SB383

By Senator Brewbaker

ENROLLED, An Act,

Relating to the purchase of school textbooks; to amend Sections 16-36-62, 16-36-64 and 16-36-65, Code of Alabama 1975; to add Sections 16-36-60.1 and 16-36-71 to the Code of Alabama 1975; to establish qualified depositories for textbooks, which would be facilities that receive textbook orders from boards of education, store sufficient quantities of textbooks, and distribute textbooks to local school systems; to prohibit a qualified depository for textbooks from charging a board of education for its services, but would authorize it to charge a publisher a fee for its services; to prohibit the price of any textbook to exceed the costs already prescribed by law; to clarify that textbooks include digital textbooks for the purposes of public school textbook purchasing; and to create a Digital Depository Study Commission to examine the application of a depository to digital material.

BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:Section 1. Sections 16-36-62, 16-36-64 and 16-36-65, Code of Alabama 1975, are amended to read as follows:

§16-36-62.

"(a) A local textbook committee or committees shall be appointed by each separate local board of education. The number, size, and composition, which shall include parents, of the committee or committees shall be determined by each local board of education. A copy of local school board policies in regard to local textbook committees shall be kept on file by each local superintendent. Names of each person serving on a local textbook committee shall also be kept on file by each local superintendent.

"(b) In order to qualify as a member of the committee, each member of the local textbook committee and its secretary shall prepare an affidavit to be filed with the local board of education within 10 days after notice of the member's appointment stating each of the following:

"(1) The member agrees to discharge faithfully all the duties imposed upon him or her as a member or as secretary of the textbook committee.

"(2) The member has no interest, directly or indirectly, in any contract that may be made under this article for the purchase of textbooks.

"(3) The member has no interest as author, as associate author, as publisher, or as a representative of the author or publisher of any textbooks.

"(4) The member has no pecuniary interest, directly or indirectly, in the business or profits of any person, firm, or corporation engaged in manufacturing, publishing, or selling textbooks.

"(5) The member agrees not to accept any emolument or promise of future reward of any kind from any publisher of textbooks, the publisher's agent, or anyone interested in or intending to bias the member's judgment in any way in the selection of any textbook for adoption.

"(c) Members shall serve for terms of one year.

"(d) The local textbook committee shall meet on call of the chairperson of the local board of education for the purpose of recommending textbooks to the local board of education from the list of adoptions by the State Board of Education or from a list submitted to the committee for consideration by the local superintendent or his or her designee, or from both lists. Textbooks which have been rejected by the State Board of Education shall not be considered for future adoption by the local board of education, except for the length of an existing local contract approved by the state superintendent. The recommendations of a local textbook committee shall be by majority vote for each textbook. No textbook shall be used in any public school of this state unless recommended by a local textbook committee and, upon the recommendation of a local superintendent, adopted by the local board of education.

"(e) The adoption of a textbook by a local board of education shall be by majority vote of the local board of education and shall be for a period determined by the State Superintendent of Education. Not later than 30 days after the date of the local adoption, the local superintendent of education shall file a report with the State Superintendent of Education listing the title, the name of the author, the publisher, and the date of adoption of the textbook with verification to the state superintendent that all procedures described in subsection (d) have been followed. This procedure shall apply each time a textbook is adopted for use in a local school or school system.

"(f) Publishers shall furnish samples of all state-adopted textbooks to each local board of education for evaluation by the local textbook committee. One copy of each textbook adopted by the local textbook committee shall be retained by the local board of education as an official sample. All samples not adopted by the local boards shall be returned to the publishers at the expense of the publishers, and samples of those books adopted shall become the property of the local boards of education. If the publisher fails to reclaim samples of nonadopted books within 90 days, the sample books shall become the property of the local board of education.

"(g) Any textbook publisher that solicits a local textbook committee or local board to adopt their textbooks and has not participated in the state adoption process shall provide the reason for not participating in the state adoption process in writing to the local textbook committee and local board at the time of the solicitation. A copy of the document submitted to the local textbook committee and the local board of education shall also be sent to the State Superintendent of Education.

"(h) Publishers shall be required to use a qualified depository in Alabama for distribution of state or local adopted textbooks if requested to do so by the local board of education and shall have a sufficient supply of the adopted textbooks on deposit at a qualified depository for distribution or sufficient ability to provide access to digital textbooks as ordered through a qualified depository. Nothing in this subsection shall preclude publishers from selling textbooks to the local board of education directly or through means other than a qualified depository for textbooks, but a publisher may not refuse to sell through a qualified depository. Regardless of whether a qualified depository is used in a transaction, the prices charged by a publisher shall not exceed the prices prescribed in subsection (c) of Section 16-36-64.

§16-36-64.

"(a) No contract shall be made pursuant to this article for the purchase of textbooks rejected by the State Board of Education. The only contracts entered into by the State Board of Education pursuant to this article shall be for textbooks considered by the State Textbook Committee and adopted by the State Board of Education as provided for in this article.

