Technical Memorandum. be exempt from such fees Gateway Oaks Drive, Suite 200 Sacramento, CA Phone: Fax:

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1 Technical Memorandum 2329 Gateway Oaks Drive, Suite 200 Sacramento, CA Phone: Fax: To: Tony Boren, Executive Director, Fresno COG From: Don Hubbard Subject: RTMF Exemption for Educational Uses Date: January 14, 2011 Recently the COG notified PB of an issue that has arisen regarding the definition of education development for the purpose of determining if a proposed development is exempt from the fee. This memo reviews the definition in the current draft of the RTMF Administrative Manual and its potential implications. It then notes one definition based on the California Education Code (CEC), and then a possible modification the Administrative Manual that could clarify the current definition with the CECbased definition. The memo ends with a discussion of new steps the JPA may wish to take. Please note that this memo is not intended to be, nor is, legal advice. The Education Exemption as Described in the Current Administrative Manual In its deliberations the Technical Advisor Committee (TAC) considered whether non-governmental entities serving an educational purpose should be exempt from the fee (public schools are already exempt). As a matter of policy the committee concluded the intent of the ballot measure was to avoid inhibiting the provision of essential 1 services through the imposition of a fee. In accordance with this intent the committee decided that the exemption should be extended to include private schools that provided an education of the sort deemed essential under state law, while schools offering other types of education would not be exempt. The TAC s decision was used in framing the following section of the Administrative Manual: Exemptions The JPA has determined that educational development and government development shall be exempt from paying the RTMF. For the purposes of the RTMF, educational development and government development are defined as: An education development means any development project that is predominately dedicated to conducting regular academic instruction at preschool, kindergarten, elementary, secondary, and collegiate levels and including graduate schools, universities, non-profit research institutions and religious institutions. This definition applies only to public or non-profit institutions and does not include schools, academies or institutes, incorporated or otherwise which operate for profit, nor does it include commercial or trade schools. 1 Appendix D of the RTMF ballot measure states that, Essential public facilities (as defined by state law) shall be exempt from such fees.

2 Government development is defined as any development project that is predominately dedicated to provision of administrative, clerical, law enforcement, public safety, taxation and governance services by public institutions with legislative, executive or judicial authority. The key issue is the use to which the development is put, not ownership of the property. Government-owned land that is leased for commercial purposes is not exempt, while private property in long-term (20 year or more) leased to a government agency would be exempt. These definitions are based on the policies of the JPA Board and may be revised from time to time. For both the government and education exemptions, it appears that the determining factor is not ownership but whether the facility is intended for an essential use. We understand from you that recently, a non-profit organization that proposes to construct a building that will be used for religious instruction has requested an education exemption from the RTMF. It is our understanding that they based their request on the final words of the first sentence of the section highlighted above ( and religious institutions ). From the TAC s point of view the key phrase is predominately dedicated to conducting regular academic instruction and the intent of the last three words was to say that the fact that an institution happens to be religious would not bar it from receiving the exemption if it provided education of a regular academic nature. This is consistent with the logic that the determining factor is use, not ownership. It also appears that the CEC accepts nongovernmental schooling as a substitute for public schooling as long as certain requirements are met 2. In order to avoid future misunderstandings it may be advisable to replace the current passage in the Manual with a more precise definition of the type of instruction that is exempt from the RTMF. The next section attempts to provide one possible definition. CEC-Based Definition Rather than attempting to develop an independent description of the type of instruction that is exempt it may be better to cite an existing definition from a source consistent with the guidance in the ballot measure ( as defined by state law ). We found three sections in the California Education Code that provide possible definitions. Section establishes the mandatory curriculum for primary education, Section establishes the mandatory curriculum for secondary education, and Section 66010(b) defines those "independent institutions of higher education" that fall within the state Master Plan for tertiary education. These sections are shown in full as an attachment. They could be incorporated in the Administrative Manual through the following changes in the section on exemptions: 2 CEC Section Page 2 of 7

3 An education development means any development project that is predominately dedicated to instruction in the course of study described in the California Education Code Section or in Section 51220, or both, or that meets the definition of an "independent institution of higher education" set forth in Education Code Section (b). conducting regular academic instruction at preschool, kindergarten, elementary, secondary, and collegiate levels and including graduate schools, universities, non-profit research institutions and religious institutions. This definition applies only to public or non-profit institutions and does not include schools, academies or institutes, incorporated or otherwise which operate for profit, nor does it include commercial or trade schools. This definition would go further to clarify that the exemption is for developments used primarily for academic instruction. The key here is that the school teaches the state s academic curriculum, then they would likely be performing the essential public service that is exempt from the fee. Next Steps Once the immediate issue has been resolved, we suggest that the passage in the Administrative Manual could be revised as described above to be more specific. Page 3 of 7

