BILL ANALYSIS Ó
AB 215
Page 1
CONCURRENCE IN SENATE AMENDMENTS
AB 215 (Buchanan)
As Amended May 20, 2014
Majority vote
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|ASSEMBLY: |73-0 |(May 2, 2014) |SENATE: |33-0 |(June 9, 2014) |
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Original Committee Reference: NAT. RES.
SUMMARY : Makes changes to the suspension and dismissal hearing
process for school employees, as specified.
The Senate amendments :
1)Remove "knowing membership by the employee in the Communist
Party" from the list of reasons a permanent school employee
can be dismissed or suspended and deletes incorrect code
references.
2)Define egregious misconduct as immoral conduct that is the
basis for the following offenses: sex offenses; controlled
substance offenses; and, child abuse and neglect offenses, as
specified.
3)Specify the following for dismissal or suspension proceedings
based solely on charges of egregious misconduct:
a) Upon the filing of written charges 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, 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.
b) Upon the filing of written charges 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 for the dismissal
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or suspension of a permanent employee of the school
district, the governing board of the school district may,
upon majority vote, except as provided, 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.
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) The notice of suspension and intention to dismiss that
is based exclusively on charges of egregious misconduct
shall be in writing. 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.
e) Once the governing board of the school district has
initiated dismissal or suspension proceedings, 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 (ALJ), the charges have been
dismissed, or the dismissal or suspension proceeding has
been settled or otherwise resolved. If a suspension
initiated against an employee is upheld, and a dismissal
was not pursued on the same charges, the entry of judgment
of the suspension may be considered as evidence to support
a subsequent notice of dismissal based on other charges.
If a suspension initiated against an employee is upheld,
but the employee prevailed on the dismissal proceeding
based on the same charges, the entry of judgment of the
suspension shall not be considered as evidence to support a
subsequent notice of dismissal based on other charges.
f) If a hearing is requested by the employee, the hearing
shall be commenced within 60 days from the date of the
employee's demand for a hearing. The hearing shall be
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initiated and conducted, and a decision made by an ALJ.
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 (OAH) shall unilaterally set a date. The OAH
shall prioritize the scheduling of dismissal or suspension
proceedings over other proceedings related to certificated
school employees.
g) The right of discovery of the parties shall not be
limited to those matters set forth in Government Code
Section 11507.6 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. 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, 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, if any, shall not extend by more than a total of
30 days the deadline.
h) If the right of discovery 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 Government Code Section 11507.7.
i) 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, which shall not be
excluded based on the passage of time.
j) The ALJ shall prepare a written decision containing
findings of fact, determinations of issues, and a
disposition that shall be, solely, one of the following:
i) That the employee should be dismissed.
ii) That the employee should be suspended for a specific
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period of time without pay.
iii) That the employee should not be dismissed or
suspended.
aa) The decision of the ALJ 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; and, the ALJ shall not have the
power to dispose of the charge of dismissal by imposing
probation or other alternative sanctions.
bb) The state board may adopt from time to time rules and
procedures as may be necessary to effectuate this
provision.
cc) The administrative costs of the hearing shall be paid
according to the outcome of the hearing, as specified.
4)Specify the following for suspension and dismissal proceedings
for all charges except those solely involving egregious
misconduct:
a) Authorize an employee who has been suspended to request
a motion for immediate reversal of the suspension before an
ALJ; and, specify the review of a motion shall be limited
to a determination as to whether the facts as alleged in
the charges, if true, are sufficient to constitute a basis
for immediate suspension, as specified.
b) Specify that a suspension or dismissal hearing shall
commence within six months of the employee's request for a
hearing; specifies the start of the hearing may not be
continued beyond six months except for extraordinary
circumstances as deemed by the ALJ; require OAH to set a
date for the hearing if both parties cannot agree; requires
the hearing to be completed within seven months; and,
specify when substantial progress has been made within the
seven month timeline but the hearing cannot be completed,
for good cause shown, the hearing may be extended by the
ALJ.
c) Authorize testimony and evidence relating to matters
that occurred more than four years in the past that involve
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any act as described in Education Code (EC) Section 44010
(sexual offenses) and Penal Code Sections 11165.2 to
111652.6 (child abuse offenses).
