BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 215|
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THIRD READING
Bill No: AB 215
Author: Buchanan (D)
Amended: 5/20/14 in Senate
Vote: 21
SENATE EDUCATION COMMITTEE : 9-0, 4/30/14
AYES: Liu, Wyland, Block, Correa, Galgiani, Hancock, Hueso,
Huff, Monning
SENATE APPROPRIATIONS COMMITTEE : 7-0, 5/23/14
AYES: De León, Walters, Gaines, Hill, Lara, Padilla, Steinberg
ASSEMBLY FLOOR : 73-0, 5/2/13 - See last page for vote
SUBJECT : Certificated staff: dismissal
SOURCE : Author
DIGEST : This bill modifies the dismissal procedures for
certificated employees who have attained permanent status and
establishes a separate set of dismissal processes for employees
charged only with egregious misconduct, as specified.
ANALYSIS : Existing law prohibits the dismissal of a
certificated employee who has achieved permanent status except
for one or more of the following causes:
Immoral or unprofessional conduct.
Commission, aiding, or advocating the commission of acts of
criminal syndicalism.
CONTINUED
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Dishonesty.
Unsatisfactory performance.
Evident unfitness for service.
Physical or mental condition unfitting him or her to instruct
or associate with children.
Persistent violation of or refusal to obey state laws or
regulations pertaining to schools.
Conviction of a felony or of any crime involving moral
turpitude.
Violation of the prohibition against advocating or teaching
communism with the intent to indoctrinate or inculcate in the
mind of any pupil a preference for communism.
Knowing membership in the Communist Party.
Alcoholism or other drug abuse that makes the employee unfit
to instruct or associate with children.
Existing law also requires a school district governing board
(SDGB) to notify an employee in writing of its intention to
dismiss or suspend him or her at the expiration of 30 days
unless the employee demands a hearing. Existing law prohibits a
30-day notice of Intent to Dismiss or Suspend from being issued
between May 15 and September 15 in any year.
The Legislature has established additional notice requirements
that school districts must follow when seeking to suspend or
dismiss an employee for unprofessional conduct or unsatisfactory
performance. Before a SDGB can take action to issue a 30-day
notice for either of these causes, the following must occur:
Unprofessional Conduct : The employee must be given advance
notice of at least 45 days. A notice of unprofessional
conduct must specify the nature of the cause, list specific
instances of behavior and furnish the employee an opportunity
to correct the faults and overcome the grounds of the charge.
The notice must also include a copy of the employee's
evaluation.
Unsatisfactory Performance : The employee must be given
advance notice of at least 90 days. A notice of
unsatisfactory performance must specify the nature of the
performance issues, with specific instances of behavior with
"such particularity" as to furnish the employee an opportunity
to correct his/her faults and overcome the grounds for the
charge. The notice must also include a copy of the employee's
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evaluation.
Existing law authorizes the immediate suspension of a permanent
employee for specified conduct including: immoral conduct,
conviction of a felony or any crime involving moral turpitude,
incompetency due to mental disability, willful refusal to
perform regular assignments without reasonable cause, advocating
or teaching communism, or knowing membership in the Communist
Party.
Existing law requires that a dismissal or suspension hearing
requested by an employee must begin within 60 days of an
employee's request and further:
1.Requires that the hearing be conducted by a commission on
professional competence (CPC) made up of three members:
A. One member selected by the employee.
B. One member selected by the SCGB.
C. An administrative law judge who serves as the chair.
1.Provides that the decision made by the CPC is made by majority
vote and deems the decision of the CPC to be the final
decision of the SDGB.
2.Specifies that members of the CPC may not be employees of the
district and must have at least five years of experience
(within the last ten) in the discipline of the employee.
3.Prohibits testimony or evidence relating to matters that
occurred more than four years prior to the date of the filing
of the notice, and prohibits a decision relating to the
dismissal or suspension of any employee from being made based
on charges or evidence of any nature relating to matters
occurring more than four years prior to the filing of the
notice. Specifies that evidence of records regularly kept by
the SDGB may be introduced, but no decision relating to the
dismissal or suspension of any employee can be made based on
charges or evidence of any nature relating to matters
occurring more than four years prior to the filing of the
notice.
4.Specifies that members of a CPC receive their regular salary,
fringe benefits, accumulated sick leave and other leaves and
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benefits but shall receive no additional compensation.
5.Specifies that in the event the employee is dismissed or
suspended, the employee will share equally the expenses of the
hearing including the cost of the administrative law judge
(ALJ).
6.Specifies that in the event that the employee will not be
dismissed or suspended, the SDGB will pay the expenses of the
hearing, including the cost of the ALJ, the cost of the
educators serving on the CPC, and reasonable attorney's fees
incurred by the employee.
