BILL ANALYSIS �
SENATE COMMITTEE ON EDUCATION
Alan Lowenthal, Chair
2011-12 Regular Session
BILL NO: SB 266
AUTHOR: Dutton
AMENDED: March 24, 2011
FISCAL COMM: No HEARING DATE: May 11, 2011
URGENCY: No CONSULTANT:Beth Graybill
SUBJECT : Education employment: Opportunity for substitute
service.
SUMMARY
This bill temporarily suspends, from January 1, 2012, to June
30, 2015, the requirement that laid-off teachers who
substitute for at least 21 days be compensated at their old
rate of pay and prohibits local educational agencies from
creating vacancies and filling them with a substitute
employee, as defined.
BACKGROUND
Existing law requires school districts undergoing layoffs to
terminate certificated employees in the inverse of the order
in which they were employed and specifies that for a period
of 39 months from the date of termination, a permanent
teacher, who in the meantime has not turned 65, has
preferential rights to reappointment and substitute service
in order of seniority. Existing law provides probationary
employees preferred rights for a period of 24 months.
(Education Code � 44955,
� 44956, and � 44957)
During a permanent employee's 39-month period of preferred
right to reappointment, a laid-off employee who serves as a
substitute in a position requiring certification for any 21
days or more within a period of 60 schooldays must be paid
not less than the amount the employee would receive if he or
she were being reappointed. That rate of pay is also
retroactive to the first 20 days of substitute service. (EC
� 44956)
Existing law authorizes a governing board of a school
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district to employ substitute employees and requires
governing boards to adopt and make public a salary schedule
setting the daily or pay period rate or rates for substitute
employees.
(EC � 45030)
ANALYSIS
This bill :
1) Temporarily deletes the requirement that a laid-off
employee receive his or her per diem rate of pay when
substituting for any 21 days or more within a period of
60 schooldays; reinstates the requirement effective July
1, 2015.
2) Prohibits a local educational agency from creating a
vacant position, as defined, and subsequently filling
that position with a substitute employee.
3) Makes various technical and nonsubstantive clarifying
changes.
STAFF COMMENTS
1) Need for the bill : According to the author's office,
the requirement to pay laid-off teachers their old
salary rate results in millions of dollars in higher
costs for school districts. In normal budge years, the
requirement is generally a non-issue and serves to
protect teachers from being laid off then being rehired
to serve as a substitute at a lower rate of pay.
However following multiple years of layoffs that are now
including permanent teachers, many districts are finding
that the pay requirement significantly increases their
substitute costs, resulting in more layoffs than would
otherwise be necessary in order to achieve required
budget savings. The Legislative Analyst has recently
recommended that this requirement be eliminated, noting
that "it imposes a financial strain on districts by
forcing them to hire the most expensive substitute
teachers." The author maintains that temporarily
eliminating this requirement would help schools manage
their budgets during the fiscal crisis, which may help
districts avoid additional cuts to programs and
services.
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2) Substitute teachers . Generally speaking, substitutes
work on a daily or hourly basis and can earn between
$100 and $150 a day depending on the district and the
length of the assignment. Substitutes who work in
"day-to-day" assignments deliver instruction following
lesson plans developed by the regular teacher of record
for that classroom. Substitutes who work in long-term
teaching assignments typically earn more than day-to-day
subs because they have more responsibility for the
instructional program within the class to which they are
assigned, including developing daily lesson plans.
Although laid-off teachers who provide substitute
service don't have the same level of responsibility they
had when they were permanent employees, current law
requires districts to pay them at their former rate of
pay if they substitute at least 21 days (consecutive or
not), within a period of 60 school days and requires
that per diem rate to be paid retroactively. The per
diem rate for a permanent teacher who is laid off can be
more than twice a district's regular pay rate for
substitute teachers. While it could be argued that
fewer classes should reduce the number of substitutes a
district might need on any given day, some districts
have found the need for substitutes has remained fairly
constant.
3) Priority for service and pay requirement . The state's
extraordinary fiscal crisis has resulted in layoffs of
thousands of teachers statewide. As districts have
experienced multiple years of layoffs, some districts
now have a number of permanent teachers on their
substitute rolls who get first call for any substitute
job and are entitled to their full rate of pay once they
have served at least 21 days in one or more substitute
assignments.
