Charter School FAQ Section 11

On March 5, 2019, Governor Gavin Newsom signed Senate Bill 126 [Chapter 3, Statutes of 2019, Effective January 1, 2020], which requires charter schools and the entities that manage charter schools to comply with the same public record disclosure requirements, open meeting requirements, and conflict of interest laws that apply to school districts and county offices of education. SB 126 adds California Education Code Section 47604.1, which requires charter schools to comply with the following laws:

• California Public Records Act (California Government Code [GC] Section 7920.000 et seq.)
• Ralph B. Brown Act (GC Section 54950 et seq.)
• Political Reform Act of 1974 (GC Section 81000 et seq.)
• GC Section 1090

The California Public Records Act (Public Records Act) gives the public the right to request access to the written records of a public agency and requires those records to be made available unless they are exempt from disclosure. Significantly, the peoples' right of access to records under California law is enshrined in the California Constitution, which provides, "The people have the right of access to information concerning the conduct of the people's business, and, therefore, the meetings of public bodies and the writings of public officials and agencies shall be open to public scrutiny" (Cal. Const. art. 1 sec. 3).

All state and local agencies, including, among others, school districts and county offices of education must comply with the California Public Records Act (Public Records Act). California Education Code Section 47604.1 expressly provides that charter schools and the entities that manage them are subject to the Public Records Act.

In most cases, the charter school or charter management authority will be responsible for responding to the request for records. However, for a charter school located on a federally recognized California Indian reservation or rancheria or a charter school operated by a nonprofit public benefit corporation that was formed before May 31, 2002, and is currently operated by a federally recognized California Indian tribe, the chartering authority will be responsible and is considered the custodian of records.

The term "public record" includes any writing containing information relating to the conduct of the public's business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics (California Government Code Section 7920.530[a]). This includes the records of a charter school or an entity that manages a charter school.

Within 10 days of receiving a request for public records, the charter school or entity that manages the charter school must make an initial determination of whether it has disclosable documents in its possession that are responsive to the request. It must notify the requesting party as to the records it can provide, and the estimated date the records will be available. (Note: The agency is not required to produce public records within 10 days.)

In unusual circumstances, this 10-day time limit may be extended by up to an additional 14 days by providing written notice from the head of the agency or their designee, in this case the director of the charter school or the chief executive of the charter management organization, or the designee of that official, to the person making the request. This written notice must provide the reasons for the extension and the date on which the charter school or entity that manages a charter school will determine whether it has responsive records and when it will produce them (California Government Code [GC] Section 7922.535[b]).

The California Public Records Act does not prescribe an exact timeframe within which records must be produced but requires that records be produced “promptly.”

In addition, local agencies must assist requestors to identify responsive records, describe the technology and location of the records, and help requestors overcome any basis for denial of the request (GC Section 7922.600).

All records within the possession or control of the charter school or an entity that manages a charter school are subject to disclosure unless some exemption applies.

Local agencies are generally not required to create records in response to a California Public Records Act request.

Certain documents and information are exempt from disclosure under the California Public Records Act. Exemptions include, but are not limited to, the following:

• Drafts, notes, intra-agency memoranda not created in the ordinary course of business, under certain, limited circumstances
• Records relating to pending litigation
• Records protected by attorney/client privilege
• Certain personnel records, and medical or other similarly private records
• Student records

For a complete list of exemptions, see California Government Code Section 7920.000 et seq.

The Ralph M. Brown Act (Brown Act) promotes transparency and public participation in local government by requiring that all meetings of the legislative body of a local agency be open and public and that all persons be permitted to attend any meeting of the legislative body of a local agency, unless an exception applies (California Government Code Section 54953). California Education Code Section 47604.1 expressly requires charter schools and the entities that manage charter schools to comply with the Brown Act.

A "meeting" is any gathering of a majority of the members of a legislative body at the same time and location to hear, discuss, deliberate, or take action on any item that is within the subject matter jurisdiction of the legislative body, including meetings by teleconference or communications by other electronic means (California Government Code sections 54952.2 and 54953).

Meetings may be conducted by teleconferencing under Executive Order N-29-20 (March 20, 2020) due to the COVID-19 pandemic. When the executive order is no longer in effect, California Education Code Section 47604.1 requires meetings to be held in specified locations.

For regular meetings, notice must be posted at least 72 hours in advance in a location that is freely accessible to the public and on the local agency’s website.

For a special meeting—a meeting called by the presiding officer or majority of the legislative body to discuss only discrete items on the agenda—notice must be posted at least 24 hours in advance. Written notice for a special meeting must be sent at least 24 hours in advance to each member of the body, to each local newspaper in general circulation, and to radio or television stations requesting written notice.

The Ralph M. Brown Act allows for an emergency meeting when prompt action is needed due to actual or threatened disruption of public facilities and can be held on little or no notice.

The agenda must be posted in a location that is freely accessible to the public. Posting on the internet alone is not sufficient and the customary practice is to post the notice in a location that is available 24 hours a day, seven days a week, such as the door of the central administration building for a school or school district.

If the agency maintains a website, the website must post a direct link to the current agenda on its homepage. The agenda must be downloadable, indexable, and electronically searchable by common internet browsers, and meet other requirements.

