BILL NUMBER: SB 1105 CHAPTERED 09/29/08 CHAPTER 577 FILED WITH SECRETARY OF STATE SEPTEMBER 29, 2008 APPROVED BY GOVERNOR SEPTEMBER 29, 2008 PASSED THE SENATE AUGUST 19, 2008 PASSED THE ASSEMBLY AUGUST 12, 2008 AMENDED IN ASSEMBLY AUGUST 5, 2008 AMENDED IN ASSEMBLY JUNE 25, 2008 AMENDED IN SENATE MAY 8, 2008 AMENDED IN SENATE APRIL 9, 2008 AMENDED IN SENATE MARCH 10, 2008 INTRODUCED BY Senator Margett (Principal coauthor: Assembly Member Spitzer) (Coauthor: Assembly Member La Malfa) JANUARY 15, 2008 An act to amend Sections 44009, 44242.5, and 44425 of the Education Code, relating to teacher credentialing. LEGISLATIVE COUNSEL'S DIGEST SB 1105, Margett. Teacher credentialing: criminal convictions. (1) Existing law provides that whenever the holder of any credential issued by the State Board of Education or the Commission on Teacher Credentialing has been convicted of any sex offense or controlled substance offense, as defined, the commission shall forthwith suspend the credential and that when the conviction becomes final or when imposition of sentence is suspended, the commission shall forthwith revoke the credential. This bill would authorize a credential holder whose credential has not been revoked as a result of a misdemeanor sex offense that does not require registration as a sex offender to apply for reinstatement of his or her credential if the accusation or information against the holder has been dismissed and he or she has been released from all disabilities and penalties resulting from the offense, as specified. (2) Under existing law, upon a plea of nolo contendere to a sex offense, as specified, all credentials held by the person that have been issued by the State Board of Education or the Commission on Teacher Credentialing are suspended until a final disposition regarding those credentials is made by the Commission on Teacher Credentialing. An action that the commission is permitted to take following a conviction may be taken after the judgment is final, as specified. This bill would delete those provisions and provide instead that credentials shall be suspended in the manner described above only if the credential holder pleads nolo contendere to loitering in or about a public toilet, as specified. This bill would also require the Legislature to convene a working group to study provisions of law relating to suspension and revocation of credentials issued by the state board or the commission for a sex offense, a controlled substance offense, or another crime, as specified, and to provide a report on its findings on or before December 1, 2009. (3) Under existing law, a plea or verdict of guilty by a court is deemed to be a conviction for purposes of provisions of law that require the Commission on Teacher Credentialing and the county board of education to suspend a credential issued by the State Board of Education or the commission whenever the holder has been convicted of a sex offense or controlled substance offense. If the conviction is reversed and the holder is acquitted of the offense in a new trial or the charges against him or her are dismissed, the suspension of the credential will be terminated. When the conviction becomes final or when imposition of sentence is suspended, the credential will be revoked. This bill would expand these provisions to include a plea or verdict of guilty by a court and a conviction following a plea of nolo contendere as a conviction for purposes of provisions of law that require the Commission on Teacher Credentialing to suspend, terminate the suspension of, or revoke a credential whenever the holder has been convicted of any sex offense or controlled substance offense. This definition of "conviction" also would apply to other provisions concerning the procedure to be used by the Committee of Credentials upon receipt of allegations of conduct by an applicant for, or holder of, a credential, affecting the right to a credential, and grounds for the Commission on Teacher Credentialing to deny an application for the issuance of a credential or an application for the renewal of a credential. These provisions would no longer apply to the actions required of a county board of education with respect to a credential holder. (4) Under existing law, each allegation of an act or omission by an applicant for, or holder of, a credential for which he or she may be subject to an adverse action is required to be presented to the Committee of Credentials. Upon completion of an investigation, if adverse action is recommended to the Commission on Teacher Credentialing, the findings of the committee are available upon request within one year from the date that the committee makes its recommendation to a school district providing verification that the credential holder has applied for employment in the district. This bill would instead allow the release of those findings if the credential holder has not filed a timely appeal of the recommendation of the committee and would require that the request for the findings by a school district providing verification that the credential holder has applied for employment in the district be made within 5 years from the date that the committee makes its recommendation. