Amended in Assembly March 19, 2013

California Legislature—2013–14 Regular Session

Assembly Bill No. 375

Introduced by Assembly Member Buchanan

February 14, 2013

An act to amend begin delete Section 44932 end delete begin insert Sections 44932, 44934, 44936, 44939, 44940, 44941, and 44944 end insert of begin insert , and to add Section 44944.2 to, end insert the Education Code, relating to school employees.

LEGISLATIVE COUNSEL’S DIGEST

AB 375, as amended, Buchanan. School employees: dismissal or suspension.

begin delete

Existing

end delete

begin insert (1) end insert begin insert   end insert begin insert Existing end insert law prohibits a permanent employee from being dismissed except for one or more of specified causes, including, among other causes, immoral or unprofessional conduct. begin insert end insert begin insert Existing law requires the governing board of a school district to give notice to a permanent employee of its intention to dismiss or suspend the employee, together with a written statement of charges, for unprofessional conduct or unsatisfactory performance, at the expiration of 30 days from the date of service of the notice, unless the employee demands a hearing. end insert

begin insert

This bill would specify that a governing board’s notice to an employee of its intention to dismiss or suspend the employee, together with written charges filed or formulated pursuant to those procedures, shall be sufficient to initiate a hearing, as prescribed, and would specify that the governing board shall not be required to file or serve a separate accusation. The bill would revise various procedures, for providing notice of dismissal or suspension pursuant to those provisions, and would require that the notice only be given during the instructional year of the schoolsite where the employee is physically employed, or during the summer session, if the employee is employed for that purpose. The bill would require that once a demand has been made for a hearing, the school district immediately notify the Office of Administrative Hearings. The bill would impose various requirements for the filing of a demand for a hearing and the conduct of hearings by the Office of Administrative Law. The bill would delete obsolete provisions relating to the suspension of a permanent employee based on knowing membership by the employee in the Communist Party.

end insert begin insert

Existing law provides that upon being charged, as specified, with certain sex or controlled substance offenses, a certificated employee be placed on either a compulsory leave of absence or an optional leave of absence for certain enumerated violations.

end insert begin insert

This bill would revise the definitions of “charged with a mandatory leave of absence offense” and “charged with an optional leave of absence offense” for purposes of those provisions governing when a certificated employee is required to be placed on either a compulsory leave of absence or an optional leave of absence. Because these revisions would increase the number of employees subject to immediate placement on compulsory leave of absence, thereby increasing the duties of school districts, the bill would impose a state-mandated local program.

end insert begin insert

Existing law requires in a dismissal or suspension proceeding against a permanent employee for unprofessional conduct or unsatisfactory performance, if a hearing is requested by the employee, that the hearing be commenced within 60 days from the date of the employee’s demand for a hearing.

end insert begin insert

This bill would require that the hearing be commenced within 6 months from the date of the employee’s demand for a hearing, and be completed within 7 months from the date of the employee’s demand for a hearing. The bill would revise various procedures for the conduct of those hearings, as prescribed. The bill would require that, in a dismissal or suspension proceeding carried out under the above provisions, the parties make specified disclosures in lieu of certain written discovery, as prescribed, and would authorize the parties to obtain discovery by oral deposition.

end insert begin insert

(2) 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.

end insert begin insert

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.

end insert begin insert

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.

end insert begin insert

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.

end insert begin delete

This bill would make nonsubstantive changes to this provision.

end delete

Vote: majority. Appropriation: no. Fiscal committee:  begin delete no end delete begin insert yes end insert . State-mandated local program:  begin delete no end delete begin insert yes end insert .

The people of the State of California do enact as follows:

begin insert

begin insert SECTION 1. end insert   

end insert begin insert

The Legislature finds and declares the following:

end insert begin insert

(a) Pupils, educators, administrators, school boards, school
district employees, and judges need a teacher dismissal process
that is both fair and efficient.

end insert begin insert

(b) This act is intended to revise existing statutes in a manner
that will continue current practices, but reduce the time necessary
to complete the teacher dismissal process.

end insert

begin delete SECTION 1. end delete
begin insert SEC. 2. end insert   

Section 44932 of the Education Code is amended to
read:

44932.  

