Amended in Senate April 3, 2014

California Legislature—2013–14 Regular Session

Assembly Bill No. 215

Introduced by Assembly Member begin delete Chesbro end delete begin insert Buchanan end insert

January 31, 2013

An act to begin delete amend Section 42301 of the Public Resources Code, relating to solid waste. end delete begin insert amend Sections 44932, 44934, 44935, 44936, 44937, 44939, 44940, 44941, 44943, 44944, and 44945 of, to add Sections 44934.1, 44939.1, 44941.1, 44944.05, and 44944.3 to, and to repeal and add Section 44944.1 of, the Education Code, relating to school employees. end insert

LEGISLATIVE COUNSEL’S DIGEST

AB 215, as amended, begin delete Chesbro end delete   begin insert Buchanan end insert . begin delete Solid waste recycling. end delete begin insert School employees: dismissal or suspension: hearings. end insert

begin insert

Existing law prohibits a permanent school employee from being dismissed, except for one or more of certain enumerated causes, including immoral or unprofessional conduct.

end insert begin insert

This bill would also include egregious misconduct, as defined, as a basis for dismissal.

end insert begin insert

Existing law requires the governing board of a school district to give notice to a permanent employee of its intention to dismiss or suspend the employee, together with a written statement of charges, at the expiration of 30 days from the date of service of the notice, unless the employee demands a hearing.

end insert begin insert

This bill would additionally apply the above to egregious misconduct. The bill would authorize a governing board of a school district, if the board has given the above notice, based on written charges, to amend the charges less than 90 days before the hearing on the charges only upon a showing of good cause. The bill would authorize the employee to be given a meaningful opportunity to respond to the amended charges. The bill would authorize proceedings, based solely on charges of egregious misconduct, to be initiated via an alternative process, which this bill would establish, as provided.

end insert begin insert

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.

end insert begin insert

This bill would authorize any notice of dismissal or suspension to be given at any time of year, as provided. The bill would require a notice of dismissal or suspension given outside of the instructional year of the schoolsite where the employee is physically employed to be in writing and served personally upon the employee. The bill would also revise various procedures for providing notice of dismissal or suspension and would impose various requirements for the filing of a demand for a hearing and the conduct of hearings by the Office of Administrative Hearings.

end insert begin insert

Existing law authorizes the governing board of a school district to immediately suspend an employee and give him or her notice of dismissal upon filing of written charges relating to immoral conduct, conviction of a felony, or an crime involving moral turpitude, with incompetency due to mental disability, with willful refusal to perform regular assignments without reasonable cause, as provided.

end insert begin insert

This bill would authorize an employee who has been placed on suspension pursuant to the above provisions to serve and file with the Office of Administrative Hearings a motion for immediate reversal of suspension, as provided.

end insert begin insert

Existing law provides that upon being charged, as specified, with certain sex or controlled substance offenses, a certificated employee be placed on either a compulsory leave of absence or an optional leave of absence for certain enumerated violations.

end insert begin insert

This bill would revise the definitions of “charged with a mandatory leave of absence offense” and “charged with an optional leave of absence offense” for purposes of those provisions governing when a certificated employee is required to be placed on either a compulsory leave of absence or an optional leave of absence. Because these revisions 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.

end insert begin insert

Existing law requires in a dismissal or suspension proceeding against a permanent employee, if a hearing is requested by the employee, that the hearing be commenced within 60 days from the date of the employee’s demand for a hearing.

end insert begin insert

This bill would require that the hearing be commenced within 6 months from the date of the employee’s demand for a hearing, and be completed by a closing of the record within 7 months of the date of the employee’s demand for a hearing. The bill would revise various procedures for the conduct of those hearings, as prescribed, including the authority to waive the conductibility of the hearing by a Commission on Professional Competence and instead have the hearing conducted by a single administrative law judge. The bill would require that, in a dismissal or suspension proceeding carried out under the above provisions, the parties make specified disclosures in lieu of certain written discovery, as prescribed, and would authorize the parties to obtain discovery by oral deposition. The bill would require the governing board of the school district and the state to share equally the expenses of the hearing if the Commission on Professional Competence determines that the employee should be dismissed or suspended.

end insert begin insert

The bill would also make conforming changes to these provisions.

end insert begin insert

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.

end insert begin insert

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.

end insert begin delete

The California Integrated Waste Management Act of 1989 requires rigid plastic packaging containers that are sold or offered for sale in this state to meet, on average, one of specified criteria and defines terms for purposes of those requirements. One of those criteria that a rigid plastic packaging container may meet to satisfy this requirement is that the container be source reduced. The act provides for the enforcement of these requirements by the Department of Resources Recycling and Recovery and provides that an entity making a false certification pursuant to those requirements is subject to a violation for fraud.

end delete begin delete

This bill would revise the definitions of the various terms used in the those requirements, including revising the definition of the term “source reduced” to impose new requirements, thereby imposing a state-mandated local program by changing the definition of a crime.

end delete begin delete

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.

end delete begin delete

This bill would provide that no reimbursement is required by this act for a specified reason.

end delete

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes.

The people of the State of California do enact as follows:

begin insert

begin insert SECTION 1. end insert   

end insert begin insert

The Legislature finds and declares both of the
following:

end insert begin insert

(a) Pupils, educators, school administrators, school boards,
and school district employees need a certificated employee
dismissal process that is both fair and efficient.

end insert begin insert

(b) This act is intended to revise existing statutes in a manner
that will update and streamline the procedures for certificated
employee discipline and dismissal, making it more cost effective
and reducing the time necessary to complete the dismissal process.

end insert

begin insert

begin insert SEC. 2. end insert   

end insert

begin insert Section 44932 of the end insert begin insert Education Code end insert begin insert is amended to
read: end insert

44932.  

