Volume 4, Number 2, January 12, 2001
A Publication of the Resource Center for Charter Schools
Phone 210-348-7890 Fax 210-348-7899

                      

GENERATIONS 3-6 FEDERAL START-UP SUBGRANTThe Charter School Division at TEA has received several calls concerning the due date for the Generations 3-6 Federal Start-up Subgrant Application, SAS-A515. The grant application is due to the Document Control Division on February 1, 2001 by 5:00 p.m. Grant applications will not be accepted after the due date. Start-up grants are available for the first three years after the award of the charter by the State Board of Education. Third Generation charter schools approved in 1998 are eligible for one more year of start-up funding. Beginning with the fourth year, the charter is eligible to apply for a dissemination grant. Schedule #4B, Program Description was not copied entirely in the grant application and Schedule #4C, Program Evaluation Design was not included in the grant application. Please include these pages when you submit your application. See attached. Please contact Esther Murguia at TEA with any questions at 512-463-9575.

ATTORNEY GENERAL OPINION Commissioner Jim Nelson has requested an attorney general opinion regarding the applicability of nepotism and conflict-of-interest provisions to state-approved charter schools. More specifically, he has asked the Attorney General to determine whether Chapter 573 of the Government Code and Chapter 171 of the Local Government Code apply to members of the governing boards of charter schools. Interested parties are invited to submit briefs to the Opinions Committee of the Attorney General's office by February 9, 2001. A copy of the Commissioner's request is being provided for your review. The request has been designated by the Attorney General's office as Request No. 0331-JC. Please refer to this number in any correspondence with the Attorney General's office.

CURRENT ENROLLMENTWe are updating our Operational State-Approved Charter School Directory. Please e-mail,oneillp@texas.net, or call the Resource Center, 210-348-7890, with updates concerning your school's current enrollment (as of January 2001) and any changes to your address, phone and fax number, and grades your school offers.

December 22, 2000
The Honorable John Cornyn
Attorney General of Texas
Price Daniel Building
P.O. Box 12548
Austin, Texas 78711

   Re: Applicability of Nepotism and Conflict-Of-Interest Laws to Governing Boards of Open-Enrollment
         Charter Schools

Dear General Cornyn:

This letter is to request your opinion regarding the applicability of Chapter 573 of the Government Code and Chapter 171 of the Local Government Code to the members of the governing boards of open-enrollment charter schools.
Chapter 573 of the Government Code makes it an offense involving official misconduct for a "public official" to appoint, confirm the appointment of, or vote to appoint or confirm the appointment of a relative to a position directly or indirectly compensated from public funds or fees of office. See TEX. GOVT. CODE § 573.041. "Public official" is defined therein to include:
         (A) an officer of this state or of a district, county, municipality, precinct, school district, or other political subdivision of this state; [or]
         (B) an officer or member of a board of this state or of a district, county, municipality, school district, or other political subdivision of this state.

Id. §573.001(3).

Chapter 171 of the Local Government Code requires a "local public official" to file an affidavit disclosing a substantial interest in a business entity or in real property that is the subject of a vote or decision by a governmental entity, and to abstain from further participation in the matter involving that business entity or real property. See TEX. LOC. GOVT. CODE § 171.004. "Local public official" is defined therein as a "member of the governing body or another officer, whether elected, appointed, paid, or unpaid, of any district (including a school district), county, municipality, precinct, central appraisal district transit authority or district, or other local governmental entity who exercises responsibilities beyond those that are advisory in nature." Id. § 171.001(1).

Both chapters are expressly applicable to the members of boards of trustees of school districts, but a question arises as to whether members of governing boards of open-enrollment charter schools are likewise "public officials" or "local public officials" as defined in these chapters. Under Subchapter D of Chapter 12 of the Education Code, charter schools share some of the attributes of school districts and are subject to some of the same restrictions, but are exempted from others.

