Governance, Oversight, and Liability
Responses to these frequently asked questions are advisory only. Charter schools and charter authorizers are encouraged to review the actual laws and regulations that provide the basis for these responses and consult with their own legal counsel regarding the application of any of these issues to a specific situation.
Q1. Does a charter
school have a school board? Could it be governed by an existing
school board? Could it operate as a nonprofit organization?
Q.2. Can a charter school governing body include
paid employees of the school?
Q.3. Are charter schools part of the public
school system? Does it make a difference if a charter school is
operated by or as a nonprofit corporation?
Q.4. Are charter schools subject to open meeting
requirements?
Q.5. Education Code Section
47612 deems charter schools to be governmental entities for
certain purposes. Does this statute supercede a charter's nonprofit
corporation status?
Q.6. What is the definition of an 'incorporated
charter'?
Q.7. What is the role of the charter authorizing
entity in overseeing the charter school?
Q.8. May a chartering agency charge a charter
school for costs of supervision and oversight?
Q.9. What is the process for closing a charter
school? What happens to the school's assets and remaining fund
balances?
Q.10. Is a charter school considered part
of the authorizing entity when determining a school district's
compliance with longer year instructional time requirements?
Q.11. Can a traditional high school refuse
to accept credits earned by a student who transfers from a charter
high school?
Q.12. Is a school district statutorily required
to take a student that has been expelled from a charter school?
Does a charter school have a school board? Could it be governed by an existing school board? Could it operate as a nonprofit organization?
One of the 16 required elements of a charter school petition is an identification of the school’s governance structure and a description of the process to be followed to ensure parental involvement. School governance can be structured in a variety of ways, but it usually involves the school’s stakeholders (parents, teachers, administrators, classified staff, and community leaders) in some form or another. An existing school district board of trustees may govern a charter school, but if so, the charter school usually also forms an advisory body made up of charter school stakeholders to advise the school district governing board on issues such as program implementation, budgets, and facilities.
If a charter school elects to operate as a nonprofit public benefit corporation, the entity granting the charter is entitled to a representative on the corporation’s board of directors. However, the Legislature has stated its intent that the authorizer would not be liable for any of the debts or obligations of the charter school. Nonprofit corporations are governed by a body of law in the California Corporations Code. A charter school that is operated by or as a nonprofit would be required to meet the conditions of the laws governing nonprofit corporations in addition to complying with all charter school laws.
Ref. Education Code sections 47604
and 47605(b)(5)(D)
Can a charter school governing body include paid employees of the school?
In California, the nonprofit law permits staff members of a nonprofit corporation to be on its governing board as long as 50 percent or more of the board members are neither staff nor "interested parties" (such as relatives of staff).
The charter school should consider the impact of allowing school employees to also sit on the governing board on sensitive matters such as performance review, salary and contract negotiation, and board-staff relations. There may be other ways to give staff input in governance, such as through participation in advisory committees that report to the board. The board should have clear policies in place to prevent the perception or occurrence of conflicts of interest between board members and their decisions, complying with Government Code Section 87100.
Are charter schools part of the public school system? Does it make a difference if a charter school is operated by or as a nonprofit corporation?
Charter school law declares that charter schools are under the jurisdiction of the public school system. There is no distinction for those operated by or as a nonprofit. Therefore, even charter schools operated by or as a nonprofit corporation are part of the public school system and are all bound to all applicable laws.
Ref. Education Code Section
47615
Are charter schools subject to open meeting requirements?
Yes. While charter schools are exempt from most laws specifically applicable to school districts, they are not exempt from laws that generally apply to public agencies, including open meeting law requirements. Government Code Section 54950 et seq. (commonly referred to as the “Brown Act”) requires that the actions taken by local (public) agencies and their deliberations be conducted openly. The Brown Act defines a local agency as “a county, city, whether general law or chartered, city and county, town, school district, municipal corporation, district, political subdivision, or any board, commission or agency thereof, or other local public agency.”
Education Code Section 47612 deems charter schools to be governmental entities for certain purposes. Does this statute supercede a charter's nonprofit corporation status?
Yes. While a charter school may be operated by or as a nonprofit, it is still considered a governmental agency and part of the public school system for many purposes. For example, the law does not specify which specific accounting model charter schools must use; however, the law does require that charter school audits be performed in accordance with generally accepted accounting principles (GAAP) standards for governmental entities.
What is the definition of an 'incorporated charter'?
The definition of an incorporated charter school is in Education Code Section 47604 (a). It is one that is operating as or by a nonprofit organization.
What is the role of the charter authorizing entity in overseeing the charter school?
The entity that authorizes the charter school is responsible for ensuring the charter school is compliant with all applicable laws and the terms of its charter. Education Code Section 47604.3 specifically requires a charter school to respond to reasonable requests for information from its charter authorizer and from the State Superintendent of Public Instruction.
Education Code Section 47604.32 specifies the duties of a charter authorizer. Specifically, the charter authorizer must:
- Identify at least one staff member as a contact person for the charter school
- Visit each charter school at least annually
- Ensure that each charter school under its authority complies with all reports required of charter schools by law
- Monitor the fiscal condition of each charter school under its authority
- Provide timely notification to the department if any of the following circumstances occur or will occur with regard to a charter school for which it is the charter authorizer
- The charter is revoked
- The charter school will cease operation for any reason
- The cost of performing the duties required by this section shall be funded with supervisorial oversight fees collected pursuant to Education Code Section 47613
The California Department of Education suggests that the charter authorizer and the charter school establish an agreement regarding the format, frequency, and scope of oversight activities.