This bill makes numerous changes to the suspension and dismissal
procedures for certificated school employees who have attained
permanent status, and establishes a separate set of procedures
for employees charged with egregious misconduct, as defined by
this bill.
This bill requires the dismissal process for proceedings based
solely on charges of egregious misconduct as follows:
1. Provides that the governing board of school district, upon
the filing or formulation of written charges, may immediately
suspend the employee without pay from his/her duties and give
notice of the suspension, and 30 days after service of the
notice of dismissal, the employee will be dismissed unless he
or she demands a hearing.
2. Requires any written statement of charges to specify
instances of behavior and the acts or omissions constituting
the charge so that the employee will be able to prepare
his/her defense.
3. Allows a 30-day Notice to be given at any time of the year,
and establishes delivery requirements for a 30-day Notice
given outside of the instructional year.
4. Prohibits LEAs 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, as specified.
5. Requires an LEA that has made a report of an employee's
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egregious misconduct to the Commission on Teacher
Credentialing to disclose this fact to another LEA
considering an application for employment from the employee,
upon inquiry.
6. Requires the notice of suspension and intention to dismiss
that is based on charges of egregious misconduct to be in
writing and served upon the employee personally or by United
States registered mail.
7. Provides that the dismissal and suspension process initiated
for the acts or events constituting the charge of egregious
misconduct shall not be used to support any additional or
subsequent notice of suspension or dismissal, as specified.
Establishes specific rights of discovery.
8. Provides that the dismissal or suspension process initiated,
as specified, shall be the exclusive means of pursuing a
dismissal or suspension against the certificated employee
until a written decision has been reached by the ALJ.
9. Specifies that the hearings shall be initiated and
conducted, and a decision made, by an ALJ.
10.Requires the hearing to commence within 60 days from the
date of the employee's demand for a hearing, as specified.
11.Requires the Office of Administrative Hearings (OAH) to
prioritize the scheduling of dismissal or suspension
proceedings based on charges of egregious misconduct over
other proceedings.
12.Provides that a witness shall not be permitted to testify at
the hearing except upon oath or affirmation, and allows
testimony and evidence relating to matters that occurred more
than four years prior, as specified.
13.Requires the ALJ to prepare a written decision containing
findings of fact, determinations of issues, and a disposition
that is one of the following: a) the employee is dismissed;
b) the employee should be suspended for a specific period of
time without pay; or, c) the employee should not be dismissed
or suspended.
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14.Provides various requirements regarding the hearing and the
decision of the ALJ, including the requirement that his/her
decision shall be deemed to be the final decision of the
governing board of the school district.
15.Provides that if the ALJ determines the employee should be
dismissed or suspended, the school district and the state
shall share equally the expenses of the hearing, including
the cost of the ALJ, and the employee and the school district
shall pay their own attorney's fees. If the ALJ determines
that the employee should not be dismissed or suspended, the
school district shall pay the expenses of the hearing,
including the cost of the ALJ, and reasonable attorney's fees
incurred by the employee.
16.Provides that the decision in a dismissal or suspension
proceeding may, on petition of either the school district or
employee, be reviewed by a court of competent jurisdiction.
With regard to dismissal for all charges, this bill:
1. Provides that if the governing board of the school
district has given notice to a permanent employee of its
intention to dismiss or suspend him or her, based upon
written charges filed or formulated, 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 ALJ, the employee shall be given a
meaningful opportunity to respond to the amended charges.
2. Provides that a notice of the governing board to dismiss
or suspend an employee, together with written charges filed
or formulated, shall be sufficient to initiate a hearing, as
specified, and the governing board shall not be required to
file or serve a separate accusation.
3. Removes Communist Party membership from the list of
reasons a permanent school employee can be dismissed or
suspended; removes marijuana, mescaline, peyote, and
tetrahydrocannabinols as exceptions to the list of
controlled substance offenses for which a certificated
employee may be charged with a mandatory or optional leave
of absence offense; adds murder and attempted murder to the
list of mandatory leave of absence offenses.
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4. Provides that an employee who has been placed on
suspension may serve and file with the OAH a motion for
immediate reversal of suspension, as specified.
5. Requires that review of the motion 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.
6. Requires the ALJ to issue an order denying or granting the
motion no later than 15 days after the hearing; requires an
order granting a motion for immediate reversal of suspension
to become effective within 5 days of service of the order
and the school district to make the employee whole, as
specified, within 14 days of service of an order granting
the motion.
7. Provides that a motion shall be the exclusive means of
obtaining interlocutory review of suspension pending
dismissal and that the grant or denial of the motion shall
not be subject to interlocutory judicial review.
