BILL ANALYSIS �
Senate Appropriations Committee Fiscal Summary
Senator Kevin de Le�n, Chair
AB 349 (Gatto) - Classified Employees: Misconduct Reporting and
Records
Amended: July 10, 2013 Policy Vote: Education 9-0
Urgency: No Mandate: Yes
Hearing Date: August 12, 2013 Consultant: Jacqueline
Wong-Hernandez
This bill meets the criteria for referral to the Suspense File.
Bill Summary: AB 349 requires school districts and charter
schools to notify the California Department of Education (CDE),
within 30 days, when a classified employee is dismissed,
terminated, or suspended from employment as a result of
misconduct, as specified. 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, and for sharing that
information with specified entities.
Fiscal Impact:
Mandate: Substantial new reimbursable mandate on school
districts for specified reporting of employee misconduct and
ongoing investigations. Any related procedures developed,
training undertaken, or increased staffing to comply with
this bill will likely constitute a reimbursable mandate, in
the tens of millions of dollars annually.
CDE recordkeeping/processing: Up to $7 million (General
Fund) in 2014-15, to establish a new unit responsible for
program development and implementation, and to hire new
permanent staff for ongoing processing (reports from
schools) and reporting (to inquiring schools), as specified.
The new unit staff would develop and establish reporting
protocols (including information sharing), create an
information storage system to accommodate the reports, and
establish a professional development program to train
employees working in this new program (both at the state and
local levels). Some of those activities will be one-time,
and others could be ongoing. Additionally, in 2014-15 the
CDE would add up to 50 positions in its Personnel Services
Division, in order to process, maintain, expunge, and report
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records of misconduct. After 2014-15 establishes a baseline
of workload (currently unknown), the ongoing positions would
be reevaluated. Ongoing costs could range from $2-5 million
(General Fund) annually. See staff comments.
CDE evaluation of the validity of misconduct reports:
Ongoing costs of $1-3 million (General Fund) annually,
primarily to hire additional staff. Costs will depend on the
number of reports that CDE counsel have to review to
determine whether they are "unfounded" or "substantiated,"
the appeals process, and the CDE's level of involvement in
ongoing local investigations. See staff comments.
Commission on Teacher Credentialing (CTC) coordination:
Potentially significant costs to the CTC, determined by the
tasks required of the CTC in the interagency agreement. The
CTC estimates that it will require 3 new positions, for a
total cost of $360,000 annually (for up to 3 years), to
provide support to the CDE.
Background: 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
attained permanent status. (EC � 45122.1)
Existing law permits the governing board of a school district to
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 5 years, as specified. (EC � 45123)
Proposed Law: AB 349 specifies the intent of the Legislature
that the CDE and the CTC enter into an interagency agreement for
a minimum of 3 years, in order for the CTC to provide assistance
to the CDE in administering the provisions of this bill, as
specified.
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This bill requires the superintendent of a school district or
the administrator of a charter school, within 30 days, to report
to the CDE when a classified employee is dismissed, suspended,
resigns, 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; the report must
contain all known information about each alleged act of
misconduct, and include all documentation related to the case.
The administrator must also inform a classified employee, in
writing, 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.
This bill further requires that the CDE maintain these reports
in a searchable format, as specified, but specifies that a
report made pursuant to this section shall only be made
available upon request by a school district or charter school
for the purpose of verifying previous employment action for an
individual being considered for employment by the requesting
school or district. It also 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 or while an allegation of misconduct is pending, is
proven unfounded or substantiated.
Related Legislation: SB 160 (Lara) requires school districts and
charter schools to notify the CDE, within 30 days, when a
classified employee is dismissed, terminated, or suspended from
employment as a result of misconduct against a child, as
specified.
SB 160 further requires the CDE, upon request by a school
district or charter school, to provide that information only for
purposes of verifying previous employment of a classified
employee. That bill is pending in the Assembly Appropriations
Committee.
Staff Comments: This bill will result in state costs in the tens
of millions of dollars annually. The exact costs will depend on
the steps taken by the CDE to implement these provisions, and by
the resources used by school districts to comply; actions taken
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by those local entities will likely be deemed by the Commission
on State Mandates to be a reimbursable state mandate. The level
of coordination and structure imposed by the CDE will also
partially determine the costs: the more direction that school
districts receive from the CDE, the more likely they are to
contain costs by streamlining the process (instead of each
school district developing its own system for implementation).
