| Advisory opinion request regarding the potential appointment of Liberty Bank employee, Kenneth Johnson, Jr., to the Success Preparatory Academy Charter School Board. |
|
Lee Adler, the Chairman of the Success Preparatory Academy Charter School Board, requested an advisory opinion regarding whether whether La. R.S. 42:1111C(2)(d) would prohibit, Mr. Kenneth Johnson, Jr., from being appointed as a Board member of the Success Preparatory Academy Charter School Board while he is employed as a commercial loan officer by Liberty Bank. He provided that Success Preparatory Academy is a type 5 charter School under the Recovery School District located in Orleans Parish. You stated that the school by resolution chose Liberty Bank as its primary financial institution. Additionally, he provided that the type 5 charter School's under the Recovery School District such as his are currently chartered by the Board of Elementary and Secondary Education "BESE" however within the next year possibly as early as this summer all the charter schools under the Recovery School District will be returned to Parish control and the charter will be written by Orleans Parish. Further, Mr. Adler stated that Mr. Johnson does not participate in any way with the accounts that the school has with the bank.
La. R.S. 42:1111C(2)(d) generally prohibits a public servant from rendering compensated service to a person who has or seeking to have contractual, business or financial business with his agency, a person who conducts operations or activities that are regulated by his agency or a person who has a substantial economic interest that can be affected by the performance or nonperformance of his public duties.
An exception was provided for members of a local depositing authority in:
La. R.S. 39:1233.1 which provides that ...any member of a local depositing authority, including the chief executive officer thereof, may serve as an officer, director, or employee, whether compensated or not, of any national or state bank; provided that he shall recuse himself from voting in favor of any such bank and shall disclose the reason for such recusal by filing the same into the minutes or record of the local depositing authority and by forwarding a disclosure form to the Board of Ethics...
La. R.S. 39:1211. Depositing authorities defined
The term, "local depositing authorities", includes all parishes, municipalities, boards, commissions, sheriffs and tax collectors, judges, clerks of court, and any other public bodies or officers of any parish, municipality or township, but it does not include the state and its elected officials, and state commissions, boards, and other state agencies.
The pertinent laws regarding type 5 charter Schools in the Recovery School District are as follows:
La. R.S. 17:1990 A.(1) The Recovery School District, referred to as the "school district" or the "district", is hereby established to provide an appropriate education for children attending any public elementary or secondary school operated under the jurisdiction and direction of any city, parish, or other local public school board or any other public entity, referred to in this Section as "the prior system", which has been transferred to its jurisdiction pursuant to R.S. 17:10.5 or 10.7.
La. R.S. 17:1990 B(1)(d) The school district shall not be required to utilize or obtain the approval of any state agency, including but not limited to the division of administration or any office within the division of administration or any procurement support team or similar group, when procuring data processing and telecommunications goods or services or in the procurement of materials, supplies, or major repairs or in the disposition of property; however, the school district shall comply with all other applicable provisions of Title 39 of the Louisiana Revised Statutes of 1950 regarding such procurement and disposition of property. Furthermore, notwithstanding any provision of law to the contrary, the school district shall be required to receive the prior approval of the Joint Legislative Committee on the Budget for one or more change orders that cause an excess of one hundred thousand dollars in the aggregate per month to a contract for a project undertaken that would be considered a capital expense.
La. R.S. 17:3995 H. Any Type 2 or 5 charter school shall be considered the local education agency for funding purposes and statutory definitions pursuant to rules adopted by the state board.
In BD Opinion 2014-1503 the board found that the exception in La. R.S. 39:1233.1 applied to Parish School board members. The board has never applied 39:1233.1 to Charter School Board members. The question becomes whether the Charter school is a local depositing authority.
|
|
La. R.S. 42:1111C(2)(d) generally prohibits a public servant from rendering compensated service to a person who has or seeking to have contractual, business or financial business with his agency, a person who conducts operations or activities that are regulated by his agency or a person who has a substantial economic interest that can be affected by the performance or nonperformance of his public duties.
La. R.S. 39:1233.1 which provides that ...any member of a local depositing authority, including the chief executive officer thereof, may serve as an officer, director, or employee, whether compensated or not, of any national or state bank; provided that he shall recuse himself from voting in favor of any such bank and shall disclose the reason for such recusal by filing the same into the minutes or record of the local depositing authority and by forwarding a disclosure form to the Board of Ethics.
