THE ROLE OF THE
CITIZENS’ OVERSIGHT
COMMITTEE
Presented by:
Valerie Pitts
Superintendent
PROPOSITION 39
REQUIREMENTS
1. Citizen Oversight Committee
2. Uses of Bond Proceeds
3. Audit Requirements
4. New Cause of Action
CITIZENS’ OVERSIGHT
COMMITTEE (“COC”)
 What Is Scope of COC Authority?
 Who Should Serve on COC?
 What Technical Assistance Must Be
Provided to COC?
 What Information Does the COC
Need?
 What are Legal Requirements for
COC Members and Meetings?
SCOPE OF COC AUTHORITY
Roles and Responsibilities
 The Board of Trustees
 The Citizens’ Oversight Committee
 Staff
SCOPE OF COC AUTHORITY
THE BOARD OF TRUSTEES:
 Evaluates school facilities needs
 Approves additions or alterations to
existing buildings
 Determines when new facilities are
needed
 Selects and acquires sites
 Determines the method of financing
SCOPE OF COC AUTHORITY
THE BOARD OF TRUSTEES (cont’d):
 Approves selection of architects and
engineers
 Authorizes projects for bid
 Awards contracts for design and
construction
 Approves change orders to construction
contracts
 Accepts completed facilities projects
SCOPE OF COC AUTHORITY
THE BOARD OF TRUSTEES (cont’d):
 For a Prop. 39 Bond:
 Places bond measure on ballot
 Appoints COC
 Establishes guidelines for the COC
 Approves bond program project list and
an implementation plan
SCOPE OF COC AUTHORITY
THE BOARD OF TRUSTEES (cont’d):
 Shall ensure Prop. 39 expenditures are for
listed projects:
 Construction, rehabilitation, or
replacement of school facilities
 Furniture and equipment
 Acquisition or lease of real property
SCOPE OF COC AUTHORITY
THE BOARD OF TRUSTEES (cont’d):
 For a Prop. 39 Bond, Board must
evaluate:
 Safety
 Class size reduction
 Information technology
SCOPE OF COC AUTHORITY
DIRECTIVE FOR COC:
 Review annual performance audit
 Review annual financial audit
 Inspection of school facilities and
grounds to ensure expenditures are for
listed projects
 Annual and final reports to Board of
Trustees on findings
SCOPE OF COC AUTHORITY
COC RESPONSIBILITIES:
 Review District efforts to maximize bond
revenues through implementation of cost
containment measures





Professional fees
Site preparation
Joint use of facilities
Design efficiencies
Reusable facilities plans
SCOPE OF COC AUTHORITY
COC RESPONSIBILITIES (cont’d.):
 Provide an annual progress report to the
Board of Trustees and the public
 Provide a final report to the Board of
Trustees and the public at the completion
of all projects
 Review deferred maintenance reports and
plans
SELECTION OF COC MEMBERS
 Appointed by the Board of Trustees
 Within 60 days of certification of
election
 Required by Proposition 39
SELECTION OF COC MEMBERS
 Represent the following





Business organization
Taxpayers organization
Senior citizens organization
Parents and Guardians
Parents active in support of the District,
such as a member of a PTA or School
Site Council
SELECTION OF COC MEMBERS
(cont’d.)
 Serve for 2-year term with maximum
two consecutive terms
 Shall not include:
 Any District employee or official
 Any District vendor, contractor, or
consultant
 Any person with a conflict of interest
TECHNICAL ASSISTANCE TO COC
 Internet information posting
 Brown Act agendas and minutes
 Professional advice
 Financial and progress reports
 Audits
COC LEGAL COMPLIANCE
 Brown Act compliance
 Conflicts of Interest
 Form 700
BROWN ACT COMPLIANCE
 Purposes:
 To keep the public informed of the
actions, debates and views of locally
elected representatives; and
 To provide the procedural framework
for local legislators to meet, debate,
act, and listen collectively to their
constituents
BROWN ACT COMPLIANCE
 Act applies to:
 A “member of the legislative body of a local agency”
(Gov. Code Section 54952.1)
 Commission
 Committee
 Board or other Body
whether
 Permanent or Temporary
 Decision-making or Advisory
 Established by charter, ordinance, resolution, or
formal action of the Board (Gov. Code Section
54952)
BROWN ACT COMPLIANCE
 Meetings:
 Any congregation of a majority of members of a
legislative body at the same time and place to
hear, discuss, or deliberate upon any item that
is within the subject matter jurisdiction of the
legislative body; or
 Any use of direct communication, personal
intermediaries, or technological devices that is
employed by a majority of the members of the
legislative body to develop a collective
concurrence
(Gov. Code Section 54952.2)
BROWN ACT COMPLIANCE
 Meetings specifically exclude:
 Telephone conversations between a member
and “any other person” (including another
member);
 Appearance of majority at a general conference
open to the public involving a discussion of
broad issues and attended by a broad spectrum
of officials from a variety of governmental
agencies;
 Attendance at open and publicized meetings,
organized to address a topic of local concern by
a person or organization other than the local
agency;
BROWN ACT COMPLIANCE
 Meetings specifically exclude (cont’d):
 Social or ceremonial occasions;
 Attendance by a majority at open and
noticed meetings of another body of the
same local agency or any other agency;
 Attendance by a majority at an open
and noticed meeting of the board, if
members of the committee attend only
as observers
(Gov. Code Section 54952.2)
BROWN ACT COMPLIANCE
“Direct communication, personal
intermediaries, or technological
devices” include:
 Telephone, electronic mail, facsimile,
internet;
 Communication through an
intermediary
BROWN ACT COMPLIANCE
Common scenarios of which to be
aware:
 E-mail messages in which majority is
copied;
 Consecutive conversations through
intermediary to poll the committee;
 Telephone conference calls involving a
majority of the committee;
 Internet chat rooms
BROWN ACT COMPLIANCE
Agenda Posting