4 Excerpts from the California Education Code A-1

5 [Section establishes the compulsory curriculum for grades K-6, and Section establishes the compulsory curriculum for grades It is the teaching of this curriculum that is the essential public service. The school may teach other subjects as well, but if they do not teach this curriculum then they are not performing the essential service that is exempt from the fee. This means that music schools, martial arts schools, driving schools, etc. are not exempt.] Course of Study, Grades 1 to 6 The adopted course of study for grades 1 to 6, inclusive, shall include instruction, beginning in grade 1 and continuing through grade 6, in the following areas of study: (a) English, including knowledge of, and appreciation for literature and the language, as well as the skills of speaking, reading, listening, spelling, handwriting, and composition. (b) Mathematics, including concepts, operational skills, and problem solving. (c) Social sciences, drawing upon the disciplines of anthropology, economics, geography, history, political science, psychology, and sociology, designed to fit the maturity of the pupils. Instruction shall provide a foundation for understanding the history, resources, development, and government of California and the United States of America; the development of the American economic system including the role of the entrepreneur and labor; the relations of persons to their human and natural environment; eastern and western cultures and civilizations; contemporary issues; and the wise use of natural resources. (d) Science, including the biological and physical aspects, with emphasis on the processes of experimental inquiry and on the place of humans in ecological systems. (e) Visual and performing arts, including instruction in the subjects of dance, music, theatre, and visual arts, aimed at the development of aesthetic appreciation and the skills of creative expression. (f) Health, including instruction in the principles and practices of individual, family, and community health. (g) Physical education, with emphasis upon the physical activities for the pupils that may be conducive to health and vigor of body and mind, for a total period of time of not less than 200 minutes each 10 schooldays, exclusive of recesses and the lunch period. (h) Other studies that may be prescribed by the governing board Courses of Study, Grades 7 to 12 The adopted course of study for grades 7 to 12, inclusive, shall offer courses in the following areas of study: (a) English, including knowledge of and appreciation for literature, language, and composition, and the skills of reading, listening, and speaking. (b) Social sciences, drawing upon the disciplines of anthropology, economics, geography, history, political science, psychology, and sociology, designed to fit the maturity of the pupils. Instruction shall provide a foundation for understanding the history, resources, development, and government of California and the United States of America; instruction in our American legal system, the operation of A-2

6 the juvenile and adult criminal justice systems, and the rights and duties of citizens under the criminal and civil law and the State and Federal Constitutions; the development of the American economic system, including the role of the entrepreneur and labor; the relations of persons to their human and natural environment; eastern and western cultures and civilizations; human rights issues, with particular attention to the study of the inhumanity of genocide, slavery, and the Holocaust, and contemporary issues. (c) Foreign language or languages, beginning not later than grade 7, designed to develop a facility for understanding, speaking, reading, and writing the particular language. (d) Physical education, with emphasis given to physical activities that are conducive to health and to vigor of body and mind, as required by Section (e) Science, including the physical and biological aspects, with emphasis on basic concepts, theories, and processes of scientific investigation and on the place of humans in ecological systems, and with appropriate applications of the interrelation and interdependence of the sciences. (f) Mathematics, including instruction designed to develop mathematical understandings, operational skills, and insight into problem-solving procedures. (g) Visual and performing arts, including dance, music, theater, and visual arts, with emphasis upon development of aesthetic appreciation and the skills of creative expression. (h) Applied arts, including instruction in the areas of consumer and homemaking education, industrial arts, general business education, or general agriculture. (i) Career technical education designed and conducted for the purpose of preparing youth for gainful employment in the occupations and in the numbers that are appropriate to the personnel needs of the state and the community served and relevant to the career desires and needs of the pupils. (j) Automobile driver education, designed to develop a knowledge of the provisions of the Vehicle Code and other laws of this state relating to the operation of motor vehicles, a proper acceptance of personal responsibility in traffic, a true appreciation of the causes, seriousness and consequences of traffic accidents, and to develop the knowledge and attitudes necessary for the safe operation of motor vehicles. A course in automobile driver education shall include education in the safe operation of motorcycles. (k) Other studies as may be prescribed by the governing board. A-3

7 [Section can be interpreted to mean that private schools teaching the compulsory curriculum are performing the same essential service as public schools, since the state deems them to be an acceptable substitute.] Article 3. Pupils Exempt Attendance in Private School Children who are being instructed in a private full-time day school by persons capable of teaching shall be exempted. Such school shall, except under the circumstances described in Section 30, be taught in the English language and shall offer instruction in the several branches of study required to be taught in the public schools of the state. The attendance of the pupils shall be kept by private school authorities in a register, and the record of attendance shall indicate clearly every absence of the pupil from school for a half day or more during each day that school is maintained during the year. Exemptions under this section shall be valid only after verification by the attendance supervisor of the district, or other person designated by the board of education, that the private school has complied with the provisions of section requiring the annual filing by the owner or other head of a private school of an affidavit or statement of prescribed information with the Superintendent of Public Instruction. The verification required by this section shall not be construed as an evaluation, recognition, approval, or endorsement of any private school or course. [Section 66010(b) defines "independent institutions of higher education" as accredited nonprofit degree-granting institutions. Colleges that meet this definition are performing an essential service and should be exempt from the RTMF. Schools not meeting this definition, such as music schools, dance schools, martial arts schools, driving schools, etc. are not exempt.] Article 1. Definitions (a) Public higher education consists of (1) the California Community Colleges, (2) the California State University, and each campus, branch, and function thereof, and (3) each campus, branch, and function of the University of California. (b) As used in this part, "independent institutions of higher education" are those nonpublic higher education institutions that grant undergraduate degrees, graduate degrees, or both, and that are formed as nonprofit corporations in this state and are accredited by an agency recognized by the United States Department of Education. (c) No provision of this part is intended to regulate, subsidize, or intrude upon private education, including, but not limited to, independent educational institutions and religious schools, nor to vary existing state law or state constitutional provisions relating to private education. A-4