Frequently Asked Questions

Proposition 39, officially titled the “Smaller Classes, Safer Schools and Financial Accountability Act,” was approved by California voters in November 2000. It was difficult for most tax increase measures to receive the required two-thirds approval needed to issue general obligation bonds for school construction.

The effect of the proposition was to reduce the voter approval rate required for school districts to issue general obligation bonds from 66 2/3% to 55%. Proposition 39 limits the use of bond proceeds to school facilities projects listed or described in the language of the ballot measure approved by the voters.

Because of the lower voter approval requirement, Education Code Sections 15264-15282 contains provisions ensuring public oversight and accountability concerning the expenditure of facilities bond revenues. The district board is required to appoint a citizens’ oversight committee within 60 days the school Governing Board records the results of the election in its minutes. (Education Code Section 15278 (a).)

The legislation that implemented Proposition 39 (Education Code Section 15264) had the following legislative intent (emphasis added):

• Vigorous efforts are undertaken to ensure that the expenditure of bond measures, including those authorized pursuant to paragraph (3) of subdivision (b) of Section 1 of Article XIII A of the California Constitution, are in strict conformity with the law
• Taxpayers directly participate in the oversight of bond revenues
• The members of the oversight committees promptly alert the public to any waste or improper expenditure of school construction bond money
• Unauthorized expenditures of school bond revenues are vigorously investigated, and the courts are to act swiftly to restrain any improper expenditures

Bond oversight is supposed to be an active probing process.

The purpose of this committee is to inform the public concerning the expenditure of bond revenues. To fulfill this responsibility, the oversight committee is expressly required “to actively review and report on the proper expenditure of taxpayers’ money for school construction” and to “verify that the funds are being spent only for authorized purposes.” The oversight committee must promptly alert the public to any waste or improper expenditure of bond revenue. (Education Code Section 15278 b)

These requirements are as follows:

1. Determine whether a district is spending the bond monies for construction, reconstruction, rehabilitation, or replacement of school facilities, including the furnishing, and equipping of school facilities, or the acquisition or lease of real property for school facilities.

2. Advise the public as to whether a district is spending the bond monies for the purposes specified above and not for any other purpose, including teacher and administrator salaries and other school operating expenses

3. Determine whether a district is spending the bond monies for the specific school facilities projects listed in the bond measure information given to the public prior to the vote.

4. Receive and review copies of an annual, independent performance audit to ensure that the funds have been expended only on the specific projects listed.

5. Receive and review copies of an annual, independent financial audit of the proceeds from the sale of the bonds until all those proceeds have been expended for the school facilities projects (listed in the bond measure)

In short, the Education Code requires the CBOC to review and report out to public whether the projects identified to be funded by the bond money is being spent as promised and efficiently and not for efforts which were not approved by the voters or for operating expenses.

The primary requirements are as follows:

1. Prepare and publish an Annual Report

2. Hold meetings at least once a year.

3. While the open meeting requirement does not explicitly reference the Ralph M. Brown (Open Meeting) Act, most school districts
   and CBOCs have interpreted the need to establish that CBOC public meetings should be noticed and held by Brown Act provisions.         
   CABOC agrees with this position. 

4. Consist of a minimum of seven members with five requirements as follows:

• One member active in a business organization representing the business community located within the district.
• One member active in a senior citizens’ organization.
• One member active in a bona fide taxpayer’s organization.
• One member who is the parent or guardian of a child enrolled in the district: and
  (For Community College:  student currently enrolled and active in a community college group.)
• One member who is both a parent or guardian of a child enrolled in the district and active in a parent-teacher organization.
  (For Community College:  member active in the support and organization of a community college or community colleges of the district.)

• The remaining two members are “at large” community positions.

  5. Receive and review Annual Performance and Financial Audits.
  
  6. Provide an Annual Compliance Opinion.

Q5 12.22.20/revised 2.4.22

The committee is the eyes and ears of the community to hold the school district accountable for the spending of bond funds authorized by the voters. It is an independent committee that sets its own agenda within the rules and regulations provided in its by-laws.

It reviews reports and information provided by the district. For the committee to be most effective, it must ask questions and receive complete and transparent responses from the school district. The committee reports to the public its findings including both positive observations about the efficiency and effectiveness of the district as well as areas for improvement.

The committee member should be prepared to read a moderate amount of written material, attend all meetings (subject to the normal exceptions such as illness or unavoidable conflicts), be attentive at the meetings, and not be shy in asking questions or inquiry about specific data and reports. While it is preferable for several members expertise in construction, municipal finance, public agency budgeting, project management or related field, it is not an absolute requirement for every member. Different perspectives such as senior representatives and taxpayer groups are on the committee. Common sense, an inquisitive mind, and commitment to ask questions are basic qualities of a good oversight member.

There will be good deal of reports from staff on the progress of projects and information related to master planning, design, and construction. Issues of community concerns about school projects could also be discussed, so meetings are an opportunity to have the community directly participate in school governance.

This is not absolute requirement for every member. A variety of views and any concerns need to be heard. Critical thinking and question asking are particularly important factors to make your volunteer experience valuable to the District and enjoyable as a volunteer.

California Constitution, Article XIIIA, Section 1 (b) (3), states the funding must be for “the construction, reconstruction, rehabilitation, or replacement of school facilities, including the furnishing and equipping of school facilities, or the acquisition or lease of real property for school facilities.” Bond Funds cannot be used for operating expenses such as teacher or general administrative salaries but can be used for the administration of the school construction process, including planning, design, engineering, and project management and control.

The Constitution requires that the bond measure contain a “specific list of projects to be funded”. The arguable intent of this language is the voter has a specific idea of how the money is be spent and not be expended on undefined or “pet projects” of elected officials.

The dilemma facing those who oversee bond measures is that a ballot measure will often contain a list of projects (sometimes more than what can be funded with the amount of bonds) as well as a generic paragraph(s) that contain statements such as “repair, renovation upgrading, lighting and electrical systems, HVAC systems……repair, renovation, modernization, and construction of new classrooms” without specific guidance on the location or dollar amount of expenditures.

These generic descriptions are often used to justify most any expenditure. For instance, the ballot language could state a school was to construct a “multipurpose room” and yet the actual project ended up being a “Performing Arts Center”. The problem is the law does not provide much teeth or force to prohibit such expenditures other than filing an injunction/restraining order pursuant to the Waste Fraud and Prevention Action. (Education Code Section 15284)

Under the Waste Fraud and Prevention Act an injunction can be filed by any taxpayer who pays taxes with the school bond area. There are three main reasons for such an action:

• Expenditures that are not authorized by the Constitution such as payment of teacher or administrative salaries
• Expenditure on projects that were not authorized in the bond language presented to the voters
• Willfully failing to appoint a bond oversight committee that meets all the statutory requirements, such as not having a business, senior citizen, student, parent, or taxpayer representative.

The action seeks a restraining order to prevent expenditure of funds.

Bylaws are rules adopted for the regulation of a Citizens’ Bond Oversight Committee’s own actions.

There is nothing in current law to prohibit a School District from attempting to dictate how an Oversight Committee can operate. There is no known case law that has challenged the enactment of onerous and restrictive bylaws that run counter to the legislative intent of bond oversight.

However, the District must operate within the context of Education Code Sections 15264 to 15288.

There are five (5) basic requirements – The citizens’ oversight committee shall advise the public as to whether a school district or community college district follows the requirements of the Education Code. This in simple terms is as follows:

1. Did the District spend on authorized purposes i.e., capital expenditures and not on teacher and administrator salaries and other operating expenses
2. Were expenditures made on projects specifically authorized by the voters?
3. Was there an Annual Financial Audit?
4. Was there an Annual Performance Audit?
5. Annual Report Required and Regular Reports Encouraged. “The citizens’ oversight committee shall issue regular reports on the results of its activities. A report shall be issued at least once a year.”