(a) A permanent employee shall not be dismissed
except for one or more of the following causes:

(1) Immoral conduct.

(2) Unprofessional conduct.

(3) Commission, aiding, or advocating the commission of acts
of criminal syndicalism, as prohibited by Chapter 188 of the
Statutes of 1919, or in any amendment thereof.

(4) Dishonesty.

(5)  Unsatisfactory performance.

(6) Evident unfitness for service.

(7) Physical or mental condition unfitting him or her to instruct
or associate with children.

(8) Persistent violation of or refusal to obey the school laws of
the state or reasonable regulations prescribed for the government
of the public schools by the state board or by the governing board
of the school district employing him or her.

(9) Conviction of a felony or of any crime involving moral
turpitude.

(10) Violation of Section 51530 or conduct specified in Section
1028 of the Government Code, added by Chapter 1418 of the
Statutes of 1947.

begin delete

(11) Knowing membership by the employee in the Communist
Party.

end delete begin delete

(12)

end delete

begin insert (11) end insert  Alcoholism or other drug abuse that makes the employee
unfit to instruct or associate with children.

(b) The governing board of a school district may suspend
without pay for a specific period of time on grounds of
unprofessional conduct a permanent certificated employee or, in
a school district with an average daily attendance of less than 250
pupils, a probationary employee, pursuant to the procedures
specified in Sections 44933, 44934, 44935, 44936, 44937, 44943,
and 44944. This authorization shall not apply to a school district
that has adopted a collective bargaining agreement pursuant to
subdivision (b) of Section 3543.2 of the Government Code.

begin insert

begin insert SEC. 3. end insert   

end insert

begin insert Section 44934 of the end insert begin insert Education Code end insert begin insert is amended to
read: end insert

44934.  

begin insert (a) end insert begin insert   end insert Upon the filing of written charges, duly signed
and verified by the person filing them, with the governing board
of the school district, or upon a written statement of charges
formulated by the governing board, charging that there exists cause,
as specified in Section 44932 or 44933, for the dismissal or
suspension of a permanent employee of the district, the governing
board may, upon majority vote, except as provided in this article
if it deems the action necessary, give notice to the permanent
employee of its intention to dismiss or suspend him or her at the
expiration of 30 days from the date of service of the notice, unless
the employee demands a hearing as provided in this article.
Suspension proceedings may be initiated pursuant to this section
only if the governing board has not adopted a collective bargaining
agreement pursuant to subdivision (b) of Section 3543.2 of the
Government Code.

begin delete

Any

end delete

begin insert (b) end insert begin insert   end insert begin insert Any end insert begin insert end insert written statement of charges of unprofessional conduct
or unsatisfactory performance shall specify instances of behavior
and the acts or omissions constituting the charge so that the teacher
will be able to prepare his or her defense. It shall, where applicable,
state the statutes and rules begin delete which end delete begin insert that end insert the teacher is alleged to have
violated, but it shall also set forth the facts relevant to each
occasion of alleged unprofessional conduct or unsatisfactory
performance.

begin insert

(c) If the governing board has given notice to a permanent
employee of its intention to dismiss or suspend him or her, based
upon written charges filed or formulated pursuant to this section,
the charges may be amended only upon motion before an
administrative law judge of the Office of Administrative Hearings.
The amendment of charges shall be substantially related to the
original charge and shall not result in any prejudice to the
responding party. A motion to amend shall be granted at least 90
days before the hearing on the charges.

end insert begin insert

(d) A governing board’s notice to an employee of its intention
to dismiss or suspend him or her, together with written charges
filed or formulated pursuant to this section, shall be sufficient to
initiate a hearing under Section 11503 of the Government Code,
and the governing board shall not be required to file or serve a
separate accusation.

end insert begin delete

This

end delete

begin insert (e) end insert begin insert   end insert begin insert This end insert begin insert end insert section shall also apply to the suspension of
probationary employees in a school district with an average daily
attendance of less than 250 pupils begin delete which end delete begin insert that end insert has not adopted a
collective bargaining agreement pursuant to subdivision (b) of
Section 3542.2 of the Government Code.

begin insert

begin insert SEC. 4. end insert   

end insert

begin insert Section 44936 of the end insert begin insert Education Code end insert begin insert is amended to
read: end insert

