Question
: What legal obstacles may be encountered when one school ASB is asked to donate a portion of their funds to an ASB in another new school opening in the same district? Is this a case of ‘gift of public funds’?Response: Education Code sections 48930 (K-12) and 76060 (community college) tell us that the purpose of ASB is to conduct activities on behalf of the students, clearly indicating that the funds held in ASB can only be spent for current students. Also inferred from this is that the funds are held for current students at the same school site the funds were raised at/for. So with few exceptions should ASB funds be moved from the school site where they were raised? Some exceptions would be:
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Education Code section 48936 does provide guidance on uses of student funds, such as loans to other ASB organizations in the district, so this is one allowance in Education Code allowing a temporary transfer of ASB funds between sites. But it’s a temporary transfer and must be paid back.·
There is also Education Code section 35564, which applies when a school district is reorganized, i.e., when two school districts are legally combined or boundaries are changed. The section provides guidance on how the ASB funds are split. We have found that when a new school is opened (or a school is closed) many school districts use the same calculation outlined in this Education Code to move those funds applicable to the students who are either going to the new school, or moving from the closed school, which we would agree with. But the calculation should clearly designate how the funds are allocated and that it’s fair.Besides these two exceptions, temporary loans and reorganized/new school/closed school, we don’t believe ASB funds should be donated between school sites, as that could constitute a gift of public funds. Sites should not be donating ASB funds to other sites, as the students raising the funds should have the benefit of spending them.
9/1/09
