BILL NUMBER: AB 2028	AMENDED
	BILL TEXT

	AMENDED IN ASSEMBLY  MARCH 22, 2012

INTRODUCED BY   Assembly  Member   Knight
  Members   Knight   and Smyth 
    (   Coauthors:   Assembly Members 
 Achadjian,   Bill Berryhill,   Conway, 
 Cook,   Donnelly,   Fletcher,   Beth
Gaines,   Garrick,   Grove,   Hagman,
  Halderman,   Harkey,   Jeffries, 
 Jones,   Logue,   Mansoor,   Miller,
  Morrell,   Nestande,   Nielsen, 
 Norby,   Olsen,   Silva,   Valadao,
  and Wagner   ) 

                        FEBRUARY 23, 2012

   An act to  add Section 17582 to the Government Code,
relating to state-mandated local costs.   amend 
 Sections 44936, 44938, 44944, and 44945 of, and to add Sections
44932.5 and 44940.7 to, the Education Code, relating to school
employees. 



	LEGISLATIVE COUNSEL'S DIGEST


   AB 2028, as amended, Knight.  State-mandated local costs.
  School employees: discipline: suspension and
dismissal.  
   (1) Existing law prohibits a permanent school employee from being
dismissed except for one or more specified offenses.  
   This bill would prohibit a collective bargaining agreement entered
into or renewed on or after January 1, 2013, from requiring the
removal, after a specified time period, from an employee's record of
records pertaining to discipline, complaints, reprimands, or
investigations relating to the employee's commission, or potential
commission, of one of those specified offenses.  
   (2) Existing law authorizes a governing board of a school district
to give notice to a permanent employee of its intention to dismiss
or suspend him or her for specified causes at the expiration of 30
days from the date of service of the notice, unless the employee
demands a hearing. Existing law prohibits that notice from being
given between May 15th and September 15th in any year.  
   This bill would remove that prohibition.  
   (3) Existing law prohibits the governing board of a school
district from acting upon any charges of unprofessional conduct, or
unsatisfactory performance, unless at least 45, or 90, calendar days,
respectively, prior to the date of the filing of the charges the
governing board, or its authorized representative, has given the
employee written notice, as specified.  
   This bill would remove those 45-day and 90-day requirements. 

   (4) Existing law requires the governing board of a school district
to immediately place an employee on compulsory leave of absence if
the employee is charged with a mandatory leave of absence offense, as
defined.  
   This bill would require the governing board to transfer a
certificated employee to nonclassroom duties that do not involve
contact with pupils if the governing board has reasonable cause to
believe that the employee is under investigation by a law enforcement
agency for commission of a mandatory leave of absence offense. The
bill would require an employee transferred under these provisions to
continue to receive his or her regular salary during the period of
the transfer. If the governing board returns the employee to
classroom duties, the bill would require the governing board to
record the reason or reasons for the return in a resolution adopted
by the governing board. By placing additional duties on school
district governing boards regarding the transfer of employee duties,
this bill would impose a state-mandated local program. 
   (5) Existing law establishes a Commission on Professional
Competence for each dismissal or suspension hearing requested by an
employee, consisting of specified members. Existing law deems the
decision of the Commission on Professional Competence to be the final
decision of the governing board of the school district.  
   This bill would make various changes to the provisions relating to
the hearing, including requiring the Commission on Professional
Competence to consist solely of an administrative law judge, as well
as providing that the decision of the commission would be advisory,
and the final decision regarding the discipline of the employee would
be determined by action of the governing board of the school
district. The bill would provide that an employee requesting a
hearing may be placed on administrative leave without pay, and that
an employee who is placed on administrative leave would be required
to be paid his or her regular salary if he or she furnishes to the
school district acceptable security, as specified.  
   (6) Existing law prohibits testimony from being given or evidence
being introduced at the hearing relating to matters that occurred
more than 4 years prior to the date of the filing of the notice of
dismissal or suspension.  
   This bill would remove that 4-year limitation.  
   (7) This bill would make nonsubstantive and conforming changes.
 
