Amended in Senate May 20, 2014

Amended in Senate May 12, 2014

Amended in Senate April 3, 2014

California Legislature—2013–14 Regular Session

Assembly Bill No. 215

Introduced by Assembly Member Buchanan

(Principal coauthor: Assembly Member Olsen)

(Principal coauthors: Senators Liu, Correa, and Padilla)

(Coauthors: Senators Block and Monning)

January 31, 2013

An act to amend Sections 44932, 44934, 44935, 44936, 44937, 44939, 44940, 44941, 44943, 44944, and 44945 of, to add Sections 44934.1, 44939.1, 44939.5, 44941.1, 44944.05, and 44944.3 to, and to repeal and add Section 44944.1 of, the Education Code, relating to school employees.

LEGISLATIVE COUNSEL’S DIGEST

AB 215, as amended, Buchanan. School employees: dismissal or suspension: hearings.

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

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

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.

This bill would additionally apply the above to egregious misconduct. The bill would authorize begin delete a end delete begin insert the end insert governing board of a school district, if the begin insert governing end insert board has given the above notice, based on written charges, to amend charges less than 90 days before the hearing on the charges only upon a showing of good cause. The bill would require that the employee 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.

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 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 a 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.

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 any crime involving moral turpitude, with incompetency due to mental disability, with willful refusal to perform regular assignments without reasonable cause, as provided.

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.

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.

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.

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.

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, in a dismissal or suspension proceeding carried out under the above provisions, that 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.

The bill would also make conforming changes to these provisions.

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.  

The Legislature finds and declares both of the
following:

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

(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.

SEC. 2.  

Section 44932 of the Education Code is amended to
read:

44932.  

(a) A permanent employee shall not be dismissed
except for one or more of the following causes:

(1) Immoral conduct 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.

(2) Unprofessional conduct.

(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 to that chapter.

(4) Dishonesty.

(5) Unsatisfactory performance.

(6) Evident unfitness for service.

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

(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 or by the governing board
of the school district employing him or her.

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

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

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

SEC. 3.  

Section 44934 of the Education Code is amended to
read:

44934.  

(a) 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. begin delete Proceedings end delete begin insert Section
44934.1 shall apply to dismissal or suspension proceedings end insert based
solely on charges of egregious misconduct described in paragraph
(1) of subdivision (a) of Section begin delete 44932 may be initiated pursuant
to Section 44934.1. end delete begin insert 44932. end insert

(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 of the school district, charging that there exists
cause, as specified in Section 44932 or 44933, for the dismissal
or suspension of a permanent employee of the school district, the
governing board of the school district 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 of the school
district has not adopted a collective bargaining agreement pursuant
to subdivision (b) of Section 3543.2 of the Government Code.

(c) Any written statement of charges 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 charge.

(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.

(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.

(f) 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.

SEC. 4.  

Section 44934.1 is added to the Education Code, to
read:

44934.1.  

(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 a school
district, or upon a written statement of charges formulated by the
governing board of a school district 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 school district, the governing board of the school district
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.

SEC. 5.  

Section 44935 of the Education Code is amended to
read:

44935.  

(a) A report on the fitness of a certificated employee
in a dismissal or suspension proceeding initiated pursuant to
Section 44934 or 44934.1 shall not be received from a statewide
professional organization by a governing board unless the
certificated employee 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 certificated employee investigated at
least 10 days prior to its submission to the governing board.

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

SEC. 6.  

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 or 44934.1 may be
given at any time of year.

(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.

(c) The notice of dismissal or suspension given during the
instructional year of the schoolsite where the employee is
physically employed shall be in writing and be served upon the
employee personally or by United States registered mail addressed
to him or her at his or her 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.

(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.

SEC. 7.  

Section 44937 of the Education Code is amended to
read:

44937.  

In a dismissal or suspension proceeding initiated
pursuant to Section 44934 or 44934.1, 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.

SEC. 8.  

Section 44939 of the Education Code is amended to
read:

44939.  

(a) This section shall apply only to dismissal or
suspension proceedings initiated pursuant to Section 44934.