44936.  

begin insert (a) end insert begin insert   end insert The notice of dismissal or suspension in a
proceeding initiated pursuant to Section 44934 shall begin delete not be given
between May 15th and September 15th in any year. It end delete begin insert only be given
during either of the following: end insert

begin insert (1) end insert begin insert   end insert begin insert The instructional year of the schoolsite where the employee
is physically employed. end insert

begin insert (2) end insert begin insert   end insert begin insert The summer session, if the employee is employed for that
purpose. end insert

begin insert (b) end insert begin insert   end insert begin insert The notice of dismissal or suspension end insert begin insert end insert shall be in writing and
be served upon the employee personally or by United States
registered mail addressed to him begin insert or her end insert at his begin insert or her end insert last known
address. A copy of the charges filed, containing the information
required by Section 11503 of the Government Code, together with
a copy of the provisions of this article, shall be attached to the
notice.

begin insert

begin insert SEC. 5. end insert   

end insert

begin insert Section 44939 of the end insert begin insert Education Code end insert begin insert is amended to
read: end insert

44939.  

begin insert (a) end insert begin insert   end insert Upon the filing of written charges, duly signed
and verified by the person filing them with the governing board
of a school district, or upon a written statement of charges
formulated by the governing board, charging a permanent employee
of the district with immoral conduct, conviction of a felony or of
any crime involving moral turpitude, with incompetency due to
mental disability, begin insert or end insert with willful refusal to perform regular
assignments without reasonable cause, as prescribed by reasonable
rules and regulations of the employing school district, begin delete with
violation of Section 51530, with knowing membership by the
employeein the Communist Party or with violation of any provision
in Sections 7001 to 7007, inclusive, end delete the governing board may, if
it deems begin delete such end delete begin insert that end insert action necessary, immediately suspend the
employee from his begin insert or her end insert duties and give notice to him begin insert or her end insert of
his begin insert or her end insert suspension, and that 30 days after service of the notice,
he begin insert or she end insert will be dismissed, unless he begin insert or she end insert demands a hearing.

begin delete

If the permanent employee is suspended upon charges of
knowing membership by the employee in the Communist Party or
for any violation of Section 7001, 7002, 7003, 7006, 7007, or
51530, he may within 10 days after service upon him of notice of
such suspension file with the governing board a verified denial,
in writing, of the charges. In such event the permanent employee
who demands a hearing within the 30-day period shall continue
to be paid his regular salary during the period of suspension and
until the entry of the decision of the Commission on Professional
Competence, if and during such time as he furnishes to the school
district a suitable bond, or other security acceptable to the
governing board, as a guarantee that the employee will repay to
the school district the amount of salary so paid to him during the
period of suspension in case the decision of the Commission on
Professional Competence is that he shall be dismissed. If it is
determined that the employee may not be dismissed, the school
board shall reimburse the employee for the cost of the bond.

end delete begin insert

(b) (1) An employee who has been placed on suspension
pursuant to this section may serve and file with the Office of
Administrative Hearings a motion for immediate reversal of
suspension. Review of a motion filed pursuant to this section shall
be limited to a determination as to whether the facts as alleged in
the statement of charges, if true, are sufficient to constitute a basis
for immediate suspension under this section. The motion shall
include a memorandum of points and authorities setting forth law
and argument supporting the employee’s contention that the
statement of charges does not set forth a sufficient basis for
immediate suspension.

end insert begin insert

(2) The motion shall be served upon the governing board and
filed within 30 days after service upon the employee of the initial
pleading in the matter. The governing board shall have the right
to serve and file a written response to the motion before or at the
time of hearing.

end insert begin insert

(3) The hearing on the motion for immediate reversal of
suspension shall be held no later than 30 days after the motion is
filed with the Office of Administrative Hearings.

end insert begin insert

(4) The administrative law judge shall, no later than 15 days
after the hearing, issue an order denying or granting the motion.
The order shall be in writing, and a copy of the order shall be
served by the Office of Administrative Hearings upon the parties.
The grant or denial of the motion shall be without prejudice to
consideration by the Commission on Professional Competence,
based upon the full evidentiary record before it, of the validity of
the grounds for dismissal.