(a)  begin delete No end delete begin insert A end insert permanent employee shall begin insert not end insert be dismissed
except for one or more of the following causes:

(1) Immoral begin delete or unprofessional end delete conduct begin insert including, but not limited
to, egregious misconduct. For the purposes of this chapter,
“egregious misconduct” is defined exclusively as immoral conduct
that is the basis for an offense described in Section 44010 or 44011
of this code, or in Sections 11165.2 to 11165.6, inclusive, of the
Penal Code end insert .

begin insert

(2) Unprofessional conduct.

end insert begin delete

(2)

end delete

begin insert (3) end insert  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 begin delete thereof end delete begin insert to that chapter end insert .

begin delete

(3)

end delete

begin insert (4) end insert  Dishonesty.

begin delete

(4)

end delete

begin insert (5) end insert  Unsatisfactory performance.

begin delete

(5)

end delete

begin insert (6) end insert  Evident unfitness for service.

begin delete

(6)

end delete

begin insert (7) end insert  Physical or mental condition unfitting him or her to instruct
or associate with children.

begin delete

(7)

end delete

begin insert (8) end insert  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 begin delete State Board of Education end delete begin insert state board end insert
or by the governing board of the school district employing him or
her.

begin delete

(8)

end delete

begin insert (9) end insert  Conviction of a felony or of any crime involving moral
turpitude.

begin delete

(9)

end delete

begin insert (10) end insert  Violation of Section 51530 or conduct specified in Section
1028 of the Government Code, added by Chapter 1418 of the
Statutes of 1947.

begin delete

(10) Knowing membership by the employee in the Communist
Party.

end delete

(11) Alcoholism or other drug abuse begin delete which end delete begin insert that end insert 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, begin insert 44934.1, end insert 44935, 44936, 44937,
44943, and 44944. This authorization shall not apply to begin delete any end delete begin insert a end insert
school district begin delete which end delete begin insert that end insert has adopted a collective bargaining
agreement pursuant to subdivision (b) of Section 3543.2 of the
Government Code.

begin insert

begin insert SEC. 3. end insert   

end insert

begin insert Section 44934 of the end insert begin insert Education Code end insert begin insert is amended to
read: end insert

44934.  

begin delete Upon end delete begin insert (a) end insert begin insert   end insert begin insert This section shall apply to dismissal or
suspension proceedings based on charges as specified in Section
44932 or 44933, including proceedings based on charges of
egregious misconduct in combination with other charges.
Proceedings based solely on charges of egregious misconduct
described in paragraph (1) of subdivision (a) of Section 44932
may be initiated pursuant to Section 44934.1. end insert

begin insert (b) end insert begin insert   end insert begin insert Upon end insert the filing of written charges, duly signed and verified
by the person filing them, with the governing board of the school
district, or upon a written statement of charges formulated by the
governing begin delete board, end delete begin insert board of the school district, end insert charging that there
exists cause, as specified in Section 44932 or 44933, for the
dismissal or suspension of a permanent employee of the begin insert school end insert
district, the governing board begin insert of the school district end insert may, upon
majority vote, except as provided in this article if it deems the
action necessary, give notice to the permanent employee of its
intention to dismiss or suspend him or her at the expiration of 30
days from the date of service of the notice, unless the employee
demands a hearing as provided in this article. Suspension
proceedings may be initiated pursuant to this section only if the
governing board begin insert of the school district end insert has not adopted a collective
bargaining agreement pursuant to subdivision (b) of Section 3543.2
of the Government Code.

begin delete

Any

end delete

begin insert (c) end insert begin insert   end insert begin insert Any end insert written statement of charges begin delete of unprofessional conduct
or unsatisfactory performance end delete shall specify instances of behavior
and the acts or omissions constituting the charge so that the begin delete teacher end delete
begin insert employee end insert will be able to prepare his or her defense. It shall, where
applicable, state the statutes and rules begin delete which end delete begin insert that end insert the begin delete teacher end delete
begin insert employee end insert is alleged to have violated, begin delete but end delete begin insert and end insert it shall also set forth
the facts relevant to each begin delete occasion of alleged unprofessional
conduct or unsatisfactory performance end delete begin insert charge end insert .

begin insert

(d) If the governing board of the school district has given notice
to a certificated employee of its intention to dismiss or suspend
him or her, based upon written charges filed or formulated
pursuant to this section, the charges may be amended less than 90
days before the hearing on the charges only upon a showing of
good cause. If a motion to amend charges is granted by the
administrative law judge, the employee shall be given a meaningful
opportunity to respond to the amended charges.

end insert begin insert

(e) A notice of the governing board of the school district to an
employee of its intention to dismiss or suspend him or her, together
with written charges filed or formulated pursuant to this section,
shall be sufficient to initiate a hearing under Section 11503 of the
Government Code, and the governing board of the school district
shall not be required to file or serve a separate accusation.

end insert begin delete

This

end delete

begin insert (f) end insert begin insert   end insert begin insert This end insert section shall also apply to the suspension of
probationary employees in a school district with an average daily
attendance of less than 250 pupils begin delete which end delete begin insert that end insert has not adopted a
collective bargaining agreement pursuant to subdivision (b) of
Section 3542.2 of the Government Code.

begin insert

begin insert SEC. 4. end insert   

end insert

begin insert Section 44934.1 is added to the end insert begin insert Education Code end insert begin insert , to
read: end insert

begin insert

begin insert 44934.1. end insert   

(a) This section shall apply only to dismissal or
suspension proceedings based solely on charges of egregious
misconduct, as described in paragraph (1) of subdivision (a) of
Section 44932.

(b) Upon the filing of written charges, duly signed and verified
by the person filing them, with the governing board of the school
district, or upon a written statement of charges formulated by the
governing board, charging that there exists cause, as specified in
paragraph (1) of subdivision (a) of Section 44932, for the dismissal
or suspension of a permanent employee of the district, the
governing board may, upon majority vote, except as provided in
this article if it deems the action necessary, give notice to the
permanent employee of its intention to dismiss or suspend him or
her at the expiration of 30 days from the date of service of the
notice, unless the employee demands a hearing as provided in this
article.

(c) Any written statement of charges of egregious misconduct
shall specify instances of behavior and the acts or omissions
constituting the charge so that the employee will be able to prepare
his or her defense. It shall, where applicable, state the statutes
and rules that the employee is alleged to have violated, and it shall
also set forth the facts relevant to each occasion of alleged
egregious misconduct.

