"California 2003 Election Results"
STATE OF CALIFORNIA CALIFORNIA COMMUNITY COLLEGES CHANCELLOR'S OFFICE 1102 Q STREET SACRAMENTO, CA 95814-6511 (916) 445-8752 HTTP://WWW .CCCCO.EDU December 9, 2003 John E. Hendrickson Vice Chancellor, Finance and Administration Contra Costa Community College District 500 Court Street Martinez, CA 94553 Re: Los Medanos College Student Union Fee Dear Vice Chancellor Hendrickson: You requested our opinion as to whether the District may charge a student union fee under Education Code section 763751 to students at the Brentwood Center. Your request was accompanied by an opinion issued by Janice J. Hein, attorney to the District, which opinion argues that section 76375 supports charging the fee to Brentwood Center students. Following receipt of your September 25, 2003, request, we received an October 30, 2003, inquiry from Gail Newman regarding the ability of the District to charge the student union fee to students attending off-campus (such as bowling classes), students enrolled only in on-line courses, K-12 concurrent enrollment students, and students enrolled through contract education in public safety classes. Art Alatorre also requested that we address the issue of whether the fee may be charged to students taking a Los Medanos auto shop class that is offered at a high school, students taking off-campus cosmetology classes, and students taking Los Medanos classes offered at a California State University site. Because the issues are related, we will address them all in this response. Upon receipt of your request, we asked for information related to the election, including any related Board of Trustees agenda items and the election results. We received responsive information by letter dated November 6, 2003, which was supplemented with further information on November 25, 2003. 1 All section references are to the Education Code unless otherwise indicated. L 03-27 John E. Hendrickson 2 December 9, 2003 Section 76375 provides in pertinent part as follows: "76375. (a) The board of trustees of a community college district may establish an annual building and operating fee for the purpose of financing, constructing, enlarging, remodeling, refurbishing, and operating a student body center, which fee shall be required of all students attending a community college where the student body center is to be located. The fee shall be imposed by the board of trustees, at its option, only after a favorable vote of two-thirds of the students voting in an election held for that purpose at a community college, in the manner prescribed by the Chancellor of the California Community Colleges, and open to all regular students enrolled in credit classes at the community college. The election shall occur on a regularly scheduled schoolday and at least 20 percent of the students enrolled in credit classes as of October 1 of the school year during which the election is held must cast a ballot for the election to be declared valid. The annual building and operating fee shall not exceed one dollar ($1) per credit hour up to a maximum of ten dollars ($10) per student per fiscal year. The fee requirement shall not apply to students enrolled in the noncredit courses designated by Section 84711. The fee requirement shall not apply to a student who is a recipient of the benefits under the Aid to Families with Dependent Children program, the Supplemental Security Income/State Supplementary Program, or the General Assistance program. The fee authorized by this section shall be supplemental to all other fees charged to community college students. If fee income is used to retire obligations the district incurs when it uses a revenue bond to construct a student center, the fee shall remain in effect at least until the bond obligation is retired." Section 76375 authorizes the fee for "all students attending a community college where the student body center is to be located." The section includes voting standards to ensure that a substantial number of students who attend the college actually participate in the election to consider the fee, and it requires that a significant number of students vote in support of the fee. The fee election must be "open to all regular students enrolled in credit classes at the community college." Title 5 of the California Code of Regulations, section 58510 requires the District Board of Trustees to establish procedures for the election. The procedures must include adequate notice of the election, establish voting that does not exceed five consecutive days, the identification of the intended uses of fee revenues, and an equal opportunity for day and evening students to participate in the election. The Associated Students of Los Medanos College made a proposal to the Board of Trustees regarding the election. The student's proposal was introduced by the following: "In this proposal, the Associated Students of Los Medanos College outline their goals and ideas for conducting a college-wide election for the purpose of assessing a Student Center Fee." The L 03-27 John E. Hendrickson 3 December 9, 2003 proposal advised the Board of the ballot question that students would consider in the