BILL ANALYSIS                                                                                                                                                                                                    



                                                                  AB 215
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          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