(d) This section shall also apply to the suspension of
probationary employees in a school district with an average daily
attendance of less than 250 pupils that has not adopted a collective
bargaining agreement pursuant to subdivision (b) of Section 3542.2
of the Government Code.

end insert

begin insert

begin insert SEC. 5. end insert   

end insert

begin insert Section 44935 of the end insert begin insert Education Code end insert begin insert is amended to
read: end insert

44935.  

begin insert (a) end insert begin insert   end insert No report on the fitness of a begin delete teacher end delete begin insert certificated
employee end insert in a dismissal or suspension proceeding initiated pursuant
to Section 44934 begin insert or 44934.1 end insert shall be received from a statewide
professional organization by a governing board unless the begin delete teacher end delete
begin insert certificated employee end insert shall have been given, prior to the preparation
of the report in its final form, the opportunity to submit in writing
his or her comments on the report and unless a copy of the report
in final form is given to the begin delete teacher end delete begin insert certificated employee end insert
investigated at least 10 days prior to its submission to the board.

begin delete

Such a

end delete

begin insert (b) end insert begin insert   end insert begin insert A end insert report shall not be distributed other than to the governing
board and those persons participating in its preparation, unless the
begin delete teacher end delete begin insert certificated employee end insert does not demand a hearing as
provided by Section 44937.

begin insert

begin insert SEC. 6. end insert   

end insert

begin insert Section 44936 of the end insert begin insert Education Code end insert begin insert is amended to
read: end insert

44936.  

begin delete The end delete begin insert (a) end insert begin insert   end insert begin insert The notice of dismissal or suspension in a
proceeding initiated pursuant to Section 44934 or 44934.1 may
be given at any time of year. end insert

begin insert

(b) Notwithstanding subdivision (a), the notice of dismissal or
suspension in a proceeding involving only charges of unsatisfactory
performance initiated pursuant to Section 44934 shall only be
given during the instructional year of the schoolsite where the
employee is physically employed. However, a notice of dismissal
or suspension in a proceeding involving charges of unsatisfactory
performance may be initiated pursuant to paragraph (2) of
subdivision (b) of Section 44938.

end insert

begin insert (c) end insert begin insert   end insert begin insert The end insert notice of dismissal or suspension begin delete in a proceeding
initiated pursuant to Section 44934 shall not be given between
May 15th and September 15th in any year. It end delete begin insert given during the
instructional year of the schoolsite where the employee is
physically employed end insert shall be in writing and be served upon the
employee personally or by United States registered mail addressed
to him begin insert or her end insert at his begin insert or her end insert 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.

begin insert

(d) A notice of dismissal or suspension given outside of the
instructional year of the schoolsite where the employee is
physically employed shall be in writing and shall be served upon
the employee personally. A copy of the charges filed, containing
the information required pursuant to Section 11503 of the
Government Code, together with a copy of the provisions of this
article, shall be attached to the notice.

end insert

begin insert

begin insert SEC. 7. end insert   

end insert

begin insert Section 44937 of the end insert begin insert Education Code end insert begin insert is amended to
read: end insert

44937.  

In a dismissal or suspension proceeding initiated
pursuant to Section 44934 begin insert or 44934.1 end insert , if the employee does not
demand a hearing by filing a written request for hearing with the
governing board, he or she may be dismissed or suspended without
pay for a specific period of time at the expiration of the 30-day
period.

begin insert

begin insert SEC. 8. end insert   

end insert

begin insert Section 44939 of the end insert begin insert Education Code end insert begin insert is amended to
read: end insert

44939.  

begin delete Upon end delete begin insert (a) end insert begin insert   end insert begin insert This section shall apply only to dismissal or
suspension proceedings initiated pursuant to Section 44934. end insert

begin insert (b) end insert begin insert   end insert begin insert Upon end insert 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 begin delete board, end delete begin insert board of a school district, end insert charging a permanent
employee of the begin insert school end insert district with 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, begin insert or end insert with violation of Section 51530, begin delete with knowing
membership by the employee in the Communist Party or with
violation of any provision in Sections 7001 to 7007, inclusive, the end delete
begin insert the end insert governing board begin insert of the school district end insert may, if it deems begin delete such end delete
begin insert that end insert action necessary, immediately suspend the employee from his
begin insert or her end insert duties and give notice to him begin insert or her end insert of his begin insert or her end insert suspension,
and that 30 days after service of the notice begin insert of dismissal end insert , he begin insert or she end insert
will be dismissed, unless he begin insert or she end insert demands a hearing.

begin delete

If the permanent employee is suspended upon charges of
knowing membership by the employee in the Communist Party or
for any violation of Section 7001, 7002, 7003, 7006, 7007, or
51530, he may within 10 days after service upon him 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 regular salary during the period of suspension and
until the entry of the decision of

end delete begin insert

(c) (1) An employee who has been placed on suspension
pursuant to this section may serve and file with the Office of
Administrative Hearings a motion for immediate reversal of
suspension. Review of a motion filed pursuant to this section shall
be limited to a determination as to whether the facts as alleged in
the statement of charges, if true, are sufficient to constitute a basis
for immediate suspension under this section. The motion shall
include a memorandum of points and authorities setting forth law
and argument supporting the employee’s contention that the
statement of charges does not set forth a sufficient basis for
immediate suspension.

end insert begin insert

(2) The motion shall be served upon the governing board of the
school district and filed with the Office of Administrative Hearings
within 30 days after service upon the employee of the initial
pleading in the matter. The governing board of the school district
shall have the right to serve and file a written response to the
motion before or at the time of hearing.

end insert begin insert

(3) The hearing on the motion for immediate reversal of
suspension shall be held no later than 30 days after the motion is
filed with the Office of Administrative Hearings.

end insert

begin insert (4) end insert begin insert   end insert begin insert The administrative law judge shall, no later than 15 days
after the hearing, issue an order denying or granting the motion.
The order shall be in writing, and a copy of the order shall be
served by the Office of Administrative Hearings upon the parties.
The grant or denial of the motion shall be without prejudice to
consideration by end insert the Commission on Professional Competence begin delete , if
and during such time as he 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 during the period of suspension
in case the decision of the Commission on Professional
Competence is that he 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. end delete begin insert based upon the
full evidentiary record before it, of the validity of the grounds for
dismissal. The ruling shall not be considered by the commission
in determining the validity of the grounds for dismissal, and shall
not have any bearing on the commission’s determination regarding
the grounds for dismissal. end insert

begin insert

(5) An order granting a motion for immediate reversal of
suspension shall become effective within five days of service of the
order. The school district shall make the employee whole for any
lost wages, benefits, and compensation within 14 days after service
of an order granting the motion.

end insert begin insert

(6) A motion made pursuant to this section shall be the exclusive
means of obtaining interlocutory review of suspension pending
dismissal. The grant or denial of the motion shall not be subject
to interlocutory judicial review.

end insert begin insert

(d) A motion for immediate reversal of suspension pursuant to
this section shall have no bearing on the authority of a governing
board of a school district to determine the physical placement and
assignment of an employee who is suspended or placed on
administrative leave during the review of the motion or while
dismissal charges are pending.

end insert

begin insert

begin insert SEC. 9. end insert   

end insert

begin insert Section 44939.1 is added to the end insert begin insert Education Code end insert begin insert , to
read: end insert

begin insert

begin insert 44939.1. end insert   

(a) This section shall apply only to dismissal or
suspension proceedings initiated pursuant to Section 44934.1.