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: SECTION 1. Section 44009 of the Education Code is amended to read: 44009. (a) A plea or verdict of guilty or finding of guilt by a court in a trial without a jury, or a conviction following a plea of nolo contendere is deemed to be a conviction within the meaning of Sections 44242.5, 44345, 44346, 44346.1, 44424, and 44425, irrespective of a subsequent order for probation suspending the imposition of a sentence or an order under Section 1203.4 of the Penal Code allowing the withdrawal of the plea of guilty and entering a plea of not guilty, or setting aside the verdict of guilty, or dismissing the accusations or information. (b) The record of a narcotics offense, as defined in Section 44011, shall be sufficient proof of conviction of a crime involving moral turpitude for the purposes of Sections 44907 and 44923, and Sections 44932 to 44947, inclusive, relating to the dismissal of permanent employees. (c) A plea or verdict of guilty, or finding of guilt by a court in a trial without a jury, or a conviction following a plea of nolo contendere is deemed to be a conviction within the meaning of Sections 44836 and 45123, irrespective of a subsequent order for probation suspending the imposition of a sentence or an order under Section 1203.4 of the Penal Code allowing the withdrawal of the plea of guilty and entering a plea of not guilty, or setting aside the verdict of guilty, or dismissing the accusations or information. The record of conviction shall be sufficient proof of conviction of a crime involving moral turpitude for the purposes of Section 44907 and Sections 44932 to 44947, inclusive, relating to the dismissal of permanent employees. SEC. 2. Section 44242.5 of the Education Code is amended to read: 44242.5. (a) Each allegation of an act or omission by an applicant for, or holder of, a credential for which he or she may be subject to an adverse action shall be presented to the Committee of Credentials. (b) The committee has jurisdiction to commence an initial review upon receipt of any of the following: (1) (A) Official records of the Department of Justice, of a law enforcement agency, of a state or federal court, and of any other agency of this state or another state. (B) For purposes of subparagraph (A), "agency of this state" has the same meaning as that of "state agency" as set forth in Section 11000 of the Government Code. (2) An affidavit or declaration signed by person or persons with personal knowledge of the acts alleged to constitute misconduct. (3) (A) A statement from an employer notifying the commission that, as a result of, or while an allegation of misconduct is pending, a credential holder has been dismissed, nonreelected, suspended for more than 10 days, or placed pursuant to a final adverse employment action on unpaid administrative leave for more than 10 days, or has resigned or otherwise left employment. (B) The employer shall provide the notice described in subparagraph (A) to the commission not later than 30 days after the dismissal, nonreelection, suspension, placement on unpaid administrative leave, resignation, or departure from employment of the employee. (4) A notice from an employer that a complaint was filed with the school district alleging sexual misconduct by a credential holder. Results of an investigation by the committee based on this paragraph shall not be considered for action by the committee unless there is evidence presented to the committee in the form of a written or oral declaration under penalty of perjury that confirms the personal knowledge of the declarant regarding the acts alleged to constitute misconduct. (5) A notice from a school district, employer, public agency, or testing administrator of a violation of Section 44420, 44421.1, 44421.5, or 44439. (6) (A) An affirmative response on an application submitted to the commission as to any conviction, adverse action on, or denial of, a license, or pending investigation into a criminal allegation or pending investigation of a noncriminal allegation of misconduct by a governmental licensing entity. (B) Failure to disclose any matter set forth in subparagraph (A). (c) An initial review commences on the date that the written notice is mailed to the applicant or credential holder that his or her fitness to hold a credential is under review. Upon commencement of a formal review pursuant to Section 44244, the committee shall investigate all alleged misconduct and the circumstances in mitigation and aggravation. The investigation shall include, but not be limited to, all of the following: (1) Investigation of the fitness and competence of the applicant or credential holder to perform the duties authorized by the credential for which he or she has applied or that he or she presently holds. (2) Preparation of a summary of the applicable law, a summary of the facts, contested and uncontested, and a summary of any circumstances in aggravation or mitigation of the allegation. (3) Determination of probable cause for an adverse action on the credential. If the allegation is for unprofessional or immoral conduct, the committee, in any formal review conducted pursuant to Section 44244 to determine probable cause, shall permit the employer of the credential holder to be present while testimony is taken. If the allegation of unprofessional or immoral conduct involves sexual abuse, the employer shall be examined in the meeting for any relevant evidence relating to the sexual abuse. (A) If the committee determines that probable cause for an adverse action does not exist, the committee shall terminate the investigation. (B) If the committee determines that probable cause for an adverse action on the credential exists, upon receipt of a request from an applicant or a credential holder pursuant to Section 44244.1, the commission shall initiate an adjudicatory hearing, as prescribed by Chapter 5 (commencing with Section 11500) of Division 3 of Title 2 of the Government Code, by filing an accusation or statement of issues. (d) The committee has jurisdiction to commence a formal review pursuant to Section 44244 upon receipt of any of the following: (1) (A) Official records of a state or federal court that reflect a conviction or plea, including a plea of nolo contendere, to a criminal offense or official records of a state court that adjudge a juvenile to be a dependent of the court pursuant to Section 300 of the Welfare and Institutions Code due to allegations of sexual misconduct or physical abuse by a credential holder or applicant. (B) Nothing in subparagraph (A) shall be construed to relieve the commission from the confidentiality provisions, notice, and due process requirements set forth in Section 827 of the Welfare and Institutions Code. (2) An affidavit or declaration signed by a person or persons with personal knowledge of the acts alleged to constitute misconduct. (3) A statement described in paragraph (3) of subdivision (b). (4) Official records of a governmental licensing entity