   (8) The California Constitution requires the state to reimburse
local agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.  
   This bill would provide that, if the Commission on State Mandates
determines that the bill contains costs mandated by the state,
reimbursement for those costs shall be made pursuant to these
statutory provisions.  
   Under the California Constitution, whenever the Legislature or a
state agency mandates a new program or higher level of service on any
local government, including a school district and a community
college district, the state is required to provide a subvention of
funds to reimburse the local government, with specified exceptions.
Existing law provides that a local agency, including a school
district or community college district, is not required to implement
or give effect to any statute or executive order, or portion thereof,
that imposes a mandate during any fiscal year and for the period
immediately following that fiscal year for which the Budget Act has
not been enacted for the subsequent fiscal year if specified
conditions are met, including that the statute or executive order, or
portion thereof, has been specifically identified by the Legislature
in the Budget Act for the fiscal year as being one for which
reimbursement is not provided for that fiscal year. Existing law
provides that only specified education mandates are subject to that
provision.  
   This bill would provide if the Commission on State Mandates
determines that a statute or portion of a statute, enacted on or
after January 1, 2012, mandates a new program or higher level of
service requiring the reimbursement of school districts or community
college districts, school districts or community college districts
are not required to implement or give effect to the statute, or a
portion of the statute, unless the Controller certifies to the State
Department of Education and the Chancellor of Community Colleges that
the Budget Act for that fiscal year includes the amount necessary to
reimburse school districts and community college districts, as
specified. The bill would require the department and Chancellor to
notify school districts and community college districts of the
statutes, or portions of statutes, that are not required to be
implemented for that fiscal year. 
   Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program:  no   yes  .


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

   SECTION 1.    Section 44932.5 is added to the 
 Education Code   , to read:  
   44932.5.  A collective bargaining agreement entered into or
renewed on or after January 1, 2013, shall not require the removal,
after a specified time period, from an employee's record of records
pertaining to discipline, complaints, reprimands, or investigations
relating to the employee's commission, or potential commission, of an
offense listed in Section 44932. 
   SEC. 2.    Section 44936 of the  Education
Code   is amended to read: 
   44936.  The notice of dismissal or suspension in a proceeding
initiated pursuant to Section 44934 shall  not be given
between May 15th and September 15th in any year. It shall 
be in writing and be served upon the employee personally or by United
States registered mail addressed to  him   the
employee  at  his   the employee's 
last known address. A copy of the charges filed, containing the
information required by Section 11503 of the Government Code,
together with a copy of the provisions of this article, shall be
attached to the notice.
   SEC. 3.    Section 44938 of the   Education
Code   is amended to read: 
   44938.  (a) The governing board of any school district shall not
act upon any charges of unprofessional conduct unless  at
least 45 calendar days prior to the date of the filing,  the
 governing  board or its authorized representative has
given the employee against whom the charge is filed  ,
 written notice of the unprofessional conduct, specifying
the nature  thereof   of the unprofessional
conduct  with  such  specific instances of
behavior and with  such  particularity as to furnish
the employee an opportunity to correct his or her faults and
overcome the grounds for the charge. The written notice shall include
the evaluation made pursuant to Article 11 (commencing with Section
44660) of Chapter 3, if applicable to the employee.
   (b) The governing board of any school district shall not act upon
any charges of unsatisfactory performance unless it acts in
accordance with the provisions of paragraph (1) or (2):
   (1)  At least 90 calendar days prior to the date of the
filing, the   The   governing  board or
its authorized representative has given the employee against whom the
charge is filed, written notice of the unsatisfactory performance,
specifying the nature  thereof   of the
unsatisfactory performance  with  such 
specific instances of behavior and with  such 
particularity as to furnish the employee an opportunity to correct
his or her faults and overcome the grounds for the charge. The
written notice shall include the evaluation made pursuant to Article
11 (commencing with Section 44660) of Chapter 3, if applicable to the
employee.
   (2) The governing board may act during the time period composed of
the last one-fourth of the schooldays it has scheduled for purposes
of computing apportionments in any fiscal year if,  prior to
  before  the beginning of that time period, the
 governing  board or its authorized representative has given
the employee against whom the charge is filed  , 
written notice of the unsatisfactory performance, specifying the
nature  thereof   of the unsatisfactory
performance  with  such  specific instances of
behavior and with  such  particularity as to furnish
the employee an opportunity to correct his or her faults and
overcome the grounds for the charge. The written notice shall include
the evaluation made pursuant to Article 11 (commencing with Section
44660) of Chapter 3, if applicable to the employee. 
   (c) "Unsatisfactory performance" as used in this section means,
and refers only to, the unsatisfactory performance particularly
specified as a cause for dismissal in Section 44932 and does not
include any other cause for dismissal specified in Section 44932.
 