d) Authorize suspension and dismissal hearings to be
presided over by an ALJ alone, instead of the full
Commission on Professional Competence (CPC), if both
parties agree in writing.
e) Specify that members of the CPC shall have three years
of experience in the last 10 years in the same discipline
of the teacher being suspended or dismissed; requires the
members of the CPC to be selected 45 days prior to the
hearing date; and, specify that if a party believes that a
selected commission member is not qualified, that party may
file an objection with OAH within 10 days of their
selection and within seven days of that objection an ALJ
shall rule on the objection.
f) Define "discipline" for purposes of appointing members
of a CPC as follows:
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 the most recent teaching assignment of the
employee subject to dismissal.
g) Specify that a member of the CPC who is retired shall
receive pay at the daily substitute teacher rate.
h) Delete the requirement that the employee pay the
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expenses incurred by the district at the hearing if a court
overturns the decision of a CPC; conversely delete the
requirement that the district pay the expenses incurred by
the employee at the hearing if a court overturns the
decision of a CPC; and, require the state and the school
district to share the costs of a hearing if an employee is
dismissed or suspended by a CPC.
i) Delete the existing discovery process and instead
creates a new discovery process where the school district
and the employee must disclose information within 45 days
of the employee's demand for a hearing; and, specifies all
disclosures must be made no later than 60 days before the
start of the hearing, as specified.
5)Specify that once a governing board has given notice to
suspend or dismiss an employee, the charges may be amended
less than 90 days before the hearing upon motion before an ALJ
of the OAH; specify that the employee shall be given
meaningful opportunity to respond to the amended charges; and,
specify that notice to the employee shall be sufficient to
initiate a hearing.
6)Require that a notice of suspension or dismissal involving
only unsatisfactory performance be given during the
instructional year of the school site where the employee is
physically employed; authorize a notice of suspension or
dismissal to be given at any time of year for other suspension
or dismissal reasons; and, specify the notice of dismissal or
suspension given outside the instructional year shall be in
writing and be served upon the employee personally at his or
her last known address.
7)Prohibit school districts, county offices of education, and
charter schools from entering into an agreement that would
prevent a mandatory report of egregious misconduct to the
Commission on Teacher Credentialing or any other state or
federal agency; and, prohibit school districts, county offices
of education, and charter schools 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, unless those claims have been proven to
be false.
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8)Specify that 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.
9)Specify that any school employee who alleges that another
school employee has engaged in egregious misconduct, knowing
at the time of making the allegation that the allegation was
false, shall be subject to certificate revocation, if
applicable.
10)Add murder and attempted murder to the list of mandatory
leave of absence offenses; and, remove marijuana, mescaline,
peyote, and tetrahydrocannabinols as exceptions to the
controlled substance offenses for which a certificated
employee may be charged with a mandatory or optional leave of
absence offense.
11)Make findings and declarations that pupils, educators,
administrators, school boards, and school district employees
need a teacher dismissal process that is both fair and
efficient; and, that this measure is intended to revise
existing statutes in a manner that will update and streamline
the procedures for teacher discipline and dismissal, making it
more cost effective and reducing the time necessary to
complete the teacher dismissal process.
EXISTING LAW :
1)Prohibits the dismissal of permanent employees except for one
or more of the following causes:
a) Immoral or unprofessional conduct;
b) Commissioning, aiding or advocating the commission of
acts of criminal syndicalism;
c) Dishonesty;
d) Unsatisfactory performance;
e) Evident unfitness for service;
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f) Physical or mental condition unfitting him or her to
instruct or associate with children;
g) Persistent violation of or refusal to obey the school
laws of the state by the State Board of Education or by the
local governing board employing him or her;
h) Conviction of a felony or any crime involving moral
turpitude;
i) Advocating for or teaching communism with the intent of
indoctrinating the mind of any pupil;
j) Knowing membership by the employee in the Communist
Party; or,
aa) Alcoholism or other drug abuse which makes the employee
unfit to instruct or associate with children. (EC Section
44932)
2)Prohibits the notice of dismissal or suspension of a teacher
from being given between May 15th and September 15th in any
year. (EC Section 44936)
3)Authorizes the governing board of any school district to
immediately suspend a certificated employee, if it deems such
action necessary, on charges of:
a) Immoral conduct;
b) Conviction of a felony or of any crime involving moral
turpitude;
c) Incompetency due to mental disability;
d) Willful refusal to perform regular assignments without
reasonable cause;
e) With violation of teacher or inculcating Communism; or,
f) With knowing membership by the employee in the Communist
Party. (EC Section 44939)
4)Requires that if a dismissal or suspension hearing is
requested by an employee, the hearing shall commence within 60
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days from the date of the employee's demand for a hearing and
specifies the following:
a) 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.
