audit. The wording of the finding is:
"Finding - ASB Disbursements - 60000
In prior years we have recommended that the board pass a policy that gives directions to ASBs as to what a proper expenditure is and what it is not. This policy has not been implemented yet. In the current year we noted incidents where expenditures were questionable for ASB funds.
Recommendation: We recommend that the district pass a policy to determine what is an appropriate expenditure for ASBs to help prevent these types of questionable costs."
The district has asked the county office for assistance in the wording of a policy that would be responsive to the finding's recommendation and could be written up and presented to the board at their January regular meeting to approve.
Could you please recommend wording?
Response: A sample board policy for purchasing materials may state:
The governing board of the district recognizes that associated student bodies will need to procure supplies, materials, services, and equipment.
All ASB's must follow the guidelines established by the California Department of Education relating to the procurement of supplies, materials, services, and equipment.
All procurement of supplies, materials, services and equipment shall receive prior approval from the associated student body and shall be recorded in the minutes. All purchases made by the student body shall be for activities and services on behalf of the students.
All requests for procurement shall be submitted and processed according to approved regulations.
In addition to this sample policy, several excellent resource guides are available, including the ASBO "Guidelines to Student Activity Fund Accounting", and the CASBO "Financial Management of Associated Student Body Organizations".
The board policy may address certain expenditures that are prohibited, including the purchase of:
1. Equipment, supplies, forms and postage for curricular or classroom use or district business.
2. Repairs and maintenance of district-owned equipment.
3. Salaries or supplies which are the responsibility of the district.
4. Articles for the personal use of district employees.
5. Gifts, loans, credit, or the purchase of accommodations for district employees or others.
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Question: If a classified employee works overtime, is the district mandated to pay the employee overtime in cash, or can the district select between cash and compensatory time off?
The collective bargaining agreement states; "An employee may request the method by which overtime shall be compensated (cash or compensating time off); the district will comply whenever possible."
Does the district have the flexibility to pay only CTO?
Response: The board has taken action under Ed. Code 45128, authorizing compensation for overtime in the form of compensatory time off or cash payment. The board policy as you have presented gave the option to the employee as to the method of payment. The provision that the district will comply whenever possible speaks to a cash flow issue, or a workload issue when the authorization of comp time off will not impair the services rendered by the employing district.
In this situation, the district may be asked to substantiate the claim that services would be disrupted during the absence of the employee. (Ed. Code 45129)
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Question: When a student is leaving the country for two months with a parent, can we enroll them in independent study? We had heard that this was changing so that if a student was out of the country for more than 30 days it would be necessary to un-enroll them.
Response: According to Kim Clement of the Department of Education, the issue is if the family and child remain residents of the district even while out of the country. If the two months away is to a destination that could not be regarded as the family place of residence for that time, then the family is still considered a district resident and the student can be placed in independent study. The guidelines of general supervision require at least a monthly review of the student's work. In this case the work would have to be forwarded to the teacher monthly for review.
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Question: Can we levy a Real Estate Transfer Tax ?
Response: To the best of our knowledge, no school district is currently levying such a tax.
School districts' ability to impose taxes are strictly limited under state law and the state constitution. In addition to the general ad valorum taxes levied under pre Proposition 13 authority, school districts can levy ad valorem property taxes as part of a voter-approved bond measure.
School districts can also levy "qualified special taxes" under Government Code 50079 et seq. These taxes must be voter-approved and cannot be imposed on a particular class of property or taxpayers . It would appear that a real estate transfer tax would violate this latter restriction. In addition, we understand that a real estate transfer tax may also violate Proposition 13.
You can and should consider contacting your own legal counsel on this issue. If you do obtain any additional information on this issue please forward it to us so that we may update our own files.
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Question: I remember a bill going through the legislature this past session that would have allowed people who joined PERS after July 1, 1980 to use their unused sick leave for retirement credit. Whatever happened to that bill?
Response:
CURRENT BILL STATUS
MEASURE: A.B. No. 2190
AUTHOR(S): Knox.
TOPIC: Public employees: retirement benefits.
HOUSE LOCATION: ASM
+LAST AMENDED DATE: 04/25/96
LAST HIST. ACT. DATE: 05/15/96
LAST HIST. ACTION: In committee: Set, second hearing. Referred to APPR. suspense file.
COMM. LOCATION: ASM APPROPRIATIONS
COMM. ACTION DATE: 08/26/96
COMM. ACTION: Set, final hearing. Held under submission.
31 DAYS IN PRINT: 03/09/96
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Question: In regards to AB1200 and collective bargaining disclosures:
Gov. Section Code 53262 states that all contracts for upper level administrators shall be ratified in an open session of the governing board. Does this mean that Collective Bargaining Disclosures should be completed for superintendents (as an example) as it would have to be done for classified and certified employees?
Response: The collective bargaining law does not apply to superintendents' contracts. The only notice necessary is an agenda item such as "approval of superintendent's contract [or amendments to superintendent's contract]." Since the contract must be ratified in public and members of the public are entitled to see documents to be considered by the board before the board acts, it is good practice to have copies of the proposed contract available for inspection by the public (i.e., those who request) at the board meeting.