First Regular Session

Sixty-first General Assembly

LLS NO. 97­0486.01 JAP HOUSE BILL 97­1054

STATE OF COLORADO

BY REPRESENTATIVE Grossman

EDUCATION

A BILL FOR AN ACT

CONCERNING RESOLUTION OF DISPUTES REGARDING CHARTER SCHOOLS.

Bill Summary

(Note: This summary applies to this bill as introduced and does not necessarily reflect any amendments which may be subsequently adopted.)

Requires a local board of education, in making a decision concerning a charter school, to make written findings in support of its decision.

Deletes the provisions authorizing an appeal to the state board of education with regard to a local board of education's decisions affecting a charter applicant or a charter school, and replaces them with provisions requiring the state board of education to provide mediation services for such disputes. Requires the parties to a dispute to pay a mediation fee to cover the costs of mediation services, and creates the charter school mediation cash fund. Specifies procedures for requesting mediation services.

Specifies that both parties must participate in mediation in good faith. Allows the mediator to require any party who does not mediate in good faith to reimburse the other party the amount of the mediation fee. If the parties cannot agree following mediation, allows a charter applicant or a charter school to appeal a decision of the local board of education to the district court. Specifies that a local board's failure to consider the purposes of the charter schools act is an abuse of discretion and that its failure to participate in mediation in good faith is grounds for remanding the case to mediation. Specifies the grounds for reversing a local board of education's decision to grant a charter.

Makes conforming amendments.

Be it enacted by the General Assembly of the State of Colorado:

SECTION 1. 22­30.5­108, Colorado Revised Statutes, 1995 Repl. Vol., as amended, is amended to read:

22­30.5­108. Mediation ­ fee ­ judicial appeal ­ standard of review ­ procedures. (1) (a)  Acting pursuant to its supervisory power as provided in section 1 of article IX of the state constitution, the state board, upon receipt of a notice of appeal or upon its own motion may review decisions of any local board of education concerning charter schools in accordance with the provisions of this section. REQUEST FOR MEDIATION, SHALL APPOINT AN EMPLOYEE OF THE DEPARTMENT OF EDUCATION OR AN ADMINISTRATIVE LAW JUDGE IN THE DIVISION OF ADMINISTRATIVE HEARINGS IN THE DEPARTMENT OF PERSONNEL TO ACT AS A MEDIATOR IN RESOLVING ANY DISPUTE BETWEEN A LOCAL BOARD OF EDUCATION AND A CHARTER SCHOOL APPLICANT REGARDING APPROVAL OR DENIAL OF A CHARTER SCHOOL APPLICATION OR REGARDING THE LOCAL BOARD OF EDUCATION'S UNILATERAL IMPOSITION OF CONDITIONS THAT ARE UNACCEPTABLE TO THE CHARTER SCHOOL APPLICANT OR TO THE CHARTER SCHOOL OR BETWEEN A LOCAL BOARD OF EDUCATION AND A CHARTER SCHOOL REGARDING THE REVOCATION OR NONRENEWAL OF A CHARTER.

(b)  IN APPOINTING AN EMPLOYEE OF THE DEPARTMENT OF EDUCATION OR AN ADMINISTRATIVE LAW JUDGE TO ACT AS A MEDIATOR, THE STATE BOARD SHALL ENSURE THAT THE APPOINTED MEDIATOR HAS EXPERIENCE WITH CHARTER SCHOOLS AND IN MEDIATION.

(c)  THE STATE BOARD SHALL PROMULGATE RULES AND PROCEDURES FOR THE PROMPT RESOLUTION OF CHARTER SCHOOL DISPUTES THROUGH MEDIATION PURSUANT TO THIS SUBSECTION (1), INCLUDING BUT NOT LIMITED TO PROCEDURES FOR REQUESTING MEDIATION.