(b) 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 egregious misconduct, as defined in paragraph (1) of
subdivision (a) of Section 44932, the governing board may, if it
deems such action necessary, immediately suspend the employee
from his or her duties and give notice to him or her of his or her
suspension, and that 30 days after service of the notice of dismissal,
he or she will be dismissed, unless he or she demands a hearing.

(c) School districts, county offices of education, and charter
schools are prohibited from entering into an agreement that would
prevent a mandatory report of egregious misconduct, as defined
in paragraph (1) of subdivision (a) of Section 44932, to the
Commission on Teacher Credentialing or any other state or federal
agency.

(d) School districts, county offices of education, and charter
schools are prohibited from entering into an agreement that would
authorize expunging from a school employee’s personnel file
credible complaints of, substantiated investigations into, or
discipline for, egregious misconduct. This prohibition does not
preclude any agreement to remove documents containing
allegations that have been the subject of a hearing before an
arbitrator, school board, personnel commission, Commission on
Professional Competence, or administrative law judge, in which
the employee prevailed, the allegations were determined to be
false, not credible, or unsubstantiated, or a determination was
made that the discipline was not warranted.

(e) A school district, county office of education, or charter
school that has made a report of an employee’s egregious
misconduct to the Commission on Teacher Credentialing shall
disclose this fact to a school district, county office of education,
or charter school considering an application for employment from
the employee, upon inquiry.

(f) Any school employee who alleges that another school
employee has engaged in egregious misconduct, as defined in
paragraph (1) of subdivision (a) of Section 44932, knowing at the
time of making the allegation that the allegation was false, shall
be subject to certificate revocation, if applicable.

end insert

begin insert

begin insert SEC. 10. end insert   

end insert

begin insert Section 44940 of the end insert begin insert Education Code end insert begin insert is amended to
read: end insert

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 any sex offense as
defined in Section 44010, begin delete or end delete begin insert with a violation or attempted violation
of Section 187 of the Penal Code, or end insert with the commission of any
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 begin delete Section end delete begin insert Sections end insert 11054, 11055, and 11056
of the Health and Safety begin delete Code, with the exception of marijuana,
mescaline, peyote, or tetrahydrocannabinols end delete begin insert Code end insert .

(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 any controlled substance offense as defined
in Section 44011 or 87011, begin delete or a violation or attempted violation
of Section 187 of the Penal Code, or end delete Sections 11357 to 11361,
inclusive, begin insert or end insert Section 11363, 11364, or 11370.1 of the Health and
Safety Code, insofar as these sections relate to any controlled
substances except marijuana, mescaline, peyote, or
tetrahydrocannabinols.

(c) For purposes of this section and Section 44940.5, the term
“school district” includes county offices of education.

(d) (1)  begin delete Whenever any end delete begin insert If a end insert 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 a 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)  begin delete Whenever any end delete begin insert If a end insert 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 upon compulsory
leave in accordance with the procedure in this section and Section
44940.5. If any 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 a 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.

begin insert

begin insert SEC. 11. end insert   

end insert

begin insert Section 44941 of the end insert begin insert Education Code end insert begin insert is amended to
read: end insert

44941.  

begin insert (a) end insert begin insert   end insert The notice of suspension and intention to begin delete dismiss, end delete
begin insert dismiss end insert shall be in writing and begin delete be end delete served begin delete upon the employee
personally or by United States registered mail addressed to the
employee at his last known address. end delete begin insert pursuant to Section 44936. end insert
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. If
the employee does not demand a hearing within the 30-day period,
he begin insert or she end insert may be dismissed upon the expiration of 30 days after
service of the notice.

begin insert

(b) An employee who demands a hearing shall file a single
document containing his or her request for a hearing pursuant to
this section and a notice of defense pursuant to Sections 11505
and 11506 of the Government Code.

end insert

begin insert

begin insert SEC. 12. end insert   

end insert

begin insert Section 44941.1 is added to the end insert begin insert Education Code end insert begin insert , to
read: end insert

begin insert

begin insert 44941.1. end insert   

Notwithstanding Section 44941, the notice of
suspension and intention to dismiss that is based exclusively on
charges of egregious misconduct as described in paragraph (1)
of subdivision (a) of Section 44932, shall be in writing and served
pursuant to Section 44936. 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. If the employee does not demand a
hearing within the 30-day period, he or she may be dismissed upon
the expiration of 30 days after service of the notice.

end insert

begin insert

begin insert SEC. 13. end insert   

end insert

begin insert Section 44943 of the end insert begin insert Education Code end insert begin insert is amended to
read: end insert

44943.  

When any employee who has been served with notice
pursuant to Section 44934 begin insert or 44934.1 end insert of the governing board’s
intention to dismiss or suspend him or her demands a hearing, the
governing board shall have the option either (a) to rescind its
action, or (b) schedule a hearing on the matter.

begin insert

begin insert SEC. 14. end insert   

end insert

begin insert Section 44944 of the end insert begin insert Education Code end insert begin insert is amended to
read: end insert

44944.  

