I MINA'BENTE OCHO NA LIHESLATURAN GUÅHAN

Section 2. Declaration of Policy. I Liheslaturan Guåhan declares that the education of our children is the top priority of our government. The resources of the government must first be directed toward providing an adequate public educational system.

Section 3. Statement of Legislative Findings and Purpose. I Liheslatura (the Legislature) finds that the Organic Act requires the government of Guam to provide an adequate system of public education. The Organic Act Bill of Rights mandates compulsory education for children between six (6) and sixteen (16). The interplay of these provisions creates a right to an adequate public education for children that is analogous to a constitutional civil right.

This Act recognizes that civil right and gives school children access to the courts to vindicate that right with the parent of a child empowered to conduct litigation on behalf of the child.

While the term ‘Adequate Public Education’ is not easily defined, I Liheslaturan finds that a working definition dealing with the physical aspects of the educational process is necessary to secure and protect at least the minimal right of children to an adequate education and to the end has defined that term.

Since the Organic Act assigns the responsibility of providing an adequate public educational system to the entire government and all government officials, the scope of the Act is government-wide.

Section 4. Definitions. New items 11, 12, 13, 14, and 15 are added to 1 GCA §715 to read:

“11. ‘Adequate Public Educational System’ means a system of public schools that provides an adequate public education to public school students.

12. ‘Adequate public education’ means public schools which at the minimum provide:

a)             a certified teacher for every class in a ratio established by relevant collective bargaining agreements;

b)             certified professional administrators;

c)             certified guidance counselors;

d)             certified school health counselors;

e)             certified allied health professionals;

f)               air conditioned or properly ventilated classrooms in which the sensible air temperature is no greater than 78ºF.;

g)             potable water sufficient to provide each student a daily ration of drinking and washing water;

h)             a reliable supply of electricity;

i)               proper sanitation to include flushable toilets, clean restrooms, dining areas and classrooms;

j)               adopted and required textbooks and workbooks issued to each public school student for the classes in which he or she is enrolled;

k)             libraries, which meet the standards of the American Association of School Librarians, at each school, operated by certified librarians;

l)               a healthful, safe, sanitary learning environment;

m)           at least one hundred eighty (180) instructional days each school year with school years ending no later than thirty (30) days following the end of the calendared school year; and

n)             regular, timely school bus transportation to and from the school for his attendance area as established by 17 GCA §6102 for every child in accordance with policies adopted by the Education Policy Board.

13. In item 12., above, ‘certified’ means that a person holds at least the first level of professional certificate issued in accordance with standards at least as stringent as those in place on the day this Section is effective, for the position he or she holds.

14. ‘Public school’ means a facility established, maintained or operated pursuant to §29 (b) of the Organic Act, as amended.

15. ‘Public school student’ means a child who is required to attend school by Title 48 U.S.C. Section 1421b.(r) or 17 GCA §6102 who is enrolled in a public school and has not been expelled.”

Section 5. Duties and Responsibilities of BBMR. 5 GCA §1302 is hereby amended to read:

“§1302. Duties and Responsibilities of the Bureau. In addition to the duties and responsibilities prescribed for the Bureau by any other provision of law, the Bureau shall also have the following duties and responsibilities:

(a) Conduct necessary operational planning and management research and studies to ensure that effective planning and management methods are utilized by departments and agencies of the government of Guam and otherwise to ensure that each public school student receives an adequate public education;

(b) Subject to the approval of I Maga’lahi (the Governor), prescribe a budget calendar for the guidance of all executive agencies and a system of quarterly allotments to insure that appropriations and non-appropriated funds are not exhausted beyond the fiscal period for which such appropriations and funds are made available; provided that such budget calendar and quarterly allotments are proportionately calculated so as to ensure that every public school student receives an adequate public education;

(c) To institute a system of form control; and

(d) Perform such other duties and responsibilities as may be prescribed by I Maga’lahi (the Governor) or by law.”

Section 6. Management of Allotments. 5 GCA §1303 is hereby amended to read:

“§1303. Management of Allotments. In the release of monthly or quarterly allotments by the Bureau of Budget & Management Research from appropriation acts, the Director thereof shall base such allotments on anticipated cash receipts so that the obligations incurred pursuant to such release of periodic allotments shall have sufficient cash for their payment, provided that sufficient cash shall always be released to the Guam Public School System to provide an adequate public education to every public school student.”

Section 7. A new item (o) is hereby added to §3103 of Article 1 of Chapter 3 of Title 17 of the Guam Code Annotated.