By staff
Exceptions to Agenda Requirements:





Emergency (majority vote);
Need to take immediate action arose after
agenda posted (2/3 vote, unanimous if less
than 2/3 of committee present);
Responding to questions;
Asking for clarification;
Making a brief announcement of report of
activity
BROWN ACT COMPLIANCE
 Meeting Location
 Meeting place must be within District
boundaries, with limited exceptions that are
not applicable (Gov. Code Section 54954);
 Meeting place must be accessible to public
(nondiscriminatory, accessible to disabled,
no payment or purchase required);
 Teleconferencing must be from a publicly
accessible location; a quorum must be
within District boundaries
BROWN ACT COMPLIANCE
 Public Rights
 Any person attending may videotape
unless disruptive;
 Public may comment on agenda items
before or during consideration of the
item;
 Time must be set aside for public
comment on any other matters under
the committee’s jurisdiction;
 The committee may place reasonable
time limitations on particular topics or
speakers;
BROWN ACT COMPLIANCE
 Public Rights
 Any person may criticize the policies,
procedures, programs, or services of the
District;
 The public may also criticize committee or
Board members or District employees;
 The committee need not permit comments
or conduct that disrupts the meeting;
 Penal Code Section 403 prohibits acts that
disturb or break up a lawful assembly or
meeting
BROWN ACT COMPLIANCE
 Public Rights
McMahon v. Albany S.D. (2002) 104
Cal.App.4th 1275:
“His conduct of dumping gallons of
garbage on the floor of a schoolroom
during a school board meeting was
sufficient to support an arrest for
disturbing a public meeting and was not
speech protected by the First
Amendment.”
BROWN ACT COMPLIANCE
Closed Session
Probably does not apply to the
committee
BROWN ACT COMPLIANCE
 Liability for Violations
 Misdemeanor liability exists if there
is “intent to deprive public”
 Public can sue to stop violation of
Brown Act
 Agency must be given opportunity
to cure
 Nullification of action taken in
violation
CONFLICTS OF INTEREST
 Four areas of the law control conflicts of
interest of California public officials:
 The California Political Reform Act of
1974 (Gov. Code Section 87100, et
seq., “CPRA”)
 Gov. Code Section 1080, et. seq.
 Common Law Conflict of Interest
 Gov. Code Section 1126, et. Seq.
(“Incompatible Offices”)
CONFLICTS OF INTEREST
The CPRA
Public officials/employees may
not participate in making, or in
any way attempt to use their
official position to influence, a
governmental decision in which
they know or have reason to
know they have an economic
interest
CONFLICTS OF INTEREST
The CPRA
 To determine whether a conflict of
interest exists under CPRA, five
questions must be asked:
 Is a public official involved?
 Does the official have a statutory
defined economic interest?
 Is the official making, participating in
the making of, or using his or her
official position to influence the
making of a governmental decision?
CONFLICTS OF INTEREST
The CPRA (cont’d.)
 Is it reasonably foreseeable
that the decision could
materially affect the official’s
economic interest?
 Will the effect of the decision on
the public official’s economic
interest be distinguishable from
its effect on the public generally?
CONFLICTS OF INTEREST
The CPRA
 If the question to all of the
foregoing questions is “yes,” a
conflict of interest exists and
the conflicted individual may
need to resign from the
committee
 Transactions must be analyzed on
a case-by-case basis pursuant to
regulations of the Fair Political
Practices Commission (“FPPC”)
CONFLICTS OF INTEREST
Gov. Code Section 1090
 Prohibits public officials/
employees from participating in
the process by which a contract is
developed, negotiated, or
executed if the official or
employee has a financial interest
in the contract
 These contracts are void and
cannot be enforced (Gov. Code
Section 1092)
CONFLICTS OF INTEREST
Gov. Code Section 1090