(a)  begin delete (1) end delete begin delete   end delete begin delete In end delete begin insert This section shall apply only to dismissal or
suspension proceedings initiated pursuant to Section 44934. end insert

begin insert (b) end insert begin insert   end insert begin insert (1) end insert begin insert   end insert begin insert (A) end insert begin insert   end insert begin insert In end insert a dismissal or suspension proceeding initiated
pursuant to Section 44934, if a hearing is requested by the
employee, the hearing shall be commenced within begin delete 60 days end delete begin insert six
months end insert from the date of the employee’s demand for a hearing. begin delete 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 end delete begin insert A continuance shall not extend the date for the commencement
of the hearing more than six months from the date of the employee’s
request for a hearing, except for extraordinary circumstances, as
determined by the administrative law judge. If extraordinary
circumstances are found that extend the date for the commencement
of the hearing, the deadline for concluding the hearing and closing
the record pursuant to this subdivision shall be extended for a
period of time equal to the continuance. The end insert hearing date shall be
established after consultation with the employee and the governing
board begin insert of the school district end insert , or their representatives, begin delete 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 end delete
begin insert except that if the parties are not able to reach an agreement on a
date, the Office of Administrative Hearings shall unilaterally set
a date in compliance with this section. The hearing end insert shall be
completed begin delete 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. end delete begin insert by a closing of the record within seven months
of the date of the employee’s demand for a hearing. A continuance
shall not extend the date for the close of the record more than
seven months from the date of the employee’s request for a hearing,
except for good cause, as determined by the administrative law
judge. end insert

begin delete

(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.

end delete begin delete

(3) The time periods in this section and of

end delete

begin insert (B) end insert begin insert   end insert begin insert Where substantial progress has been made in completing
the previously scheduled days of the hearing within the
seven-month period but the hearing cannot be completed, for good
cause shown, within the seven-month period, the period for
completing the hearing may be extended by the presiding
administrative law judge. If the administrative law judge grants
a continuance under this subparagraph, he or she shall establish
a reasonable timetable for the completion of the hearing and the
closing of the record. The hearing shall be initiated and conducted,
and a decision made, in accordance with end insert Chapter 5 (commencing
with Section 11500) of Part 1 of Division 3 of Title 2 of the
Government begin delete 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 end delete begin insert Code, and the Commission on Professional
Competence shall have all of the power granted to an agency
pursuant to that chapter, except as described in this article end insert .

begin delete

(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.

end delete begin delete

(5) No witness shall 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

end delete begin insert

(2) (A) 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 before the date of the filing of the notice, except
allegations of an act described in Section 44010 of this code or
Sections 11165.2 to 11165.6, inclusive, of the Penal Code.

end insert

begin insert end insert
begin insert (B) end insert begin insert   end insert begin insert Evidence end insert of records regularly kept by the governing board
begin insert of the school district end insert concerning the employee may be introduced,
but no decision relating to the dismissal or suspension of begin delete any end delete begin insert an end insert
employee shall be made based on charges or evidence of any nature
relating to matters occurring more than four years begin delete prior to end delete begin insert before end insert
the filing of the begin delete notice end delete begin insert notice, except allegations of an act described
in Section 44010 of this code or Sections 11165.2 to 11165.6,
inclusive, of the Penal Code end insert .

begin insert

(c) (1) The hearing provided for in this section shall be
conducted by a Commission on Professional Competence, unless
the parties submit a statement in writing to the Office of
Administrative Hearings, indicating that both parties waive the
right to convene a Commission on Professional Competence and
stipulate to having the hearing conducted by a single administrative
law judge. If the parties elect to waive a hearing before the
Commission on Professional Competence, the hearing shall be
initiated and 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, and the administrative law
judge conducting the hearing shall have all the powers granted to
a Commission on Professional Competence pursuant to that
chapter, except as described in this article.

end insert begin insert

(2) If the parties elect not to waive a hearing before 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 of the school district, 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.

end insert begin delete

(b) (1)

end delete

begin insert (3) end insert  The begin delete hearing provided for in this section shall be conducted
by a end delete begin insert governing board of the school district and the employee shall
select end insert Commission on Professional begin delete 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 end delete begin insert Competence members no later
than 45 days before the date set for hearing, and shall serve notice
of their selection upon all other parties and upon end insert the Office of
Administrative begin delete 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 end delete begin insert Hearings. Failure to meet this
deadline end insert 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.

begin insert

(4) Any party who believes that a selected Commission on
Professional Competence member is not qualified may file an
objection, including a statement describing the basis for the
objection, with the Office of Administrative Hearings and serve
the objection and statement upon all other parties within 10 days
of the date that the notice of selection is filed. Within seven days
after the filing of any objection, the administrative law judge
assigned to the matter shall rule on the objection or convene a
teleconference with the parties for argument.

end insert begin delete

(2)

end delete

begin insert (5) end insert begin insert   end insert begin insert (A) end insert  The member selected by the governing board begin insert of the
school district end insert and the member selected by the employee shall not
be related to the employee and shall not be employees of the begin insert school end insert
district initiating the dismissal or begin delete suspension and end delete begin insert suspension. Each
member end insert shall hold a currently valid credential and have at least
begin delete five end delete begin insert three end insert years’ experience within the past 10 years in the
discipline of the employee.

begin insert

(B) For purposes of this paragraph, the following terms have
the following meanings:

end insert begin insert

(i) For an employee subject to dismissal whose most recent
teaching assignment is in kindergarten or any of the grades 1 to
6, inclusive, “discipline” means a teaching assignment in
kindergarten or any of the grades 1 to 6, inclusive.

end insert begin insert

(ii) For an employee subject to dismissal whose most recent
assignment requires an education specialist credential or a services
credential, “discipline” means an assignment that requires an
education specialist credential or a services credential,
respectively.

end insert begin insert

(iii) For an employee subject to dismissal whose most recent
teaching assignment is in any of the grades 7 to 12, inclusive,
“discipline” means a teaching assignment in any of grades 7 to
12, inclusive, in the same area of study, as that term is used in
Section 51220, as the most recent teaching assignment of the
employee subject to dismissal.

end insert begin delete

(c)

end delete

begin insert (d) end insert  (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
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 begin insert of the school district end insert unless the
errors are prejudicial errors.

(3) The begin delete commission end delete begin insert Commission on Professional Competence end insert
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 begin insert of
the school district end insert .