In addition to these requirements of the Bond Oversight Committee, there are the following requirements of the School District:

Provide technical Assistance. “The governing board of the district shall, without expending bond funds, provide the citizens’ oversight committee with any necessary technical assistance and shall provide administrative assistance in furtherance of its purpose and sufficient resources to publicize the conclusions of the citizens’ oversight committee.”

Access to Audits. “The governing board of the district shall provide the citizens’ oversight committee with responses to all findings, recommendations, and concerns addressed in the annual, independent financial and performance audits
required by subparagraphs (C) and (D) of paragraph (3) of subdivision (b) of Section 1 of Article XIII A of the California Constitution within three months of receiving the audits.”

Maintenance of Public Records and Public Access. “All citizens’ oversight committee proceedings shall be open to the public and notice to the public shall be provided in the same manner as the proceedings of the governing board of the district.”

District Reporting Requirements. Minutes of the proceedings of the citizens’ oversight committee and all documents received and reports issued shall be a matter of public record and be made available on an Internet Website maintained by the governing board of the district.

Answer: CABOC believes that CBOCs may review expenditures at all steps of the process from immediately following the passage of the school construction bond ballot measure and the establishment of the CBOC until after the last payment.

The specific responsibilities of the CBOC are found in the California Education Code §15278:

(b) The purpose of the citizens’ oversight committee shall be to inform the public concerning the expenditure of bond revenues. The citizens’ oversight committee shall actively review and report on the proper payment of taxpayers’ money for school construction.

Note that the statutory provision discussed what the CBOC should do but not when it should do it.

In significant construction programs and projects, it is exceeding essential to start right, keep going straight, and identify and correct any problems as soon as possible. It is far superior to solve problems when they are small early in the process rather than wait until later – when they are much bigger problems that will be far more difficult, expensive, and take more time to correct.

For example, consider a district that decided to expend Prop. 39 school construction bond funds for a purpose that was not allowed by the applicable statutes, such as for teacher compensation, or chose to spend funds for a school construction purpose that was not identified, as required, in the detail of the ballot measure presented to the electorate.

If the CBOC was not informed and not allowed to research such expenditures until after the spending was underway, such improper conduct could produce high costs before detection. Suppose the original plan of spending and any revisions to the program of projects were to be presented to the CBOC before the Board adopted them. The potential violation could be identified and questioned, while the unallowable spending was relatively minor.

Some districts will present the program of projects for a proposed new ballot issue to their existing CBOC for comments and recommendations before the Board adopts it.

Another important consideration is the ability of a district to plan appropriately, design, construct, and place into service its construction program and individual projects. It is generally accepted that, before such major programs get underway, the district should have in place:

1. A well-experienced team of qualified program and project managers.
2. Proper systems to ensure that the program and projects are adequately managed, reported on, and overseen.

“Proper expenditure of taxpayers’ money” must be understood to include not just that all statutes and other requirements are not violated, but that the funds be spent wisely and with minimum waste. Therefore, reviewing the staffing and systems early in the process and, as needed, on an on-going basis, is a very justifiable function for CBOCs.

The short answer is “no.”

The Proposition 39 school bond amendments to the California Constitution specifically provide that bonded indebtedness incurred may be used for specific school facilities projects approved in the bond measure for “construction, reconstruction, rehabilitation, or replacement of school facilities, including the furnishing and equipping of school facilities, or the acquisition or lease of real property for school facilities … on or after the effective date of the bond measure… .”

On November 9, 2004, the California Attorney General issued Opinion No. 04-110 that answered this question:

“May a school district use Proposition 39 school bond proceeds to pay the salaries of district employees who perform administrative oversight work on construction projects authorized by voter approved bond measure?”

The answer: “A school district may use Proposition 39 school bond proceeds to pay the salaries of district employees to the extent they perform administrative oversight work on construction projects authorized by a voter approved bond measure.”

While it is permissible for bond funds to pay for some overhead costs of the school construction bond program, such as employer pension contributions and office space and costs for the construction staff, the CBOC should monitor such costs to be sure that the construction program is not overcharged.

Proposition 39 requires “… an annual independent performance audit to ensure that the funds have been expended only on the specific projects listed.”  (California Constitution Article XIIIA, Section 1(b)(3)(C).)

Appendix A to the California guide for annual audits (Guide for Annual Audits of K-12 Local Education Agencies and State Compliance Reporting, published by the  Education Audit Appeals Panel) prescribes the specific scope for this audit:

1. “Select a representative sample of expenditures charged to the facilities project(s) and review supporting documentation to ensure that such funds were properly expended on specific projects listed in the text of the applicable ballot measure.

2. “Verify that the funds were generally expended for the construction, renovation, furnishing, and equipping of school facilities constituting authorized bond projects.

3. “Verify that the funds used to pay the salaries of district employees were allowable per Opinion 04-110 issued on November 9, 2004 by the State of California Attorney General.

4. “If the school district did not properly account for the expenditures, if such expenditures were made for  unauthorized bond projects, of if salary transactions were used for general administration or operations, include a finding in the audit report.”

The audit required by the Guide is known as a “compliance” audit, performed to help the report recipients decide if the organization has met the applicable requirements.  In addition, to the annual required compliance audit, the best practice is to do an annual ‘Effectiveness and Results’ performance audit.  This audit could determine, for example if bond projects were delivered on-time, within budget and tax dollars spent effectively.

A review of efficiency and effectiveness could include factors and issues such as:

• The development of project scopes and cost estimates.
• Adequacy, completeness of justification of change orders in projects.
• Procedures for avoiding claims in projects.
• Whether project costs are in line with industry standards.
• Procurement processes for project consultants such as architects and engineers.
• Processes and procedures for utilizing best value procurement (e.g., design build)
• Master planning and cost estimations
• Procurement management and controls
• Contract Administration and controls
• Auditing post project completion construction contracts
• Warranty compliance and ongoing maintenance of assets
• District and Professional Services staffing plan
• Design and construction schedules cash flow analysis
• Cost schedule, budgetary management, and reporting controls
• Review of material specifications for competitiveness and completeness
• Contractor billing compliance controls
• Project close out controls

In short, the expanded performance audit is a vehicle for the oversight committee to “report on the proper expenditure of taxpayer dollars” and is also a process improvement document for a district’s bond program.

The Little Hoover Commission is an independent California oversight agency that recommended all school Proposition 39 bond programs have annual ‘Effectiveness and Results’ performance audits be performed in accordance with Government Auditing Standards published United States Government Accountability Office.

The key elements of a school district facility master plan are as follows:

Strategic Priorities.  This is a description from a policy perspective of the priorities for spending on capital projects.  Factors such as health life safety needs, improvement  in classroom environments, future capital cost avoidance or long-range operational cost savings are among the type of policy considerations.  These priorities guide the timing of spending given a limited availability of funds with higher priority projects receiving more immediate funding.

Educational Plan/Specifications. This includes an examination of the delivery standards for education such as the size of classrooms, support space needs, and the infrastructure requirements such as lighting. These specifications are often included as design standards. The master plan process requires an examination of how the education service is best delivered by a particular physical environment.

Facility Needs/Condition Assessment.  This involves a review of the physical condition of buildings and infrastructure and determination of such factors as remaining useful life; improvements need to extend and improve their physical life and which assets should be replaced.  The Assessment includes an estimate of costs.