election, the timeline for the election, advertising strategies for advising students of the election and encouraging voting, the cost of the election, where polling places would be located, the hours of election to include both day and evening hours, mechanisms for determining student status for voting and ensuring ballot safety, and the students' vision for how the funds would be spent on the facility (e.g., game room, club offices, conference rooms, etc.). The Board of Trustees adopted the proposal at its January 29, 2003, meeting. The election occurred during the spring 2003 term. Information about the elections and the proposed student union was distributed on the Los Medanos College campus in Pittsburg as well as at the Brentwood Center. Information was also disseminated through classroom visits (as authorized by the faculty), including some classes at the Brentwood Center. A letter was sent by the Associated Students of Los Medanos College to all Los Medanos College students enrolled in credit classes, including all those who attended the Brentwood Center and all those who were enrolled in contract education classes, on-line classes, and classes that were held off-campus at a variety of other locations. We understand from Mr. Alatorre that virtually all students who were enrolled in credit classes at Los Medanos College were included by the District for purposes of setting the 20% threshold of the number of students who would need to vote. We also understand that virtually all students could vote, including students attending classes at the Brentwood Center, concurrently enrolled students, students enrolled in public safety courses, students enrolled in on-line classes or in contract education programs, and students taking classes at all off-campus sites. Voting occurred at the Los Medanos College Pittsburg campus on Saturday, March 15, 2003, and at both the Pittsburg campus and the Brentwood Center on March 17-20, 2003. Students could vote at any voting place by the presentation of a student ID; students who were enrolled at the Brentwood Center could vote at Los Medanos College voting locations and vice versa. At least 1817 votes were necessary to reach the 20% level, and the election produced 2024 voters. While a 2/3rds positive vote was necessary to authorize the fee, 81% of those who voted agreed with the fee. We agree with the District's attorney that a critical element in the analysis must be the scope of the term "college" because the fee must be authorized by a specified number of students who are "enrolled in credit classes at the community college" and is to be imposed on "all students attending a community college where the student body center is to be located." Section 76375 does not provide any pertinent definitions, so we must look elsewhere for guidance. Title 5, section 55827 defines "college" for purposes of the chapter that addresses curriculum and instruction. The definition provides as follows: L 03-27 John E. Hendrickson 4 December 9, 2003 "55827. Definitions. (a) College. As used in this Chapter, "college" means a degree-granting institution intended to provide instruction through the second year of college, including but not limited, to one or more of the following categories: (1) standard collegiate courses for transfer to higher institutions; (2) vocational and technical fields leading to employment; or (3) general or liberal arts courses for which institution the district intends to obtain accreditation." The Contra Costa Community College District is a multi-college district with three colleges: Contra Costa College, Diablo Valley College, and Los Medanos College. All courses offered by the District are offered through one of these three colleges. The Brentwood Center is clearly not a "college" under the above definition. If the Brentwood Center were itself a college, its students could not be considered part of the Los Medanos College for the purposes of charging Brentwood Center students a fee for the Los Medanos College student union. The Brentwood Center provides classrooms for Los Medanos College courses and houses some support services for the students taking courses there. The facility bears a Los Medanos College sign, but it also houses other operations that are not affiliated with the District, such as an art center. In effect, the Brentwood Center is similar to all other facilities where Los Medanos College classes are offered by the District by lease agreement or contract education arrangement. The main difference between other off-campus locations and the Brentwood Center is that the Brentwood Center involves a larger complement of classes and is expected to provide a long- term educational option in the area. We understand that the District is concerned about imposing a fee on students who are not physically present on a regular basis at the Los Medanos College Pittsburg campus where the student union will be located. Even though students may not be on the Pittsburg campus regularly, we understand that the facility will be open for the use of all students. Under section 76375, the student union fee is not a "use" fee such that students at remote locations