(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 of a school district, charging a permanent
employee of the school 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, or with violation of Section 51530, the governing
board of the school district may, if it deems that 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) (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.

(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.

(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.

(4) 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 the Commission on Professional Competence
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.

(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.

(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.

(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.

SEC. 9.  

Section 44939.1 is added to the Education Code, to
read:

44939.1.  

(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 of a school district, charging a permanent
employee of the school district with egregious misconduct, as
defined in paragraph (1) of subdivision (a) of Section 44932, the
governing board of the school district 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.

SEC. 10.  

Section 44939.5 is added to the Education Code, to
read:

44939.5.  

(a) 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.

(b) 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.

(c) 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.

(d) 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.

SEC. 11.  

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 any sex offense as
defined in Section 44010, with a violation or attempted violation
of Section 187 of the Penal Code, or 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 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 any controlled substance offense as defined
in Section 44011 or 87011, Sections 11357 to 11361, inclusive,
or 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) 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 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) 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 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.

SEC. 12.  

Section 44941 of the Education Code is amended to
read:

44941.  

(a) The notice of suspension and intention to dismiss
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.

(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.

SEC. 13.  

Section 44941.1 is added to the Education Code, to
read:

44941.1.  

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.

SEC. 14.  

Section 44943 of the Education Code is amended to
read:

44943.  

When any employee who has been served with notice
pursuant to Section 44934 or 44934.1 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.

SEC. 15.  

Section 44944 of the Education Code is amended to
read:

44944.  

(a) This section shall apply only to dismissal or
suspension proceedings initiated pursuant to Section 44934.

(b) (1) (A) 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 six months from
the date of the employee’s demand for a hearing. 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 hearing date shall be
established after consultation with the employee and the governing
board of the school district, or their representatives, 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 shall be completed 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.

(B) 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 Chapter 5 (commencing
with Section 11500) of Part 1 of Division 3 of Title 2 of the
Government 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.

(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.

(B) 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 allegations of an act described in Section
44010 of this code or Sections 11165.2 to 11165.6, inclusive, of
the Penal Code.

(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.

(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.

(3) The governing board of the school district and the employee
shall select Commission on Professional 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 the Office
of Administrative Hearings. Failure to meet this deadline 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.

(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.

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

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

(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.

(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.

(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.

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

(3) The Commission on Professional Competence 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 of
the school district.

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

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

(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.

(3) 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 school district, whichever amount is greater.

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

(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 Commission on Professional Competence the
payment of expenses to members of the commission required by
this subdivision shall not be stayed.

(5) If the decision of the Commission on Professional
Competence is 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 of the school district for those expenses, or the governing
board of the school district, having paid 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 by agreement among the members of the
Commission on Professional Competence. In the absence of
agreement, the place shall be selected by the administrative law
judge.

SEC. 16.  

Section 44944.05 is added to the Education Code, to
read:

44944.05.  

(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.

SEC. 17.  

Section 44944.1 of the Education Code is repealed.

SEC. 18.  

Section 44944.1 is added to the Education Code, to
read:

44944.1.  

(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), the charges have been dismissed, or the dismissal or suspension
proceeding has been settled or otherwise resolved. 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 the governing board of the school district 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 of the school district.

(5) The state 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 of the school district 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
of the school district 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 of the school district 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 of the
school district 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 of the school district 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.

SEC. 19.  

Section 44944.3 is added to the Education Code, to
read:

44944.3.  

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.

SEC. 20.  

Section 44945 of the Education Code is amended to
read:

44945.  

The decision reached in a dismissal or suspension
proceeding initiated pursuant to Section 44934 or 44934.1 may,
on petition of either the governing board or the employee, be
reviewed by a court of competent jurisdiction in the same manner
as a decision made by a hearing officer under Chapter 5
(commencing with Section 11500) of Part 1 of Division 3 of Title
2 of the Government Code. The court, on review, shall exercise
its independent judgment on the evidence. The proceeding shall
be set for hearing at the earliest possible date and shall take
precedence over all other cases, except older matters of the same
character and matters to which special precedence is given by law.

SEC. 21.  

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.