that reflect an administrative proceeding or investigation, otherwise authorized by law or regulation, which has become final. (5) A notice described in paragraph (5) of subdivision (b). (6) A response or failure to disclose, as described in paragraph (6) of subdivision (b). (e) (1) Upon completion of its investigation, the committee shall report its actions and recommendations to the commission, including its findings as to probable cause, and if probable cause exists, its recommendations as to the appropriate adverse action. (2) The findings shall be available, upon its request, to the employing or last known employing school district, or, if adverse action is recommended by the committee and the credential holder has not filed a timely appeal of the recommendation of the committee pursuant to Section 44244.1, upon a request made within five years of the date of the committee's recommendations to a school district providing verification that the credential holder has applied for employment in the district. The findings, for all purposes, shall remain confidential and limited to school district personnel in a direct supervisory capacity in relation to the person investigated. Any person who otherwise releases findings received from the committee or the commission, absent a verified release signed by the person who is the subject of the investigation, shall be guilty of a misdemeanor. (3) The findings shall not contain any information that reveals the identity of persons other than the person who is the subject of the investigation. (f) (1) Except as provided in paragraph (2) and, notwithstanding subdivision (b), for purposes of determining whether jurisdiction exists under subdivision (b), the commission, in accordance with Section 44341, may make inquiries and requests for production of information and records only from the Department of Justice, a law enforcement agency, a state or federal court, and a licensing agency of this state or a licensing agency of another state. (2) For purposes of determining whether jurisdiction exists, paragraph (1) does not apply to release of personnel records. SEC. 3. Section 44425 of the Education Code is amended to read: 44425. (a) Whenever the holder of a credential issued by the state board or the Commission on Teacher Credentialing has been convicted of a sex offense, as defined in Section 44010, or controlled substance offense, as defined in Section 44011, the commission immediately shall suspend the credential. If the conviction is reversed and the holder is acquitted of the offense in a new trial or the charges against him or her are dismissed, the commission immediately shall terminate the suspension of the credential. When the conviction becomes final or when imposition of sentence is suspended, the commission immediately shall revoke the credential. (b) (1) Notwithstanding subdivision (a) and Section 44009, if the holder of a credential enters a plea of nolo contendere for a violation of subdivision (d) of Section 647 of the Penal Code, the commission of a sex offense as defined in Section 44010, all credentials held by the individual shall be suspended until a final disposition regarding those credentials is made by the commission. Any action that the commission is permitted to take following a conviction may be taken after the time for appeal has elapsed, the judgment of conviction has been confirmed on appeal, or when an order granting probation is made suspending the imposition of sentence and the time of appeal has elapsed or the judgment of conviction has been affirmed on appeal, irrespective of a subsequent order pursuant to Section 1203.4 of the Penal Code. (2) The Legislature shall convene a working group of interested parties including, but not limited to, the commission, civil rights organizations, and organizations that represent teachers, administrators, county offices of education, school districts, school boards, and parents to study Sections 44010, 44011, and 44424, and to provide a report on its findings on or before December 1, 2009. (c) Notwithstanding any other law, revocation shall be final without possibility of reinstatement of the credential if the conviction is for a felony sex offense, as defined in Section 44010, or a felony controlled substance offense, as defined in Section 44011, in which an element of the controlled substance offense is either the distribution to, or use of a controlled substance by, a minor. (d) (1) Notwithstanding any other provision of law, the commission immediately shall suspend the credential of any holder who is required to register as a sex offender pursuant to either of the following: (A) Section 290 of the Penal Code. (B) A law of any other state or of the United States when the underlying offense, if committed in this state, would require registration as a sex offender pursuant to Section 290 of the Penal Code. (2) If the conviction requiring registration as a sex offender is reversed on appeal and the holder is acquitted at a new trial or if the charges against the holder are dismissed as a result of the reversal, upon notice, the commission shall immediately reinstate the credential. (3) The commission immediately shall revoke a credential based on a conviction requiring registration as a sex offender when the time for appeal has elapsed, the judgment of conviction has been affirmed on appeal, or an order granting probation is made suspending the imposition of sentence and the time for appeal has elapsed. (e) A credential holder whose credential has not been revoked pursuant to subdivision (a) as a result of a misdemeanor sex offense, as defined in Section 44010, that does not require registration as a sex offender as set forth in subdivision (c), may apply for reinstatement of his or her credential pursuant to Section 11522 of the Government Code if the accusation or information against the holder has been dismissed and he or she has been released from all disabilities and penalties resulting from the offense pursuant to Section 1203.4 of the Penal Code or the equivalent statute in another federal or state jurisdiction.