(5) The begin insert governing end insert board begin insert of the school district end insert 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 begin insert of the school district end insert and the employee
shall have the right to be represented by counsel.

begin delete

(d)

end delete

begin insert (e) end insert  (1) If the member selected by the governing board begin insert of the
school district end insert 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 begin insert school end insert district in which the member
is employed, but shall receive no additional compensation or
honorariums for service on the commission.

begin insert

(2) If the member selected is a retired employee, the member
shall receive pay at the daily substitute teacher rate in the school
district that is a party to the hearing. Service on a Commission on
Professional Competence shall not be credited toward retirement
benefits.

end insert begin delete

(2)

end delete

begin insert (3) end insert  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 begin insert school end insert district, whichever amount is greater.

begin delete

(e)

end delete

begin insert (f) end insert  (1) If the Commission on Professional Competence
determines that the employee should be dismissed or suspended,
the governing board begin insert of the school district end insert and the begin delete employee end delete begin insert state end insert
shall share equally the expenses of the hearing, including the cost
of the administrative law judge. The state shall pay any costs
incurred under begin delete paragraph end delete begin insert paragraphs end insert (2) begin insert and (3) end insert of subdivision
begin delete (d) end delete begin insert (e) end insert , the reasonable expenses, as determined by the
administrative law judge, of the member selected by the governing
board begin insert of the school district end insert 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 begin insert of the school district end insert 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 begin insert of the school district end insert
shall pay their own attorney’s fees.

(2) If the Commission on Professional Competence determines
that the employee should not be dismissed or suspended, the
governing board begin insert of the school district end insert shall pay the expenses of
the hearing, including the cost of the administrative law judge, any
costs incurred under begin delete paragraph end delete begin insert paragraphs end insert (2) begin insert and (3) end insert of
subdivision begin delete (d) end delete begin insert (e) end insert , the reasonable expenses, as determined by the
administrative law judge, of the member selected by the governing
board begin insert of the school district end insert 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 begin insert of the school district end insert 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 begin delete (d) end delete
begin insert (e) end insert .

(4) If either the governing board begin insert of the school district end insert or the
employee petitions a court of competent jurisdiction for review of
the decision of the begin delete commission, end delete begin insert Commission on Professional
Competence end insert the payment of expenses to members of the
commission required by this subdivision shall not be stayed.

(5)  begin delete (A) end delete begin delete   end delete If the decision of the begin delete commission end delete begin insert Commission on
Professional Competence end insert is begin delete finally end delete 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 begin insert of the school district end insert for those expenses,
or the governing board begin insert of the school district end insert , having paid the
expenses, shall be entitled to reimbursement from the state. begin insert If either
the governing board of the school district or the employee petitions
a court of competent jurisdiction for review of the decision to
overturn the administrative law judge’s decision, the payment of
the expenses of the hearing, including the cost of the administrative
law judge required by this paragraph, shall be stayed until no
further appeal is sought, or all appeals are exhausted. end insert

begin delete

(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.

end delete begin delete

(f)

end delete

begin insert (g) end insert  The hearing provided for in this section shall be conducted
in a place selected by agreement among the members of the
begin delete commission end delete begin insert Commission on Professional Competence end insert . In the
absence of agreement, the place shall be selected by the
administrative law judge.

begin insert

begin insert SEC. 15. end insert   

end insert

begin insert Section 44944.05 is added to the end insert begin insert Education Code end insert begin insert , to
read: end insert

begin insert

begin insert 44944.05. end insert   

(a) In a dismissal or suspension proceeding initiated
pursuant to Section 44934, in lieu of written discovery required
pursuant to Section 11507.6 of the Government Code, the parties
shall make disclosures as described in this section. This section
shall not apply to dismissal or suspension proceedings initiated
pursuant to Section 44934.1.

(b) (1) An initial disclosure shall comply with the following
requirements:

(A) A party shall, without awaiting a discovery request, provide
to the other parties both of the following:

(i) The name and, if known, the address and telephone number
of each individual likely to have discoverable information, along
with the subjects of information relating to the allegations made
in the charges and the parties’ claims and defenses, unless the use
would be solely for impeachment purposes.

(ii) A copy of all documents, electronically stored information,
and tangible items that the disclosing party has in its possession,
custody, or control relating to the allegations made in the charges
and the parties’ claims or defenses, unless the use would be solely
for impeachment.

(B) The school district and the employee shall make their initial
disclosures within 45 days of the date of the employee’s demand
for a hearing.

(C) A party shall make its initial disclosures based on the
information then reasonably available to it. A party is not excused
from making its disclosures because it has not fully investigated
the case or because it challenges the sufficiency of another party’s
disclosures. A party’s failure to make initial disclosures within
the deadlines set forth in this section shall preclude the party from
introducing witnesses or evidence not disclosed at the hearing,
unless the party shows good cause for its failure to timely disclose.

(D) A party has an obligation to promptly supplement its initial
disclosures as new information or evidence becomes known or
available. Supplemental disclosures shall be made as soon as
possible, and no later than 60 days before the date of
commencement of the hearing. A party’s failure to make
supplemental disclosures promptly upon discovery or availability
of new information or evidence shall preclude the party from
introducing witnesses or evidence not disclosed at the hearing,
unless the party shows good cause for its failure to timely disclose.

(2) The disclosure of expert testimony shall comply with the
following requirements:

(A) A party shall also disclose to the other parties the identities
of any expert witnesses whose testimony it may use at the hearing.

(B) The disclosure specified in subparagraph (A) shall be
accompanied by a summary of the witness’ expected testimony,
including a description of the facts and data considered by the
witness; a description of the witness’ qualifications, including a
list of all publications authored in the previous 10 years; a list of
all other cases in which, during the previous four years, the witness
testified as an expert at a hearing or by deposition; and a statement
of the compensation to be paid to the expert witness.

(C) Expert witness disclosures shall be made no later than 60
days before the date of commencement of the hearing. A party’s
failure to make full and timely expert witness disclosures shall
preclude the party’s use of the expert witness’ testimony or
evidence at the hearing.

(3) Prehearing disclosures shall comply with the following
requirements:

(A) In addition to the disclosures required in paragraphs (1)
and (2), a party shall provide to the other parties the following
information about the evidence that it may present at the hearing:

(i) The name, and if not previously provided, the address and
telephone number of each witness, separately identifying those the
party expects to present and those it may call if the need arises.

(ii) An identification of each exhibit, separately identifying those
items the party expects to offer and those it may offer if the need
arises.

(B) Prehearing disclosures shall be made at least 30 days before
the hearing.

(i) Within 14 days after prehearing disclosures are made, a
party shall file and serve any objections, along with the grounds
for each objection, to the admissibility of evidence.

