BILL ANALYSIS �
SENATE COMMITTEE ON EDUCATION
Carol Liu, Chair
2013-2014 Regular Session
BILL NO: AB 349
AUTHOR: Gatto
AMENDED: May 24, 2013
FISCAL COMM: Yes HEARING DATE: July 3, 2013
URGENCY: No CONSULTANT:Lenin Del Castillo
SUBJECT : Classified School Employees.
SUMMARY
This bill establishes a new process for tracking classified
school employees who have a change in employment status as a
result of misconduct or while an allegation of misconduct is
pending, as specified.
BACKGROUND
Under the existing Child Abuse and Neglect Reporting Act, all
school district teachers and employees are considered to be
"mandated reporters." Mandated reporters are required to
report to any law enforcement department knowledge or
observations they may have of a child they know or reasonably
suspect to have been the subject of child abuse or neglect.
The individual report must be made by telephone immediately
or as soon as practicable with a written or electronic follow
up within 36 hours. (Penal Code � 11164 et seq.)
Existing law provides 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 Education Code �
44011.
Existing law provides 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
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attained permanent status.
(Education Code � 45122.1)
Existing law provides that 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 final.
(Education Code � 45123)
Existing law 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)
ANALYSIS
This bill :
1) Specifies the intent of the Legislature that the State
Department of Education (SDE) and the Commission on
Teacher Credentialing (CTC) enter into an interagency
agreement for a minimum of three years, in order for the
CTC to provide assistance to the SDE in administering
the provisions of this bill, as specified.
2) Requires the superintendent of a school district or the
administrator of a charter school, within 30 days, to
report to the SDE when a classified employee is
dismissed, suspended, resigns, retires, or is otherwise
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terminated by a decision not to employ or reemploy as a
result of an allegation of misconduct or while an
allegation of misconduct is pending. Provides that a
termination by a decision not to employ or reemploy
shall not include or be interpreted to include a change
of status that is solely for a layoff, as specified.
3) Defines "allegation of misconduct" to mean misconduct
that involves any of the acts described in various
sections of law, including voluntary manslaughter,
robbery, felony convictions, and aiding or abetting the
unlawful sale to, use by, or exchange to minors of a
controlled substance.
4) Defines the term "school district" to include a county
office of education.
5) Requires the report to SDE to contain all known
information about each alleged act of misconduct and
include 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 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.
6) Requires the report to be made to the State Department
of Education (SDE) regardless of any proposed or actual
agreement, settlement, or stipulation not to make such a
report. Provides that the report shall also be made if
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allegations of misconduct 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 that SDE shall
maintain these reports by county and by the employee's
name, in a searchable format. Provides that this
information shall not be made available to the general
public.
7) Requires the superintendent of an employing school
district or a charter school administrator, in writing,
to 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 or while an allegation of
misconduct is pending.
8) Requires the SDE 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 or while an allegation of misconduct is
pending, is proven unfounded or substantiated. Provides
that if the SDE determines the allegation of misconduct
is proved unfounded, the classified employee's name
shall not be included in reports established pursuant to
this section.
a) Specifies that for purposes of this section,
"unfounded" means a report that is determined by
the SDE to be false, to involve an accidental
injury, or to not constitute misconduct based on
the preponderance of the evidence.
b) Specifies that for purposes of this section,
"substantiated" means a report determined by the
SDE to constitute misconduct, based upon a
preponderance of the evidence.
c) Provides that if a school district or charter
school initiates an investigation against a
classified employee for allegations of misconduct,
the school district or charter school shall provide
the SDE with all relevant information pertinent to
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this investigation.
9) Makes the finding and declaration of the Legislature
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. Provides that pursuant to this
constitutional provision, the Legislature makes the
finding that 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, to demonstrate the interest protected by this
limitation and the need for protecting the interest.
STAFF COMMENTS
1) Need for the bill . 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. This bill
is intended to 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.
2) State Auditor Report . Spurred by numerous accounts of
child abuse in LAUSD that remained unreported for years,
the Joint Legislative Audit Committee requested an audit
of LAUSD's process for handling allegations of employee
abuse against students. In November 2012, the
California State Auditor completed and released a report
titled "Los Angeles Unified School District: It Could Do
More to Improve Its Handling of Child Abuse
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Allegations." The report included a recommendation for
the Legislature to 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
for certificated employees. 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.
3) What will the reports be used for ? The bill requires
the State Department of Education to maintain reports of
the classified employees reported for misconduct.
However, it does not specify the reasons for which
school districts or charter schools could obtain this
information. Assuming that employing school districts
or charter schools wish to utilize the reports for
background checks for hiring purposes and determine
whether a prospective employee is on the list, the bill
does not define this process. Staff recommends that the
bill be amended to ensure that the reports only be made
available upon request by a school district or charter
school solely for purposes of verifying previous
employment action subject to this section for a
classified employee who is being considered for
employment by the requesting school district or charter
school.
4) New tracking system . This bill creates a new employee
tracking program and poses many process questions worth
consideration. The bill requires the State Department
of Education (SDE) to establish a due process system for
classified employees to be removed from the list if the
allegations are not substantiated. Who will investigate
whether allegations are substantiated? What is the
process by which they are removed from the list if the
allegations are found to be false? Does the SDE
currently have the resources and expertise to
successfully implement such a system?
5) Is SDE the right agency ? While the Commission on
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Teacher Credentialing (CTC) does not currently track
classified employees, it is responsible for functions
that are similar to those contained in this bill as they
relate to certificated employees. For example, the CTC
is required to investigate issues of teacher misconduct
and has the authority to rescind a certificate holder's
credential. Given its expertise in these matters, would
it more appropriate for CTC to administer this new
process, rather than the SDE?
6) Mandated costs . The reporting requirements for school
districts and charter schools would likely result in
unknown state-reimbursable mandated costs.
7) Technical amendment : Staff recommends that the
reference to section "217,1" of the Penal Code
referenced in subdivision (1) of subsection (b) of
Section 45118 (as proposed to be added) in Sec. 2 of the
bill be replaced with "217.1".
8) Related legislation :
SB 160 (Lara), substantially similar to this bill,
requires school districts and charter schools to report
changes in employment status to the SDE when a
classified employee is dismissed, suspended, resigns,
retires, or is otherwise terminated as a result of
allegations of misconduct. This bill is pending in the
Assembly Education Committee.
SUPPORT
Arc and United Cerebral Palsy California Collaboration
California Catholic Conference
Los Angeles County District Attorney's Office
OPPOSITION
None on file.