Legal Obligations of Charter School Trustees

May 2004May 2004

Overview* Key provisions of the Charter School Key provisions of the Charter School

LawLaw Application of the School Code to Application of the School Code to

charter schoolscharter schools Some thoughts on how to avoid legal Some thoughts on how to avoid legal

problemsproblems

* This material is not intended to be, and should not be understood as, legal advice. Please check with your solicitor about * This material is not intended to be, and should not be understood as, legal advice. Please check with your solicitor about issues specific to your school.issues specific to your school.

A. Key Provisions in the Charter School Law

Five key areas ranging from trustees’ Five key areas ranging from trustees’ express statutory authority to school express statutory authority to school facilities issuesfacilities issues

These are areas where PDE has noticed These are areas where PDE has noticed problems or seen issues ariseproblems or seen issues arise

They merit your consideration and attentionThey merit your consideration and attention

1. Corporate Form of Charter Schools

Definition of Charter School:Definition of Charter School: ““[A]n independent public school [A]n independent public school

established and operated under a charter established and operated under a charter from the local board of school directors and from the local board of school directors and in which students are enrolled or attend. in which students are enrolled or attend. A A charter school must be organized as a charter school must be organized as a public, nonprofit corporationpublic, nonprofit corporation. Charters . Charters may not be granted to any for-profit entity.”may not be granted to any for-profit entity.”

“Public, Nonprofit Corporation”

Under section 1714-A(a) of the CSL, a Under section 1714-A(a) of the CSL, a “charter school … is a body “charter school … is a body corporate.”corporate.”

That corporation must be registered That corporation must be registered with the Commonwealth as a nonprofit with the Commonwealth as a nonprofit corporation.corporation.

“Public, Nonprofit Corporation” A charter school is a public entity:A charter school is a public entity:

It operates primarily with public funds It operates primarily with public funds and it may use those funds “for charter and it may use those funds “for charter school purposes only”;school purposes only”;

Its board members are public officials;Its board members are public officials; It is subject to the Sunshine Act; andIt is subject to the Sunshine Act; and It may sue and be sued “but only to the It may sue and be sued “but only to the

same extent and upon the same same extent and upon the same conditions as political subdivisions and conditions as political subdivisions and local agencies.”local agencies.”

Consequences

A charter school must A charter school must bebe a corporation: a corporation: It may not be an operating division of It may not be an operating division of

another corporation;another corporation; It may not be a subsidiary of another It may not be a subsidiary of another

corporation.corporation. A charter school must operate A charter school must operate

independently of other corporations with independently of other corporations with which it is associated.which it is associated.

2. Express Statutory Authority of Charter School Trustees

Section 1716-A. Powers of board of trustees.Section 1716-A. Powers of board of trustees. (a) The board of trustees of a charter school (a) The board of trustees of a charter school

shall have the authority to decide matters shall have the authority to decide matters related to the operation of the school, including, related to the operation of the school, including, but not limited to, budgeting, curriculum and but not limited to, budgeting, curriculum and operating procedures, subject to the school's operating procedures, subject to the school's charter. The board shall have the authority to charter. The board shall have the authority to employ, discharge and contract with necessary employ, discharge and contract with necessary professional and nonprofessional employees professional and nonprofessional employees subject to the school's charter and the subject to the school's charter and the provisions of this article. provisions of this article.

Section 1716-A (cont’d)

(b) No member of a local board of (b) No member of a local board of school directors of a school entity shall school directors of a school entity shall serve on the board of trustees of a charter serve on the board of trustees of a charter school that is located in the member’s school that is located in the member’s district.district.

(c) The board of trustees shall comply (c) The board of trustees shall comply with the act of July 3, 1986 (P.L. 388, with the act of July 3, 1986 (P.L. 388, No.84), known as the “Sunshine Act.”No.84), known as the “Sunshine Act.”

Consequences

Subsections (b) and (c) are fairly Subsections (b) and (c) are fairly straightforward.straightforward.

According to the Pa. Supreme Ct., According to the Pa. Supreme Ct., subsection (a) means that the board must subsection (a) means that the board must “retain the ultimate authority over the “retain the ultimate authority over the general operation of the school.” general operation of the school.” Collegium.Collegium.

Once the board is in place, Once the board is in place, itit must control must control the school—not the applicant or founder, the school—not the applicant or founder, and not a management company.and not a management company.

Control Over the School

Pay particular attention to these areas Pay particular attention to these areas expressly listed in the statute:expressly listed in the statute: Budgeting Budgeting CurriculumCurriculum Operating proceduresOperating procedures Employment, discharge, and contracts Employment, discharge, and contracts

with employees.with employees.

3. Facilities and Construction

Two provisions affect charter schools in Two provisions affect charter schools in these areas:these areas: Section 1722-A Section 1722-A permitspermits a charter school a charter school

to be located in virtually any public or to be located in virtually any public or private site, but also private site, but also prohibitsprohibits a charter a charter school from constructing a facility with school from constructing a facility with funds received from the state or a local funds received from the state or a local school district.school district.

Facilities (cont’d)

Section 1715-A(10) provides that for Section 1715-A(10) provides that for construction and construction-related construction and construction-related projects, charter schools must comply projects, charter schools must comply with certain statutes—including some with certain statutes—including some outside the School Code.outside the School Code.