“(o) Adequate Public Education Reporting Requirements. The Superintendent of the Department of Education shall submit a monthly report of all funds available to the Department, whether or not their resources require appropriations by I Liheslaturan Guåhan. The report shall also contain a detailed accounting of all expenditures of funds relating such expenditures to the criteria established in 1 GCA §715. The report is to be completed no later than fifteen (15) calendar days after the end of each month and shall be certified by the Superintendent acknowledging compliance with 1 GCA §715 and in meeting with the objectives of §3125 of this Chapter. The report shall be submitted to the Guam Education Policy Board, the Speaker of I Liheslaturan Guåhan and I Maga’lahen Guåhan. Failure to comply with this Section and the criteria of an adequate public education shall subject the Superintendent to civil liability as provided in 7 GCA §20302.”

Section 8. A new §3218 is hereby added to Article 2 of Chapter 3 of Title 17 of the Guam Code Annotated.

“§3218. Responsibility of Accountable Officers. The provisions contained within Chapter 14 of Title 4 GCA shall apply to any employee of the Department of Education, who by reason of his employment, is considered an accountable officer, and it shall be unlawful for that employee to fraudulently, wastefully or improperly disburse funds or authorize the expenditure of funds not in compliance with criterion established within 1 GCA §715 or in meeting the objectives of 17 GCA §3125 in providing an adequate public education to every public school student.”

Section 9. Department of Administration. 5 GCA §3101 is hereby amended to read:

“§3101. Department of Administration. There is within the Executive Branch of the government of Guam a Department of Administration. The Director of Administration is the head of the Department of Administration. The Director of Administration is appointed by I Maga’lahi (the Governor) with the advice and consent of I Liheslatura (the Legislature). Except for private parking facilities, and for parking facilities maintained and operated by the A. B. Won Pat International Airport Authority Guam, DOA shall have exclusive franchise within the government of Guam for the collection of fees for the furnishing of public parking within Guam. It is the duty of the Director of Administration to support an adequate public educational system as required by Section 29(b) of the Organic Act, as amended.”

Section 10. Guam Public School System. 5 GCA §3107 is hereby amended to read:

“§3107. Guam Public School System. There is within the Executive Branch of the government of Guam a Guam Public School System. It is the mission of the Guam Public School System and the duty of all public officials of the Executive Branch of the government of Guam to provide an adequate public educational system as required by Section 29(b) of the Organic Act, as amended, and to that end provide an adequate public education for all public school students as those terms are defined at 1 GCA §715; and to effectuate an increase in the percentage of the students at Level 3, which demonstrates solid academic performance as measured by SAT 10, by at least five percent (5%) each grade level per year until the Guam Education Policy Board’s adopted goal of ninety percent (90%) at Level 3 in ten (10) years is reached.”

Section 11. Program Execution. 5 GCA §4109 is hereby amended to read:

“§4109. Program Execution. (a) Except as limited by policy decisions of I Maga’lahi (the Governor), appropriations by I Liheslatura (the Legislature), and other provisions of law, the territorial agencies shall have full authority for administering their program service assignments, and shall be responsible for their proper management, provided that I Maga’lahi’s (the Governor’s) policy decisions shall not limit the authority of the Guam Public School System.

(b) Each territorial agency, (other than I Liheslatura (the Legislature) and the courts), shall prepare an annual plan for the operation of each of its assigned programs. The operations plan shall be prepared in the form and content and be transmitted on the date prescribed by the Bureau of Budget and Management Research.

(c) The Bureau of Budget and Management Research shall:

(1) Review each operations plan to determine that it is consistent with the policy decisions of I Maga’lahi (the Governor) and appropriations by I Liheslatura (the Legislature), that it reflects proper planning and efficient management methods, that appropriations have been made for the planned purpose and will not be exhausted before the end of the fiscal year.

(2) Approve the operations plan if satisfied that it meets the requirements under Paragraph (1). Otherwise the Bureau of Budget and Management Research shall require revision of the operations plan in whole or in part.

(3) Modify or withhold the planned expenditures at any time during the appropriation period if the Bureau of Budget and Management Research finds that such expenditures are greater than those necessary to execute the programs at the level authorized by I Maga’lahi (the Governor) and I Liheslatura (the Legislature), or that the receipts and surpluses will be insufficient to meet the authorized expenditure levels, provided that no planned expenditures necessary to provide every public school student an adequate public education shall be modified or withheld.

(d) No territorial agency (except I Liheslatura (the Legislature) and the courts), may increase the salaries of its employees, employ additional employees or expend money or incur any obligations except in accordance with law and with a properly approved operations plan.

(e) The Bureau of Budget and Management Research shall report quarterly to I Maga’lahi (the Governor) and I Liheslatura (the Legislature) on the operations of each territorial agency, relating actual accomplishments to those planned, and modifying, if necessary, the operations plan of any agency for the balance of the fiscal year.”

