BILL NUMBER: SB 1530	AMENDED
	BILL TEXT

	AMENDED IN SENATE  MAY 25, 2012
	AMENDED IN SENATE  APRIL 26, 2012
	AMENDED IN SENATE  MARCH 27, 2012

INTRODUCED BY   Senator Padilla

                        FEBRUARY 24, 2012

   An act to amend Sections  44932,  44936, 44939, 44940,
and 44944 of the Education Code, relating to school employees.


	LEGISLATIVE COUNSEL'S DIGEST


   SB 1530, as amended, Padilla. School employees: dismissal,
suspension, and leave of absence procedures.
   (1) Under existing law, a permanent school employee is prohibited
from being dismissed, except for one or more of certain enumerated
causes, including for immoral or unprofessional conduct and
unsatisfactory performance. Upon a charging that there exists cause
for the dismissal or suspension of a permanent employee, existing law
authorizes the governing board of a school district to give notice
to the employee of its intention to dismiss or suspend the employee,
as specified. Existing law prohibits the governing board of a school
district from giving notice of dismissal or suspension of a permanent
employee between May 15 and September 15 of any year.
   This bill would  include serious or egregious unprofessional
conduct, as specified, as a   ground for dismissal of a
permanent school employee, and would  except from  that
  the  prohibition of giving notice  to the
employee  between  those dates,   May 15
and September 15  proceedings where the charges involve
specified offenses.
   (2) Existing law authorizes the governing board of a school
district to immediately suspend a permanent employee under specified
conditions, including immoral conduct, and give the employee notice
of the suspension, as specified.
   This bill would include serious or egregious unprofessional
conduct  , as defined,  within the conditions that a
governing board may immediately suspend a permanent employee.
   (3) Existing law provides that a certificated employee may be
charged with a mandatory leave of absence offense for certain
specified sex offenses or controlled substance offenses with the
exception of marijuana, mescaline, peyote, or tetrahydrocannabinols.
Existing law also provides that a certificated employee may be
charged with an optional leave of absence offense for certain
offenses, including controlled substance offenses, as specified, with
the exception of marijuana, mescaline, peyote, or
tetrahydrocannabinols. Existing law requires the governing board of a
school district to immediately place a certificated employee on
compulsory leave of absence if the employee is charged with a
mandatory leave of absence offense.
   This bill would remove marijuana, mescaline, peyote, and
tetrahydrocannabinols as exceptions to the controlled substance
offenses for which a certificated employee may be charged with a
mandatory leave of absence offense or an optional leave of absence
offense.
   Because this bill would increase the number of employees subject
to immediate placement on compulsory leave of absence, thereby
increasing the duties of school districts, the bill would impose a
state-mandated local program.
   (4) Existing law requires that a requested hearing on the
dismissal or suspension of a permanent employee be conducted by a
Commission on Professional Competence, as specified, and provides
that the decision of the commission is deemed to be the final
decision of the governing board of a school district. Existing law
prohibits testimony from being given and evidence from being
introduced relating to matters that occurred more than 4 years prior
to the filing of the notice, and prohibits a decision relating to the
dismissal or suspension of an employee from being made based on
charges or evidence relating to matters that occurred more than 4
years before the filing of the notice of charges for the dismissal or
suspension of the employee.
   This bill would, for hearings on the dismissal or suspension of a
permanent employee that involve certain sex offenses, controlled
substance offenses, or child abuse offenses, as specified, require
these hearings to be conducted solely by an administrative law judge
of the Office of Administrative Hearings and would provide that the
decision of the administrative law judge related to these specified
offenses would be advisory, and require the final decision regarding
the discipline of the employee to be determined by action of the
governing board of the school district, as specified. The bill would
require the governing board, before making its final determination,
to allow the employee to submit a written statement or response or,
at the election of the governing board, an oral statement concerning
the disciplinary action,  and to only consider the record
produced during the hearing conducted by the administrative law
judge,  and would require the governing board's final
determination to be subject to review and appeal, as specified. The
bill also would exempt hearings that involve these specified offenses
from the prohibition on giving testimony and introducing evidence
relating to matters that occurred more than 4 years before the date
of the filing of the notice, and would, for hearings that involve the
specified offenses, permit a decision relating to the dismissal or
suspension of an employee to be made based on charges or evidence
related to matters occurring more than 4 years before the date of the
filing of the notice of charges for the dismissal or suspension of
the employee.
   (5) This bill also would make nonsubstantive and conforming
changes to these provisions.
   (6) 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.
   Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.