Enrollment Projections.  This phase involves the forecasting of student population by service areas and the overall need for educational spaces.

Site Development Plans/Master Plans. For each educational facility, the overall space, and functional needs, be identified and dovetail with the facility conditions assessment to identify which facilities should be maintained and improved along with new construction or refurbishment requirements. Cost estimates would be for each site as well as the inclusion of overall systemwide infrastructure needs.

Implementation Plan.  This final phase of the master plan takes estimated funding availability, project costs and district priorities and then identifies the phased development of school facilities.

The overarching goal of bond oversight is for the members of a Committee to report to the public on whether the expenditures from bond funds were “proper” and consistent with what was promised to the voters

Here are some sample questions:

1. 1. Why were outside consultant services used for Project Management when they have an hourly rate of X when in house half-staff has an hourly rate of Y?

       

   2. .Why was sole source or no solicitation of proposals approach used for selection of an architect for this project?

       

   3. How did your district expenditure plan for this fiscal year relate to district priorities for capital projects?

       

   4. What processes does your district have to reduce the amount of change orders in projects?

       

   5. What was the districts process for evaluating the environmental and site-specific conditions of a project that now has problems with soil contamination and settling that has resulted in substantial increase in costs?

       

   6. How was the district policy on Consulting selection followed for this project’s architect?

While knowledge of construction and related services is helpful in providing bond oversight, it is not an absolute requirement.  Common sense and intuition given the circumstances of the bond program are just as important factors in determining questions.

Proposition 39

“On November 7, 2000, California voters reduced the voter approval threshold for school and community college district general obligation bonds from two-thirds (2/3) voter approval to 55% voter approval.  Proposition 39 amends Article XVI, Section 18 of the California Constitution…to pay debt service on bonds issues for school construction with the approval of 55% of the votes cast.” 1  The California Legislature, as part of the Proposition 39 implementation legislation, enacted Education Code Section 15278 which establishes Citizens’ Oversight Committees.

Education Code Section 15278 Citizens’ Oversight Committee

Education Code Section 15278, Article 2 Citizens’ Oversight Committee, provides that if a bond measure authorized pursuant to Proposition 39 is approved, “… the governing board of the school district or community college district shall establish and appoint members to an independent citizens’ oversight committee, pursuant to Section 15282 2, within 60 days of the date that the governing board enters the election results on its minutes pursuant to Section 15274.” 3  (emphasis added)

Definition of “Independent”

Dictionary.com is helpful in the context of Education Code Section 15278 an “independent citizens’ oversight committee”.  In this context Dictionary.com defines “independent” as follows:

• “not influenced or controlled by others in matters of opinion, conduct, etc.; thinking or acting for oneself.”

• “not subject to another’s authority or jurisdiction; autonomous; free”

• “not influenced by the thought or action of others.”

• “capable of acting for oneself or on one’s own.”

Is Your CBOC Independent?

An independent CBOC needs to answer each of these twelve (12) questions with a “yes.“

1. Can you prepare your own agenda?

2. Can you meet whenever you want?

3. Can you approve your own bylaws?

4. Can you establish subcommittees?

5. Do you have your own budget?

6. Do you have ability to post documents to the CBOC website?

7. Does the District provide you with all documents requested?

8. Do you have independent legal counsel who works for the CBOC?

9. Do you receive and accept the annual financial and performance audit reports?

10. Does the CBOC prepare and issue its annual report including compliance opinion?

11. Can CBOC members talk with contractors, architects, consultants, and auditors without restriction?

12. Can CBOC members visit construction sites?

A new CBOC member needs some basic information during the first three months of service to be an effective member.  This is the basic information a new CBOC member should get during the first three months of service (not listed in any priority order):

1. Requirement for an independent CBOC and review to ensure no conflicts of interest
   
2. Ballot language including project list
   
3. Facilities master plan including projects, costs, schedules, and objectives
   
4. Dates of community meetings for the next year so they can be added to your calendar
   
5. Bylaws
   
6. The CBOC and CABOC website links
   
7. The last CBOC Annual Report
   
8. The last financial audit report
9. The last performance audit report
10. Names, bio’s, emails, and telephone numbers of CBOC members and key district staff and policy on non-sharing of such information
11. How to place an item on a future CBOC agenda
12. Monthly check registers of bond measure expenditures, e.g., check #, date of check, vendor, amount, payroll in total, and purpose from which sample invoices could be selected for review at each committee meeting
13. Monthly budget v. actual expenditures and commitments
14. District policies for prioritization of projects
15. Brown Act (open meeting act) and compliance requirements, most specifically, what not to do
16. Who to contact for questions
17. Subcommittee assignment
18. California Association of Bond Oversight Committee Help Desk at website www.bondonversight.org

First, we recommend that every CBOC have its own legal counsel that is responsible to the CBOC and that the district’s legal counsel, internal or external, cannot be the CBOC’s legal counsel because that would be a conflict of interest.  Also, for the same reason, the CBOC’s legal counsel cannot do any work for the district.

There will be occasions when it is totally appropriate for the district’s legal counsel to provide information about legal matters to the CBOC.  For example, if the CBOC has legal questions about the district’s human resources or procurement processes, it will likely be far more efficient for the district’s legal counsel that works in these areas to provide the explanation to the CBOC.  In such cases, it may be appropriate for the CBOC’s legal counsel to review the district’s legal counsel statements.

Occasionally, a CBOC may need technical advice.  The district is required to provide technical advice to the CBOC when requested ”without expending bond funds.”   See Education Code Section 15280 (a).  Legal advice is one type of technical advice.  Typically, the district employs a lawyer to give the district advice about issues related to the bond programs. 

The district’s lawyer has an “attorney/client” relationship with the district in which the lawyer has a duty to give advice that is in the best interest of the district.  The district’s lawyer has no duty to the CBOC, even if the legal advice is good advice.  The district’s legal counsel also has a legal privilege responsibility to the district.  This means that it is prohibited from sharing certain information, such as those for a claim or legal action, individual personnel action, and information regarding procurements that have not been completed, with any outside parties including the CBOC.  Similarly, the CBOC’s legal counsel has the same responsibilities to the CBOC.  It is possible that the CBOC’s legal counsel may be able to give general information about a situation that is in process that the district’s legal counsel is prohibited from discussing with the CBOC.

The potential problem with the CBOC receiving legal advice from the district is that the advice is “in the best interest of the district.”  The CBOC should have advice that is in the best interest of the CBOC as the representative of the taxpayers, residents, and other stakeholders. 

For example, the bylaws of a CBOC may include a provision “only the district may amend these bylaws.”  An independent CBOC’s lawyer might explain that the board’s bylaws encroach on the independence of the CBOC. 

An independent CBOC must draft its own bylaws.

Best practice is for the CBOC to have an independent legal counsel, paid by the District, and for CBOC legal counsel to be experienced in the types of matters that are likely to come before the CBOC.  Fortunately, there are law firms that have attorneys that specialize in governmental and even K-12 and Community College organizations that can be well-qualified and experienced in the legal issues of such entities.

No.

In 2000, the proponents for Proposition 39 presented the initiative to the voters with the Title ”SMALLER CLASSES, SAFER SCHOOLS AND FINANCIAL ACCOUNTABILITY ACT.” “The people of the State of California find and declare as follows: We need to build new classrooms to facilitate class size reduction, so our children can learn basic skills like reading and mathematics in an environment that ensures that California’s commitment to class size reduction does not become an empty promise.” [Proposition 39 Section Two (c)]

This proposition provided for the following accountability requirements:

“A list of the specific school facilities projects to be funded and certification that the school district board, community college board, or county office of education has evaluated safety, class size reduction, and information technology needs in developing that list.” [Proposition 39, Section Four, Section 1 of Article XIII of the California Constitution adds Sec. 1, (b)(3)(B)]

This is the single “class size reduction” requirement in the California Constitution and only provides that a school board provide a certification that ‘this matter was evaluated when making the list of school facilities projects’.

