San Diego Unified is still in the dark about whether it will have to repay millions of dollars in bond money it used to build field lights at several high schools across the district.
A lawsuit over whether the district broke the law by not explicitly disclosing its plans to install stadium lights has volleyed back and forth between courts since 2011, when a group of upset residents near Hoover High School first sued over the lights on that campus.
The group, Taxpayers for Accountable School Bond Spending, argued that the lights at Hoover High and several other schools weren’t on the project list sent to voters who passed Proposition S, a $2.1 billion school bond, in 2008. The group also argued the district violated state environmental laws by not sufficiently studying the project’s impact on parking and traffic.
The district initially won the case, but an appellate court overruled San Diego Superior Court Judge Timothy Taylor, and agreed with the residents group in March 2013 that the field light cost and the environmental review that cleared the way for the project didn’t pass muster.
“We have no opposition to the schools getting new facilities. What we are opposed to is building facilities not approved in the bond measure,” said Ronald Anderson, president of the taxpayer group. “These misappropriated funds need to be paid back so authorized projects can be funded and expedited per the voters’ intent when they approved Prop. S.”
By court order, Hoover’s lights, installed in fall 2011, went out for four months until February 2014, when the district completed a more thorough environmental review. More extensive environmental impact reports were also done at Mission Bay and Kearny high schools, and are still under way at Correia Middle School and Crawford and Point Loma high schools, each costing six figures.
The ruling also meant the district could no longer use bonds to pay for field lights not explicitly included in the project list, which came as a surprise to district officials who thought mentioning “field lighting” in a catch-all “Additional Projects” section at the bottom of the ballot was sufficient, said Lee Dulgeroff, chief facilities planning and construction officer for the district.
What’s still in dispute is whether the millions already spent on field lights at Hoover, Clairemont, Madison, Morse and University City high schools must be repaid.
Last March, Taylor again sided with the district, prompting another appeal. An appellate court date to decide the issue is expected to be scheduled in the coming weeks.
In the meantime, the district has stopped using its bond fund for all new field light projects and has turned to another district account, known as Fund 35, district officials said.
Fund 35 is a pot of cash funded primarily by the state with things like matching dollars pegged for career-technical education and overcrowded classroom relief projects. Some local revenues are also deposited into the account, like solar reimbursements and interest earned on cash. Budget records show the district also tapped the fund for $1.64 million in salary money and $625,600 in benefits in 2013-14 for classified employees in the facilities, technology support and communications departments, among others.
So far, at least $1.4 million has come out of that account for field lights at Mission Bay, Kearny, Crawford and Point Loma high schools, officials said.
Work on field lights at Correia Middle School began before the Hoover ruling with $99,562 in Prop. Z bond money and continues with Fund 35 funds, district officials said.
Here’s a closer look at the disputed field lights funded with Proposition S, and those now being paid with Fund 35:
Dulgeroff said no general fund money – used for teacher salaries and student programs – will be used on field lights, and downplayed the shift in funding. Both accounts pay for capital improvements, he said.
The school district’s attorneys criticized the taxpayer group’s effort to refund the bond account in a recent appellate court filing.
“Appellant apparently was unsatisfied with only having briefly stopped student evening football (including a Homecoming game) and having forced Respondent to prepare an EIR (which did not significantly change the Project), and with having stopped Respondent from using Proposition S bond proceeds on at least five other high school field lighting projects,” attorneys with the firm Dannis Woliver Kelley wrote Jan. 6.
Regardless of whether the district has to refund its bond account, the Hoover decision should pique the interest of schools statewide because it gives more teeth to a law governing school bond measures.
It’s been 15 years since Californians approved Proposition 39, which lowered the threshold to pass a school bond measure from a two-thirds vote to 55 percent, a concession that came with accountability strings attached.
School construction bond measures passed at the lower Proposition 39 threshold had to be safeguarded by an independent citizens’ bond oversight committee and audited annually to “ensure bond proceeds are spent only for the school facilities projects listed in the Bond Project List,” the district’s Proposition S and Z ballots said.
Unfortunately for San Diegans, the citizen committee didn’t raise any concern over the field lights and the district’s auditor, Christy White, gave her seal of approval when specifically asked about the expense.
“The sports field lighting projects are permissible Proposition S projects per the ballot language,” White wrote in the 2008-09 Proposition S performance audit in 2010.
Kim Schoettle, a longtime bond committee member, said she agreed with the district’s interpretation and still feels the field lights were appropriate bond expenses.
“It’s definitely debatable. I don’t think it’s clear one way or another,” Schoettle said. To Schoettle, the stadium improvements are a matter of district equity and access. “It allows parents to come to the games.”
Anderson, the head of the taxpayers group that sued over the Hoover lights, said it shouldn’t take a lawsuit to get the district to follow the law.
“We have folks supposedly representing the taxpayers sitting on this committee who aren’t stepping up to the plate and asking questions about these borderline projects,” he said.
Several law firms that advise school districts have circulated notices about the Hoover decision, and Dannis Woliver Kelley urged other districts to use vaguer ballot language in an October 2013 bulletin.
“The court’s very careful reading of the measure underscores the fact that the more narrow or specific the wording of ballot measure and project list, the more narrowly and literally it will be interpreted,” the firm wrote. “Using a format that organizes projects by general improvement type, rather than by school site, may afford greater flexibility in interpretation.”
Michael Turnipseed, president of the California League of Bond Oversight Committees and executive director of the Kern County Taxpayers Association, says he also cites the Hoover case when going over project lists with districts before an election – but he sends the opposite message about specificity.
“This was democracy at work,” Turnipseed said of the lawsuit. “I think the intent was very clear, that when you put a bond measure out there you are supposed to tell the people what the money is for. You can’t be open-ended.”
The field lights dispute is not the first time the district has been flagged for flawed ballot language. A retired teacher pointed out the district listed improvements to gym floors at schools without gyms in its 2012 Proposition Z measure.
Former district chief of staff Bernie Rhinerson said the specifics don’t get nailed down until after a bond passes.
“We will put together a detailed project list of what gets repaired after the election. We don’t invest that kind of work and money until the bond passes,” he told the U-T at the time.
But that approach is still up for debate.
“You can’t say, ‘We’ve already got the money, we can spend it how we want to now,” Bob Fellmeth, an attorney and executive director of the Center for Public Interest Law at the University of San Diego School of Law, told us in 2013. “That’s not how it works.”
So too said Turnipseed.
“It doesn’t have to be, ‘We are going to buy 12 stoves and seven toilets.’ That’s too much (specificity). But, ‘We are going to remodel the kitchen and the bathroom,’” he said. “They just want you to give them a blank check for $2.1 billion. I think someone is dreaming.”