Section 12. Duties of Director of Administration. 5 GCA §20203 is hereby amended to read:

“§20203. Duties of Director. The Director shall, with due regard for the function of the specific agencies concerned, organize and operate the accounting system on a fund basis with a self-balancing set of accounts, recording cash and/or other resources together with all related liabilities, obligations, reserves and equities which are segregated for the purpose of carrying on specific activities or attaining certain objectives; establish an accounting system which provides budgetary control over general governmental revenues and expenditures; determine fairly and with full disclosure the financial position and results of financial operations; show that all applicable legal provisions have been complied with; establish various types of funds as are necessary and as required by law; shall account in the General Fund all financial transactions not properly accounted for in another fund; shall account in the Special Revenue Funds all proceeds of specific revenue sources or to finance specific activities as required by law; shall account in the capital improvements funds all receipts and disbursements of monies used for the acquisition of capital facilities; shall account in other funds consistent with legal and operating requirements; classify accounts to insure compliance with budgetary provisions; provide a basis for financial and administrative control, furnish data required for financial statements and provide a basis for comparison with similar data for other periods, etc.; establish standards, procedures and techniques for a central accounting system; conduct a continuing review of all accounting operations to effect improvements in accordance with current accounting practices; establish standards for the preparation of financial statements and other reports as are necessary; maintain all Federal grant award funds including maintenance of encumbrance and expenditure; and obtain reports from all departments and agencies as are required for the effective administration of a central accounting system; and take all actions necessary to ensure that an adequate public education is available to every public school student.”

Section 13. Department of Education Appropriation. I Liheslaturan Guåhan shall annually appropriate from the General Fund or any other funds determined to be appropriate by I Liheslaturan Guåhan to the Guam Public School System all amounts necessary to provide an adequate public educational system as required by Section 29(b) of the Organic Act, as amended, and to that end provide an adequate Public Education for all Public School students as those terms are defined in 1 GCA §715.

Section 14. Expedited Schedule of Discovery. A new §7116.1 is hereby added to 7 GCA to read:

“§7116.1. Expedited Schedule of Discovery. At the first hearing before the Superior Court in any action brought under the Every Child is Entitled to an Adequate Public Education Act, the court may order an expedited schedule of discovery and pleading, and an expedited schedule and trial date for the case, if requested by any party.”

Section 15. Limitation of Actions. §11311 of 7 GCA is hereby amended to read:

“§11311. Within six (6) months, an action against an officer, or officer de facto:

(1) to recover any goods, wares, merchandise or other property seized by such officer in his official capacity as tax collector, or to recover the price or value of any goods, wares, merchandise or other personal property so seized, or for damages for the seizure, detention, sale of or injury to any goods, wares, merchandise or other personal property seized, or for damages done to any person or property in making any such seizure;

(2) to recover stock sold for a delinquent assessment, as provided in [339 of the Civil Code];

(3) to set aside or invalidate any action taken or performed by a majority of the trustees of any corporation heretofore or hereafter dissolved by operation of law, including the revivor of any such corporation.

(4) to bring an action upon a claim by a public school student for denial of an adequate public education.

The lack of funding or failure to release allotments shall not constitute a defense to claims under this Section unless the named respondent, before commencement of the claim under this Section, files an action to release such funding against the responsible party withholding such funds or allotments.”

Section 16. Standing to Sue. A new §12108.1 is hereby added to 7 GCA to read:

“§12108.1. Public School Student: Standing to Sue.

(a) A public school student shall have a claim and standing to sue the government of Guam and any officer of the Executive Branch of the government of Guam in his official capacity only for the purpose of enjoining such officer from failing to provide an adequate public education to that public school student but not for money damages.

(b) No action shall lie under this Section until thirty (30) days, Saturdays, Sundays, and holidays excepted, after notice of the claim has been filed in the manner required by 5 GCA §§ 6101, 6103(b), (c) and (d), 6201, 6202, 6205 and 6207 with the Attorney General and the head of the department or agency against which the claim is to be made.”

Section 17. Injunctions. 7 GCA §20302 is hereby amended to read:

“§20302. When Injunction May or May Not Be Granted. An injunction may be granted in the following cases:

1. When it appears by the complaint that the plaintiff is entitled to the relief demanded, and such relief, or any part thereof, consists in restraining the commission or continuance of the act complained of, either for a limited period or perpetually;

2. When it appears by the complaint or affidavit that the commission or continuance of some act during the litigation would produce waste, or great or irreparable injury, to a party to the action;

3. When it appears during the litigation that a party to the action is doing, or threatens, or is about to do, or is procuring or suffering to be done, some act in violation of the rights of another party to the action respecting the subject of the action, and tending to render the judgment ineffectual;

4. When pecuniary compensation would not afford adequate relief;

5. Where it would be extremely difficult to ascertain the amount of compensation which would afford adequate relief;

6. Where the restraint is necessary to prevent a multiplicity of judicial proceedings;

7. Where the obligation arises from a trust.

8. Against any officer of the Executive Branch of the government of Guam in his official capacity for the purpose of enjoining such officer from failing to take such action as is necessary to provide an adequate public education to a public school student.