La. R.S. 17:3973(2)(v) "Charter School"
(v)(aa) Type 5, which means a preexisting public school transferred to the Recovery School District as a school determined to be failing pursuant to R.S. 17:10.5 or 10.7 and operated as the result of and pursuant to a charter between a nonprofit corporation and the State Board of Elementary and Secondary Education. The chartering authority shall review each Type 5 charter proposal in compliance with the Principles and Standards for Quality Charter School Authorizing as promulgated by the National Association of Charter School Authorizers. Except as otherwise provided in R.S. 17:10.7 or 1990, and notwithstanding the provisions of R.S. 17:3991(B)(1), within such Type 5 charter school, only pupils who would have been eligible to enroll in or attend the preexisting school under the jurisdiction of the city, parish, or other local public school board or other public school entity prior to its transfer to the Recovery School District may attend. However, all such pupils shall be eligible to attend notwithstanding any other provision of this Chapter to the contrary.
(bb) In addition to pupils who are eligible to enroll pursuant to the provisions of Subitem (aa) of this Item, any student who is eligible to participate in a school choice program established by the prior system shall be permitted to enroll in a Type 5 charter which has capacity for another student in the appropriate grade. Maximum capacity by grade shall be provided in the charter agreement.
(cc)(I) No member of the State Board of Elementary and Secondary Education shall be a member of the governing or management board of any Type 5 charter school. No member of any city, parish, or other local public school board shall be a member of the governing or management board of any Type 5 charter school within the jurisdictional area of such city, parish, or other local public school board.
(II) No member of a governing or management board of any Type 5 charter school shall be an elected official as defined by R.S. 42:1102(9). No member of such a board shall have been an elected official for a period of at least one year prior to appointment to such board.
(dd) A Type 5 charter school that is transferred from the Recovery School District to the administration and management of the transferring local school system pursuant to R.S. 17:10.5 or 10.7 and rules adopted by the state board shall no longer be determined to be failing and shall be converted to a Type 3B charter school. (Type 3 B Charter School which means a preexisting public school converted and operated as the result of and pursuant to a charter between a nonprofit corporation and the local school board.)
La. R.S. 17:1990. Recovery School District; creation; governance; operation
A.(1) The Recovery School District, referred to as the "school district" or the "district", is hereby established to provide an appropriate education for children attending any public elementary or secondary school operated under the jurisdiction and direction of any city, parish, or other local public school board or any other public entity, referred to in this Section as "the prior system", which has been transferred to its jurisdiction pursuant to R.S. 17:10.5 or 10.7.
(2) The school district shall be administered by the state Department of Education, subject to the approval of the State Board of Elementary and Secondary Education, referred to in this Section as "the state board".
B.(1)(a) The school district shall be considered an intermediate educational unit, subject to the limitations of such units which shall include no authority to levy a tax, but which shall include authority to seek, expend, manage, and retain federal funding and grant funding and to otherwise seek, obtain, expend, manage, and retain funding with all the same authority of any city, parish, or other local public school board or other public entity operating a public school, including the right to maintain and manage fund balances.
(b) The expenditure of funds shall be subject to the requirements of the approved Minimum Foundation Program formula that apply to a city, parish, or other local public school system and shall be subject to audit in the same manner.
(c) The school district shall have the same authority and autonomy afforded to city, parish, and other local public school systems under state law regarding the procurement of services, including but not limited to personal, professional, consulting, and social services; the procurement of immovable property; and the leasing of movable property.
----
(d) The school district shall not be required to utilize or obtain the approval of any state agency, including but not limited to the division of administration or any office within the division of administration or any procurement support team or similar group, when procuring data processing and telecommunications goods or services or in the procurement of materials, supplies, or major repairs or in the disposition of property; however, the school district shall comply with all other applicable provisions of Title 39 of the Louisiana Revised Statutes of 1950 regarding such procurement and disposition of property. Furthermore, notwithstanding any provision of law to the contrary, the school district shall be required to receive the prior approval of the Joint Legislative Committee on the Budget for one or more change orders that cause an excess of one hundred thousand dollars in the aggregate per month to a contract for a project undertaken that would be considered a capital expense.
(e) The school district shall not be required to utilize any selection board, including but not limited to the Louisiana Architects Selection Board, the Louisiana Engineers Selection Board, or the Louisiana Landscape Architects Selection Board when contracting for any public work or professional service, or when contracting for any other service. However, the school district shall comply with all other applicable provisions of Title 38 of the Louisiana Revised Statutes of 1950.
La. R.S. 17:3995
H. Any Type 2 or 5 charter school shall be considered the local education agency for funding purposes and statutory definitions pursuant to rules adopted by the state board.
I. The local school board shall remain the local education agency for any Type 1, 3, or 4 charter school, unless the charter school is authorized to act as its own local education agency, pursuant to R.S. 17:10.7.1.