"(b) In addition to all other laws which forbid the use of textbooks in the public schools of the state by authors who are members of the Communist Party or members of communist front organizations, all contracts with publishers for textbooks made pursuant to this article shall stipulate that the author or authors of such book or books is not a member of the Communist Party or known advocate of communism or Marxist socialism and is not a member of a communist front organization.

"(c) The maximum price at which the State Board of Education shall contract for local boards of education to pay f.o.b. the local board of education for any books to be used in the public schools of this state, after all discounts have been deducted, shall not exceed the minimum price at which the publisher sells such books in wholesale quantities f.o.b., the publisher's publishing house, after all discounts have been deducted. Any contract made for the purchase of books for use in the public schools of this state at a price higher than such determined maximum shall be void.

"(d) Every contract entered into under this article by the State Board of Education on behalf of the local boards of education and any publisher or publishing company shall contain a provision that the publisher covenants and agrees to all of the following:

"(1) The publisher is not furnishing under contract executed after the first day of January of the year in which the contract becomes effective, to any state, county, or school district in the United States the textbooks embraced in the contract at a price below the price stipulated in the contract.

"(2) If, at any time during the period of the contract, the textbooks named in the contract shall be contracted for at a price to any state, county, or school district in the United States, lower than the price agreed upon in the contract, then that lower price shall become the contract price between the State Board of Education on behalf of the local board of education and the publisher named in the contract.

"(3) If, at any time during the period of the contract, any editions of the textbooks named in the contract substantially similar to the official copy on file in the office of the State Superintendent of Education shall be contracted for at a lower price with any state, county, or school district in the United States, the State Board of Education may at its option substitute for the edition contracted for the substantially similar edition at the lower price.

"(4) If the publisher offers any free or discounted ancillary items or services, or both, to any local board of education or any public school, the publisher shall offer the same free or discounted ancillary items or services, or both, to all local boards of education or schools under the same or similar circumstances.

"(e) If the State Board of Education determines that any book or books contracted for are being sold at a lower contract price in any other state than the price for which the book or books are being sold to Alabama, the contract shall be forfeited. Each contract shall provide that in the event of violation of this pricing agreement, the contractor shall return all money collected for the books and also forfeit the book or books to the respective local boards of education, this being the agreed measure of damages stipulated to have been suffered by the State Board of Education and the local boards of education. Action may be brought in the name of the state on the bond of the contractor for all losses sustained, and any sum recovered shall be deposited to the credit of the Education Trust Fund.

"(f) Contracts with textbook publishers shall include all of the following:

"(1) A provision that local boards of education shall be permitted to purchase with local funds textbooks for free distribution at the same price at which the local boards of education are permitted to purchase such books with state funds.

"(2) The publishers shall replace defective or substandard books without cost to the purchaser.

"(3) Provisions for the time of delivery, penalties for delay in delivery, and other provisions as in the judgment of the State Board of Education will insure prompt delivery of all textbooks at the lowest possible price.

"(4) The publishers shall be required to use a qualified depository in Alabama for distribution of state or local adopted textbooks if requested to do so by the contracting board of education and shall have a sufficient supply of the adopted textbooks on deposit at a qualified depository for distribution or sufficient ability to provide access to digital textbooks as ordered through a qualified depository. Nothing in this subdivision shall preclude publishers from selling textbooks to the State Board of Education directly or through means other than a qualified depository for textbooks, but a publisher may not refuse to sell through a qualified depository. Regardless of whether a qualified depository is used in a transaction, the prices charged by a publisher shall not exceed the prices prescribed in subsection (c).

"(g) In the case of the failure of any contractor to furnish the books as provided in this contract, the bond of the publisher shall be forfeited and the State Board of Education may contract for other books as needed. The State Board of Education may drop any textbook by giving written notice to the publisher at least 90 days in advance and upon the recommendation of the State Textbook Committee to make another adoption instead of the textbook.

"(h) The State Board of Education, upon the recommendation of the State Superintendent of Education, may renew or extend contracts for no less than one year nor more than two years. This provision shall be made a part of the publishers contract, and the State Board of Education may exercise the provision by notifying the publisher in advance.

"(i) The State Board of Education may include any additional regulations in the contract form that the State Board of Education deems best for the administration of this article, and any regulations included in the contract form and accepted by the publisher shall be construed as a part of this article. Publishers shall be required to comply with additional rules and regulations approved by the State Board of Education as if they were included in this article.

"(j) The State Superintendent of Education shall preserve in the offices of the State Department of Education or in another suitable location, one copy of each book which has been made the basis of any contract as the standard specimen of quality and excellence to be maintained in such books during the period of the contract.

§16-36-65.

"(a) Upon receipt of requisitions from the State Superintendent of Education, the state Purchasing Agent shall, in accordance with existing statutes and procedures governing state purchases, issue statewide purchase contracts upon which local boards of education shall issue local purchase orders to the publishers who shall ship the books ordered to the local board of education, shipping charges prepaid.