(ii) These objections shall be decided on the first day of hearing,
or at a prehearing conference conducted pursuant to Section
11511.5 of the Government Code. Documents and individuals not
timely disclosed without good cause shall be precluded from
admission at the hearing.

(c) In addition to the disclosures required by subdivision (a),
the parties may obtain discovery by oral deposition in California,
in accordance with Sections 2025.010 to 2025.620, inclusive, of
the Code of Civil Procedure, except as described in this article.
The school district may take the depositions of the employee and
no more than four other witnesses, and the employee may take
depositions of no more than five witnesses. Each witness deposition
is limited to seven hours. An administrative law judge may allow
the parties to conduct additional depositions only upon a showing
of good cause. If a motion to conduct additional depositions is
granted by the administrative law judge, the employee shall be
given a meaningful opportunity to respond to new evidence
introduced as a result of the additional depositions. An order
granting a motion for additional depositions shall not constitute
an extraordinary circumstance or good cause for purposes of
extending the deadlines set forth in paragraph (1) of subdivision
(b) of Section 44944.

(d) If the right to disclosures or oral depositions is denied by
either the employee or the governing board, the exclusive right of
a party seeking an order compelling production of discovery shall
be pursuant to Section 11507.7 of the Government Code. If a party
seeks protection from unreasonable or oppressive discovery
demands, the exclusive right of a party seeking an order for
protection shall be pursuant to Section 11450.30 of the Government
Code.

end insert

begin insert

begin insert SEC. 16. end insert   

end insert

begin insert Section 44944.1 of the end insert begin insert Education Code end insert begin insert is repealed. end insert

begin delete

44944.1.  

At a hearing conducted pursuant to Section 44944,
the administrative law judge, before admitting any testimony or
evidence concerning an individual pupil, shall determine whether
the introduction of the testimony or evidence at an open hearing
would violate any provision of Article 5 (commencing with Section
49073) of Chapter 6.5 of Part 27 of Division 4, relating to privacy
of pupil records. If the administrative law judge, in his or her
discretion, determines that any of such provisions would be
violated, he or she shall order that the hearing, or any portion
thereof at which the testimony or evidence would be produced, be
conducted in executive session.

end delete

begin insert

begin insert SEC. 17. end insert   

end insert

begin insert Section 44944.1 is added to the end insert begin insert Education Code end insert begin insert , to
read: end insert

begin insert

begin insert 44944.1. end insert   

(a) This section shall apply only to dismissal or
suspension proceedings initiated pursuant to Section 44934.1.

(b) Once the governing board of the school district has initiated
dismissal or suspension proceedings pursuant to Section 44934.1,
the process described in this section shall be the exclusive means
of pursuing a dismissal or suspension for the acts or events
constituting the charge of egregious misconduct, and these specific
acts or events shall not be used to support any additional or
subsequent notice of suspension or dismissal pursuant to Section
44934. Once the governing board of the school district has initiated
dismissal or suspension proceedings pursuant to Section 44934.1,
the process described in this section shall be the exclusive means
of pursuing a dismissal or suspension against the certificated
employee until a written decision has been reached by the
administrative law judge, pursuant to paragraph (1) of subdivision
(e). If a suspension initiated against an employee pursuant to
Section 44934.1 is upheld, and a dismissal was not pursued on the
same charges, the entry of judgment of the suspension under
Section 44934.1 may be considered as evidence to support a
subsequent notice of dismissal based on other charges. If a
suspension initiated against an employee pursuant to Section
44934.1 is upheld, but the employee prevailed on the dismissal
proceeding based on the same charges, the entry of judgment of
the suspension under Section 44934.1 shall not be considered as
evidence to support a subsequent notice of dismissal based on
other charges.

(c) The hearing provided for in this section shall be initiated
and 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, by an administrative law judge. The
administrative law judge conducting the hearing shall have all the
powers granted to an agency pursuant to that chapter.

(d) (1) (A) In a dismissal or suspension proceeding initiated
pursuant to Section 44934.1, 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 date
shall be established after consultation with the employee and the
governing board, or their representatives, except that, if the parties
are not able to reach agreement on a date, the Office of
Administrative Hearings shall unilaterally set a date in compliance
with this section. The Office of Administrative Hearings shall
prioritize the scheduling of dismissal or suspension proceedings
initiated pursuant to Section 44934.1 over other proceedings
related to certificated school employees.

(B) 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. The continuance or
continuances granted pursuant to Section 11524 of the Government
Code, if any, shall not extend by more than a total of 30 days the
deadline set forth in paragraph (1) of subdivision (d). 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, the exclusive
right of a party seeking an order compelling production of
discovery shall be pursuant to Section 11507.7 of the Government
Code. If a party seeks protection from unreasonable or oppressive
discovery demands, the exclusive right of a party seeking an order
for protection shall be pursuant to Section 11450.30 of the
Government Code.

(3) 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 before the date of the filing of the notice, except evidence
of egregious misconduct, as described in paragraph (1) of
subdivision (a) of Section 44932, which shall not be excluded based
on the passage of time.

(4) Evidence of records regularly kept by the governing board
of the school district 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, except evidence of egregious misconduct,
as described in paragraph (1) of subdivision (a) of Section 44932,
which shall not be excluded based on the passage of time.

(e) (1) The administrative law judge 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 administrative law judge 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 administrative law judge 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 administrative law judge shall be deemed
to be the final decision of the governing board.

(5) The 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.

(f) (1) If the administrative law judge determines that the
employee should be dismissed or suspended, the governing board
and the state shall share equally the expenses of the hearing,
including the cost of the administrative law judge. 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 administrative law judge 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, and reasonable attorney’s fees incurred
by the employee.

(3) If either the governing board of the school district or the
employee petitions a court of competent jurisdiction for review of
the decision of the administrative law judge, the payment of the
expenses of the hearing, including the cost of the administrative
law judge required by this subdivision, shall not be stayed.

(4) If either the governing board of the school district or the
employee petitions a court of competent jurisdiction for review of
the decision of the administrative law judge and the decision is
upheld, the appellee shall be entitled to an award of reasonable
attorney’s fees and costs expended on the appeal.