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

   SECTION 1.    Section 44932 of the  
Education Code   is amended to read: 
   44932.  (a)  No   A  permanent employee
shall  not  be dismissed except for one or more of the
following causes:
   (1) Immoral  conduct  or unprofessional conduct. 
   (2) Serious or egregious unprofessional conduct as defined in
Section 44939.  
   (2) 
    (3)  Commission, aiding, or advocating the commission of
acts of criminal syndicalism, as prohibited by Chapter 188 of the
Statutes of 1919, or in any amendment thereof. 
   (3) 
   (4)  Dishonesty. 
   (4) 
    (5)  Unsatisfactory performance. 
   (5) 
    (6)  Evident unfitness for service. 
   (6) 
    (7)  Physical or mental condition unfitting him or her
to instruct or associate with children. 
   (7) 
    (8)  Persistent violation of or refusal to obey the
school laws of the state or reasonable regulations prescribed for the
government of the public schools by the  State Board of
Education   state board  or by the governing board
of the school district employing him or her. 
   (8) 
    (9)  Conviction of a felony or of  any 
 a  crime involving moral turpitude. 
   (9) 
    (10)  Violation of Section 51530 or conduct specified in
Section 1028 of the Government Code, added by Chapter 1418 of the
Statutes of 1947. 
   (10) 
    (11)  Knowing membership by the employee in the
Communist Party. 
   (11) 
    (12)  Alcoholism or other drug abuse  which
  that  makes the employee unfit to instruct or
associate with children.
   (b) The governing board of a school district may suspend without
pay for a specific period of time on grounds of unprofessional
conduct a permanent certificated employee or, in a school district
with an average daily attendance of less than 250 pupils, a
probationary employee, pursuant to the procedures specified in
Sections 44933, 44934, 44935, 44936, 44937, 44943, and 44944. This
authorization shall not apply to  any   a 
school district  which   that  has adopted
a collective bargaining agreement pursuant to subdivision (b) of
Section 3543.2 of the Government Code.
   SECTION 1.   SEC. 2.   Section 44936 of
the Education Code is amended to read:
   44936.  (a) The notice of dismissal or suspension in a proceeding
initiated pursuant to Section 44934 shall not be given between May 15
and September 15. The notice shall be in writing and be served upon
the employee personally or by United States registered mail addressed
to him or her at 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.
   (b) The notice of dismissal or suspension in a proceeding
initiated pursuant to charges described in Section 44939 may be given
at any time during the calendar year. This subdivision is intended
to codify the holding of Board of Education v. Commission on
Professional Competence (1976) 61 Cal.App.3d 664.
   SEC. 2.   SEC. 3.   Section 44939 of the
Education Code is amended to read:
   44939.  (a) Upon the filing of written charges, duly signed and
verified by the person filing them with the governing board of a
school district, or upon a written statement of charges formulated by
the governing board, charging a permanent employee of the district
with serious or egregious unprofessional conduct, immoral conduct,
conviction of a felony or of any crime involving moral turpitude,
with incompetency due to mental disability, with willful refusal to
perform regular assignments without reasonable cause, as prescribed
by reasonable rules and regulations of the employing school district,
with violation of Section 51530, with knowing membership by the
employee in the Communist Party or with violation of any provision in
Sections 7001 to 7007, inclusive, the governing board may, if it
deems such action necessary, immediately suspend the employee from
his or her duties and give notice to the employee of his or her
suspension, and that 30 days after service of the notice, the
employee will be dismissed, unless he or she demands a hearing.
   (b) If the permanent employee is suspended upon charges of knowing
membership by the employee in the Communist Party or for violation
of Section 7001, 7002, 7003, 7006, 7007, or 51530, the employee may
within 10 days after service upon him or her of notice of such
suspension file with the governing board a verified denial, in
writing, of the charges. In such event the permanent employee who
demands a hearing within the 30-day period shall continue to be paid
his or her regular salary during the period of suspension and until
the entry of the decision of the Commission on Professional
Competence, if and during such time as the employee furnishes to the
school district a suitable bond, or other security acceptable to the
governing board, as a guarantee that the employee will repay to the
school district the amount of salary so paid to him or her during the
period of suspension in case the decision of the Commission on
Professional Competence is that the employee shall be dismissed. If
it is determined that the employee may not be dismissed, the school
board shall reimburse the employee for the cost of the bond. 
   (c) "Serious or egregious unprofessional conduct" as used in this
article means misconduct reasonably related to any offense as
described in Sections 44010 and 44011 of this code, and Sections
11165.2 to 11165.6, inclusive, of the Penal Code. 
   SEC. 3.   SEC. 4.   Section 44940 of the
Education Code is amended to read:
   44940.  (a) For purposes of this section, "charged with a
mandatory leave of absence offense" is defined to mean charged by
complaint, information, or indictment filed in a court of competent
jurisdiction with the commission of a sex offense as defined in
Section 44010, or with the commission of an offense involving aiding
or abetting the unlawful sale, use, or exchange to minors of
controlled substances listed in Schedule I, II, or III, as contained
in Sections 11054, 11055, and 11056 of the Health and Safety Code.
   (b) For purposes of this section, "charged with an optional leave
of absence offense" is defined to mean a charge by complaint,
information, or indictment filed in a court of competent jurisdiction
with the commission of a controlled substance offense as defined in
Section 44011 or 87011, or a violation or attempted violation of
Section 187 of the Penal Code, Sections 11357 to 11361, inclusive, or
Section 11363, 11364, or 11370.1 of the Health and Safety Code,
