BILL ANALYSIS �
AB 349
Page 1
Date of Hearing: April 17, 2013
ASSEMBLY COMMITTEE ON EDUCATION
Joan Buchanan, Chair
AB 349 (Gatto) - As Amended: April 1, 2013
SUBJECT : Classified employees: misconduct against a child:
reports.
SUMMARY : Establishes a new process for tracking classified
employees who have a change in employment status while an
allegation of misconduct against a child is pending, as
specified. Specifically, this bill :
1)Requires, 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 against a child or while an allegation of
misconduct against a child is pending, the superintendent of
the employing school district or a charter school
administrator to report the change in employment status to the
California Department of Education (CDE) no later than 30 days
after the employment action.
2)Defines "allegation of misconduct against a child" to mean an
offense specified in Sections 11165.2 to 11165.6, inclusive,
of the Penal Code, a sex offense as specified in Section
44010, and 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.
3)Defines the term "school district" to include a county office
of education.
4)Requires the report to CDE to contain all known information
about each alleged act of misconduct; and, requires the report
to 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 against a child 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withdrawn in consideration of the employee's resignation,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 CDE shall maintain these reports by county
and by school district or charter school.
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5)Requires the superintendent of an employing school district or
a charter school administrator to, in writing, inform a
classified employee 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 against a child or while an allegation of
misconduct against a child is pending.
EXISTING LAW :
1)Requires the governing board of any school district to require
each person to be employed in a position not requiring
certification qualifications, except a secondary school pupil
employed in a temporary or part-time position by the governing
board of the school district having jurisdiction over the
school attended by the pupil, to have two fingerprint cards
bearing the legible rolled and flat impressions of the
person's fingerprints together with a personal description of
the applicant prepared by a local public law enforcement
agency having jurisdiction in the area of the school district,
which agency shall transmit the cards, together with the fee
required to the Department of Justice; except that any
district, or districts with a common board, may process the
fingerprint cards if the district so elects. (Education Code
45125)
2)Specifies that no person shall be employed or retained in
employment by a school district who has been convicted of any
sex offense as defined in Section 44010; and, specifies that
no person shall be employed or retained in employment by a
school district, who has been convicted of a controlled
substance offense as defined in Section 44011.
a) Specifies that if, however, a conviction is reversed and
the person is acquitted of the offense in a new trial or
the charges against him or her are dismissed, this section
does not prohibit his or her employment thereafter.
b) Specifies the governing board of a school district may
employ a person convicted of a controlled substance offense
if the governing board of the school district determines,
from the evidence presented, that the person has been
rehabilitated for at least five years. The governing board
shall determine the type and manner of presentation of the
evidence, and the determination of the governing board as
to whether or not the person has been rehabilitated is
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final. (Education Code 45123)
3)Specifies that no person who has been convicted of a violent
or serious felony shall be employed by a school district; and,
specifies that a school district shall not retain in
employment a current classified employee who has been
convicted of a violent or serious felony, and who is a
temporary, substitute, or a probationary employee who has not
attained permanent status. (Education Code 45122.1)
FISCAL EFFECT : Unknown
COMMENTS : According to the author, classified school employees
serve in a number of roles essential to California's public
school system, working in positions such as office and
administrative personnel, groundskeepers, campus aides,
librarians, security officers, counselors, food service workers,
and bus drivers. In 2010, there were more than 265,000
classified employees working in more than 1,000 school districts
in California's public school system. In 2012, almost 30,400
classified employees worked for the Los Angeles Unified School
District (LAUSD) alone, the largest district in the state
serving more than 659,200 elementary, middle, and high school
students. Spurred by numerous accounts of child abuse in LAUSD
that remained unreported for years, the Legislature requested an
audit of LAUSD's process for handling allegations of employee
abuse against students. In November 2012, the Auditor completed
and released a report titled "Los Angeles Unified School
District: It Could Do More to Improve Its Handling of Child
Abuse Allegations." Amongst its findings, the State Auditor
reported that there is no statewide, centralized mechanism to
communicate information about the circumstances under which a
classified employee leaves one school district to find
employment in another school district. Absent such a system, a
classified employee that left a school by dismissal, resignation
or settlement during the course of an investigation for child
abuse that did not result in an arrest or criminal conviction
can easily return to work in another school district, a system
failure that puts California's children at risk.
This bill will align the reporting requirements for allegations
of misconduct against a child as they pertain to classified
school employees with those established for certified teachers,
thereby creating a centralized, statewide information system.
It requires the supervising superintendent of a school district
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or charter school administrator to report to the CDE whenever a
classified employee is dismissed, resigns, is suspended, retires
or is otherwise terminated as a result of an allegation of
misconduct against a child or while an allegation of misconduct
against a child is pending. This bill defines "allegation of
misconduct against a child" as any act that constitutes child
abuse as already specified in the Penal Code, any sex offense as
already specified in the Education Code, and any act which
constitutes aiding or abetting the unlawful sale, use, or
exchange to a minor of a Schedule I, II or III controlled
substance. Finally, AB 349 requires the reporting superintendent
or charter school administrator to notify the classified
employee in writing of the contents of the report.