   "Unprofessional 
    (c)     (1)    
"Unprofessional  conduct" as used in this section means, and
refers to, the unprofessional conduct particularly specified as a
cause for dismissal or suspension in Sections 44932 and 44933 and
does not include any other cause for dismissal specified in Section
44932. 
   (2) "Unsatisfactory performance" as used in this section means,
and refers only to, the unsatisfactory performance particularly
specified as a cause for dismissal in Section 44932 and does not
include any other cause for dismissal specified in Section 44932.

   SEC. 4.    Section 44940.7 is added to the  
Education Code   , to read:  
   44940.7.  (a) The governing board shall transfer a certificated
employee to nonclassroom duties that do not involve contact with
pupils if the governing board has reasonable cause to believe that
the employee is under investigation by a law enforcement agency for
commission of a mandatory leave of absence offense within the meaning
of subdivision (a) of Section 44940.
   (b) An employee transferred pursuant to this section shall
continue to receive his or her regular salary during the period of
the transfer.
   (c) If the governing board returns the certificated employee to
classroom duties that involve contact with pupils, the governing
board shall record the reason or reasons for the return in a
resolution adopted by the governing board. 
   SEC. 5.    Section 44944 of the   Education
Code   is amended to read: 
   44944.  (a) (1) In a dismissal or suspension proceeding initiated
pursuant to Section 44934, if a hearing is requested by the employee,
the hearing shall be commenced within 60 days from the date of the
employee's demand for a hearing. The hearing shall be initiated,
conducted, and a decision made in accordance with Chapter 5
(commencing with Section 11500) of Part 1 of Division 3 of Title 2 of
the Government Code. However, the hearing date shall be established
after consultation with the employee and the governing board, or
their representatives, and the Commission on Professional Competence
shall have all of the power granted to an agency in that chapter,
except that the right of discovery of the parties shall not be
limited to those matters set forth in Section 11507.6 of the
Government Code but shall include the rights and duties of any party
in a civil action brought in a superior court under Title 4
(commencing with Section 2016.010) of Part 4 of the Code of Civil
Procedure. Notwithstanding any provision to the contrary, and except
for the taking of oral depositions, no discovery shall occur later
than 30 calendar days after the employee is served with a copy of the
accusation pursuant to Section 11505 of the Government Code. In all
cases, discovery shall be completed prior to seven calendar days
before the date upon which the hearing commences. If any continuance
is granted pursuant to Section 11524 of the Government Code, the time
limitation for commencement of the hearing as provided in this
subdivision shall be extended for a period of time equal to the
continuance. However, the extension shall not include that period of
time attributable to an unlawful refusal by either party to allow the
discovery provided for in this section.
   (2) If the right of discovery granted under paragraph (1) is
denied by either the employee or the governing board, all of the
remedies in Chapter 7 (commencing with Section 2023.010) of Title 4
of Part 4 of the Code of Civil Procedure shall be available to the
party seeking discovery  ,  and the court of proper
jurisdiction  ,  to entertain his or her motion
 ,  shall be the superior court of the county in
which the hearing will be held.
   (3) The time periods in this section and of Chapter 5 (commencing
with Section 11500) of Part 1 of Division 3 of Title 2 of the
Government Code and of Title 4 (commencing with Section 2016.010) of
Part 4 of the Code of Civil Procedure shall not be applied so as to
deny discovery in a hearing conducted pursuant to this section.
   (4) The superior court of the county in which the hearing will be
held may, upon motion of the party seeking discovery, suspend the
hearing so as to comply with the requirement of  the
preceding  paragraph  (3)  .
   (5)  No   A    witness shall
 not  be permitted to testify at the hearing except upon
oath or affirmation.  No testimony shall be given or evidence
introduced relating to matters that occurred more than four years
prior to the date of the filing of the notice. Evidence of records
regularly kept by the governing board concerning the employee may be
introduced, but no decision relating to the dismissal or suspension
of any employee shall be made based on charges or evidence of any
nature relating to matters occurring more than four years prior to
the filing of the notice. 
   (b)  (1)    The hearing provided
for in this section shall be conducted by a Commission on
Professional Competence  . One member of the commission shall
be selected by the employee, one member shall be selected by the
governing board, and one member shall be an administrative law judge
of the Office of Administrative Hearings who shall be chairperson and
a voting member of the commission and shall be responsible for
assuring that the legal rights of the parties are protected at the
hearing. If either the governing board or the employee for any reason
fails to select a commission member at least seven calendar days
prior to the date of the hearing, the failure shall constitute a
waiver of the right to selection, and the county board of education
or its specific designee shall immediately make the selection. If the
county board of education is also the governing board of the school
district or has by statute been granted the powers of a governing
board, the selection shall be made by the Superintendent, who shall
be reimbursed by the school district for all costs incident to the
selection.   ,   which shall consist solely of
an administrative law judge of the Office of Administrative Hearings
who shall be responsible for ensuring that the legal rights of the
parties are protected at the hearing.  
   (2) The member selected by the governing board and the member
selected by the employee shall not be related to the employee and
shall not be employees of the district initiating the dismissal or
suspension and shall hold a currently valid credential and have at
least five years' experience within the past 10 years in the
discipline of the employee. 
   (c) (1) The  decision of the  Commission on
Professional Competence  shall be made by a majority vote,
and the commission  shall prepare a written decision
containing findings of fact, determinations of issues, and a
disposition that shall be, solely, one of the following:
   (A) That the employee should be dismissed.
   (B) That the employee should be suspended for a specific period of
time without pay.
   (C) That the employee should not be dismissed or suspended.
   (2) The decision of the  Commission on Professional
Competence   commission  that the employee should
not be dismissed or suspended shall not be based on nonsubstantive
procedural errors committed by the school district or governing board
unless the errors are prejudicial errors.
   (3) The commission shall not have the power to dispose of the
charge of dismissal by imposing probation or other alternative
sanctions. The imposition of suspension pursuant to subparagraph (B)
of paragraph (1) shall be available only in a suspension proceeding
authorized pursuant to subdivision (b) of Section 44932 or Section
44933.
   (4) The decision of the  Commission on Professional
Competence shall be deemed to be the final decision of the governing
board.   commission shall be   advisory, and
the final decision regarding the discipline of the employee shall be
determined by action of the governing board of the school district.