Alternatively, the agenda may implement an “integrated agenda management platform” which is a dedicated web page that provides the necessary agenda information. The most current agenda must be at the top of the page.

For all regular meetings, the agenda must include the following:

• A brief, general description of each item of business to be transacted or discussed at the meeting, including items to be discussed in closed session;
• The meeting time and location;
• The opportunity for public comment on every agenda item, as well as items not on the agenda; and
• The ability to request reasonable accommodation.

For a special meeting, the agenda must include the following:

• The meeting time and location;
• Each item of business to be transacted or discussed (a brief general description is recommended);
• Notification that public comment will be allowed only on agenda items; and
• Information for requesting a reasonable accommodation or modification.

Entities that manage charter schools must record meetings. However, all charter schools may record their meetings, if they so choose.

Under Executive Order N-29-20, issued during the COVID-19 pandemic, in-person meetings are not permitted, so most meetings are held using video conferencing and all members attend remotely. However, once the executive order is rescinded, the Ralph M. Brown Act provisions requiring in-person attendance with the ability for limited attendance by telephone will again become applicable (California Government Code Section 54953[b]).

Under the current executive order, meetings are being held remotely using various video conferencing platforms.

Once the executive order is rescinded, the specific location requirements found in California Education Code Section 47604.1(c) will apply.

Closed sessions are an exception to the rule that agency meetings must be open and public (California Government Code Section 54954.3).

• Only topics specifically authorized under the Ralph M. Brown Act (Brown Act) may be discussed in closed session.
• If a legislative body intends to convene in closed session, it must include in advance on the agenda the section of the Brown Act authorizing the closed session and must make a public announcement prior to the closed session discussion.
• The most common closed session topics are litigation, real estate negotiations, personnel matters, and labor negotiations.
• Real property negotiations are very narrow; only price and terms of payment for real property may be discussed.
• Consult your attorney about special notification requirements concerning complaints against agency personnel.
• Following a closed session, the legislative body must provide an oral or written report on certain actions taken and the vote of every elected member present.

For additional guidance regarding the Brown Act, see The Ralph M. Brown Act and Related Statues & Orders (PDF; Updated Mar-2021), available from Procopio .

California Government Code (GC) Section 1090 is one of the two primary conflict of interest laws that apply to public officials and employees in California. It prohibits public officials and employees from entering into or participating in making contracts or purchases in which they have a financial interest. In some cases, it also applies to consultants who perform services for government agencies. California Education Code Section 47604.1 expressly provides that GC Section 1090 applies to charter schools and the entities who manage charter schools.

Members of government boards are presumed to have made all contracts that are executed by the board or an agency under its jurisdiction. For example, financial contracts may include construction, purchases, development agreements, civil service appointments, grants, and donations. If a board member is financially interested in the contract and no exception applies, GC Section 1090 prohibits the contract from being made with the governmental entity even if the conflicted member recuses himself or herself. If one board member has a conflict of interest, the board cannot act.

Additionally, GC Section 1090 is a conflict of interest prohibition which has historically been subject to criminal penalties, if the violation is willful. GC Section 1090 requires very careful legal analysis. Please consult with legal counsel if there are concerns.

The Political Reform Act of 1974 (Political Reform Act) is one of the two conflict of interest laws that apply to government decision makers in California. The Political Reform Act prohibits a public official from making, participating in, or in any way attempting to use his or her official position to influence a governmental decision in which he or she knows or has reason to know he or she has a financial interest. Related to that, the conflict of interest provisions of the Political Reform Act requires that certain designated officials and employees disclose their financial interests, as specified in the agency’s adopted conflict code, upon taking employment or assuming office, annually, and upon leaving office. California Education Code Section 47604.1 expressly provides that charter schools and the entities that manage them must comply with the Political Reform Act.

The Political Reform Act conflict of interest provisions require, among other things, the following:

• The adoption of a conflict code that designates which officials and employees must disclose their financial interests. Each charter school that operates without management by a charter management organization (CMO) must adopt its own conflict code. For charter schools that are managed by a CMO, the CMO may adopt a single conflict code for all of its California charter schools. Complete guidance on how to adopt a local agency conflict code can be found at Fair Political Practices Commission (FPPC) Local Government Agencies–Adopting and Amending Conflict of Interest Code .
• The approval of the conflict code by the appropriate code reviewing body. In the case of a charter school, the appropriate code reviewing body is the county where the charter school is located, and for a charter school that is located in multiple counties, it is the county where the greatest number of students who attend the charter school reside.
• Timely filing of financial disclosure statements by the designated employee or official. These financial disclosure statements, known as Form 700, must be filed upon taking office or employment, annually, and upon leaving office or employment.
• The designation of a filing officer, whose role is to ensure that the designated officials and employees disclose their financial interests using the FPPC Form 700.
• Recusal from any decision in which the official or employee has a prohibited financial interest.

The Political Reform Act also governs other aspects of California law that generally pertain to ethics. The purpose is to serve as guidance for governmental ethics in California. In addition to the conflict of interest provisions described above, it also regulates the following areas:

• Campaign finance
• Lobbyist registration and reporting
• Post-governmental employment
• Political mass mailings at public expense
• Gifts and honoraria given to public officials and candidates

The FPPC has primary responsibility for the administration of the Political Reform Act. Additional information regarding this topic can be found at Fair Political Practices Commission .