4. Retirement System

Section 1724-A(c) of the CSL provides: Section 1724-A(c) of the CSL provides: “All employees of a charter school shall be “All employees of a charter school shall be enrolled in the Public School Employees’ enrolled in the Public School Employees’ Retirement System …” (with exceptions)Retirement System …” (with exceptions)

It also provides, It also provides, “The Commonwealth shall “The Commonwealth shall make contributions on behalf of charter make contributions on behalf of charter school employees, and the charter school school employees, and the charter school shall be considered a school district and shall be considered a school district and shall make payments by employers …shall make payments by employers …””

Consequences Charter School Trustees, as the employer of Charter School Trustees, as the employer of

the school’s employees, must ensure thatthe school’s employees, must ensure that employees are enrolled in PSERS;employees are enrolled in PSERS; the school is making timely payments to the school is making timely payments to

PSERS on behalf of the employees.PSERS on behalf of the employees. PSERS will use a statutory intercept if PSERS will use a statutory intercept if

necessary to ensure such payments are necessary to ensure such payments are made.made.

5. Prohibitions on and Disqualification of Trustees

No person affiliated with a charter school—No person affiliated with a charter school—including a trustee—may accept a gift from including a trustee—may accept a gift from an employee or student as a condition of an employee or student as a condition of maintaining employment or enrollment in maintaining employment or enrollment in the school.the school.

Any trustee who is convicted of “Any trustee who is convicted of “a felony a felony or any crime involving moral turpitude” is or any crime involving moral turpitude” is disqualified from serving as a trustee. disqualified from serving as a trustee.

The board should have a clear plan for The board should have a clear plan for succession.succession.

B. School Code Provisions

General Rules regarding application of General Rules regarding application of the School Code to charter schoolsthe School Code to charter schools

Provisions that do apply to charter Provisions that do apply to charter schoolsschools

Areas for special considerationAreas for special consideration

1. General Rules on Application of the School Code to Charters

Unless a School Code provision is Unless a School Code provision is specifically made applicable to charter specifically made applicable to charter schools, charters are exempt from it. schools, charters are exempt from it. See See 24 P.S. 24 P.S. §1715-A(1).§1715-A(1).

Charter schools are not exempt from laws Charter schools are not exempt from laws outside the School Code. outside the School Code.

Charter schools are subject to all statutes Charter schools are subject to all statutes and regulations listed in section 1732-A of and regulations listed in section 1732-A of the CSL.the CSL.

2. Application of Specific School Code Provisions

Many sections are listed in section 1732-A Many sections are listed in section 1732-A of the Charter School Law. Some new ones of the Charter School Law. Some new ones were added as recently at 2002.were added as recently at 2002.

Other places to look in the CSL are: Other places to look in the CSL are: Section 1715-A(10) (construction)Section 1715-A(10) (construction) Section 1722-A(b) (facilities regulations)Section 1722-A(b) (facilities regulations) Section 1724-A(b) (Retirement Code)Section 1724-A(b) (Retirement Code)

3. Areas for Special Attention

The provisions listed in section 1732-A that The provisions listed in section 1732-A that are found in articles III, IV, and V of the are found in articles III, IV, and V of the School Code merit special attention.School Code merit special attention.

Those School Code articles address board Those School Code articles address board members’ responsibilities, issues members’ responsibilities, issues concerning board meetings and officers, concerning board meetings and officers, and board duties and powers.and board duties and powers.

C. Suggestions for Avoiding Legal Problems

Be knowledgeable about your school and Be knowledgeable about your school and the legal requirements it must meet.the legal requirements it must meet.

Be vigilant in carrying out your duties as a Be vigilant in carrying out your duties as a trustee.trustee.

Hire a solicitor and develop a cooperative Hire a solicitor and develop a cooperative relationship with him or her.relationship with him or her.

If you don’t already have them, try to find If you don’t already have them, try to find community organization partners.community organization partners.

1. Be Knowledgeable Learn as much as you can about your Learn as much as you can about your

charter school, the Charter School Law, and charter school, the Charter School Law, and other legal requirements—including federal other legal requirements—including federal requirements like special education and No requirements like special education and No Child Left Behind—to which the school is Child Left Behind—to which the school is subject.subject.

A school can be successful only if those A school can be successful only if those who are responsible for running it know who are responsible for running it know whatwhat must be done and whether it must be done and whether it isis being being done by the school’s management.done by the school’s management.

2. Be Vigilant

You are running your charter school. You are running your charter school. You must probe, ask questions, and—You must probe, ask questions, and—

when necessary—press for answers when necessary—press for answers from those involved in the day-to-day from those involved in the day-to-day operation of the school.operation of the school.

3. Work With a Solicitor No one at PDE is a school solicitor, and we No one at PDE is a school solicitor, and we

cannot offer legal advice to charter schools.cannot offer legal advice to charter schools. We are willing to help your solicitor work We are willing to help your solicitor work

through some of the issues and problems through some of the issues and problems that arise under the law.that arise under the law.

Simply put, there are too many legal issuesSimply put, there are too many legal issues—and often complex ones—to operate a —and often complex ones—to operate a public charter school without a well-trained public charter school without a well-trained attorney as a resource. attorney as a resource.

4. Work With Existing Community Organizations

As part of the charter application process, As part of the charter application process, applicants are asked to provide information applicants are asked to provide information on “the manner in which community groups on “the manner in which community groups will be involved in the charter school will be involved in the charter school planning process.” 24 P.S. planning process.” 24 P.S. §1719-A(8).§1719-A(8).

The 2002 statewide study of charter schools The 2002 statewide study of charter schools found that charters that were affiliated with found that charters that were affiliated with existing community organizations had clear existing community organizations had clear advantages in the formation and start-up advantages in the formation and start-up phases.phases.

D. Observations and Conclusions

There are many legal requirements that There are many legal requirements that charter schools and their trustees must charter schools and their trustees must follow.follow.

The more knowledgeable the trustees, the The more knowledgeable the trustees, the less likely there are to be problems in the less likely there are to be problems in the operation of the charter school.operation of the charter school.

A solicitor can be an excellent resource for A solicitor can be an excellent resource for a charter school’s board of trustees.a charter school’s board of trustees.