Education Code Section 15282 (a)(3) provides that the CBOC shall have at least seven members and at least one of the  seven members  “… shall be active in a bona fide taxpayers’ organization.”

What does “bona fide taxpayers’ organization” mean?

Bona fide means genuine, real, done honestly.  In law it means sincerely, without intention to deceive.  It is Latin for “in good faith.”

In the context of CBOC membership it mean that the CBOC taxpayers’ organization member shall be an active member of a real and genuine taxpayers’ organization.

In CABOC opinion, the attached list of California Taxpayers’ Organizations would qualify as “bona fide” taxpayers’ organizations.

Taxpayers’ organizations are not limited to a local taxpayers’ organization.  It can be regional, statewide, or national organization.

_____________________________________________________________________

Alameda County Taxpayers Association     mcprose@att.net    Alameda

Calaveras County Taxpayers Association     alsegalla1@gmail.com     Calaveras

Taxpayers Association of El Dorado County    toddwhite2006@hotmail.com    El DoradoValley

Taxpayer’s Coalition    Mathys@OroFinancial.net    Fresno

Kern County Taxpayers Association    kerntax@kerntaxpayer.org    Kern

Long Beach Taxpayers Association    zerotaxeslb@gmail.com    Los Angeles

Marin – Coalition of Sensible Taxpayers    coalitiontaxpayers@gmail.com    Marin

Marin United Taxpayers Association    info@marintaxpayers.org    Marin

San Juan Ridge Taxpayers Association    info@sjrtaxpayers.org    Nevada

Orange County Taxpayers Association    Info@OCTax.org    Orange

Central Valley Taxpayers Association    brice@dacom.us    Placer

Inland Empire Taxpayers Association    info@ietaxpayers.com    Riverside

Sacramento County Taxpayers Association    info@sacramentotaxpayers.com    Sacramento    

San Diego County Taxpayers Association    info@sdcta.org    San Diego

The Coalition of Labor, Agriculture & Business – San Luis Obispo    colabslo@gmail.com    San Luis Obispo

Central Coast Taxpayers Association    president@ccta.news    San Luis Obispo

The Coalition of Labor, Agriculture & Business – Santa Barbara    andy@colabsbc.org

Santa BarbaraSanta Barbara County Taxpayers Association    https://www.sbctaxpayers.org    Santa Barbara

Silicon Valley Taxpayers Association    info@svtaxpayers.org    Santa Clara

Central Solano Citizen/Taxpayer Group    no.more.taxes.2016@gmail.com    Solano

Solano County Taxpayers Association    solanotaxpayers@sbcglobal.net    Solano

Sonoma County Taxpayers’ Association    taxpayer@sonic.net    Sonoma

Sutter County Taxpayers’ Association    information@suttertaxpayers.com    Sutter

Gold Country Taxpayers Association    https://goldcountrytax.org/contact    Tehama

Ventura County Taxpayers Association    vcta@att.net    Ventura

Yolo County Taxpayers Association    yolocountytaxpayers@gmail.com    Yolo

California Taxpayers Association    caltax@caltax.org    z – ALL

Howard Jarvis Taxpayers Association    info@hjta.org    z _ ALL

Overview

The Citizens’ Bond Oversight Committee (CBOC) is required by Education Code to issue regular reports on the results of its activities. A report is required at least once a year. In addition, the Education Code requires the CBOC to advise the public as to whether the district followed the California Constitution Proposition 39 accountability requirements. Best practice is to include this annual compliance opinion in the CBOC’s annual report. The purpose of this FAQ is to provide a format for the Annual Compliance Opinion.

Legal Requirements

California Constitution Article XIIIA, Section 1(b):

“(3) Bonded indebtedness incurred by a school district, community college district, or county office of education for the construction, reconstruction, rehabilitation, or replacement of school facilities, including the furnishing and equipping of school facilities, or the acquisition or lease of real property for school facilities, approved by 55 percent of the voters of the district or county, as appropriate, voting on the proposition on or after the effective date of the measure adding this paragraph. This paragraph shall apply only if the proposition approved by the voters and resulting in the bonded indebtedness includes all the following accountability requirements:

(A) A requirement that the proceeds from the sale of the bonds be used only for the purposes specified in Article XIII A, Section 1(b)(3), and not for any other purpose, including teacher and administrator salaries and other school operating expenses.

(B) A list of the specific school facilities projects to be funded and certification that the school district board, community college board, or county office of education has evaluated safety, class size reduction, and information technology needs in developing that list.

(C) A requirement that the school district board, community college board, or county office of education conduct an annual, independent performance audit to ensure that the funds have been expended only on the specific projects listed.

(D) A requirement that the school district board, community college board, or county office of education conduct an annual, independent financial audit of the proceeds from the sale of the bonds until all of those proceeds have been expended for the school facilities projects.”

Education Code Section 15278 (b):

“The citizens’ oversight committee shall advise the public as to whether a school district or community college district is in compliance with the requirements of paragraph (3) of subdivision (b) of Section 1 of Article XIIIA of the California Constitution.”

Education Code 15280 (b):

“The citizens’ oversight committee shall issue regular reports on the results of its activities. A report shall be issued at least once a year.”

Annual Compliance Opinion

Best practice is to include the Annual Compliance Opinion in the CBOC’s annual report in the following format:

Annual Compliance Opinion Bond Measure XX, June 30, 202X

Approved by the XYZ District Citizens’ Bond Oversight Committee on xxxx yy,
__________________________________________________________________________________________

If one or more CBOC Member(s) takes exception to any of the findings of compliance or non-compliance that have been accepted by the majority of the CBOC Members for presentation in the Annual Compliance Opinion, that/those

Member(s) may, at their option, prepare a Minority Report which shall be appended to that Opinion. Such exceptions can include compliance items that Minority Member(s) believe should have been included or excluded. The Minority Report shall identify the specific compliance requirement(s), the differing opinion(s) of the dissenting Member(s), and, as they may choose, the explanation and/or justification for their dissent.

Note:  In regard bond expenditures only for the specific school facilities projects listed in the bond measure (item B above) the CBOC could report, “cannot be determined.” The language of the ballot measure project may be written in such general terms that the specific projects cannot be identified. The CBOC should explain why their opinion may be different than the opinion of the performance auditor.

The Member has a large variety of options, including, but certainly not limited to:

1. 1. At the CBOC Meeting, the Member can express their displeasure and, as the Member may desire, introduce a motion to adopt the Member’s desires.

       

   2. The Member may vote against a motion that they disagree with or abstain.
      
      
   3. The Member(s) may provide a Minority Report to be included in the report and/or the minutes of the meeting, as applicable.

       

   4. The Member(s) may prepare a written communication to the district Board and/or district management on the topic.  In all such communications, the Member(s) should, in the introduction, identify themselves as CBOC Members and clearly announce that the communication is their own opinion and is not an adopted action of the CBOC.

       

   5. CBOC Members retain their non-CBOC status as citizens, residents, taxpayers, parents, etc. and all the rights thereof.  Therefore, they may use their right of public address to the district Board at a public meeting thereof to express their opinions.  As detailed in 4 above, they should disclose their CBOC Member status and that their opinions are their own.