J. A Type 5 charter school shall have the option to remain its own local education agency for funding purposes and statutory definitions upon conversion to a Type 3B charter school pursuant to rules adopted by the state board. Pursuant to this Subsection, the state board shall adopt rules for a Type 3B charter school considered its own local education agency and such rules shall:
(1) Provide for the delineation of financial and programmatic obligations of the charter school related to the receipt of funds as a local education agency.
(2) Authorize the state superintendent of education to rescind the local education agency status of a charter school should the charter school fail to meet the financial and programmatic obligations approved by the state board pursuant to this Subsection.
K. The State Board of Elementary and Secondary Education shall promulgate rules in accordance with the Administrative Procedure Act regarding a charter school acting as its own local education agency, pursuant to R.S. 17:10.7.1. Such rules shall:
(1) Delineate the financial and programmatic obligations of the charter school as related to the receipt of public funds.
(2) Authorize the state superintendent of education to rescind a charter school's authority to act as its own local education agency if the school fails to meet the financial and programmatic obligations established by the board.
La. R.S. 39:1211. Depositing authorities defined
The term, "local depositing authorities", includes all parishes, municipalities, boards, commissions, sheriffs and tax collectors, judges, clerks of court, and any other public bodies or officers of any parish, municipality or township, but it does not include the state and its elected officials, and state commissions, boards, and other state agencies.
La. R.S. 39:1212. Daily deposits
After the expiration of existing contracts, all funds of local depositing authorities shall be deposited daily whenever practicable, in the fiscal agency provided for, upon the terms and conditions, and in the manner set forth in this Chapter. Deposits shall be made in the name of the depositing authority authorized by law to have custody and control over the disbursements.
La. R.S. 39:1213. Fiscal agencies designated
The fiscal agency with which funds are deposited shall be a stock-owned federally insured depository institution organized under the laws of this state or of any other state of the United States, or under the laws of the United States, as may be selected by the depositing authority under the provisions of this Chapter.
La. R.S. 39: 1220. Selection of depositories
A. Local depositing authorities shall, except as otherwise provided in this Chapter, select as the depositories of their funds, financial institutions domiciled or having branch offices located in the parish or municipality or congressional district of the depositing authority, subject to the following conditions:
(1)(a) The depositing authority must allocate its funds to each qualifying bank within the area in the ratio that the total capital, declared surplus and undivided profits allocated to said depositing authority of each qualifying bank, as shown by its statement filed with its application, bears to the total capital, declared surplus, and undivided profits of all banks qualifying as fiscal agents in the area.
(b) Whenever a qualifying bank is a branch office of a bank not domiciled in the jurisdiction of the depositing authority such bank must allocate capital to such branch, which allocation shall be the same as that determined under the provisions of R.S. 47:1968, and thereafter the depositing authority may allocate its funds to the branch bank within the area in the ratio that the capital of the branch bank bears to the total capital of all other banks or branches domiciled within the jurisdiction of the depositing authority.
(c) Whenever a qualifying bank is domiciled in the jurisdiction of the depositing authority and has branches outside the jurisdiction of the depositing authority and has allocated capital to such branches pursuant to R.S. 47:1968 and this Subparagraph, such bank must allocate capital to its offices and branches within the jurisdiction of the depositing authority on the same basis as that provided under R.S. 47:1968, and thereafter the depositing authority may allocate its funds to the bank offices and branches within the jurisdiction of the depositing authority in the ratio that the capital of such bank offices and branches within the jurisdiction bears to the total capital of all other banks or branches domiciled within the jurisdiction of the depositing authority.
(d) The depositing authority may, in its discretion, allocate funds to any qualifying group of banks located in the same city or parish, pursuant to a written agreement entered into by all the members of the group and filed with their application to qualify.
(2) Unless secured with permissible collateral within three days of the deposit, no amount in excess of two hundred percent of the capital stock, declared surplus, and undivided profits of any bank shall be deposited in any one bank by one depositing authority, provided that deposits which are swept from the bank's deposit account at the close of business each day for purchase of securities that qualify as collateral for public deposits shall not be counted in this calculation.
(3) No bank shall be eligible to qualify to receive the deposits of any public funds which has not accompanied its application for the deposit with a sworn statement of its financial condition, as shown by its books, at the close of business in the first day of the month prior to the month in which the application was made.
(4) Repealed by Acts 2013, No. 32, 3.
(5) No bank selected as a depository shall assess depositing authorities, the state, or any department, board, commission, or institution thereof, a fee for credit inquiries, deposit verifications or audit confirmations concerning accounts of the depositing authority.
B. For the purposes of this Section, an electronic funds transfer mechanism shall not be considered a branch office; "branch office," within the context of this Section, shall be defined as a full service branch office.
|
|
|
Recommendation to be made at the meeting.
|
|
| Assigned Attorney: |
Suzanne Mooney |
|
|