BILL ANALYSIS �
AB 349
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Date of Hearing: May 1, 2013
ASSEMBLY COMMITTEE ON EDUCATION
Joan Buchanan, Chair
AB 349 (Gatto) - As Amended: April 22, 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 involving 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 involving a child or while an allegation of
misconduct involving 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; and, specifies that this
requirement shall not be interpreted to include a change of
status that is solely for a layoff.
2)Defines "allegation of misconduct involving a child" to mean
misconduct that involves any of the acts described in 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.
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 all of the following:
a) The name of the classified employee.
b) The current address of the classified employee.
c) The name of the reporting school district or charter
school.
d) The name of the last school of employment.
e) An explanation of the allegation of misconduct or
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pending allegation of misconduct.
f) Current contact information for all persons who may have
information relating to allegation of misconduct.
g) Any and all documentation related to the case.
5)Requires the report to be made to the CDE regardless of any
proposed or actual agreement, settlement, or stipulation not
to make such a report; requires the report to also be made if
allegations of misconduct involving 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employee are withdrawn in consideration of the employee's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; requires the CDE to maintain these reports
by county and the employee's name, in a searchable format;
and, specifies this information shall not be made available to
the general public.
6)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 involving a child or while an allegation of
misconduct involving a child is pending.
7)Requires the CDE to establish due process procedures with the
purpose of removing a classified employee's name from the
reports and, specifies 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.
8)Requires the CDE to 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 involving a child
or while an allegation of misconduct involving a child is
pending are proven unfounded or substantiated; and, specifies
if the CDE determines the allegation of misconduct involving a
child are proved unfounded, the classified employee's name
shall not be included in reports.
9)Specifies that for this purpose, "unfounded" means a report
that is determined by the CDE to be false, to involve an
accidental injury, or to not constitute misconduct involving a
child, as defined.
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10)Specifies that for this purpose, "substantiated" means a
report determined by the CDE to constitute misconduct
involving a child, based upon evidence that makes it more
likely than not that misconduct occurred.
11)Requires, if a school district or charter school initiates an
investigation against a classified employee for allegations
involving a child, the school district or charter school to
provide the CDE with all relevant information pertinent to
this investigation.
12)Declares the intent of the Legislature that CDE and the
Commission on Teacher Credentialing (CTC) enter into an
interagency agreement for a minimum of three years, in order
for the commission to provide assistance to CDE.
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
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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
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
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failure that puts California's children at risk.
This bill will align the reporting requirements for allegations
of misconduct involving a child as they pertain to classified
school employees with those established for certificated
teachers, thereby creating a centralized, statewide information
system. It requires the supervising superintendent of a school
district 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 involving a child or while an
allegation of misconduct involving a child is pending. This bill
defines "allegation of misconduct involving a child" to mean
misconduct that involves any of the acts that constitute 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 precise process by which they are removed from
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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 precisely how employees will be removed from this list.
The bill requires the CDE to establish a due process system for
classified employees to be removed from the list if the
allegations are not substantiated, however the details of this
process are still unclear. Further, the bill defines
"substantiated" to mean a report determined by the CDE to
constitute misconduct based on evidence that makes it more
likely than not that misconduct occurred. The standard
currently used by the Committee on Credentials when they revoke
a credential holder's certificate, is a "preponderance of
evidence." If the committee chooses to pass this bill, the
committee should consider amending the bill to specify that
classified employees be prohibited from working in school
districts when a "preponderance of evidence" suggests that
misconduct occurred, which is the same standard under which a
teacher would lose their credential before the Committee of
Credentials. Additionally, the bill requires CDE to maintain a
report of these employee names, but doesn't address how or if
employing agencies (school districts, county offices of
education or charter schools) would obtain information about
whether a prospective employee is on the list or not.
Is CDE the right agency for this process ? Currently, the 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 may wish to consider amending the bill to move the
new classified tracking program out of the CDE and instead
create a separate division within the CTC to do this work. The
committee should further consider a funding source for the
creation of a new division within the CTC.
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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
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. Further, the bill does not require classified employees
accused of violent felonies to be tracked by the CDE. The
committee may wish to consider amending the bill to specify that
classified employees be investigated and prohibited from working
in school districts for the same allegations of misconduct that
would necessitate suspending or revoking a teacher's credential
under existing law.
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. This bill
conforms several of these changes into statute and the committee
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should consider whether to ask the author to conform this bill
to the final regulations that are adopted by the CTC.
Possible Committee Amendments : If the committee chooses to pass
this bill, the committee should consider the following
amendments:
1) Move the new classified tracking program out of the CDE
and instead create a separate division within the
Commission on Teacher Credentialing.
2) Specify that classified employees will be investigated
and prohibited from working in school districts for the
same allegations of misconduct that would necessitate
suspending or revoking a teacher's credential under
existing law.
3) Specify that classified employees should be prohibited
from working in school districts when a "preponderance of
evidence" suggests that misconduct occurred, which is the
same standard under which a teacher would lose their
credential before the Committee of Credentials.
4) Technical clean up amendments regarding the definition
of misconduct.
Related Legislation : SB 160 (Lara), which is pending hearing in
the Senate Public Safety 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
Opposition
None on file.
Analysis Prepared by : Chelsea Kelley / ED. / (916) 319-2087
AB 349
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