end insert begin insert

(5) An order granting a motion for immediate reversal of
suspension shall become effective within five days of service of the
order. The school district shall make the employee whole for any
lost wages, benefits, and compensation within 14 days of service
of an order granting the motion.

end insert begin insert

(6) A motion made pursuant to the this section shall be the
exclusive means of obtaining interlocutory review of suspension
pending dismissal. The grant or denial of the motion shall be
without prejudice to consideration by the Commission on
Professional Competence, based upon the full evidentiary record
before it, of the validity of the grounds for suspension or dismissal.

end insert

begin insert

begin insert SEC. 6. end insert   

end insert

begin insert Section 44940 of the end insert begin insert Education Code end insert begin insert is amended to
read: end insert

44940.  

(a) For purposes of this section, “charged with a
mandatory leave of absence offense” is defined to mean charged
by complaint, information, or indictment filed in a court of
competent jurisdiction with the commission of any sex offense as
defined in Section 44010, begin insert with a violation or attempted violation
of Section 187 of the Penal Code, end insert or with the commission of any
offense involving aiding or abetting the unlawful sale, use, or
exchange to minors of controlled substances listed in Schedule I,
II, or III, as contained in begin delete Section end delete begin insert Sections end insert 11054, 11055, and 11056
of the Health and Safety Code begin delete , with the exception of marijuana,
mescaline, peyote, or tetrahydrocannabinols end delete .

(b) For purposes of this section, “charged with an optional leave
of absence offense” is defined to mean a charge by complaint,
information, or indictment filed in a court of competent jurisdiction
with the commission of any controlled substance offense as defined
in Section 44011 or 87011, begin delete or a violation or attempted violation
of Section 187 of the Penal Code, or end delete Sections 11357 to 11361,
inclusive, begin insert or end insert Section 11363, 11364, or 11370.1 of the Health and
Safety Code, insofar as these sections relate to any controlled
substances begin delete except marijuana, mescaline, peyote, or
tetrahydrocannabinols end delete .

(c) For purposes of this section and Section 44940.5, the term
“school district” includes county offices of education.

(d) (1)  begin delete Whenever any end delete begin insert If a end insert certificated employee of a school
district is charged with a mandatory leave of absence offense, as
defined in subdivision (a), upon being informed that a charge has
been filed, the governing board of the school district shall
immediately place the employee on compulsory leave of absence.
The duration of the leave of absence shall be until a time not more
than 10 days after the date of entry of the judgment in the
proceedings. No later than 10 days after receipt of the complaint,
information, or indictment described by subdivision (a), the school
district shall forward a copy to the Commission on Teacher
Credentialing.

(2) Upon receiving a copy of a complaint, information, or
indictment described in subdivision (a) and forwarded by a school
district, the Commission on Teacher Credentialing shall
automatically suspend the employee’s teaching or service
credential. The duration of the suspension shall be until a time not
more than 10 days after the date of entry of the judgment in the
proceedings.

(e) (1)  begin delete Whenever any end delete begin insert If a end insert certificated employee of a school
district is charged with an optional leave of absence offense as
defined in subdivision (b), the governing board of the school
district may immediately place the employee upon compulsory
leave in accordance with the procedure in this section and Section
44940.5. If any certificated employee is charged with an offense
deemed to fall into both the mandatory and the optional leave of
absence categories, as defined in subdivisions (a) and (b), that
offense shall be treated as a mandatory leave of absence offense
for purposes of this section. No later than 10 days after receipt of
the complaint, information, or indictment described by subdivision
(a), the school district shall forward a copy to the Commission on
Teacher Credentialing.