   (5) The  governing  board may adopt from time to time
rules and procedures not inconsistent with this section as may be
necessary to effectuate this section.
   (6) The governing board and the employee shall have the right to
be represented by counsel. 
   (d) (1) If the member selected by the governing board or the
member selected by the employee is employed by any school district in
this state, the member shall, during any service on a Commission on
Professional Competence, continue to receive salary, fringe benefits,
accumulated sick leave, and other leaves and benefits from the
district in which the member is employed, but shall receive no
additional compensation or honorariums for service on the commission.
 
   (2) If service on a Commission on Professional Competence occurs
during summer recess or vacation periods, the member shall receive
compensation proportionate to that received during the current or
immediately preceding contract period from the member's employing
district, whichever amount is greater.  
   (e) 
    (d)  (1) If the  Commission on Professional
Competence   governing board  determines that the
employee should be dismissed or suspended, the governing board and
the employee shall share equally the expenses of the hearing,
including the cost of the administrative law judge.  The
state shall pay any costs incurred under paragraph (2) of subdivision
(d), the reasonable expenses, as determined by the administrative
law judge, of the member selected by the governing board and the
member selected by the employee, including, but not limited to,
payments or obligations incurred for travel, meals, and lodging, and
the cost of the substitute or substitutes, if any, for the member
selected by the governing board and the member selected by the
employee.  The Controller shall pay all claims submitted
pursuant to this paragraph from the General Fund, and may prescribe
reasonable rules, regulations, and forms for the submission of the
claims. The employee and the governing board shall pay their own
attorney's fees.
   (2) If the Commission on Professional Competence 
 governing board  determines that the employee should not
be dismissed or suspended, the governing board shall pay the expenses
of the hearing, including the cost of the administrative law judge
 , any costs incurred under paragraph (2) of subdivision (d),
the reasonable expenses, as determined by the administrative law
judge, of the member selected by the governing board and the member
selected by the employee, including, but not limited to, payments or
obligations incurred for travel, meals, and lodging, the cost of the
substitute or substitutes, if any, for the member selected by the
governing board and the member selected by the employee, and
reasonable attorney's fees incurred by the employee  .

