New School Lead Testing Law Also Amends School Code and Tort Immunity Act to Allow Expanded Use of Life Safety and Tort Funds

Public Act 99-922, effective January 17, 2017, primarily requires testing for lead in drinking water at schools and daycare facilities. In a gesture which may help schools pay the cost of the unfunded mandate, P.A. 99-922 also amended Sections 17-2.11 and 17-2A of the School Code and Section 9-107 of the Tort Immunity Act. These amendments enable districts to use surplus amounts in their Fire Prevention and Safety Funds to test for and remediate lead content in the drinking water supply, as well as to transfer money raised from tax levies for tort and liability insurance purposes to their Operations and Maintenance (O&M) Funds. 

School Code Section 17-2A, which deals with permanent interfund transfers, formerly permitted such transfers to be made only as among a district’s Educational, Transportation, and O&M funds.  P.A. 99-922 adds authority to permanently transfer “tort” monies to the O&M Fund. Section 17-2A’s existing requirements still apply, so before a school board approves a permanent interfund transfer, the board must publish a newspaper notice informing the public at least seven and no more than 30 days in advance of a public hearing to be held on the proposed transfer, and must also post the notice at least 48 hours before the hearing at the board’s principal office. After the hearing, the board has authority to adopt a resolution approving the transfer. Transfers of tort monies into the O&M Fund, like other authorized permanent transfers under that statute, are exempted until June 30, 2019, from language in Section 17-2A stating that such transfers may be made only to meet “one-time, non-recurring expenses.”

The amendment to Section 17-2A enabling transfers of tort monies into a district’s O&M Fund would have been problematic, but for the fact that P.A. 99-922 correspondingly amended Section 9-107(b) of the Local Government and Governmental Employees Tort Immunity Act to slightly relax, for school districts, the statute’s provisions restricting use of the tort tax levy to liability insurance and tort immunity purposes. Section 9-107(b) now expressly permits school districts to levy for a sum sufficient to make transfers under Section 17-2A of the School Code, and states that such transfers pursuant to Section 17-2A are a lawful use of tort levy proceeds. Significantly, neither the amendment to School Code Section 17-2A nor the amendment to Tort Immunity Act Section 9-107 limits how tort monies transferred into O&M may thereafter be spent. Nor do the amendments preclude a district which has transferred tort monies into O&M from later transferring part of the resulting O&M fund assets into the Educational or Transportation Funds.

P.A. 99-922 also amended School Code Section 17-2.11 to authorize districts which have accomplished and paid for all then-required life safety improvements, and which still have funds on hand in the Fire Prevention and Safety Fund, to use the excess to pay for any required safety inspections, sampling for lead in drinking water, and any repair or mitigation required due to lead levels in the drinking water supply.

These amendments give school districts more flexibility in financing O&M needs and capital improvements to existing school facilities. 

If you have any questions regarding points covered in this Law Alert, please contact a Robbins Schwartz attorney. 

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