(1) If a fiduciary other than an authorizer, operating under the authority of a preliminary order or an order for reorganization, determines that a charter respondent has engaged in an excess benefit transaction, the fiduciary may:
Cancel in writing and without penalty any contract entered into by the charter schoolthat awards the excess benefit to an individual or another entity and cancel any further compensation to the party that received the excess benefit. The fiduciary may demand the return, within ten business days, to the charter respondent of all excess benefits paid within the preceding three years or, if the excessive payment has been concealed from the charter respondent's full governing board, the preceding six years.
If payment is not made as demanded pursuant to paragraph (a) of this subsection (1),file in the name of the charter respondent, a civil action for recovery of the excess benefit and imposition of a civil penalty. If the court finds that the charter respondent paid the excess benefit and the person receiving the excess benefit did not repay the amount within ten business days following the demand for repayment, the court shall deem the excess benefit an unauthorized payment of charter school moneys and award the charter respondent, through the fiduciary, an amount fixed in the court's discretion and based on all the circumstances. However, the amount shall not be less than the excess benefit paid and shall not be more than double the excess benefit paid plus all reasonable attorney fees and costs. If the court finds that the fiduciary did not have a reasonable basis in law and fact for claiming an excess benefit and filing the action, it may award the party defending the action attorney fees and costs.
Source: L. 2010: Entire part added, (HB 10-1345), ch. 245, p. 1093, § 2, effective May 21.