insofar as these sections relate to controlled substances.
   (c) For purposes of this section and Section 44940.5, the term
"school district" includes county offices of education.
   (d) (1) If a certificated employee of a school district is charged
with a mandatory leave of absence offense, as defined in subdivision
(a), upon being informed that a charge has been filed, the governing
board of the school district shall immediately place the employee on
compulsory leave of absence. The duration of the leave of absence
shall be until a time not more than 10 days after the date of entry
of the judgment in the proceedings. No later than 10 days after
receipt of the complaint, information, or indictment described by
subdivision (a), the school district shall forward a copy to the
Commission on Teacher Credentialing.
   (2) Upon receiving a copy of a complaint, information, or
indictment described in subdivision (a) and forwarded by the school
district, the Commission on Teacher Credentialing shall automatically
suspend the employee's teaching or service credential. The duration
of the suspension shall be until a time not more than 10 days after
the date of entry of the judgment in the proceedings.
   (e) (1) If a certificated employee of a school district is charged
with an optional leave of absence offense, as defined in subdivision
(b), the governing board of the school district may immediately
place the employee on compulsory leave in accordance with the
procedure in this section and Section 44940.5. If a certificated
employee is charged with an offense deemed to fall into both the
mandatory and the optional leave of absence categories, as defined in
subdivisions (a) and (b), that offense shall be treated as a
mandatory leave of absence offense for purposes of this section. No
later than 10 days after receipt of the complaint, information, or
indictment described by subdivision (a), the school district shall
forward a copy to the Commission on Teacher Credentialing.
   (2) Upon receiving a copy of a complaint, information, or
indictment described in subdivision (a) and forwarded by the school
district, the Commission on Teacher Credentialing shall automatically
suspend the employee's teaching or service credential. The duration
of the suspension shall be until a time not more than 10 days after
the date of entry of the judgment in the proceedings.
   SEC. 4.   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 paragraph (3).
   (5) (A) A witness shall not be permitted to testify at the hearing
except upon oath or affirmation.
   (B) Except for hearings that involve any offense as defined in
Sections 44010 and 44011 of this code, and Sections 11165.2 to
11165.6, inclusive, of the Penal Code:
   (i) Testimony shall not be given or evidence introduced relating
to matters that occurred more than four years before the date of the
filing of the notice.
   (ii) 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 an employee shall be made based on
charges or evidence of any nature relating to matters occurring more
than four years before the filing of the notice.
   (b) The hearing provided for in this section shall be conducted as
follows:
   (1) A hearing that involves any offense as defined in Sections
44010 and 44011 of this code, and Sections 11165.2 to 11165.6,
inclusive, of the Penal Code shall be conducted solely by an
administrative law judge of the Office of Administrative Hearings.
   (2) Hearings not specified in paragraph (1) shall be conducted by
the Commission on Professional Competence, which shall be comprised
as follows:
   (A) 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 before 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.
   (B) 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
with regard to a hearing conducted pursuant to paragraph (2) of
subdivision (b) 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 with regard to a hearing
conducted pursuant to paragraph (2) of subdivision (b) 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) (A) The decision of the commission with regard to a hearing
conducted pursuant to paragraph (2) of subdivision (b) shall be
deemed to be the final decision of the governing board.
   (B) The decision of the administrative law judge with regard to a
hearing conducted pursuant to paragraph (1) of subdivision (b) 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.  None of the findings, recommendations, or
determinations contained in the proposed decision of the
administrative law judge shall be binding on the governing board.
 The governing board shall, before making its final
determination, allow the employee to submit a written statement or
response or, at the election of the governing board, an oral
statement concerning the disciplinary action  and shall only
consider the record produced during the hearing conducted by the
administrative law judge  . The governing board's final
determination shall be subject to review and appeal pursuant to
Section 1094.5 of the Code of Civil Procedure.
   (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 a school district in
this state, the member shall, during 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 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) (1) If the Commission on Professional Competence determines in
a hearing conducted pursuant to paragraph (2) of subdivision (b)
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 determines in a hearing conducted pursuant
to paragraph (2) of subdivision (b) 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) If either the governing board or the employee petitions a
court of competent jurisdiction for review of the decision of the
commission, the payment of expenses to members of the commission
required by this subdivision shall not be stayed.
   (5) (A) If the decision of the commission in a hearing conducted
pursuant to paragraph (2) of subdivision (b) 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) The hearing provided for in paragraph (2) of subdivision (b)
shall be conducted in a place selected by agreement among the members
of the commission. In the absence of agreement, and for hearings
conducted pursuant to paragraph (1) of subdivision (b), the place
shall be selected by the administrative law judge.
   SEC. 5.   SEC. 6.   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.