Ref. Education Code Section 47604.32
May a chartering agency charge a charter school for costs of supervision and oversight?
A charter authorizer may charge a charter school for the actual costs of supervisorial oversight, not to exceed one percent of the revenue of the charter school. However, if substantially rent-free facilities are provided by the chartering agency for use by the charter school, the chartering agency may charge for the actual costs of supervisorial oversight of the charter school, not to exceed three percent of the revenue of the charter school. Revenue is defined as general-purpose entitlement and categorical block grant funding for purposes of the calculation of the oversight fee.
The California Department of Education believes that in addition to the oversight responsibilities noted above, “supervision” includes providing the charter school with general guidance and assistance on various issues, such as funding and compliance. This would not generally include extensive administrative services. A charter school may opt to contract with its authorizing agency for additional services such as administrative, insurance, maintenance, payroll, etc., or other sources, on a fee-for-service basis.
Ref. Education Code Section 47613.7
What is the process for closing a charter school? What happens to the school's assets and remaining fund balances?
Charter school law requires each charter petition to contain a description of the procedures to be used if the school closes, including a final audit, plans for disposing of all assets (fixed assets and remaining fund balances), and maintenance and transfer of pupil records. A school may close for several reasons, including voluntary termination, non-renewal, and revocation. The closure process included in each charter should be sufficient to cover all of these possibilities. If a charter school is established as a nonprofit corporation, the corporate bylaws and the statutes governing non-profits need to be taken into account in the closure process. Suggestions for a closure process are available on the California Department of Education Web site at http://www.cde.ca.gov/sp/cs/lr/csclosurerules.asp.
Can a traditional high school refuse to accept credits earned by a student who transfers from a charter high school?
As part of the description of the educational program, each charter petition for a school serving high school students must address the issue of course transferability. Specifically, the charter must include procedures to notify parents about course transferability. In some cases, credits earned at a charter high school may not be transferable at all, or may be accepted only as electives, not as core academics. A charter school should establish procedures to ensure communication and cooperation with neighboring schools to help ensure that students will receive credit for courses as reflected in the charter school transcripts and for report cards. The process to ensure transferability of course credits is one of the procedures that should be clearly explained to the student, his/her family, and the respective educational institutions.
Accreditation is a voluntary process that schools can elect to participate in to ensure that they are offering high quality learning environments and to assure transferability of credits meeting the University of California (UC) and California State University (CSU) admissions requirements.
An accredited school is focused on a mission and goals for students; it is student-oriented and examines its students' performance continuously; it accepts objective evaluation from a team of outside peer professionals trained by Western Association of Schools and Colleges (WASC); it maintains a qualified faculty within an effectively organized school; it collaboratively assesses the quality of its educational programs on a regular basis; and it plans for the future.
Can a traditional high school refuse to accept credits earned by a student who transfers from a charter high school?
As part of the description of the educational program, each charter petition for a school serving high school students must address the issue of course transferability. Specifically, the charter must include procedures to notify parents about course transferability. In some cases, credits earned at a charter high school may not be transferable at all, or may be accepted only as electives, not as core academics. A charter school should establish procedures to ensure communication and cooperation with neighboring schools to help ensure that students will receive credit for courses as reflected in the charter school transcripts and for report cards. The process to ensure transferability of course credits is one of the procedures that should be clearly explained to the student, his/her family, and the respective educational institutions.
Accreditation is a voluntary process that schools can elect to participate in to ensure that they are offering high quality learning environments and to assure transferability of credits meeting the UC and CSU admissions requirements.
An accredited school is focused on a mission and goals for students; it is student-oriented and examines its students' performance continuously; it accepts objective evaluation from a team of outside peer professionals trained by Western Association of Schools and Colleges (WASC); it maintains a qualified faculty within an effectively organized school; it collaboratively assesses the quality of its educational programs on a regular basis; and it plans for the future.
The Accrediting Commission for Schools extends its services to 3,500 public, independent, church-related, and proprietary schools of the following levels and types:
- Elementary schools
- Junior high/middle/intermediate schools
- Comprehensive/college preparatory high schools
- Continuation high schools
- Alternative education schools
- Charter schools
- Occupational/vocational high schools
- Regional occupational programs/centers
- Adult schools
- Vocational skill centers
Ref. http://www.acswasc.org/faq.htm
Ref. Education Code Section 47605(b)(5)(A)
Is a school district statutorily required to take a student that has been expelled from a charter school?
Charter schools are required to describe their suspension and expulsion procedures in the charter. The charter’s procedures may or may not mirror the policies of the charter authorizer. However, once a pupil is expelled, he or she returns to the jurisdiction of the school district that he or she would be eligible to attend prior to enrolling in the charter school. Once a charter school student is expelled, rules of district residency would apply. In other words, the district should treat a charter-expelled student the same as a district-expelled student and comply with Education Code Section 48915.1, which provides that the district hold a hearing to determine whether or not the student is dangerous. If the student is deemed “not dangerous,” the district could allow attendance by the expelled student.
Questions and answers associated with this topic were revised to conform with recent changes in the law. Please review the legislative updates at Charter School Legislation for a summary or recent changes.