Every school district will be required to provide a report to
the CDE, which must include significant specified information
and documents, on every classified employee who is dismissed,
suspended, resigns, 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.
Every school district must also report to the CDE when it
"initiates an investigation" against a classified employee for
allegations of misconduct.
There are approximately 1,000 school districts statewide; at a
minimum, they would all need to develop systems for meeting the
reporting requirements of this bill, including designating and
training staff. It is more likely that many school districts
will choose to hire a dedicated employee to implement this
bill's provisions; larger districts may hire multiple employees,
in order to ensure they are able to meet the reporting timelines
for employment actions and initiated investigations. If even
half of the school districts hire one employee at a cost of
$70,000 (including benefits), the annual reimbursable cost would
be $35 million (General Fund). These same requirements would
exist for the state's nearly 1,000 charter schools and, while
they are not eligible to claim mandate reimbursement, they would
incur similar costs and their reports would add to the
processing workload for the CDE.
Initially, the CDE is required to develop a system for
maintaining reports it receives in a searchable format, and
functionally will need to establish due process procedures for
classified employees who have been the subject of reports. The
department has indicated it would need to establish a new unit
responsible for developing and implementing the programmatic
aspects of this bill, as described in the Fiscal Impact. The CDE
will need to hire additional staff to develop the required
systems, and to communicate the expectations and procedures to
school districts and charter schools.
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Because sensitive employee information is involved, these
procedures will need to be clear and carefully delineated to
limit districts' exposure to legal liability. After a program
structure is in place, the CDE will continue to require
dedicated staff to review reports for completeness, to verify
accuracy, and to maintain records of the information submitted.
Staff will also have to validate and comply with report requests
from inquiring schools interested in hiring individuals who may
be the subjects of reports. Additional CDE staff will be
responsible for implementing its due process procedures and
communicating those procedures directly to affected classified
employees. If each school district and charter school were to
file a single report each year, the CDE would process more than
2,000 reports annually.
This bill establishes a new role for CDE attorneys, as
evaluators of the validity of misconduct reports. It
specifically requires that reports be reviewed to determine
"whether a [local] decision to dismiss, suspend, or not 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." This appears to require CDE staff, presumably
attorneys, to investigate the allegations and to make findings
of both their validity and the validity of a school district's
decision regarding an employee's status. The requirement that
reports contain current contact information for "all persons who
may have information relating to the allegation of misconduct"
implies that the CDE would contact those individuals, as part of
an investigation and evaluation of the report. These activities
will take considerable staff time to complete. Additionally,
when a classified employee is notified of a report filed with
the CDE (as the bill requires), the employee is likely to
contact the CDE and wish to address and/or contest allegations
contained in the report.
It is unclear how a CDE investigation would coexist with a
district's own findings, if they were at odds. For example, if a
district reported that an employee resigned as a result of a
pending misconduct allegation and the CDE found that claim to be
unsubstantiated, it is unclear the extent to which such a
finding could expose a reporting district to liability for
claims of defamation and/or related causes of action. If the CDE
were to remove the employee's name from its searchable report
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system, could a future hiring school district sue the CDE for
withholding information, if it were later found to be true? If
the employee were to subsequently commit misconduct involving a
child, could the child's parents file a civil suit against the
CDE for withholding information as a result of its determination
that the report was unfounded?
Staff notes that this bill requires school districts and charter
schools to also report to the CDE when they "initiate
investigations" of employees for misconduct, but does not
specify what the CDE is supposed to do with that information. If
the CDE is not required to do anything, then it is unclear why
that reporting would be mandated; if the intent is for the CDE
to become involved in the investigation, that would drive
additional costs to the department.
This bill's assignment of broad responsibilities to the CDE to
collect and share individual employee information, to create due
process procedures, and to employ state-level staff to make
determinations of the validity of misconduct allegations,
investigations, and actions at the local level likely exposes
the CDE and, thus, the State of California, to liability on
numerous grounds.