   (3) As used in this section, "reasonable expenses" shall not be
deemed "compensation" within the meaning of subdivision (d).
 
   (4) 
    (3)  If  either the governing board or 
the employee petitions a court of competent jurisdiction for review
of the decision of the  commission   governing
board  , the payment of expenses to  members of the
commission   the administrative law judge  required
by this subdivision shall not be stayed. 
   (5) (A) 
    (4)    If the decision of the 
commission   governing board  is finally reversed
or vacated by a court of competent jurisdiction,  either the
state, having paid the commission members' expenses, shall be
entitled to reimbursement from the governing board for those
expenses, or the governing board, having paid the expenses, shall be
entitled to reimbursement from the state. 
    (B)     Additionally,
either  the employee, having paid a portion of the expenses
of the hearing, including the cost of the administrative law judge,
shall be entitled to reimbursement from the governing board for the
expenses  , or the governing board, having paid its portion
and the employee's portion of the expenses of the hearing, including
the cost of the administrative law judge, shall be entitled to
reimbursement from the employee for that portion of the expenses
 . 
   (f) 
    (e)  The hearing provided for in this section shall be
conducted in a place selected by agreement  among the members
of the commission  . In the absence of agreement, the place
shall be selected by the administrative law judge. 
   (f) (1) For the duration of the hearing conducted pursuant to this
section, the employee may be placed on administrative leave without
pay.  
   (2) If an employee is placed on administrative leave pursuant to
this section, the employee shall continue to be paid his or her
regular salary during the period of his or her administrative leave
of absence if during that time he or she furnishes to the school
district a suitable bond or other security acceptable to the
governing board, as a guarantee that the school district will be
repaid the amount of salary during the employee's leave of absence
if, by action of the governing board, a final decision is made to
terminate the employee, or the employee fails or refuses to return to
service following a decision not to terminate the employee. If the
governing board determines that the employee should not be dismissed,
the governing board shall reimburse the employee for the cost of the
bond upon his or her return to service in the school district. 

   (3) If the employee prevails at the hearing, the administrative
law judge may recommend a suitable compensatory remedy, including
back wages and benefits, which the governing board may adopt if the
employee is reinstated. An employee who is reinstated pursuant to
this section, either by the governing board or by order of a court of
competent jurisdiction, is entitled to reasonable back wages and
benefits. 
   SEC. 6.    Section 44945 of the   Education
Code   is amended to read: 
   44945.  The decision of the  Commission on Professional
Competence   governing board  may, on petition of
 either the governing board or  the employee, be
reviewed by a court of competent jurisdiction in the same manner as a
decision made by a hearing officer under Chapter 5 (commencing with
Section 11500) of Part 1 of Division 3 of Title 2 of the Government
Code. The court, on review, shall exercise its independent judgment
on the evidence. The proceeding shall be set for hearing at the
earliest possible date and shall take precedence over all other
cases, except older matters of the same character and matters to
which special precedence is given by law.
   SEC. 7.    If the Commission on State Mandates
determines that this act contains costs mandated by the state,
reimbursement to local agencies and school districts for those costs
shall be made pursuant to Part 7 (commencing with Section 17500) of
Division 4 of Title 2 of the Government Code.  
  SECTION 1.    Section 17582 is added to the
Government Code, to read:
   17582.  Commencing with the 2013-14 fiscal year, if the Commission
on State Mandates determines that a statute or portion of a statute,
enacted on or after January 1, 2012, mandates a new program or
higher level of service requiring the reimbursement of school
districts or community college districts pursuant to Section 6 of
Article XIII B of the California Constitution, a school district or
community college district shall not be required to implement or give
effect to the statute, or a portion of the statute, unless the
Controller certifies to the State Department of Education and the
Chancellor of the California Community Colleges within 15 days after
the Budget Act is enacted that the Budget Act includes the full
amount necessary to reimburse school districts and community college
districts, as determined by the parameters and guidelines prepared by
the commission regarding a particular statute or portion of a
statute. Each fiscal year, within 15 days after notification by the
Controller, the State Department of Education and the Chancellor of
the California Community Colleges shall notify school districts and
community college districts of the statutes, or portions of statutes,
that are not required to be implemented for that fiscal year because
the Budget Act as enacted does not include reimbursement funding.