"(b) (a) The State Department of Education in conjunction with the state Purchasing Agent shall furnish contracts from which state-adopted textbooks for the pupils and teachers in classrooms and schools operated under the jurisdiction and supervision of the Alabama Department of Mental Health and Mental Retardation can be purchased. These purchases shall be made from appropriations to the state Department of Mental Health and Mental Retardation. The State Board of Education may make and enforce regulations for the proper care and accounting for such textbooks.

"(c) (b) The State Department of Education in conjunction with the state Purchasing Agent shall furnish contracts from which state-adopted textbooks for the pupils and teachers in classrooms and schools operated under the jurisdiction of the Alabama Institute for Deaf and Blind can be purchased. These purchases shall be made from appropriations to the Alabama Institute for Deaf and Blind. The State Board of Education may make and enforce regulations for the proper care and accounting for these textbooks and shall not be required to purchase and furnish special books or materials for the deaf and blind.

"(d) (c) The State Department of Education in conjunction with the state Purchasing Agent shall furnish contracts from which state-adopted textbooks for the pupils and teachers in classrooms and schools operated by the Department of Youth Services can be purchased. The cost of the textbooks provided herein shall be paid from appropriations to the Department of Youth Services. The State Board of Education may make and enforce regulations for the proper care and accounting for these textbooks and shall not be required to purchase and furnish any special books or materials under this section.

"(e) (d) The State Board of Education shall have no power or authority to enter into any contract or arrangement for furnishing textbooks or providing a depository for textbooks or delivering textbooks, but shall have the power and authority to enter into any contract or arrangement requiring the use of a qualified depository for textbooks."

Section 2. Sections 16-36-60.1 and 16-36-71 are added to the Code of Alabama 1975, to read as follows:

§16-36-60.1.

For the purposes of this article, the following words shall have the following meanings:

(1) QUALIFIED DEPOSITORY FOR TEXTBOOKS or QUALIFIED DEPOSITORY. A facility in the state responsible for receiving orders for, storing of, and distribution of textbooks pursuant to the provisions of Section 16-36-71.

(2) TEXTBOOK. Includes digital textbooks, as defined in Section 16-16B-2. Digital textbooks shall be recommended, adopted, and purchased in the same manner as provided for textbooks under this article.

§16-36-71.

(a) A qualified depository of textbooks shall be responsible for receiving textbook orders from the State Board of Education or local boards of education, storing sufficient quantities of textbooks, and distributing textbooks in accordance with this article.

(b) A qualified depository shall do all of the following:

(1) Have sufficient warehouse space to maintain sufficient stock.

(2) Be located within the state.

(3) Have the financial capacity to provide steady and continuous operations upon which the State Board of Education and local boards of education can rely. The financial capacity may be maintained in a qualified depository or in another member of the same Alabama affiliated group, as that term is defined in Section 40-18-39.

(c) For the services provided herein, a qualified depository may not charge the State Board of Education or a local board of education, but rather shall sell the textbooks in accordance with the prices prescribed in subsection (c) of Section 16-36-64. A qualified depository may negotiate contracts directly with publishers of textbooks to charge a fee to the publishers.

(d) It shall be the responsibility of the publisher to ensure that a sufficient stock of textbooks is maintained at a qualified depository. Upon the failure of any publisher to carry a sufficient stock to meet all of the immediate demands of the State Board of Education and local boards of education as required by a contract made under this article, the contracting board of education may recover on the bond given by the publisher for the full value of the books not furnished as required by the contract and terminate the contract.

Section 3. (a) There is hereby established a Digital Depository Study Commission which shall consist of 12 members to be appointed as follows:

(1) Two members to be appointed by the Governor.

(2) Two members to be appointed by the Speaker of the House of Representatives, one whom shall be a representative of a qualified depository.

(3) On member to be appointed by the President Pro Tempore of the Senate.

(4) One member to be appointed by the Lieutenant Governor.

(5) Two members to be appointed by the State Superintendent of Education.

(6) One member to be appointed by the Executive Director of the Alabama Association of School Business Officials or his or her designee.

(7) One member to be appointed by the Executive Director of the School Superintendents of Alabama or his or her designee.

(8) One member to be appointed by the Executive Director of the Alabama Association of Schools Boards or his or her designee.

(9) One member to be appointed by the President of the Association of American Publishers or his or her designee.

(b) The commission shall meet at least four times prior to the start of the 2016 Regular Session to examine the application of a depository to digital material. The commission shall present to the Legislature a report that proposes a plan to make changes to this act if necessary.

Section 4. This act shall become effective immediately following its passage and approval by the Governor, or its otherwise becoming law.

Textbooks

Board of Education, State

Board of Education, County

Board of Education, City

Public Schools

Code Added

Code Amended