(d)  THE STATE BOARD BY RULE SHALL ESTABLISH A FEE FOR MEDIATION TO BE PAID BY EACH CHARTER SCHOOL APPLICANT, CHARTER SCHOOL, AND LOCAL BOARD OF EDUCATION THAT RECEIVES MEDIATION SERVICES. THE AMOUNT OF THE FEE SHALL REFLECT THE ACTUAL AND REASONABLE COSTS INCURRED IN PROVIDING MEDIATION. ALL FEES RECEIVED BY THE STATE BOARD PURSUANT TO THIS SECTION SHALL BE TRANSMITTED TO THE STATE TREASURER, WHO SHALL CREDIT THE SAME TO THE CHARTER SCHOOL MEDIATION CASH FUND, WHICH FUND IS HEREBY CREATED. THE MONEYS IN THE FUND SHALL BE SUBJECT TO ANNUAL APPROPRIATION BY THE GENERAL ASSEMBLY FOR THE DIRECT AND INDIRECT COSTS OF THE MEDIATION SERVICES PROVIDED PURSUANT TO THIS SECTION. IN ACCORDANCE WITH SECTION 24­36­114, C.R.S., ALL INTEREST DERIVED FROM THE DEPOSIT AND INVESTMENT OF THE FUND SHALL BE CREDITED TO THE GENERAL FUND.

(2)  A charter applicant or any other person who wishes to appeal a decision of a local board of education concerning a charter school shall provide ANY CHARTER SCHOOL APPLICANT AND ANY CHARTER SCHOOL MAY REQUEST MEDIATION OF DISPUTES AS PROVIDED IN SUBSECTION (1) OF THIS SECTION BY SUBMITTING TO the state board and the local board of education with a notice of appeal or of facilitation A WRITTEN REQUEST FOR MEDIATION within thirty days after the local board's decision AFFECTING THE APPLICANT OR CHARTER SCHOOL. If the appeal is of a denial, nonrenewal, or revocation of a charter, the person bringing the appeal shall limit the grounds of the appeal to the grounds for denial specified by the local board of education. The notice shall include a brief statement of the reasons the charter school applicant OR THE CHARTER SCHOOL contends the local board of education's denial was in error.

(3)  If the notice of appeal, or the motion to review by the state board, REQUEST FOR MEDIATION relates to a local board's decision to deny, refuse to renew, or revoke a charter or to a local board's unilateral imposition of conditions that are unacceptable to the charter school or the charter SCHOOL applicant, the appeal and review MEDIATION process shall be as follows:

(a)  Within sixty THIRTY days after receipt of the notice of appeal or the making of a motion to review by the state board and after reasonable public notice, the state board, at a public hearing which may be held in the district where the proposed charter school is located, shall review the decision of the local board of education and make its findings. If the state board finds that the local board's decision was contrary to the best interests of the pupils, school district, or community, the state board shall remand such decision to the local board of education with written instructions for reconsideration thereof. Said instructions shall include specific recommendations concerning the matters requiring reconsideration. REQUEST FOR MEDIATION, THE STATE BOARD SHALL APPOINT A MEDIATOR IN ACCORDANCE WITH PARAGRAPH (a) OF SUBSECTION (1) OF THIS SECTION. BOTH OF THE PARTIES INVOLVED IN MEDIATION SHALL BE SUBJECT TO A DUTY TO PARTICIPATE IN THE MEDIATION IN GOOD FAITH. IF AT ANY TIME THE MEDIATOR DETERMINES THAT ONE OF THE PARTIES IS NOT PARTICIPATING IN GOOD FAITH, THE MEDIATOR MAY ORDER THAT PARTY TO REIMBURSE THE OTHER PARTY FOR THE MEDIATION FEE PAID BY THAT PARTY PURSUANT TO SUBSECTION (1) OF THIS SECTION. IF THE PARTIES INVOLVED IN THE DISPUTE REACH A FULL OR PARTIAL AGREEMENT, THEY SHALL REDUCE THE AGREEMENT TO WRITING AND AGREE TO BE BOUND BY THE TERMS OF THE AGREEMENT. THE PARTIES MAY CONTINUE IN MEDIATION AS LONG AS BOTH PARTIES AGREE TO ITS CONTINUED USE. IF ONE PARTY IN GOOD FAITH SUBSEQUENTLY REJECTS MEDIATION, AND SUCH REJECTION IS NOT WITHDRAWN WITHIN SEVEN DAYS, THE LOCAL BOARD OF EDUCATION SHALL RECONSIDER ITS DENIAL, NONRENEWAL, OR REVOCATION OF THE CHARTER AND MAKE A FINAL DECISION.