(2) Upon receiving a copy of a complaint, information, or
indictment described in subdivision (a) and forwarded by a school
district, the Commission on Teacher Credentialing shall
automatically suspend the employee’s teaching or service
credential. The duration of the suspension shall be until a time not
more than 10 days after the date of entry of the judgment in the
proceedings.

begin insert

begin insert SEC. 7. end insert   

end insert

begin insert Section 44941 of the end insert begin insert Education Code end insert begin insert is amended to
read: end insert

44941.  

begin insert (a) end insert begin insert   end insert The notice of suspension and intention to dismiss,
shall be in writing and be served upon the employee personally or
by United States registered mail addressed to the employee at his
begin insert or her end insert last known address. A copy of the charges filed, containing
the information required by Section 11503 of the Government
Code, together with a copy of the provisions of this article, shall
be attached to the notice. If the employee does not demand a
hearing within the 30-day period, he begin insert or she end insert may be dismissed upon
the expiration of 30 days after service of the notice.

begin insert

(b) An employee who has demanded a hearing pursuant to this
section shall be deemed to have fulfilled the conditions for
requesting a hearing under this article and under Sections 11505
and 11506 of the Government Code, and shall not have waived
any right for failure to file any other or subsequent notice of
defense or request for hearing.

end insert

begin insert

begin insert SEC. 8. end insert   

end insert

begin insert Section 44944 of the end insert begin insert Education Code end insert begin insert is amended to
read: end insert

44944.  

(a) (1) In a dismissal or suspension proceeding initiated
pursuant to Section 44934, if a hearing is requested by the
employee, the hearing shall be commenced within begin delete 60 days end delete begin insert six
months end insert from the date of the employee’s demand for a hearing begin insert , and
the hearing shall be completed within seven months from the date
of the employee’s demand for a hearing end insert . begin delete The hearing shall be
initiated, conducted, and a decision made in accordance with
Chapter 5 (commencing with Section 11500) of Part 1 of Division
3 of Title 2 of the Government Code. However, the end delete begin insert The end insert hearing
date shall be established after consultation with the employee and
the governing board, or their representatives begin delete , and the Commission
on Professional Competence shall have all of the power granted
to an agency in that chapter, except that the right of discovery of
the parties shall not be limited to those matters set forth in Section
11507.6 of the Government Code but shall include the rights and
duties of any party in a civil action brought in a superior court
under Title 4 (commencing with Section 2016.010) of Part 4 of
the Code of Civil Procedure. Notwithstanding any provision to the
contrary, and except for the taking of oral depositions, no discovery
shall occur later than 30 calendar days after the employee is served
with a copy of the accusation pursuant to Section 11505 of the
Government Code. In all cases, discovery shall be completed prior
to seven calendar days before the date upon which the hearing
commences. If any continuance is granted pursuant to Section
11524 of the Government Code, the time limitation for
commencement of the hearing as provided in this subdivision shall
be extended for a period of time equal to the continuance. However,
the extension shall not include that period of time attributable to
an unlawful refusal by either party to allow the discovery provided
for in this section. end delete begin insert . The hearing date may be continued in
accordance with Sections 11505 and 11524 of the Government
Code, except that no continuance shall extend the date for
completion of the hearing more than seven months from the date
of the employees request for a hearing, except for good cause, as
determined by the Office of Administrative Hearings. The hearing
shall be initiated and conducted, and a decision made, in
accordance with Chapter 5 (commencing with Section 11500) of
Part 1 of Division 3 of Title 2 of the Government Code, and the
Commission of Professional Competence shall have all of the
power granted to an agency pursuant to that chapter, except as
described in this article. end insert

begin delete

(2) If the right of discovery granted under paragraph (1) is
denied by either the employee or the governing board, all of the
remedies in Chapter 7 (commencing with Section 2023.010) of
Title 4 of Part 4 of the Code of Civil Procedure shall be available
to the party seeking discovery and the court of proper jurisdiction,
to entertain his or her motion, shall be the superior court of the
county in which the hearing will be held.

end delete begin delete

(3) The time periods in this section and of Chapter 5
(commencing with Section 11500) of Part 1 of Division 3 of Title
2 of the Government Code and of Title 4 (commencing with
Section 2016.010) of Part 4 of the Code of Civil Procedure shall
not be applied so as to deny discovery in a hearing conducted
pursuant to this section.

end delete begin delete

(4) The superior court of the county in which the hearing will
be held may, upon motion of the party seeking discovery, suspend
the hearing so as to comply with the requirement of the preceding
paragraph.