The Legislature has authorized the granting of charters to four types of sponsoring entities, see TEX. EDUC. CODE § 12.101(a), and the vast majority of the charters that the State Board of Education has granted pursuant to this authority have been to nonprofit corporations exempt from tax under Internal Revenue Code section 501(c)(3). A nonprofit corporation receiving a charter may create a separate board for the governance of the charter school, or may utilize its existing governing board. In either case, these board members, unlike school district trustees, are selected and removed according to the corporate by-laws or in the manner described in the entity's charter application, not elected as provided in Chapter 11 of the Education Code. And unlike school district boards, these boards do not have the power to levy and collect taxes or to exercise the right of eminent domain. See id. §§ 11.152, 11.155.

However, like school district trustees, these charter school board members are responsible for implementing the state's system of public education, id. § 11.002, receive public funds from the available school fund for the education of the children in attendance, id,§ 12.106, are accountable to the State for the educational results obtained through the use of those funds and for compliance with established financial accounting practices in their expenditure of funds, id. § 12.104(b)(2)(K), must conduct open meetings and respond to open records requests as required of governmental bodies, id. § 12.105(b), and enjoy the degree of immunity from liability given to school board members, id. § 12.105(c).

The statutory intent in Education Code Chapter 12, Subchapter D regarding nepotism and conflict-of-interest restrictions is not entirely clear. Section 12.103 says that a charter school is subject to "federal and state laws and rules governing public schools." However, very few laws are directed at "schools" per se; rather, most laws governing school operations apply, as Government Code chapter 573 and Local Government Code chapter 171 do, to "school districts." It is possible that the Legislature intended such laws to be made applicable to open-enrollment charters through section 12.103. On the other hand, in reading Chapter 12 one could conclude that the Legislature was conscious of, and intended, the distinction between "schools" and "school districts." Section 12.102(a), describing home-rule school district charters, contains a comparable provision to that in section 12.103, but specifically says that a home-rule school district is subject to "federal and state laws and rules governing school districts." Furthermore, when in 1999 the Legislature decided to clarify the applicability of the Open Meetings Act and the Public Information Act to open-enrollment charters, it did so in an unambiguous way, recognizing that those statutes impose obligations on "school districts." Any requirement in [chapters 551 or 552 of the Government Code] relating to a school district, school board, or school children applies to an open-enrollment charter school and to children attending an open-enrollment school." Id. § 12.105(b). The Legislature made no comparable change to section 12.103.

In summary, then, my question is: Are the members of a governing board of a sponsoring entity of an open-enrollment charter school (and the members of the governing board of the charter school, if such a separate board exists) "public officials" subject to Chapter 573 of the Government Code and Chapter 171 of the Local Government Code?

Thank you for your consideration of this request. Should you have any questions, please feel free to call David Anderson, General Counsel, at 512-463-9720.

Sincerely yours,

Jim Nelson Commissioner of Education

OFFICE OF THE ATTORNEY GENERAL STATE OF TEXAS
     

JOHN CORNYN

January 9, 2000

Mr. Jim Nelson
Commissioner of Education
Texas Education Agency
1701 North Congress Avenue
Austin, Texas 78701-1494

Re: Applicability of nepotism and conflict-of-interest to the governing boards of open-enrollment charter
         schools (Request No. 0331-JC)

Dear Mr. Nelson:

We have received your request for an attorney general opinion, dated December 22, 2000, and have designated it as Request No. 0331-JC. Please refer to that number in future correspondence with us about this matter. Section 402.042 of the Government Code provides that the Attorney General shall issue an opinion not later than the 180th day after the date that an opinion request is received. TEX. GOV'T CODE ANN. § 402.042(c)(2) (Vernon 1998). We received your request on December 28, 2000, setting a due date for your opinion of June 25, 2001. We will respond by that date, or before, if possible.

By copy of this letter we are notifying those listed below of your request and asking them to submit briefs if they would care to do so. If you are aware of other interested parties, please let us know as soon as possible. We ask that the briefs be submitted by February 9, 2001, to ensure that the Opinion Committee will have adequate time to review and consider arguments relevant to the request from all interested parties. Written submissions are most useful, as the members of the Opinion Committee are not available to comment on or discuss the merits of legal questions at issue in an opinion request. Parties may request an extension of time to file a brief by calling (512) 463-2110.

Very truly yours,

Susan D. Gusky Chair, Opinion Committee