Anecdotal evidence suggests that the costs of this pay
requirement offset much of the savings a district could
otherwise achieve from a reduction in force, especially
for districts whose layoff lists now include permanent
teachers. At least one district has indicated that it
saved only $300,000 of the $1.3 million it expected to
save in the 2009-2010 school year because the district
had to pay so many laid-off teachers their customary
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wage when they served as substitute teachers.
Folsom-Cordova Unified School District in northern
California estimates it will spend $300,000 more in
substitute costs for the 2010-11 school year than the
$700,000 it normally budgets for substitutes, while the
Riverside Unified School District estimates its
substitute costs will increase this year by $268,000
over 2009-10.
While an argument could be made that the existing pay
requirement helps new teachers weather the storm of a
layoff, staff note that laid-off teachers are generally
also eligible for unemployment insurance benefits
beginning the summer following the layoff date,
generally one week after the school year in which they
received their layoff notice. (The benefits are
prorated when the teacher provides substitute service.)
By leaving the preference to service in place and temporarily
suspending the pay requirement, this bill could give
districts the flexibility they need to manage costs
during the budget crisis. However, some have expressed
concern that, notwithstanding recent amendments that
would prohibit a local educational agency from filling a
newly created position with a substitute employee, could
this bill create an incentive for districts to
underestimate the number of teachers it might reinstate
and fill any remaining vacancies with substitute
teachers?
4) Budget implications . While this bill is consistent with
the Legislative Analyst's recommendations, is not yet
clear whether districts will need the relief this bill
provides given that proposals for the 2011-12 Budget
maintain current funding levels for schools. Should the
policy proposed by this bill be considered in light of
other budget solutions the legislature may need to
consider if the Legislature or voters reject the
Governor's tax proposals? Would it make sense to
temporarily lift the pay requirement for one year
instead of three years?
5) Related and prior legislation .
SB 257 (Liu) encourages school districts to include in its
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evaluation and assessment guidelines, specific
information relating to current best teaching practices
and authorizes a school district to include additional
criteria into the evaluation and assessment of
certificated employees. This bill was passed by this
Committee on April 27, 2011 on a 9-0 vote.
SB 355 (Huff) authorizes school districts to, among other
things, deviate from the order of seniority during a
layoff to meet specific needs, for purposes of
equal protection of pupils, or on the basis of
performance evaluations as specified. This measure is
scheduled to be heard by this Committee on
May 11, 2011.
AB 1034 (Gatto) - eliminates the age limit of 65 years
and temporarily eliminates, until July 1, 2015, the
39-month limitation for employees terminated commencing
with the 2007-08 school year.
AB 1262 (Dickinson) - eliminates the age limit of 65
years and temporarily eliminates the 39-month and
24-month limitation on the right to reappointment until
July 1, 2016.
SB 955 (Huff, 2010) would have made various changes to
statutes governing staffing notification deadlines,
layoff and dismissal procedures, and reemployment
preferences pertaining to certificated educators. This
bill was heard and passed by this Committee on a 5-4
vote and was subsequently held by the Senate Rules
Committee.
SUPPORT
Alvord Unified School District
Association of California School Administrators
California Association of School Business Officials
California County Superintendents Educational Services
Association
Clovis Unified School District
Coachella Valley Unified School District
Corona-Norco Unified School District
Desert Sands Unified School District
Fruitvale School District
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Hemet Unified School District
Jurupa Unified School District
Kern County Superintendent of Schools
Los Angeles Unified School District
Menifee Union School District
Orange County Department of Education
Palm Springs Unified School District
Perris Elementary School District
Richland School District
Riverside County School Superintendents Association
Riverside County Superintendent of Schools
San Diego County Office of Education
San Jacinto Unified School District
Standard School District
Temecula Valley Unified School District
OPPOSITION
American Federation of State, County and Municipal Employees,
AFL-CIO
California Federation of Teachers
California School Employees Association
California Teachers Association
United Teachers of Los Angeles