       

   6. In similar manners, CBOC Members may engage in social media, letters to the editor, blogs, editorials, op-eds, articles, papers, conferences, etc. and express their opinions, including opposition to actions that have been taken by and/or been presented to the CBOC – again being sure to make the disclosures outlined above.

Members that engage in a dialog on such matters, such as commenting on a blog posting, should be aware of the Brown Act prohibitions, including serial meeting issues.

Yes, a CBOC should recommend a Program Effectiveness and Results Audit wherever and whenever it believes that one could be useful – which, based on the experience of CABOT members, will be frequent and usual.  (See FAQ 15 for examples of Program Effectiveness and Results performance audit scopes.)

The California Education Code (EC) §15278 requires the District to provide an annual Performance Audit to the CBOC:

(c) In furtherance of its purpose, the citizens’ oversight committee may engage in any of the following activities:

(1) Receiving and reviewing copies (emphasis added) of the annual independent performance audit (emphasis added) required by subparagraph (c) of paragraph (3) of Section 1 of Article XIII A of the California Constitution.

The Constitutional provision referenced above states:

(C) A requirement that the school district board, community college board, or county office of education conduct an annual, independent performance audit to ensure that the funds have been expended only on the specific projects listed.

EC §15280 states:

(b) … The citizens’ oversight committee shall actively review and report on the proper expenditure of taxpayers’ money for school construction. …

Under Government Auditing Standards, there are four types of Performance Audits; for K-12 and Community College Districts and their CBOCs, the two most common are “Compliance Audits” and “Program Effectiveness and Results Audits.”  The Performance Audit required by the above-quoted Constitutional provision is a “Compliance Audit,” which is useful for testing for legal/regulatory/contractual/procedural compliance, but “Program Effectiveness and Results Audits” can go much further and consider the economy, efficiency, and effectiveness of the District’s construction bond program in achieving the results stated in the bond ballot measure when it was presented to the voters.

Under Proposition 39, the CBOC is charged with the responsibility of reporting to the public as to compliance with “proper expenditure of taxpayers’ money for school construction” and “Program Effectiveness and Results Audits” are one of the best means for assisting the CBOC in performing its duties in this regard.

CBOCs should indicate to their District Boards and administrations the specific scope(s) of performance audit(s) that they need to satisfy their requirements for reporting to the public. 

There is no statutory requirement, but there can be significant advantages to all parties from having a single CBOC for all Prop. 39 school construction bond ballot measures.

First, CABOC – and many other knowledgeable entities – recommend that each district have a single, unified plan for its entire construction program, not a separate program for each bond ballot measure.  Also, it is generally best to have a single program management system under a unified manager and staff.  Having multiple CBOCs each reviewing these would be wasteful, both for the CBOCs and the district staff.

Second, it is not at all uncommon for individual projects to be funded from multiple sources, including more than one construction bond ballot measure.  Having, potentially, multiple CBOCs responsible for individual projects would also be wasteful – as would different CBOCs taking different approaches to how they operate.

Third, there are administrative and cost considerations for CBOCs including, but not limited to, putting together the meeting agenda packages, running the meetings and taking the minutes, maintaining the CBOC web site, and meetings and coordination with district Board members and district management.  Having two or three separate CBOCs would likely not double or triple this work, but it would undoubtedly increase it significantly over having just one CBOC for all.

Fourth, the purpose of CBOCs is to “inform the public” (Ed Code §15278.(b)).  If there were to be multiple CBOCs with multiple web sites and multiple annual reports to the public, members of the public and other interested parties would either have to review multiple sources of information or could wind up missing what they were looking for because they didn’t look in, or even know of, all the places that had information that they were looking for.

Fifth, if there is a single CBOC for all current – and future – construction bond ballot issues, the district and the district Board and top management would be more inclined to involve the CBOC as the new bond ballot measure is being formulated.

There are good reasons why CBOCs should have responsibility for at least some non-school construction bond expenditures and plans.

First, many projects have multiple sources of funding, such as the State of California providing funds for construction of new schools.  In most (but not all) cases, once the money from the different funds goes into the pot, it becomes fungible.  It is not that school construction bond expenditures pay for the construction of the first floor of the new school, State funds pay for the second floor, and developer fees pay for the third floor – rather, it is 45% of the total is from funding source A, 35% from funding source B, and 20% from funding source C.  It is simply not very practical to oversee 45% of the expenditures on a project in such cases – and it is not really very much additional work, if any at all, to oversee the entire project.

On the other hand, there are funding sources that are dedicated to specific uses and only specific uses, such as Federal e-rate funds for educational technology upgrades.  If, as is commonly the case, there are multiple individual projects at a school being performed at the same time, funded from difference sources, then it is important that there be procedures in place to ensure that each type of cost is allocated to the proper funding source, no more and no less, and that there is a pre-established methodology for splitting joint costs (such as the demolition work necessary for the e-rate work, plumbing, HVAC, and natural gas for new science classrooms or culinary facilities), and that overruns on one part of the work are not funded out of the other in violation of the allowed purposes.

If there is construction project that is totally separate from bond-funded projects, physically, technically, and financially, there would be less reason to have the CBOC have cognizance, but, if the district does have the recommended single consolidated capital projects plan, a case could be made for the CBOC to perform oversight for the entire program.

There is no residency requirement in the State Constitution or Statute or Regulation, but each District is free to establish its own, if it desires.

While Proposition 39 and its implementing Education Code and other laws and regulations do comprehend certain aspects of CBOC member qualifications, there is no discussion of residency.  The CBOC is aware of several CBOCs around the State of California that have, or have had, members that did not reside within the boundaries of the K-12 or Community College District that the CBOC covers.

While it appears logical that CBOC members that live in, pay taxes, attended, and send their children to would have obvious advantages, there are certainly conditions where it may be necessary to go outside the District boundaries, such as if there is no person active in a bona fide taxpayer organization that is willing to serve.

Conversely, the same laws that do not require that CBOC members be residents also do not prohibit a District from imposing its own geographic membership requirements.

The CBOC recommends that all CBOCs have Memorandums of Understanding and adopt their own Bylaws.  Such documents would be appropriate for residency requirements if residency requirements are considered appropriate for individual Districts and CBOCs that wish them.

The general rule is that agendas for almost all organizations are set by the Chair (or other title, such as President, of the entity; “Chair” will be used in this FAQ) of each organization, but each organization has some ability to establish its own procedures.

CABOC is aware of some K-12 and Community College Districts where the CBOC is essentially managed and operated by the District, rather than the CBOC, including where District administrators set the agenda with little or no input from the CBOC and its members.  CABOC recommends against such practices in the strongest possible terms.

CABOC recommends that the process for setting the agenda for each meeting be determined and approved by the CBOC members and memorialized in the CBOC Bylaws.  CABOC recommends that the following be considered:

1. The final agenda will be ultimately determined by the Chair.
2. The CBOC promulgates its preliminary meeting schedule for the year at least a month prior to the beginning of the new year.
3. The CBOC develops a timetable for establishing agendas with specific responsibilities assigned and deadlines expressed in terms of days prior to the meeting.
4. A specific staff person should be assigned responsibility for the administrative aspects of the agenda, including ensuring that inputs are received on a timely basis, the approval process is followed, and the agenda is properly posted in accordance with the applicable laws and regulations, and the Agenda Package is properly prepared and distributed. A back-up person should be named if the primary is unavailable.
5. Generally, most items to be agendized will be originated from the District. A District employee (with a back-up) should be named to coordinate and assemble all District agenda topics and agenda materials and providing same to the CBOC coordinator.
6. The CBOC may wish to have a procedure where a CBOC member, or more than one CBOC member, could place an item on the agenda.
7. The CBOC may wish to have a procedure where a Member of the public may request that an item be placed on the CBOC agenda subject to the approval of the CBOC Chair.

