Amended in Assembly May 24, 2013

Amended in Assembly April 22, 2013

Amended in Assembly April 1, 2013

California Legislature—2013–14 Regular Session

Assembly Bill No. 349

Introduced by Assembly Member Gatto

February 13, 2013

An act to add Section 45118 to the Education Code, relating to school administration.

LEGISLATIVE COUNSEL’S DIGEST

AB 349, as amended, Gatto. Classified employees: begin insert allegations of end insert begin delete misconduct involving a child: end delete begin insert misconduct: end insert reports.

Existing law authorizes the governing board of a school district to lay off and reemploy classified employees in accordance with specified procedures. Existing law requires classified employees subject to a layoff, to be effective at the end of the school year, to be given written notice on or before April 29 informing them of the layoff and of any displacement and reemployment rights.

This bill would require the superintendent of the employing school district or a charter school administrator to report a change in employment status to the State Department of Education when a classified employee is dismissed, is suspended, resigns, retires, or is otherwise terminated by a decision not to employ or reemploy, as a result of allegations of misconduct begin delete involving a child end delete , as defined. The bill would require the report to the department to contain all known information about each alleged act of misconduct, as specified, and would require the department to maintain the report by county and by the employee’s name in a searchable format. The bill would require the department to establish due process procedures for purposes of removing a classified employee’s name from the reports, as provided, and procedures for determining whether a decision to dismiss, suspend, or not to employ or reemploy a classified employee, or when an employee resigns or retires, as a result of an allegation of misconduct begin delete involving a child end delete or while an allegation of misconduct begin delete involving a child end delete is pending are proven unfounded or substantiated, as the bill would define those terms. By imposing a new duty on a school district or charter school, the bill would create a state-mandated local program.

begin insert

Existing constitutional provisions require that a statute that limits the right of access to public bodies or the writings of public officials and agencies be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.

end insert begin insert

This bill would make legislative findings to that effect.

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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.  

It is the intent of the Legislature that the State
Department of Education and the Commission on Teacher
Credentialing enter into an interagency agreement for a minimum
of three years, in order for the commission to provide assistance
to the department in administering Section 45118 of the Education
Code.

SEC. 2.  

Section 45118 is added to the Education Code, to read:

45118.  

(a) (1) When a classified employee is dismissed,
resigns, is suspended, retires, or is otherwise terminated by a
decision not to employ or reemploy, as a result of an allegation of
misconduct begin delete involving a child end delete or while an allegation of misconduct
begin delete involving a child end delete is pending, the superintendent of the employing
school district or a charter school administrator shall report the
change in employment status to the department no later than 30
days after the employment action.

(2) “Otherwise terminated by a decision not to employ or
reemploy” as used in paragraph (1) shall not include or be
interpreted to include a change of status that is solely for a layoff
as described in Section 45308.

(b) For purposes of the this section, “allegation of begin delete misconduct
involving a child” end delete begin insert misconduct end insert begin insert ” end insert means misconduct that involves
any of the acts described in begin delete Sections 11165.2 to 11165.6, inclusive,
of the Penal Code and Section 44010, and that involves aiding or
abetting the unlawful sale to, use by, or exchange to minors of a
controlled substance listed in Schedule I, II, or III as included in
Sections 11054, 11055, and 11056 of the Health and Safety Code. end delete
begin insert the following sections: end insert

begin insert

(1) Sections 187, 188, 189, and 192, as this section relates to
voluntary manslaughter, Sections 203, 205, 206, 207, 209 to 211,
inclusive, 214, 215, 217,1, 220, 222, 244, 245, 261, 261.5, 262,
265 to 266j, inclusive, 267, 273a, 273ab, 273d, 273f, 273g, 278,
285, 286, 286.5, 288, 288.2 to 288a, inclusive, 424, 425, 503, 504,
and 11165.2 to 11165.6, inclusive, of the Penal Code.

end insert begin insert

(2) Sections 484, 484.1, 484b, 484c, and 484e to 488, inclusive,
of the Penal Code, as these sections relate to felony convictions.

end insert begin insert

(3) Section 44010 of this code.

end insert begin insert

(4) Any act that involves a controlled substance offense, as
described in Section 44011 of this code, that involves a minor.

end insert

(c) For purposes of this section, the term “school district”
includes a county office of education.