(b)  Within thirty days following the remand of a decision to the local board of education and after reasonable public notice, the local board of education, at a public hearing, shall reconsider its decision and make a final decision. FINAL DECISION REACHED BY THE LOCAL BOARD OF EDUCATION UNDER PARAGRAPH (a) OF THIS SUBSECTION (3), IF THE LOCAL BOARD'S DECISION IS STILL TO DENY, REFUSE TO RENEW, OR REVOKE A CHARTER OR TO UNILATERALLY IMPOSE CONDITIONS UNACCEPTABLE TO THE CHARTER SCHOOL OR THE CHARTER SCHOOL APPLICANT, THE CHARTER SCHOOL OR CHARTER SCHOOL APPLICANT, PURSUANT TO RULE 106 OF THE COLORADO RULES OF CIVIL PROCEDURE, MAY FILE FOR JUDICIAL REVIEW OF THE DECISION OF THE LOCAL BOARD OF EDUCATION. FOR PURPOSES OF REVIEW UNDER RULE 106 OF THE COLORADO RULES OF CIVIL PROCEDURE, THE LOCAL BOARD OF EDUCATION SHALL BE DEEMED TO HAVE ABUSED ITS DISCRETION IF IT FAILS TO APPROPRIATELY CONSIDER THE PURPOSES OF THIS PART 1, AS SPECIFIED IN SECTION 22­30.5­102 (2). IN ADDITION, THE COURT SHALL REVIEW THE LOCAL BOARD OF EDUCATION'S PARTICIPATION IN MEDIATION PURSUANT TO PARAGRAPH (a) OF THIS SUBSECTION (3) AND REMAND THE CASE TO MEDIATION IF IT FINDS THAT THE LOCAL BOARD OF EDUCATION FAILED TO PARTICIPATE IN MEDIATION IN GOOD FAITH.

(c)  If the local board of education's final decision is still to deny, refuse to renew, or revoke a charter or to unilaterally impose conditions unacceptable to the charter school or the charter applicant, a second notice of appeal may be filed with the state board within thirty days following such final decision.

(d)  Within thirty days following receipt of the second notice of appeal or the making of a motion for a second review by the state board and after reasonable public notice, the state board, at a public hearing, shall determine whether the final decision of the local board of education was contrary to the best interests of the pupils, school district, or community. If such a finding is made, the state board shall remand such final decision to the local board with instructions to approve the charter application. The decision of the state board shall be final and not subject to appeal.

(3.5)  In lieu of a first appeal to the state board pursuant to paragraph (a) of subsection (3) of this section, the parties may agree to facilitation. Within thirty days after denial, nonrenewal, or revocation of a charter by the local board of education, the parties may file a notice of facilitation with the state board. The parties may continue in facilitation as long as both parties agree to its continued use. If one party subsequently rejects facilitation, and such rejection is not reconsidered within seven days, the local board of education shall reconsider its denial, nonrenewal, or revocation of a charter and make a final decision as provided in paragraph (b) of subsection (3) of this section. The charter applicant may file a notice of appeal with the state board as provided in paragraph (c) of subsection (3) of this section within thirty days after a local board of education's final decision to deny, not renew, or revoke a charter.

