AR Code § 6-21-811 (2020)
2020 Arkansas Code|Title 6 - Education|Subtitle 2 - Elementary and Secondary Education Generally|Chapter 21 - School Property and Supplies|Subchapter 8 - Arkansas Public School Academic Facilities Program Act|§ 6-21-811. Academic Facilities Distress Program

 (a) The Commission for Arkansas Public School Academic Facilities and Transportation shall classify a public school or school district as being in academic facilities distress if the Division of Public School Academic Facilities and Transportation recommends and the commission concurs that the public school or school district has engaged in actions or inactions that result in any of the following:  (1) Any act or violation determined by the division to jeopardize any academic facility used by a public school or school district, including, but not limited to:  (A) Material failure to properly maintain academic facilities in accordance with this subchapter and rules adopted by the commission;  (B) Material violation of local, state, or federal fire, health, or safety code provisions or laws;  (C) Material violation of applicable building code provisions or law;  (D) Material failure to provide timely and accurate facilities master plans to the division;  (E) Material failure to comply with state law governing purchasing, bid requirements, or school-construction-related laws or rules in relation to academic facilities projects;  (F) Material default on any school district debt obligation; or  (G) Material failure to plan and progress satisfactorily toward accomplishing the priorities established by the division and the approved school district's facilities master plan; and    (2) Any other condition of an academic facility or facilities in a public school or school district that is determined by the division to have a detrimental impact on educational services provided by that public school or school district.    (b) The division shall provide written notice, via certified mail, return receipt requested, to the president of the board of directors and the superintendent of the school district identified or containing a school identified by the division as being in facilities distress.  (c)  (1) By August 31 of each year, the division shall notify the superintendent of a school district if the division is aware the school district has experienced two (2) or more indicators of facilities distress in one (1) school year that the division deems to be nonmaterial but that without intervention could place the district in facilities distress.  (2) The superintendent of a school district shall report to the division if the superintendent is aware the school district has experienced two (2) or more indicators of facilities distress in one (1) school year that the superintendent deems to be nonmaterial but that without intervention could place the district in facilities distress.  (3)  (A) The division and the superintendent shall review all data related to the nonmaterial indicators of facilities distress.  (B)  (i) Within thirty (30) days of the division's determination that the school district may be experiencing facilities distress at a nonmaterial level, the division shall provide a notice to the school district's superintendent and board of directors that:  (a) Describes the nonmaterial indicators of facilities distress that could have a detrimental impact on educational services provided by the affected public school or the school district if not addressed; and  (b) Identifies the support available from the division to address each nonmaterial indicator of facilities distress.    (ii) The board of directors shall place on the agenda for the next regularly scheduled meeting of the board of directors a discussion of the notice of nonmaterial indicators of facilities distress.      (4)  (A) If any condition of an academic facility raises a significant health or safety issue, the superintendent of the school district where the academic facility is located or the person responsible for the management of the academic facility shall immediately notify the division and the board of directors of the school district.  (B) The board of directors shall place on the agenda for the next regularly scheduled meeting of the board of directors a discussion of the notice of the significant health or safety issue.      (d)  (1) A public school or school district classified by the commission as being in facilities distress shall develop a facilities improvement plan within thirty (30) days from the date of classification and promptly submit the facilities improvement plan to the division for review and approval.  (2) A public school or school district shall review and revise its facilities improvement plan on a periodic basis as determined by the division and submit the updated facilities improvement plan to the division in order for the division to determine whether the public school or school district is correcting its deficient areas of practice regarding academic facilities.  (3) A school district shall use facilities improvement plans as necessary to supplement and update its facilities master plan.    (e)  (1) Every two (2) years, the division shall determine whether the progress of each school district complies with the school district's facilities master plan and shall notify the school district of any noncompliance.  (2) Every two (2) years, the division shall review the applications made for the Academic Facilities Partnership Program established under § 6-20-2507, to identify any school district that did not apply for state funding for necessary facilities to meet adequacy requirements and shall notify the school district of any deficiencies.  (3) Within thirty (30) days of receiving the notice provided under subdivision (e)(1) or subdivision (e)(2) of this section, the school district shall submit a facilities improvement plan to the division for its review and approval that states how the school district will address the noncompliance issues contained in the notice.  (4) If the division does not approve the facilities improvement plan submitted by the school district, it shall identify the school district as being in facilities distress.  (5) A school district may appeal the identification of the division under this subsection to the commission pursuant to the procedures established by the commission.    (f)  (1)  (A) Within ten (10) days of a school district's failure to pass a millage required to fulfill its obligations under the school district's facilities master plan, the division shall provide written notice to the school district of the date, time, and place for a conference with the school district at which the division will:  (i) Determine whether as a result of the failed millage there are facilities issues relating to:  (a) Immediate repairs under § 6-20-2504(b)(4) [repealed];  (b) The presence and number of suitability needs of public school academic facilities, which shall be defined by rule; or  (c) Immediate need for academic facilities to meet student growth; and    (ii) Thoroughly discuss and explain the sanctions and requirements that are available to the commission if the school district or a school within the district is classified by the commission as being in facilities distress under this section and § 6-21-812.    (B) The written notice shall be provided via certified mail to the president of the school district board of directors and the superintendent of the school district.  (C) The commission shall establish rules for the implementation of this subdivision (f)(1).    (2)  (A) If the commission determines that there are immediate repairs, growth, or suitability issues that require expedited attention, the commission may direct the school district to conduct a special election to vote on a millage increase.  (B)  (i) The division and the school district shall agree upon the issues to be submitted for a vote in the special election.  (ii) The special election may not include any issues other than the issues that are mutually agreed upon.    (C) The special election shall be held on a date that is:  (i) Mutually agreed upon by the division and the school district; and  (ii) Not later than seven (7) months from the date of the election at which the millage failed unless it is necessary to extend the date beyond seven (7) months because of restrictions on the number of elections that may be held within a calendar year.    (D) If within ninety (90) days from the notice provided to the school district under subdivision (f)(1)(A) of this section the school district has not set an election date, the division shall identify the school district as being in facilities distress.  (E)  (i) If the school district is able to finance the immediate repairs, growth, and suitability improvements without the necessity of a special election on increasing its millage, the school district may enter into an agreement with the division to fund its improvements separately, which shall include an implementation timeframe.  (ii) The division shall identify the school district as being in facilities distress for failure to implement the agreed upon plan for immediate repairs, growth, and suitability improvements within the timeframe specified in the agreement.        (g) When a school district is classified by the commission to be in facilities distress, the division may, with the approval of the commission:  (1)  (A) Provide on-site technical evaluation and assistance and make written recommendations to the school district superintendent regarding the care and maintenance of any academic facility in the school district.  (B) Any school district classified as being in facilities distress status shall accept on-site technical evaluation and assistance from the division.  (C) The written recommendations of the division are binding on the school district, the superintendent, and the board of directors;    (2) Remove permanently, reassign, or suspend on a temporary basis the superintendent of the school district, and:  (A) Appoint an individual in place of the superintendent to administratively operate the school district under the supervision and approval of the Commissioner of Elementary and Secondary Education;  (B) Compensate the individual operating the school district from school district funding; and  (C) Authorize the individual to remove, replace, reassign, or suspend public school district personnel in accordance with state law;    (3) Suspend or remove some or all of the current board of directors and call for the election of a new board of directors for the school district, in which case the school district shall reimburse the county board of election commissioners for election costs as otherwise required by law;  (4)  (A) Remove on a temporary basis some or all of the powers and duties granted to the current public school district board of directors under § 6-13-620 or any other applicable law but allow the public school district board of directors to continue to operate under the direction and approval of the Commissioner of Elementary and Secondary Education.  (B) The commission shall define the powers and duties of the public school district board of directors under this section.  (C) The public school district board of directors shall act in an advisory capacity to the Commissioner of Elementary and Secondary Education with respect to all other powers and duties maintained by the Commissioner of Elementary and Secondary Education;    (5) Require the school district to operate without a board of directors under the supervision of the superintendent or an individual or panel appointed by the Commissioner of Elementary and Secondary Education;  (6) Waive the application of Arkansas law or the corresponding State Board of Education or commission rules, with the exception of:  (A) The Teacher Fair Dismissal Act of 1983, § 6-17-1501 et seq.;  (B) The Public School Employee Fair Hearing Act, § 6-17-1701 et seq.;  (C) Special education programs as provided in this title;  (D) Conducting criminal background checks for employees as provided in this title; and  (E) Health and safety codes as established by the state board, the commission, and local governmental entities;    (7) In the absence of a school district board of directors, direct the Commissioner of Elementary and Secondary Education to assume all authority of the board of directors as may be necessary for the day-to-day governance of the school district;  (8) Require reassignment of some or all of the administrative, instructional, or support staff of a public school;  (9) Require reorganization, closure, or dissolution of one (1) or more of the public schools within the classified school district;  (10)  (A) Return the administration of the school district to the former board of directors or place the administration of the school district in a newly elected board of directors if:  (i) The division certifies in writing to the commission and to the school district that the school district has corrected all issues that caused the classification of facilities distress and the school district has not experienced any additional indicators of facilities distress; and  (ii) The commission determines the school district has corrected all issues that caused the classification of facilities distress.    (B) If the division calls for an election of a new school district board of directors, the school district shall reimburse the county board of election commissioners for election costs as otherwise required by law;    (11) Require school district staff and employees to attend training in areas of concern for the public school or school district;  (12)  (A) Require a school district to cease all expenditures related to activities not described as part of an adequate education in § 6-20-2302 and place money that would have been spent on the activities into an academic facilities escrow account to be released only upon approval by the division for use in conjunction with a local academic facilities project.  (B) School districts shall include a clause addressing this contingency in all contracts with personnel who are involved with activities not described as part of an adequate education;    (13) Notify the public school or school district in writing that the deficiencies regarding academic facilities shall be corrected within a time period designated by the division;  (14)  (A) Petition the state board at any time for the consolidation, annexation, or reconstitution of a school district in facilities distress or take other appropriate action as allowed by this subchapter in order to secure and protect the best interest of the educational resources of the state or to provide for the best interest of students in the school district.  (B) The state board may approve the petition under subdivision (g)(14)(A) of this section or take other appropriate action as allowed by this subchapter.  (C) Except as established in subdivision (g)(14)(D) of this section or subsection (n) of this section, the state board shall consolidate, annex, or reconstitute any school district that fails to remove itself from the classification of a school district in facilities distress within five (5) consecutive school years of classification of facilities distress status.  (D) The state board may grant additional time for a public school or school district to remove itself from facilities distress by issuing a written finding supported by a majority of the state board explaining in detail that the public school or school district could not remove itself from facilities distress during the relevant time period due to impossibility caused by external forces beyond the control of the public school or school district;    (15) Correct the failure of a school district to complete its agreed plan or to pass the millage in the special election under subdivision (f)(2) of this section by contracting for and completing the necessary improvements under the agreed plan;  (16)  (A) If the academic facilities in the public school district in facilities distress are inadequate to provide an adequate education, recommend that the state board dissolve the school district and transfer students to public schools in other public school districts.  (B) If the state board elects to dissolve the school district and transfer students to public schools in other public school districts, the state board shall assign the public school district's territory, property, and debt; and    (17) Take any other action allowed by law that is deemed necessary to assist a public school or school district in correcting the issues that caused the classification of facilities distress, to secure and protect the best interest of the educational resources of the state, or to provide for the best interest of students in the school district.    (h) No school district identified by the division as being in facilities distress may incur any debt without the prior written approval of the commission.  (i) A public school or school district in facilities distress may petition the commission for removal from facilities distress status only after the division has certified in writing that the public school or school district has corrected all criteria for being classified as in facilities distress and has complied with all division recommendations and requirements for removal from facilities distress status.  (j) The division shall submit a written evaluation on the status of each school district in facilities distress to the commission and the state board at least one (1) time every six (6) months.  (k)  (1)  (A) If a school district is classified by the commission as being in facilities distress and has immediate repairs, growth, or suitability improvement issues, the division, in addition to any other remedy under this section and § 6-21-812, may provide a loan to the school district to be repaid from any funds available that are not required to provide an adequate education.  (B)  (i) Funds available that are not required to provide an adequate education include:  (a) Fund balances and any cash on hand that are not part of foundation funding or categorical funding under § 6-20-2305 and are not otherwise required to provide an adequate education for students in the public school district; and  (b) Revenues that are not obligated on bonds.    (ii) Funds remaining after the annual payment on a bond obligation are included in funds that are not required to provide an adequate education.      (2) The public school district shall repay the loan on the schedule determined by the division.    (l) The commission in conjunction with the Academic Facilities Oversight Committee shall:  (1) Reexamine the role and function of the State Facility Assessment of 2004;  (2) Assess the progress made by the state in the mandates of the Supreme Court in Lake View School District No. 25 v. Huckabee, 351 Ark. 31, 91 S.W.3d 472 (2002); and  (3) Make needed changes in the implementation of the academic facilities program by modifying the commission's rules.    (m) [Repealed.]  (n)  (1) If, by the end of the fifth school year following the school district's classification of facilities distress status, the school district in facilities distress has not corrected all issues that caused the classification of facilities distress, the state board, upon petition from the commission or the division and after a public hearing, shall consolidate, annex, or reconstitute the school district under this section.  (2) The state board may grant additional time for a public school or school district to remove itself from facilities distress by issuing a written finding supported by a majority of the state board explaining in detail that the public school or school district could not remove itself from facilities distress during the relevant time period due to impossibility caused by external forces beyond the control of the public school or school district.    (o) This section does not prevent the division, the commission, or the state board from taking any of the actions listed in this section at any time to address a public school or school district in facilities distress.