The CBOC Chair may consult with other CBOC members, and non-CBOC personnel as the Chair believes appropriate, as to the items to be placed on the agenda, extent of what will be discussed, timing, etc.  In such consultations, the Chair and other CBOC members must take care to comply with the provisions of the Brown Act, including keeping the number of members consulted less than a quorum and not establishing what could be considered a Standing Committee, such as an “Agenda Committee,” under the Brown Act.  Making sure that the agenda process is properly performed, and all legal and other requirements satisfied should be a main duty of the independent CBOC legal counsel.

Only CBOC members may vote on matters brought before the CBOC, and all CBOC members are appointed by the District Board.  However, the CBOC may, if it wishes, bring in other personnel to particulate in CBOC actions, subcommittees, and task forces as the CBOC may see fit.

For example, CABOC is aware of a CBOC that established a task force to study the requirements for audio communication in classrooms and potential methods for improving same.  These ranged from quieting heating, ventilation, and air conditioning; sound insulation in walls and ceilings to reduce the impacts of exterior noise; for walls, floor, and ceiling insulation to reduce the impact of noise inside the classroom; and the use of classroom microphones and speakers.  The task force invited acoustic specialists and academics who specialized in audio-challenged students to regularly meet with the CBOC members of the task force to help them understand the options, their implications, and costs and timing.

CABOC is unaware of any CBOC that regularly had non-CBOC members sitting as CBOC members during CBOC meetings.  If the CBOC so desired, this does not appear to be prohibited, but such personnel would not be able to vote on matters that come before the CBOC.

If a CBOC desires to utilize this option, CABOC recommends that it be memorialized in the CBOC Bylaws.

No – but the distinction between what can and what cannot be funded through such funding often requires detailed knowledge and a careful reading of the applicable legal requirements.

Proposition 39 has been codified in Article XIII A (“Tax Limitations”) of the California Constitution:

SECTION 1.

(b) The limitation provided for in subdivision (a) shall not apply to ad valorem taxes or special assessments to pay the interest and redemption charges on any of the following:

(3) Bonded indebtedness incurred by a school district, community college district, or county office of education for the construction, reconstruction, rehabilitation, or replacement of school facilities, including the furnishing and equipping of school facilities (emphasis added), or the acquisition or lease of real property for school facilities, approved by 55 percent of the voters of the district or county, as appropriate, voting on the proposition on or after the effective date of the measure adding this paragraph.

The allowable categories shown in bold above are, for accounting purposes, referred to as “capital costs,” as opposed to “operating costs,” which include maintenance, servicing, and non-capital repairs.  For determination of which side of what can be a fine line in some cases a specific cost item might fall, the primary applicable control documents are Government Generally Accepted Accounting Principles, promulgated by the Government Accounting Standards Board, and the California School Accounting Manual (“SAM”).  This manual is updated periodically; as of this writing, the 2019 Edition is applicable.  CABOC recommends that CBOC members rely upon the expertise of experts in accounting and law for opinions on what is and is not SCB-funding eligible rather than attempting to develop their own expertise in these fields.

In order to be eligible to be funded by SCB funds, an expenditure must meet all of the following criteria:

1. It satisfies the general requirements, such as being for a purpose or project specifically referenced in the list of projects presented to the electorate when the SCB was enacted.
2. It creates an asset, or contributes to the creation of an asset (such as planning and administrative costs of the capital program) that has a useful life of greater than one year.
3. It has a cost greater than the capitalization threshold established by the district, such as $2,500 (as each district has great freedom to set its own, this will vary).  SAM provides for “group” assets for similar items, such as tables, chairs, laptops and tablets, that have individual item costs less than the threshold, but the group totals exceed it.

For fixes, repairs, and replacements, a key consideration is extension of the useful life.  A cost that allows the asset to reach its useful life, such as the normal servicing and maintenance of a heating/ventilation/air conditioning system such as changing filters, or a repair that does not extend the useful life, is not a capital expenditure and, therefore, cannot be charged to SCB.

There are many expenditures that require a detailed understanding of these requirements.  For example, if a roof, with a 20-year useful life, develops a leak in its 15^th year of service, and a patch is applied that will allow the roof to last another five years, that is a repair and cannot be capitalized or charged as a SCB expenditure.  However, if, at the 15^th year of service, the entire roof was determined to have failed, and was replaced with a new roof with a 20-year life from date of installation, this will likely be a proper capital expenditure and can be chargeable to a SCB assuming the other requirements are met.

For all expenditures that are proposed for charging to SCB, and particularly for those where there may be some question as to propriety, CABOC recommends that the applicable district facilities, financial, and legal executives certify that such expenditures are eligible.  Some districts have SCB bond counsel to? certify; after this is done for the original proposed expenditures, these prior opinions will generally cover most future proposed expenditures, reducing the requirements for later individual opinions. 

Of course – but CBOC members must understand the Brown Act and its requirements and prohibitions; all members should be well aware of the “open meeting” requirements of the Brown Act and should take care to be always in compliance, as is discussed elsewhere on this website.

Besides communications at announced meetings, it is perfectly proper and allowable for CBOC members to meet in person, make phone calls, e-mails, facsimiles, snail mails, use social media, etc., as long as such meetings, including “serial meetings” (member A talks to member B about a topic, then talks to member C about the same topic, etc.), do not amount to a quorum of the voting members.

Some amount of inter-member communication is normal and expected, such as the chair speaking with a new member or a committee chair, two members working on a motion that they plan to introduce for consideration at a future meeting, or am asking the chair for a staff report on a specific project or school.

Each CBOC is free to establish its practices through its Bylaws.  See FAQ 12.  (Some districts, governing boards, and superintendents improperly resist their CBOCs from setting their own bylaws.)

This answer will discuss general requirements (Brown Act Open Meeting) and common topics.   Every CBOC will develop its way of planning and conducting its meetings.

While the open meeting requirement does not explicitly reference the Ralph M. Brown (Open Meeting) Act most school districts and CBOCs have interpreted the requirement to establish that CBOC public meetings should be noticed and held in accordance with Brown Act provisions.  CABOC agrees with this position.

Common Topics

• Mission statement
• Roll call
• Approval of agenda
• Approval of prior meeting minutes
• Review vendor expenditures prior period (school/project, vendor, check number., check date, account code, invoice number, invoice date, amount, description) *
• Review salary and fringe benefit expenditures prior period (name, title, amount) *
• Review financial report prior period (object code by school/project, original budget, current budget, expenditures, commitments, budget balance) *
• Review construction schedule (school/project, plan start date, actual start date, plan end date, the actual end date for each phase:  planning, design, procurement, construction)
• Review CBOC members information request log
• Agenda items for next meeting
• Meeting schedule this year
• Accept and review the annual financial audit report
• Accept and review the annual performance audit report
• Approve CBOC annual report
• Cost-savings measureDeferred maintenance plan
• Inspection of school facilities and grounds
• Website review
• Status of CBOC recommendations to School Board
• Review of change orders
• CBOC member attendance chart

*Level of detail to be determined by CBOC.

Education Code Section 15280(b) provides, “All citizens’ oversight committee proceedings shall be open to the public and notice to the public shall be provided in the same manner as the proceedings of the governing board of the district.” 

Government Code Section 54954.2 provides that K-12 school districts shall at least 72 hours before a regular meeting post an agenda with a brief general description of the business to be transacted or discussed.