Section 1090 also prohibits board
members and employees from selling
goods or services to their school district

Section 1090 does not define when an
official is financially interested in a
contract; however, courts have applied the
prohibition to include a broad range of
interests

Section 1090, et. seq., enumerates certain
“remote” and “non-interests” that, once
disclosed, do not prevent an officer from
participating in the making of a contract
CONFLICTS OF INTEREST
The Common Law (Case Law)

Prohibits public officials/employees from
placing themselves in a position in which they
might be tempted by their own private interest
to disregard the interests of the public

The common law conflict of interest doctrine
also prohibits conflicts that create the
appearance or impression of impropriety

Public officers and employees should avoid
interactions or dealings that might suggest
that their actions are not in the best interest of
the public
CONFLICTS OF INTEREST
The Common Law (Case Law)
 The common law conflict of interest
doctrine applies even where a decision
might otherwise appear to benefit the
District
 Underlying all conflict of interest
provisions is the maxim that a person
cannot simultaneously serve two
masters
CONFLICTS OF INTEREST
Gov. Code Section 1126
(“Incompatible Offices”)
 Prohibits public officials/employees
from engaging in any employment,
activity, or enterprise for
compensation that is inconsistent,
incompatible, in conflict with, or
inimical to their duties as public
officials/employees.
CONFLICTS OF INTEREST
Reporting
 Annual Report of Economic
Interests
In order to identify and avoid potential
conflicts of interest, the CPRA requires
that designated public officials disclose
interests that could impact their decisionmaking by filing a Statement of Economic
Interest, Form 700
CONFLICTS OF INTEREST
Form 700
 Your Duty to File a Form 700 Statement
of Economic Interest
 District policy and state law identify public
officials who must file a Form 700
 Those public officials must disclose certain
assets and income
 Certain types of gifts, honoraria and loans
are prohibited
 Filers may not accept gifts totaling more
than $390 in a calendar year from a single
source
USES OF BOND PROCEEDS
What are permissible uses
of Proposition 39 bond
funds?
USES OF BOND PROCEEDS
 Construction, rehabilitation or replacement of
school facilities
 Furniture and equipment
 Acquisition or lease of real property
 Limited to project list adopted by Board
before the election
 Ballot measure is like a contract with the voters
 Projects need not be listed on short ballot
measure
 Incorporate projects in Implementation Plan
USES OF BOND PROCEEDS
For a Proposition 39 bond, what
constitutes the list all bondfunded projects?
The 75-word ballot measure
does not have to list all bondfunded projects
USES OF BOND PROCEEDS
The Board can satisfy the Prop.
39 constitutional accountability
requirements by preparing and
making available the required
project list
Committee for Responsible School Expansion v.
Hermosa Beach City School District (2006) 142
Cal.App.4th 1178
USES OF BOND PROCEEDS
The Board can satisfy Prop. 39 accountability
requirements by stating in the bond
measure:
 It evaluated safety, class size reduction,
and information technology
 It will perform required audits
 The types of projects it will perform
Foothill-DeAnza Community College District v.
Emerich (2007) 158 Cal.App.4th 11
USES OF BOND PROCEEDS
 In developing list of projects, Board must
evaluate:
 Safety
 Class size reduction
 Information technology
 Proceeds may be used for some salaries,
but not for:
 Teacher or administrator salaries
 Other operating expenses
USES OF BOND PROCEEDS
 Proposition 39 bond funds may pay:
 District employee salaries to the extent
employees are engaged in constructionrelated projects
 Bond issuance and preparation costs
 Costs incidental, but directly related, to
bond-funded projects
Community Advocates for Responsible Education v.
San Lorenzo Valley Unified School District (May 26,
2006) 139 Cal. App. 4th 1356, affirming 87 Ops. Cal.
Atty. Gen. 157 (2004)
AUDIT REQUIREMENTS
 Annual independent audits
 Fiscal
 Performance
 Auditor selection
NEW CAUSE OF ACTION
 To restrain and prevent
expenditure of funds
 Failure to comply with Prop. 39
expenditure limits or to appoint a
COC
 By any citizen liable to pay the
tax