(5) If the decision of the administrative law judge is reversed
or vacated by a court of competent jurisdiction, either the state,
having paid one-half of the expenses of the hearing, including the
cost of the administrative law judge, shall be entitled to
reimbursement from the governing board for those expenses, or
the governing board of the school district, having paid one-half
of the expenses, shall be entitled to reimbursement from the state.
If either the governing board of the school district or the employee
petitions a court of competent jurisdiction for review of the decision
to overturn the administrative law judge’s decision, the payment
of the expenses of the hearing, including the cost of the
administrative law judge required by this paragraph shall be stayed
until no further appeal is sought, or all appeals are exhausted.

(g) The hearing provided for in this section shall be conducted
in a place selected in accordance with Section 11508 of the
Government Code.

end insert

begin insert

begin insert SEC. 18. end insert   

end insert

begin insert Section 44944.3 is added to the end insert begin insert Education Code end insert begin insert , to
read: end insert

begin insert

begin insert 44944.3. end insert   

At a hearing conducted pursuant to Section 44944
or 44944.1, the administrative law judge, before admitting any
testimony or evidence concerning an individual pupil, shall
determine whether the introduction of the testimony or evidence
at an open hearing would violate any provision of Article 5
(commencing with Section 49073) of Chapter 6.5 of Part 27 of
Division 4, relating to privacy of pupil records. If the
administrative law judge, in his or her discretion, determines that
any of those provisions would be violated, he or she shall order
that the hearing, or any portion thereof at which the testimony or
evidence would be produced, be conducted in executive session.

end insert

begin insert

begin insert SEC. 19. end insert   

end insert

begin insert Section 44945 of the end insert begin insert Education Code end insert begin insert is amended to
read: end insert

44945.  

The decision begin delete of the Commission on Professional
Competence end delete begin insert reached in a dismissal or suspension proceeding
initiated pursuant to Section 44934 or 44934.1 end insert 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.

begin insert

begin insert SEC. 20. end insert   

end insert begin insert

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.

end insert

begin delete

  

 

SECTION 1.  

Section 42301 of the Public Resources Code is
amended to read:

42301.  

For purposes of this chapter, the following definitions
apply:

(a) “Container manufacturer” means a company or a successor
company that manufactures and sells any rigid plastic packaging
container subject to this chapter to a manufacturer that sells or
offers for sale in this state any product packaged in that container.

(b) “Curbside collection program” means a recycling program
that collects materials set out by households for collection at the
curb at intervals not less than every two weeks. “Curbside
collection program” does not include redemption centers, buyback
locations, drop-off programs, material recovery facilities, or plastic
recovery facilities.

(c) “Refillable package” means a rigid plastic packaging
container that is routinely returned to and refilled by the product
manufacturer or its agent at least five times with the original
product contained by the rigid plastic packaging containers.

(d) “Reusable package” means a rigid plastic packaging
container that is routinely reused by consumers at least five times
to store the original product contained by the package.

(e) “Manufacturer” means the producer or generator of a product
that is sold or offered for sale in the state and that is stored inside
of a rigid plastic packaging container.

(f) “Rigid plastic packaging container” means a plastic
packaging container having a relatively inflexible finite shape or
form, with a minimum capacity of eight fluid ounces or its
equivalent volume and a maximum capacity of five fluid gallons
or its equivalent volume, that is capable of maintaining its shape
while holding other products, including, but not limited to, bottles,
cartons, and other receptacles, for sale or distribution in the state.

(g) (1) “Postconsumer material” means a material that would
otherwise be destined for solid waste disposal, having completed
its intended end use and product lifecycle.

(2) Except as provided in paragraphs (3) and (4), “postconsumer
material” does not include materials and byproducts generated
from, and commonly reused within, an original manufacturing and
fabrication process.

(3) “Postconsumer material” includes finished plastic packaging
that has been rejected by a container or product manufacturer, and
that would be commonly disposed of, if the department determines
the material is later used in a process that is other than an original
manufacturing and fabrication process.

(4) “Postconsumer material” includes a rigid plastic packaging
container holding an obsolete or unsold product that is commonly
disposed of, and not commonly reused, within an original
manufacturing process, if the rigid plastic packaging container is
used as feedstock for new rigid plastic packaging containers or
under the alternative compliance method established by Section
42310.3.

(h) “Recycled” means a product or material that has been reused
in the production of another product and has been diverted from
disposal in a landfill.

(i) “Recycling rate” means the proportion, as measured by
weight, volume, or number, of a rigid plastic packaging container
sold or offered for sale in the state that is being recycled in a given
calendar year, that is one of the following:

(1) A particular type of rigid plastic packaging container, such
as a milk jug, soft drink container, or detergent bottle.

(2) A product-associated rigid plastic packaging container.

(3) A single resin type, as specified in Section 18015, of rigid
plastic packaging container, notwithstanding the exemption of that
container from this chapter pursuant to subdivision (b), (c), or (d)
of Section 42340.

(j) (1) “Source reduced container” means a rigid plastic
container for which the container weight per unit or number of
product uses has been reduced by 10 percent when compared with
one of the following:

(A) The rigid plastic packaging container used for the product
by the manufacturer on January 1, 1995.

(B) The rigid plastic packaging container used for that product
by the product manufacturer over the course of the first full year
of commerce in this state.

(C) A rigid plastic packaging container used in commerce in
this state during the same year for similar products in similar rigid
plastic packaging containers by the product manufacturer whose
containers have not been considered source reduced, or a particular
type of rigid plastic packaging container that is used to hold a
similar product by other product manufacturers, as determined by
the department, whose containers have not been considered source
reduced.

(2) A rigid plastic packaging container is not a source reduced
container for the purposes of this chapter if the reduction was
achieved by any of the following:

(A) Substituting a different material type for a material that
previously constituted the principal material of the container.

(B) Increasing a container’s weight per unit or number of
product uses after January 1, 1991.

(C) Packaging changes that adversely affect the potential for
the rigid plastic packaging container to be recycled or to be made
of postconsumer material.

(k) “Product-associated rigid plastic packaging container” means
a brand-specific, rigid plastic packaging container line that may
have one or more sizes, shapes, or designs and that is used in
conjunction with a particular generic product line.

(l) “PETE” means polyethylene terephthalate as specified in
subdivision (a) of Section 18015.

(m) “HDPE” means high-density polyethylene.

SEC. 2.  

No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
a local agency or school district has the authority to levy service
charges, fees, or assessments sufficient to pay for the program or
level of service mandated by this act, within the meaning of Section
17556 of the Government Code.

end delete