Education Code Section 72121(b) prescribes the exact requirements for community college districts.

While the open meeting requirement does not explicitly reference the Ralph M. Brown (Open Meeting) Act, most school districts and CBOCs have interpreted the requirement to establish that CBOC public meetings should be noticed and held in accordance with Brown Act provisions.  CABOC agrees with this position

CABOC has provided answers to various Brown Act FAQs below because the Brown Act applies to Proposition 39 school CBOC.

34.2 What are the main provisions of the Brown Act?

All CBOC meetings, including standing committees, must be open to the public.

A meeting is any congregation of a quorum of the CBOC members simultaneously and in place, including Zoom or other electronic meetings.

Meetings can also include phone calls and an e-mail thread that consists of a quorum of the CBOC.

A quorum of CBOC members is a majority of the active membership.  For example, if there are nine CBOC seats and all nine are filled, a quorum is five – but if two of the seats are unfilled, a quorum is four.

34.3 What is a Brown Act “serial meeting?”

A serial meeting occurs when two or more individual meetings involving CBOC members on the same topic combine to affect a quorum of CBOC members.

For example, if there is a five-member board with a quorum being three members, Member A can meet privately with Member B and discuss a matter. Still, if Member B then meets with Member C to discuss the same topics, the unallowable serial meeting may be deemed to have occurred.

A serial meeting can also occur if a non-member is a common link if the positions or concerns of CBOC members are relayed to other CBOC members.

34.4 Are meetings, phone calls, and e-mails to or between CBOC members subject to the Brown Act?

A CBOC member can e-mail one or more other members on a topic if the number of CBOC members involved is kept under a quorum.

E-mails that are sent out by staff to inform CBOC members, such as transmitting a meeting agenda package, are not subject to the Brown Act.  However, e-mails should be used with caution because if any of the members “respond to all,” it can become subject to the Brown Act requirements.  Therefore, it may be a good idea to send such e-mails with most addresses as “bcc’s” to avoid the potential problems of members being able to respond to all.  CBOC members should not send out e-mails to what could become a quorum of members discussing such matters.

34.5 What are the Brown Act advance notice requirements for meetings?

A regular meeting must be noticed 72 hours in advance on the CBOC or district website.  If the CBOC does not have a website, the meeting notice must be posted at a stipulated place accessible to public members.  Weekend hours may be counted as part of the 72 hours.  The notice shall include the time and place, alternative access (Zoom, call-in, etc.), and the agenda with the items to consider at the meeting.

All meetings must have an agenda, and the agenda must include a description of each item on the agenda.

Special meetings – generally, a non-regularly scheduled meeting on a single topic require 24 hours’ notice.

34.6 How broad can a Brown Act “meeting” be construed?

A “meeting,” as that term is defined under the Brown Act, can occur whenever a majority of the members are in one location, including electronically and even at a social event where the members did not know that other members would be in attendance.  At such occurrences, members must be careful not to discuss CBOC business.

34.7 Does the Brown Act require that the agenda package be accessible by public members?

Upon written request by the media, or any member of the public, the agenda and all documents shall be sent by the district to the person requesting when the agenda is posted.

Many government boards, including CBOCs, post their entire agenda packages on their websites, in a downloadable format, as part of their meeting notice process.

34.8 Under the Brown Act, what rights does the public have to address the CBOC at meetings?

For regular meetings, the public must be provided an opportunity to address any item on the agenda and any item within the subject matter of the CBOC. 

Generally, on items on the agenda, members of the public are allowed to comment after the presentation of the item is made to the CBOC by staff and before the CBOC members begin their discussion.

Members of the public may comment on any CBOC relevant topic they wish during a general public comment period.  Some CBOCs have their available public comment period near the top of the list of agenda items, others at the end.

For special meetings, the public must be provided an opportunity to address any item on the agenda.

34.9 Does the Brown Act allow items that the CBOC can discuss in closed sessions?

Certain items, such as personnel matters and possible and active legal actions, may be considered in executive sessions where the public is not allowed.

However, such items must be placed on the agenda, the items to be considered in the closed session announced in an open meeting before the commencement of the closed session, and the results of any actions taken in the executive session announced.  The public has the same right to comment on any other items before the commencement of the closed session.

34.10 What Are the Brown Act requirements for meeting minutes?

Minutes of meetings must be kept.

Members of the public are entitled to know how each member of the CBOC voted on action items.

Many CBOCs post their meeting minutes on their website to be available to the public and other perpetually interested parties.

34.11 Are CBOC subcommittees and task force meetings subject to the Brown Act requirements?

Standing subcommittees – those intended to remain in existence without a predetermined end date or achievement of a specific objective – are also subject to the Brown Act rules shown above, even if a quorum is not present.

Task forces established for limited specific purposes and terms are not subject to the Brown Act if a quorum of CBOC members is not in attendance.

34.12 Does the Brown Act require members of the public to identify themselves?

Members of the public cannot be required to give names or sign a register as a condition of attendance or speaking. They may be required to go through security procedures such as metal detectors.

34.13 Does the Brown Act allow CBOC meetings to be recorded?

The CBOC, the press/media, and the public may record and broadcast meetings if they do not interfere with the conduct of the meeting and comply with all applicable regulations, such as not blocking fire escape access isles.

If the CBOC records its meetings, it must make such records available to the public or press/media upon request.  Some CBOCs make such recordings available for download on their website.

The Education Code 15280 (b) requires the CBOC documents to be posted on a website that the district maintains. 

Education Code Section 15280.  

“(b) … Minutes of the proceedings of the citizens’ oversight committee and all documents received and reports issued shall be a matter of public record and be made available on an Internet Web site maintained by the district districts governing board.”

The CBOC should control what documents are uploaded to the CBOC website.

The basic features of a good CBOC Website are:

1. The CBOC website should be easy for the public to find.
2. A CBOC membership application should be easy to find.
3. CBOC information should not be commingled with other district information.
4. The CBOC website title should be ‘Bonds’ or ‘Bond Oversight’ or a similar topic.
5. The CBOC website should have a drop-down menu of relevant topics, such as:
• An explanation about the CBOC.
• Application form to join the CBOC.
• Explanation ‘Why you should join.’
• Prop 39 (2000) explanation & text
• Each measure’s voter information statement
• Bylaws
• Agendas and minutes
• Financial audits (link to district website)
• Performance audits (link to district website)
• CBOC Annual Reports to the public.
• Facilities Projects construction schedule (link to district website)
• All documents received by the CBOC
• All reports issued by the CBOC
• Official statements for each bond sale (link to district website)
• Memorandum of Understanding, if it exists
• List CBOC members, their appointing authority, their term of service, and brief biographical information
• How the public can contact the CBOC
• Meeting schedule
• Rules for CBOC meetings

   

  Financial reports (link to district website)

Answer:  Yes.

First, there is no statutory requirement that a CBOC have Bylaws; however, virtually all entities do have them.

Bylaws are the collection of the rules by which an organization operates and includes the purpose of the organization, membership, officers, process for and frequency of selection, frequency of meetings and how they are called, meeting quorums, and a number of votes or percentage to pass diverse types of actions.

Bylaws should be collected in a single document on the CBOC website and furnished to all members.  Various websites can assist with the initial formation of Bylaws.  CABOC is currently preparing a Best Practice Bylaws template.

Although there are no specific statutory requirements for CBOC Bylaws, CABOC strongly recommends that the Bylaws be established by each CBOC and not enacted by the district Board or district administrative employees  – this is a vital part of the CBOC being able to perform its statutory responsibilities to the voters, taxpayers, students, residents, parents and guardians, and other stakeholders. 

