County of Los Angeles School District General Obligation Bonds White Paper

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1 County of Los Angeles School District General Obligation Bonds White Paper California s Coalition for Adequate School Housing s Fall Conference Tuesday, October 18, 2011 Presented by: Donald Field, Esq. Partner Orrick, Herrington & Sutcliffe LLP Role of the County in School District General Obligation Bond Financing Issues bonds on behalf of School District SB 1118 (1999) allows School Districts to issue directly Issuance under Government Code * AB 1388 (2009) repeal of Government Code Section level debt service requirement * Government Code Section permits 40 year maturities Levies and collects ad valorem taxes to repay School District bonds Holds and invests School District funds 1

2 County of Los Angeles School District General Obligation Bonds White Paper Proposition 39 tax rate limits Use of bond premium to pay costs of issuance Borrowing from bond project funds 2 Proposition 39 Tax Rate Limits Tax rate as a result of any single election must be projected to be no more than (per $100,000 of assessed value): $30 for elementary and high school districts $60 for unified school districts The tax rate limit applies only when new bonds are issued; it is not a legal limitation upon the ability to levy taxes at such rate as may be necessary to pay debt service on the bonds once the bonds are issued 3

3 Questions Raised by Proposition 39 Tax Rate Limits If a School District has already exceeded its Proposition 39 tax rate limit for a ballot measure, can it issue additional debt under that ballot measure? Can a School District comply with the Proposition 39 tax rate limit by issuing bonds with debt service only in those years in which it projects it will not exceed the applicable tax rate limit? 4 Proposition 39 Tax Rate Projections Tax Rate per $100,000 of Assessed Value Tax Rate Fiscal Year Ending

4 Education Code Section (elementary and high school districts) The bonds may only be issued if the tax rate levied to meet the requirements of Section 18 of Article XVI of the California Constitution in the case of indebtedness incurred by a school district pursuant to this chapter, at a single election, would not exceed thirty dollars ($30) per year per one hundred thousand dollars ($100,000) of taxable property when assessed valuation is projected by the district to increase in accordance with Article XIII A of the California Constitution. (Education Code Section includes similar language for unified school districts.) 6 Bond Premium to Pay Costs of Issuance Historical practice of setting the minimum price for bonds to be sold at not less than the principal amount thereof and requiring underwriters to pay costs of issuance (i.e., underwriter s discount, financial adviser fees, legal fees, rating agency fees, etc.) The result of this practice is that all of the principal amount of the voter approved bonds is used to finance authorized projects 7

5 March 1, 2011 Attorney General Letter The law is clear that any premium, even if legitimate, must be deposited into a special fund, applied to pay debt service, and therefore cannot be diverted to pay costs of issuance. Further, the practice of artificially inflating the interest rate to generate premium for unauthorized uses translates into additional bond proceeds over and above what the voters authorized. Although we are mindful of the costs of litigation to school districts and municipalities around the state, we will scrutinize proposed bond issues such as this in the future. Should such practices continue, we may be compelled to intervene. 8 Bond Proceeds Components Education Code Section 15146(f) The proceeds of the sale of the bonds, exclusive of any premium received, shall be deposited in the county treasury to the credit of the building fund of the school district, or community college district as designated by the California Community Colleges Budget and Accounting Manual. Any premium or accrued interest received from the sale of the bonds shall be deposited in the interest and sinking fund of the district. 9

6 Meaning of the word Premium An Interpretation Consistent with Historical Practice The word premium, which generally refers to an amount which is over and above a base price or amount, is used in several different ways within a bond transaction It is clear from context of the statute that the premium referred to in Education Code Section 15146(f) is the District s premium: that part of the purchase price of the bonds over and above the principal or par amount of the bonds This should not be confused with reoffering premium, also known as original issue premium, which is the amount received by the underwriter of the bonds upon resale of the bonds to the investing public over and above the principal amount of the bonds sold 10 What to do Going Forward There are certain risks associated with legal positions some are political (which may result in voter backlash even if legally correct) and some are financial (i.e., costs of defending a legal challenge even if successful) A legal position is not a guaranty and the Attorney General s office has put School Districts on notice that it may intervene if practice continues School District officials should continue practice only after consideration of the issues and risks (political and financial) School Districts calling new elections should consider including issuance costs in authorized bond amount to avoid issue completely 11

7 School District Cash Management Options for cash management include the following: Tax and Revenue Anticipation Notes (Government Code Section et seq.) Temporary Borrowing (Conditional Apportionment) from County Office of Education (Education Code Section 42622) Temporary Borrowing from County Treasurer (California Constitution Article XVI, Section 6; Education Code Section 42620) Temporary Interfund Transfers (Education Code Section 42603) 12 Temporary Interfund Transfers Education Code Section The governing board of any school district may direct that moneys held in any fund or account may be temporarily transferred to another fund or account of the district for payment of obligations. The transfer shall be accounted for as temporary borrowing between funds or accounts and shall not be available for appropriation or be considered income to the borrowing fund or account. Amounts transferred shall be repaid either in the same fiscal year, or in the following fiscal year if the transfer takes place within the final 120 calendar days of a fiscal year. Borrowing shall occur only when the fund or account receiving the money will earn sufficient income, during the current fiscal year, to repay the amount transferred. No more than 75 percent of the maximum of moneys held in any fund or account during a current fiscal year may be transferred. 13

8 Temporary Borrowing from Bond Project Funds Does a temporary transfer of bond funds run afoul of California Constitutional and statutory provisions limiting use of bond proceeds Fiscal Crisis and Management Assistance Team (FCMAT) Treasurer and Tax Collector of the County of Los Angeles Other considerations: Covenants in bond documents Federal tax law concerns Securities law issues 14 THE PRESENTER Donald Field, Esq. Donald Field, Esq. Orrick, Herrington & Sutcliffe LLP OC tel: ; LA tel: dfield@orrick.com Donald Field, a public finance partner resident in Orrick s Orange County and Los Angeles offices, has extensive experience in the financing techniques used by school districts in California, and has drafted and reviewed scores of school bond measures. His practice focuses on local governmental infrastructure financing, including general obligation bond financing, land-secured financing and municipal lease financing, as well as tax and revenue anticipation note (TRAN), pension obligation and other postemployment benefits (OPEB) obligation financings. He is the Co-Chair of Orrick s practice group for School Finance and General Obligation Bonds and the principal author and editor of the third edition of The XYZs of California School District Debt Financing, published by Orrick in Orrick, Herrington & Sutcliffe LLP has maintained a substantial practice in the area of public finance for over a century. It has been the premier bond counsel firm in California throughout that period, and has been ranked first in the country for most of the last ten years in total volume of financings for which it served as bond counsel. Orrick s public finance attorneys are located in Irvine, Los Angeles, Sacramento, San Francisco, Portland, Seattle, New York and Washington, D.C. From these offices, Orrick serves as bond counsel for issuers in more than 40 states, several territories and other countries. The firm s website is 15