8. Specifies that a dismissal or dismissal hearing shall
commence within six months from the date of the employee's
request for a hearing; provides that a continuance shall not
extend the hearing date more than six months from the date
of the employee's request for a hearing, except for
extraordinary circumstances, as determined by the ALJ.
9. Requires the hearing to be completed by a closing of the
record within seven months of the date of the employee's
demand for a hearing; provides that 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 ALJ.
10. Provides that if substantial progress has been made in
completing 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 ALJ and he/she shall
establish a reasonable timetable for the hearing completion
and closing of the record.
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11. Deletes the existing discovery process that includes the
rights and duties of any party in a civil action brought in
a Superior Court under Title 4 of Part 4 of the Code of
Civil Procedure; creates a new discovery process where the
school district and employee are required to make initial
disclosures within 45 days of the date of the employee's
demand for a hearing; and specifies that all disclosures
must be made no later than 60 days before the start of the
hearing, as specified.
12. Authorizes testimony or evidence and decisions to be made
relating to matters that occurred more than four years prior
to the date of the filing of the notice that involve sexual
offenses and child abuse offenses, as specified.
13. Authorizes the suspension and dismissal hearing to be
conducted by a single ALJ instead of the full CPC if both
parties agree in writing.
14. Reduces the number of years of experience that CPC members
are required to have in the discipline of the employee being
suspended or dismissed from five to three.
15. Requires members of the CPC to be selected no later than
45 days before the start of the hearing; and requires the
governing board and the employee to serve notice of their
selection upon all parties and the OAH. Specifies objection
procedures and timeline.
16. Deletes the requirement that the employee pay the expenses
incurred by the school district at the hearing if a court
overturns the decision of a CPC; and deletes the requirement
that the district pay the expenses incurred by the employee
at the hearing if a court overturns the decision of a CPC.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: Yes
According to the Senate Appropriations Committee, this bill has
the potential to result in both costs and savings to the state
and to LEAs. The costs and savings realized will depend on the
actions of individual parties in specific cases, and will vary
by action and year. It is unclear whether a streamlined
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dismissal process will increase the number of cases brought
forth.
OAH: Approximately $2 million annually in ongoing personnel
costs for 13 PYs. The OAH estimates it requires eight
additional ALJs, three additional clerical staff, one
associate governmental programs analyst, and one additional
legal support supervisor, to complete the substantial
additional workload imposed by this bill. The cost of the
ALJs' time related to these hearings would be billed by the
OAH to the involved LEAs and the General Fund, depending on
the dispensation of the case.
LEAs: Significant increased workload and costs to abide by
new rules. Potentially substantial savings in reduced
liability (in civil litigation) to the extent that certified
employees who commit egregious acts of misconduct against
children can be dismissed more quickly and with reduced
incentive to appeal.
Mandate: Potentially significant reimbursable mandate on
LEAs, to the extent that certificated employees are accused of
committing controlled substance offenses involving marijuana,
mescaline, peyote, or tetrahydrocannabinols, and placed on
mandatory leave.
SUPPORT : (Verified 5/28/14)
California Department of Education, Superintendent of Public
Instruction, Tom Torlakson
California Labor Federation
California State PTA
California Teachers Association
EdVoice
StudentsFirst
OPPOSITION : (Verified 5/28/14)
Association of California School Administrators
California Association of School Business Officials
Riverside County Superintendent of Schools
San Diego Unified School District
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ASSEMBLY FLOOR : 73-0, 5/2/13
AYES: Achadjian, Alejo, Allen, Ammiano, Bigelow, Bloom,
Blumenfield, Bocanegra, Bonilla, Bonta, Bradford, Brown,
Buchanan, Ian Calderon, Campos, Chau, Chávez, Chesbro, Conway,
Cooley, Dahle, Daly, Dickinson, Donnelly, Eggman, Fong,
Frazier, Beth Gaines, Garcia, Gatto, Gomez, Gordon, Gorell,
Gray, Grove, Hagman, Roger Hernández, Holden, Jones-Sawyer,
Levine, Linder, Logue, Lowenthal, Maienschein, Mansoor,
Medina, Melendez, Mitchell, Morrell, Mullin, Muratsuchi,
Nazarian, Nestande, Olsen, Pan, Patterson, Perea, V. Manuel
Pérez, Quirk, Quirk-Silva, Rendon, Salas, Skinner, Stone,
Ting, Torres, Wagner, Waldron, Weber, Wieckowski, Wilk,
Yamada, John A. Pérez
NO VOTE RECORDED: Atkins, Fox, Hall, Harkey, Jones, Williams,
Vacancy
PQ:nl 5/28/14 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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