b) Requires that the hearing be conducted by a CPC made up
of three members: one member to be selected by the
certificated employee; one member to be selected by the
governing board; and, one member to be an ALJ from the OAH.
c) Provides that the decision made by the CPC is made by
majority vote and shall be deemed to be the final decision
of the governing board. (EC Section 44944)
FISCAL EFFECT : According to the Senate Appropriations
Committee, this bill has the potential to result in both costs
and savings to the state and to local education agencies (LEAs).
The costs and savings realized will depend on the actions of
individual parties in specific cases, and will vary by action
and year (as is true under existing law). It is unclear whether
a streamlined dismissal process will increase the number of
cases brought forth. OAH: approximately $2 million annually in
ongoing personnel costs for 13 personnel years. The OAH
estimates it would require 8 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. See staff comments. 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,
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peyote, or tetrahydrocannabinols, and placed on mandatory leave.
COMMENTS : This measure was substantially amended in the Senate
and the amendments reflect a bipartisan agreement. This bill is
substantially similar to AB 375 (Buchanan), which was passed by
the Assembly in 2013. The policy issues in this measure have
been heard by the Assembly Education Committee over the last few
years.
According to the author, the current teacher discipline and
dismissal process is outdated and cumbersome. The law has not
kept pace with today's school calendars or practice. In
addition, there is no deadline for completion of the dismissal
appeal process and continuances can allow costly litigation to
drag on for 12-18 months, or longer. This bill updates and
streamlines the teacher discipline and dismissal process, saving
school districts time and money while at the same time ensuring
due process. In addition, the bill removes outdated references
to code and clarifies the responsibilities of both school
districts and teachers with respect to appeals.
This bill increases protections for children by defining a
subset of immoral conduct as egregious misconduct, which
encompasses sexual abuse, child abuse and specific drug crimes
and, establishes a separate and streamlined hearing process for
cases in which an employee is accused of egregious misconduct.
This streamlined process will allow a hearing based on charges
of egregious misconduct to be conducted by a single ALJ instead
of a three-person panel. The bill requires egregious misconduct
hearings to commence within 60 days. The bill allows, and in
some cases requires, school districts to place employees on
leave when they have been criminally charged with certain drug
offenses. The bill requires school districts to place an
employee on leave should he or she be criminally charged with
homicide or attempted homicide. The bill allows evidence more
than four years old to be presented at hearing in cases of child
abuse or sexual abuse. The bill maintains the ability of a
district to immediately remove a teacher accused of child abuse
or sexual abuse from the classroom; and, authorizes dismissals
to take place at any time of year for all other charges except
unsatisfactory performance, which shall be given during the
school year. This bill clarifies current law by updating the
grounds for dismissal and removing the ground for membership in
the Communist Party; removing duplicative notice requirements;
and, removing a provision that has been deemed unconstitutional
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by the California Supreme Court.
This bill saves time and money by requiring, for all charges
except for egregious misconduct, that the hearing commence
within six months and the entire appeal process be completed
within seven months. The bill removes the ability of litigants
to take discovery disputes and suspension appeals to Superior
Court and establishes a limited discovery process for all
charges except egregious misconduct. The bill requires the
parties to nominate their respective members of the CPC 45 days
prior to the date set for hearing. Further this bill increases
the number of teachers eligible to serve on the CPC by lowering
from five to three the number of years of teaching experience
the panel member must have in the discipline of the teacher
subject to dismissal.
Analysis Prepared by : Chelsea Kelley / ED. / (916) 319-2087
FN: 0003915