State Auditor's Report on LAUSD : In the State Auditor's recent
report entitled, "Los Angeles Unified School District: It Could
Do More to Improve Its Handling of Child Abuse Allegations," the
Auditor made the following recommendation regarding classified
employees, "The Legislature should consider establishing a
mechanism to monitor classified employees who have separated
from a school district by dismissal, resignation, or settlement
during the course of an investigation for misconduct involving
students, similar to the oversight provided by the commission
for certificated employees. If such a mechanism existed, school
districts throughout the State could be notified before hiring
these classified employees." This bill attempts to address that
recommendation by creating a new process for tracking classified
employees who have a change in employment status due to pending
allegations of misconduct involving child abuse, sexual
misconduct or drug use or sales involving children.
Process Questions : Because this bill creates an entirely new
employee tracking program, there are many unanswered process
questions. For instance, once an employee is placed on this
list, what is the process by which they are removed from the
list if the allegations are found to be false? Who will
investigate the allegations? Typically, once a classified
employee leaves employment pending these types of allegations,
the employing agency stops investigating; therefore, it is
unclear how employees will ever be removed from this list.
Additionally, the bill requires CDE to maintain a report of
these employee names, but doesn't address how or if employing
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agencies (school districts, county offices of education or
charter schools) would obtain information about whether a
prospective employee is on the list or not. According to the
author, the intent is to authorize school districts to access
the list maintained by the CDE, however, the author doesn't plan
to include that process in the bill until they determine the
appropriate manner in which to remove employees from the list.
Is CDE the right agency for this process ? Currently, the
Commission on Teacher Credentialing (CTC) does similar work
compared to the contents of this bill, as it pertains to
certificated employees. The CTC receives subsequent arrest
records and reports from employing school districts and
investigates misconduct. The CTC takes action on a certificate
holder's credential when the misconduct warrants such action.
While the CTC does not currently track classified employees, the
committee should consider whether the CTC has greater expertise
in these matters and may be a more appropriate place to house
this new process, rather than the CDE. The committee should also
consider the CTC's existing workload and whether they have the
capacity to add this type of process to their workload, without
a source of funding. If the committee chooses to pass this bill,
the committee should consider amending the bill to include
intent language specifying that CDE and the CTC shall enter into
an interagency agreement for the CTC to provide assistance to
the CDE in setting up this process.
Additionally, the bill requires the CDE to maintain reports by
county and by school district or charter school. If the
committee chooses to pass this bill, the committee should
consider amending the bill to require the CDE to maintain these
reports by county and by person's name, in a searchable format.
It is logical, that when an employing agency wants to make an
inquiry regarding a new employee, they may not know their last
known school employer, particularly if the applicant is trying
to hide prior allegations of misconduct.
Tracking Different Offenses for Classified Employees than
Teachers : This bill requires districts to report to the CDE
when a classified employee has a change in employment status
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pending allegations of misconduct involving specified drug
offenses, sex offenses and child abuse. This list of offenses
is smaller than the existing list of offenses which ban
employment in a school district. It is also a narrower list of
offenses than those which require notification to the CTC when a
certificated employee has a change in employment status. The
author has indicated that they which to have a narrower scope of
employees tracked by the CDE than the existing list of offenses
for which a certificated employee is tracked by the CTC. The
committee should consider whether this list of specified drug
offenses, sex offenses and child abuse offenses is the
appropriate list of misconduct that should be reported to the
CDE. If the committee chooses to pass this bill, the committee
should consider amending the bill to clarify that reports shall
be made when allegations of misconduct "involve acts related" to
the offences referenced in the bill. This will clarify that
individuals do not need to be charged with these offences, but
can be accused of acts related to those offences. Further, the
bill does not require classified employees accused of violent
felonies to be tracked by the CDE. The committee may wish to
consider adding in violent felonies as referenced in Education
Code Section 45122.1.
CTC Regulation Changes : The CTC is currently in the process of
making changes to their regulations regarding a superintendent's
duty to report changes in employment status of credential
holders when allegations of misconduct are pending. First, the
regulatory changes clarify that superintendent's must only
report changes in employment status when allegations of
misconduct are pending and, that dismissal for unsatisfactory
performance or layoff due to reduction in force do not need to
be reported to the CTC. The changes also specify which
documents should be submitted to the CTC when a superintendent
reports a change in employment status for a credential holder;
and, specify that the COC shall (instead of may) investigate any
superintendent that holds a credential who fails to file such
reports. Further the regulatory changes specify requirements for
official records, specify that the CTC will establish
jurisdiction based upon an affidavit or declaration of facts
that a superintendent has failed to report; and, require the CTC
to send a letter to the superintendent when the CTC has
information or belief that a report has not been made. The
committee should consider whether to ask the author to conform
this bill to the final regulations that are adopted by the CTC.
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Possible Committee Amendments : If the committee chooses to pass
this bill, the committee should consider the following
amendments:
1) Add intent language specifying that CDE and the CTC
shall enter into an interagency agreement for the CTC to
provide assistance to the CDE in setting up this process.
2) Specify that "allegations of misconduct against a child"
should instead be referred to as "allegations of misconduct
involving a child" and clarify that the definition of this
term should include allegations "involving acts related" to
the offenses list. This will clarify that individuals do
not need to be charged with one of those offenses.
3) Require CDE to maintain reports by county and by
person's name, in a searchable format.
Related Legislation : SB 160 (Lara), which is pending hearing in
the Senate Education Committee, is substantially similar to this
measure.
REGISTERED SUPPORT / OPPOSITION :
Support
California Catholic Conference, Inc.
California State Conference of the National Association for the
Advancement of Colored People
EdVoice
Opposition
None on file.
Analysis Prepared by : Chelsea Kelley / ED. / (916) 319-2087