For example, if the Bylaws state that only the district can schedule a meeting, decide what items will be placed on meeting agendas, appoint the CBOC officers, or provide that a district employee will conduct the CBOC meetings, the ability of the CBOC to develop an understanding of what is going on with the construction bond program, make recommendations, and report to the public will be severely hampered.

California Education Code Section 15280(b) states, “The citizens’ oversight committee shall issue regular reports on the results of its activities.  A report shall be issued at least once a year.”  Among the primary documents that a CBOC uses as a basis of the Annual Report are the required two annual audits: the financial audit and the performance audit.  Even when these two audits conclude that the bond expenditures substantially comply with the ballot measure, the Annual Report should also report on other requirements.  For example:

• Did the district submit the Audits to the CBOC on time?
• Did the district fill vacant CBOC seats?
• Did the district appoint each CBOC member a term “not less than two years?”

The Annual Report should, at the discretion of the CBOC, should also include information about the CBOC itself and the progress of the School Construction Bond and related programs, potentially including:

• The purpose of the CBOC, CBOC members, meetings, actions, and terms of service (which may link to detail contained on the CBOC website).
• Does the District have a facilities master plan?  Are the program and the procedures and practices for its development proper and adequate?
• How are the facilities program and projects proceeding according to plan?  Are projects proceeding according to schedule and within budget?  Are projects completed according to applicable building codes and practices and commitments made to the taxpayers, voters, residents, and parents, such as types and sizes of schools and school features and attributes, such as computer-assisted learning, air conditioning, or class sizes?
• Identification of the CBOC Web Site and other information that may be found there.

How members of the public can contact the CBOC.

The Annual Report can include news-related stories, such as

• A relevant Grand Jury report.
• Whistleblower reports.
• Comments on divergence from the facilities master plan.
• Troublesome construction change orders.
• Previous audit recommendations and district actions to come into compliance (or not).
• Best practices recommendations.

The Recommendations section at the end of the Annual Report should list the actions by the district that will help the CBOC function better and district actions are taken in response.  The CBOC annual report should be focused on accountability. 

Too often, the CBOC annual report consists of pictures of construction projects; the CBOC annual report should not be a report only on construction progress.

CABOC strongly recommends against such interfund borrowings.

Some districts have done this, but it has been ruled improper by the California Fiscal Crisis & Management Assistance Team (FCMAT)*.

“The Fiscal Crisis and Management Assistance Team’s (FCMAT’s) primary mission is to help California’s local K-14 educational agencies identify, prevent and resolve financial, operational, and data management challenges by providing management assistance and professional learning opportunities.

“FCMAT’s services help avert a fiscal crisis, promote sound financial practices, support chief business officials’ training and development, and help create efficient organizational operations.

“FCMAT’s data management services are used to help local educational agencies (LEAs) meet state reporting responsibilities, improve data quality, and inform instructional program decisions“•

In a Fiscal Alert*, FCMAT states:

“The use of bond proceeds outside of their intended capital may violate state law. School districts may issue general obligation bonds under Proposition 39, which requires that an issuer specify the purposes of general obligation bond proceeds and may not spend the proceeds “for any other purpose, including teacher and administrator salaries and other school operating expenses.” Districts issuing bonds under Proposition 46 must use the proceeds for “real property and improvements.” In both cases, using the funds as working capital, even temporarily, fails to fulfill these obligations. Education Code Section 15100 establishes permitted purposes for proceeds, including construction, repair, restoration, furniture, and equipment. Section 15146 prohibits proceeds for purposes other than those specified at the bond’s issuance. Therefore, interfund borrowing involving a transfer of general obligation bond proceeds to funds with expenditures outside of the designated capital project for which the bonds were issued may violate these sections of the Education Code.”

The FCMAT Fiscal Alert gives several additional reasons why such interfund borrowings should not be allowed. CABOC strongly concurs with FCMAT’s reasoning and conclusion and recommends that CBOCs oppose any attempt at their district to do such interfund borrowings. 

* See About FCMAT.

** FCMAT, “Interfund Borrowing,” https://www.fcmat.org/PublicationsReports/FCMAT_Fiscal_Alert-Interfund_Borrowing_Using_Bond_Procees-10-1-19.pdf

Salaries for the personnel who administer the teaching and direct educational administration and support activities of a K-12 or community college district may not be charged to SCB funds, but the salaries for administering the actual SCB program may.

This requirement is found in the California Constitution, Article XIII A, Section 1. (b)(3)(A). For Proposition 39 bond measures to qualify to be approved by a 55% majority, the use of bond funds must include:

A requirement that the proceeds from the sale of the bonds be used only for the purposes specified in Article XIII A, Section 1(b)(3), and not for any other purpose, including teacher and administrator salaries and other school operating expenses (emphasis added).

Unfortunately, these terms were not defined in Proposition 39, but the California Attorney General has issued an opinion on this subject (page 1):

A school district may use Proposition 39 school bond proceeds to pay the salaries of district employees to the extent they perform administrative oversight work on construction projects authorized by a voter-approved bond measure.

Further (pp. 5-6):

We believe that “the construction, reconstruction, rehabilitation, or replacement of school facilities” embraces project administrative costs, such as monitoring contracts and project funding, overseeing construction progress, and performing overall project management and accounting that facilitates timely completion of the construction project. A construction project generates not only the costs of materials and equipment, architectural and engineering design work, and construction worker salaries, but also costs of project administration — work that the school district would not be required to undertake or to fund but for the existence of the construction project. This administrative work is performed, whether by private consultants under contract with the school district or by school district employees with expertise in project management, to ensure that all aspects of the construction project are properly coordinated; that each step satisfies the specifications; that invoices are reviewed, revised where appropriate, and paid promptly; that costs do not exceed the project’s budget; and that the project is completed on schedule. (See 78 Ops.Cal.Atty.Gen. 48 (1995).) …

Therefore, Proposition 39 school bond proceeds may fund such project management costs unless the expenditures are expressly prohibited under the phrase “teacher and administrator salaries and other school operating expenses.” The “teacher and administrator salaries” in question are limited to those that qualify as “school operating expenses” because of the word “other” contained in the phrase.5 We believe that “school operating expenses” are those regular, ongoing, day-to-day costs associated with maintaining and operating a school. Among such expenses would be (1) the cost of managing the educational services provided, including the salaries of school administrators, and (2) the cost of providing instruction to students, including teachers’ salaries. (See 22 Ops.Cal.Atty.Gen. 105, 108 (1953) [school district’s routine operating expenses include the purchase of supplies and payment of salaries of school administrators, teachers, and janitors].)

In the absence of a specific statutory provision, such as in the California State Constitution or state statute, case law from a court decision, or state regulations implementing the same, generally, the best legal authority will be from an opinion of a qualified attorney.  In general, an opinion of the California Attorney General is regarded as superior in power to that of any other attorney but junior to that of statute or case law.

We note that this opinion should not be regarded as authorizing all facilities-related costs of a district to be charged to SCB funds.  For example, while the costs of the facilities department related to school construction activities are likely allowable, those related to maintenance and non-capital repairs are likely not.  So, for example, if the district facilities manager spends 60% of their time on SCB capital projects and 40% on maintenance, service, cleaning, etc., then 60% of the costs of the facilities manager would generally be chargeable SCB funds.

(Best practice would be for the district to have a cost allocation study prepared at the beginning of the SCB program, periodically updated after that, and reviewed and approved by district finance, legal, and bond counsel, and that the district implements a proper cost accounting methodology, including, in particular, detail time reporting for those district employees and contractor personnel who split their time between allowable SCB and non-SCB activities.)