(4)  If the notice of appeal, or the motion to review by the state board, relates to a local board's decision to grant a charter, the appeal and review process shall be as follows: IF ANY PERSON WISHES TO APPEAL A DECISION OF A LOCAL BOARD TO GRANT A CHARTER SCHOOL APPLICATION OR ANY DECISION WITH REGARD TO THE OPERATION OF A CHARTER SCHOOL, SAID PERSON, PURSUANT TO RULE 106 OF THE COLORADO RULES OF CIVIL PROCEDURE, MAY FILE AN APPEAL WITH THE DISTRICT COURT FOR THE JUDICIAL DISTRICT IN WHICH THE SCHOOL DISTRICT IS LOCATED WITHIN THIRTY DAYS AFTER THE LOCAL BOARD OF EDUCATION'S DECISION. THE GROUNDS FOR JUDICIAL REVIEW SHALL BE LIMITED TO THE FOLLOWING:

(a) (I)  Within sixty days after receipt of the notice of appeal or the making of a motion to review by the state board and after reasonable public notice, the state board, at a public hearing which may be held in the district where the proposed charter school is located, shall review the decision of the local board of education and determine Whether such THE decision OF THE LOCAL BOARD OF EDUCATION was arbitrary and capricious; or

(b)  Whether the establishment or operation of the proposed charter school would:

(A) (I)  Violate any federal or state laws concerning civil rights;

(B) (II)  Violate any court order;

(C) (III)  Threaten the health and safety of pupils in the school district;

(D) (IV)  Violate the provisions of section 22­30.5­109 (2), prescribing the permissible number of charter schools; or

(E) (V)  Be inconsistent with the equitable distribution of charter schools among school districts.

(II)  If such a determination is made, the state board shall remand such decision to the local board with instructions to deny the charter application. The decision of the state board shall be final and not subject to appeal.

(5)  Nothing in this section shall be construed to alter the requirement that a charter school be a part of the school district in which it is located and accountable to the local board of education pursuant to section 22­30.5­104 (2).

SECTION 2. 22­30.5­107 (3) and (4), Colorado Revised Statutes, 1995 Repl. Vol., as amended, are amended to read:

22­30.5­107. Charter application ­ process. (3)  If a local board of education denies a charter school application or unilaterally imposes conditions that are unacceptable to the charter applicant, the charter applicant may appeal the decision to the state board REQUEST MEDIATION pursuant to section 22­30.5­108.

(4)  If a local board of education denies a charter school application, it shall state its reasons for the denial. A LOCAL BOARD OF EDUCATION SHALL PROVIDE WRITTEN FINDINGS IN SUPPORT OF ITS DECISION TO GRANT OR DENY A CHARTER. THE WRITTEN FINDINGS SHALL SPECIFY THE FACTORS CONSIDERED BY THE LOCAL BOARD OF EDUCATION IN MAKING ITS DECISION, SPECIFICALLY ADDRESSING EACH OF THE PURPOSES OF THIS PART 1, AS SPECIFIED IN SECTION 22­30.5­102 (2). If a local board of education grants a charter, it shall send a copy of the approved charter to the department of education within fifteen days after granting the charter.

SECTION 3. 22­30.5­110 (4.5) and (5), Colorado Revised Statutes, 1995 Repl. Vol., as amended, are amended to read:

22­30.5­110. Charter schools ­ term ­ renewal of charter ­ grounds for nonrenewal or revocation. (4.5)  If a local board of education revokes or does not renew a charter, the board shall state its reasons for the revocation or nonrenewal. A LOCAL BOARD OF EDUCATION SHALL PROVIDE WRITTEN FINDINGS IN SUPPORT OF ITS DECISION TO REVOKE, RENEW, OR NOT RENEW A CHARTER. THE WRITTEN FINDINGS SHALL SPECIFY THE FACTORS CONSIDERED BY THE LOCAL BOARD OF EDUCATION IN MAKING ITS DECISION, SPECIFICALLY ADDRESSING EACH OF THE PURPOSES OF THIS PART 1, AS SPECIFIED IN SECTION 22­30.5­102 (2).

(5)  A CHARTER SCHOOL MAY REQUEST MEDIATION PURSUANT TO SECTION 22­30.5­108 CONCERNING A LOCAL BOARD OF EDUCATION'S decision to revoke or not to renew a charter. may be appealed or facilitation may be sought pursuant to the provisions of section 22­30.5­108.

SECTION 4. Safety clause. The general assembly hereby finds, determines, and declares that this act is necessary for the immediate preservation of the public peace, health, and safety.