An injunction cannot be granted:

1. To stay a judicial proceeding pending at the commencement of the action in which the injunction is demanded, unless such restraint is necessary to prevent a multiplicity of such proceedings;

2. To stay proceedings in a court of the United States;

3. To stay proceedings in any state of the United States upon a judgment of a court of that state;

4. To prevent the execution of a public law by officers of the law for the public benefit;

5. To prevent the breach of a contract (other than a contract in writing for the rendition or furnishing of personal service from one to another where the minimum compensation for such service is at the rate of not less than Three Thousand Dollars ($3,000.00) per annum, and where the promised service is of a special, unique, unusual, extra-ordinary, or intellectual character which gives it peculiar value the loss of which cannot be reasonably or adequately compensated in damages in an action at law) the performance of which would not he specifically enforced; provided, however, that an injunction may be granted to prevent the breach of a contract entered into between any nonprofit cooperative corporation or association and a member or stockholder thereof, in respect to any provision regarding the sale or delivery to the corporation or association of the products produced or acquired by such member or stockholder;

6. To prevent the exercise of a public or private office, in a lawful manner, by the person in possession;

7. To prevent an executive act or action by an authorized person;

8. Where a condition upon which a claim made pursuant to 7 GCA §12108.1(a) was based has been corrected;

9. Where another action based on the same claim arising under 7 GCA §12108.1(a) pends before the court.”

Section 18. Attorney’s fees. A new §26603.1 is hereby added to 7 GCA to read:

“§26603.1. In any action or proceeding to enforce a provision of the Every Child is Entitled to an Adequate Public Education Act, the court, in its discretion, may allow the prevailing party reasonable attorney’s fee as part of the costs.”

Section 19. Minors May Sue. §1116 of 19 GCA is amended to read:

“§1116. Minors May Sue. (a) Except as otherwise provided by Subsection (b), a minor may enforce his rights by civil action or other legal proceedings, in the same manner as a person of full age, except that a guardian must conduct the same.

(b) A parent or a legal guardian of a public school student may conduct a civil action for injunctive relief, mandate, prohibition or other legal remedy but not money damages on behalf of the public school student to secure or maintain the public school student’s right to an adequate public education.”

Section 20. Duties of the Superintendent. 17 GCA §3103(j) is hereby amended to read:

“(j) to perform other duties as may be required by public law to provide an adequate public educational system; and”

Section 21. Duties and Responsibilities of the Guam Education Policy Board. 17 GCA §3112(a) (14) is hereby amended to read:

“(14) perform other duties and responsibilities as required by public law to provide an adequate public educational system; and”

Section 22. Construction with Other Laws. A new §3210 is hereby added to 17 GCA to read:

“§3210. Construction with Other Laws. Insofar as the provisions of the Every Child is Entitled to an Adequate Public Education Act are inconsistent with the provisions of any other law, the provisions of this Act shall be controlling; and in particular but not by way of limitation, except as may be provided in this Act, no provision of any law shall be applicable to the government of Guam with respect to the provisions of the Every Child is Entitled to an Adequate Public Education Act unless I Liheslatura (the Legislature) shall specifically so state.”

Section 23. Transitional provisions and effective dates.

Effective Dates

These Sections of this Act shall be effective as set out in tabular form below:

§§ 5, 6, 7, 8, 9, 12, 13, and 25 shall be effective October 1, 2005.

§§ 14, 15, 16, 17, 18, and 19 shall be effective October 1, 2007.

Section 24. Every Child is Entitled to an Adequate Public Education. A new §15136 is hereby added to 20 GCA part 4 to read:

“§15136. Every Child is Entitled to an Adequate Public Education.”

Section 25. Health and Safety. The Amendments made in this Act to the statute regarding Management of Allotments (5 GCA §1303) or the statute regarding Program Execution (5 GCA §4109) shall not be interpreted to allow the BBMR or DOA to reduce or withhold the allocation of appropriations for the delivery of healthcare and public safety.

Introduced by: R. Klitzkie

L. F. Kasperbauer

Mark Forbes

J. M.S. Brown

J. A. Lujan