should be exempted from the fee because they are not using the facility. If your question involved a facility financed through revenue bonds under the provisions of Education Code sections 81901 et seq., the question of student use would be a very real one because those provisions only permit a district to "fix rates, rents, or other charges for the use of any project. . . ." (Ed. Code, § 81901(b)(3).) However, section 76375 makes no mention of facility usage. Based on our review, we believe that the District may charge the fee to students attending the Brentwood Center, as well as to all the students who attend credit classes in the variety of places and under the variety of approaches used by Los Medanos College to offer its classes. Of course, the noted exemptions for students receiving financial aid must be observed regardless of how or where students attend classes. L 03-27 John E. Hendrickson 5 December 9, 2003 We must raise one area of concern. In our October 9, 2003, letter, we requested any Board of Trustees agenda items that address the fee. On November 25, we received the January 29, 2003, resolution of the Board of Trustees that authorized the election that occurred in March 2003. We understand that the January 29, 2003, resolution is the only Board action taken. The resolution provides as follows: "RECOMMENDATION It is recommended that the attached Student Center Fee Election Proposal at Los Medanos College be approved. FUNDING SOURCE California Education Code provides for student center fees to be collected for the construction and operation of a student center. This future restricted income source would be committed to the construction and operation of a Los Medanos College Student Center if the election is approved by the Governing Board and the student center fee is approved by students voting at this election. BACKGROUND California Education Code section 76375 and Administrative Code, title 5, section 58510 provide that the Governing Board establish procedures for any election conducted for the purpose of constructing and operating a student body center building. In September 2002, the Los Medanos College Student Senate voted to pursue an election for this purpose." The minutes from the meeting indicate that the item was passed by unanimous vote. It appears to us that the January 29, 2003, Board resolution was designed to meet the requirements of title 5, section 58510, which required the Board of Trustees to "establish procedures for an election for the purpose of collecting a student body center building and operating fee." The "background" portion of the resolution indicates that the procedures were at issue, and the student proposal that was adopted outlined election procedures. However, Board adoption of election procedures under title 5, section 58510 is not the same as imposing the fee under the Education Code. Section 76375 contemplates Board action to impose the fee after the election ("The fee shall be imposed by the board of trustees, at its option, only after a favorable vote of two-thirds of the students voting in an election held for that purpose. . . ." (Emphasis added.)) The Education Code authorizes a board to decline to impose a fee even if an election produces enough positive votes to authorize the fee – otherwise the statutory reference to a board's "option" would be meaningless. The reference to imposing the fee "after" the vote clearly indicates specific Board action at the conclusion of the student voting process. The Board's advance authorization of the election process is not sufficient for the purpose of imposing the fee after the student vote. L 03-27 John E. Hendrickson 6 December 9, 2003 The materials provided to us confirm that the Associated Students reported the election results to the Board of Trustees. However, we have no indication that the Board actually imposed the fee after the student election. Therefore, we believe that the Board is required to affirmatively vote to impose the fee before it can charge students. My office conveyed this information to you on November 25, 2003, and it is our understanding that the District intends to seek Board authority to impose the fee.2 We hope the foregoing is useful to you. Sincerely, Ralph Black General Counsel L 03-27 RB:VAR:sj 2 This opinion has been prepared to address the specific facts and circumstances described to us and represents the views of the Legal Affairs Division of the Chancellor's Office as to how the law applies to those specific facts and circumstances. A change in facts or circumstances could significantly affect the analysis. To the extent that this is a matter involving laws or regulations enforced by the Chancellor's Office, any person applying this advice to comparable facts and circumstances may reasonably assume that the Chancellor's Office will not take legal action against them. However, we reserve the right to take enforcement action in any situation where the Chancellor ultimately determines that the totality of the facts and circumstances justifies such action. In addition, this opinion may serve as the basis for further legal analysis of similar situations in future cases. L 03-27