(d) The report shall contain all known information about each
alleged act of misconduct and shall include all of the following:

(1) The name of the classified employee.

(2) The current address of the classified employee.

(3) The name of the reporting school district or charter school.

(4) The name of the last school of employment.

(5) An explanation of the allegation of misconduct or pending
allegation of misconduct.

(6) Current contact information for all persons who may have
information relating to allegation of misconduct.

(7) Any and all documentation related to the case.

(e) The report shall be made to the department regardless of any
proposed or actual agreement, settlement, or stipulation not to
make such a report. The report shall also be made if allegations of
misconduct begin delete involving a child end delete served on the employee are
withdrawn in consideration of the employee’s resignation,
retirement, or other failure to contest the truth of the allegations.
The department shall maintain these reports by county and by the
employee’s name, in a searchable format. This information shall
not be made available to the general public.

(f) The superintendent of an employing school district or a
charter school administrator shall, in writing, inform a classified
employee of the content of this section if that employee is
dismissed, resigns, is suspended, retires, or is otherwise terminated
by a decision not to employ or reemploy, as a result of an allegation
of misconduct begin delete involving a child end delete or while an allegation of
misconduct begin delete involving a child end delete is pending.

(g) The department shall establish due process procedures begin delete with end delete
begin insert for end insert the purpose of removing a classified employee’s name from
the reports maintained pursuant to subdivision (e). These
procedures shall include, but not be limited to, a timeframe for
how long a classified employee’s name shall be included in the
reports maintained pursuant to subdivision (e).

(h) (1) The department shall establish procedures to determine
whether a decision to dismiss, suspend, or not to employ or
reemploy a classified employee, or when an employee resigns or
retires, as a result of an allegation of misconduct begin delete involving a child end delete
or while an allegation of misconduct begin delete involving a child end delete is begin delete pending
are end delete begin insert pending, is end insert proven unfounded or substantiated. If the
department determines the allegation of misconduct begin delete involving a
child are end delete begin insert is end insert proved unfounded, the classified employee’s name
shall not be included in reports established pursuant to this section.

(A) For purposes of this begin delete section end delete begin insert section, end insert “unfounded” means a
report that is determined by the department to be false, to involve
an accidental injury, or to not constitute misconduct begin delete involving a
child end delete as defined in subdivision (b) begin insert , based on the preponderance
of the evidence end insert .

(B) For purposes of this begin delete section end delete begin insert section, end insert “substantiated” means
a report determined by the department to constitute misconduct
begin delete involving a child end delete , based upon begin insert a preponderance of the end insert evidence
begin delete that makes it more likely than not that misconduct, as described
in subdivision (b), occurred end delete .

(2) If a school district or charter school initiates an investigation
against a classified employee for allegations begin delete involving a child end delete begin insert of
misconduct end insert as defined in this section, the school district or charter
school shall provide the department with all relevant information
pertinent to this investigation.

begin insert

begin insert SEC. 3. end insert   

end insert begin insert

The Legislature finds and declares that this act imposes
a limitation on the public’s right of access to the meetings of public
bodies or the writings of public officials and agencies within the
meaning of Section 3 of Article I of the California Constitution.
Pursuant to that constitutional provision, the Legislature makes
the following finding to demonstrate the interest protected by this
limitation and the need for protecting the interest:

end insert begin insert

In order to protect sensitive employment matters, it is necessary
that this act take effect with the limitation on public access to
certain reports as specified in subdivision (e) of Section 45118 of
the Education Code.

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begin delete SEC. 3. end delete
begin insert SEC. 4. end insert   

If the Commission on State Mandates determines that
this act contains costs mandated by the state, reimbursement to
local agencies and school districts for those costs shall be made
pursuant to Part 7 (commencing with Section 17500) of Division
4 of Title 2 of the Government Code.