end delete begin delete

(5)

end delete

begin insert (2) end insert begin insert   end insert begin insert (A) end insert begin insert   end insert No witness shall be permitted to testify at the hearing
except upon oath or affirmation. No testimony shall be given or
evidence introduced relating to matters that occurred more than
four years begin delete prior to end delete begin insert before end insert the date of the filing of the notice begin insert , except
as provided in subparagraph (B) end insert . Evidence of records regularly
kept by the governing board concerning the employee may be
introduced, but no decision relating to the dismissal or suspension
of any employee shall be made based on charges or evidence of
any nature relating to matters occurring more than four years begin delete prior
to end delete begin insert before end insert the filing of the notice begin insert , except as provided in
subparagraph (B) end insert .

begin insert

(B) Testimony and evidence relating to matters that occurred
more than four years before the date of the filing of the notice
pursuant to Section 44934 may not be considered, received as
evidence, or relied upon, except as deemed relevant by the Office
of Administrative Hearings to charges that involve any act as
described in Section 44010 of this code, and Sections 11165.2 to
11165.6, inclusive, of the Penal Code.

end insert

(b) (1) The hearing provided for in this section shall be
conducted by a Commission on Professional Competence begin insert , unless
the parties submit a statement in writing to the Office of
Administrative Hearings, indicating that both parties waive the
right to convene a Commission on Professional Competence and
stipulate to having the hearing conducted by a single
Administrative Law Judge end insert . begin delete One member end delete

begin insert (2) end insert begin insert   end insert begin insert If the parties elect not to waive a hearing before a
Commission on Professional Competence, one end insert begin insert member end insert of the
commission shall be selected by the employee, one member shall
be selected by the governing board, and one member shall be an
administrative law judge of the Office of Administrative Hearings
who shall be chairperson and a voting member of the commission
and shall be responsible for assuring that the legal rights of the
parties are protected at the hearing. begin delete If either the governing board
or the employee for any reason fails to select a commission member
at least seven calendar days prior to the date of the hearing, the
failure end delete

begin insert (3) end insert begin insert   end insert begin insert The governing board and the employee shall select
commission members no later than 45 days before the date set for
hearing, and shall serve notice of their selection upon all other
parties and upon the Office of Administrative Hearings. Failure
to meet this deadline end insert shall constitute a waiver of the right to
selection, and the county board of education or its specific designee
shall immediately make the selection. If the county board of
education is also the governing board of the school district or has
by statute been granted the powers of a governing board, the
selection shall be made by the Superintendent, who shall be
reimbursed by the school district for all costs incident to the
selection.

begin insert

(4) Any party who believes that a selected commission member
is not qualified may file an objection, including a statement
describing the basis for the objection, with the Office of
Administrative Hearings, and serve the objection and statement
upon all other parties, within 10 days of the date that the notice
of selection is filed. Within seven days after the filing of any
objection, the Administrative Law Judge assigned to the matter
shall rule on the objection, or convene a teleconference with the
parties for argument.

end insert begin delete

(2)

end delete

begin insert (5) end insert  The member selected by the governing board and the
member selected by the employee shall not be related to the
employee and shall not be employees of the district initiating the
dismissal or suspension begin delete and end delete begin insert . Each member end insert shall hold a currently
valid credential and have at least begin delete five end delete begin insert three end insert years’ experience within
the past 10 years in the discipline of the employee.

(c) (1) The decision of the Commission on Professional
Competence shall be made by a majority vote, and the commission
shall prepare a written decision containing findings of fact,
determinations of issues, and a disposition that shall be, solely,
one of the following:

(A) That the employee should be dismissed.

(B) That the employee should be suspended for a specific period
of time without pay.

(C) That the employee should not be dismissed or suspended.

(2) The decision of the Commission on Professional Competence
that the employee should not be dismissed or suspended shall not
be based on nonsubstantive procedural errors committed by the
school district or governing board unless the errors are prejudicial
errors.

(3) The commission shall not have the power to dispose of the
charge of dismissal by imposing probation or other alternative
sanctions. The imposition of suspension pursuant to subparagraph
(B) of paragraph (1) shall be available only in a suspension
proceeding authorized pursuant to subdivision (b) of Section 44932
or Section 44933.

(4) The decision of the Commission on Professional Competence
shall be deemed to be the final decision of the governing board.

(5) The begin insert governing end insert board may adopt from time to time rules and
procedures not inconsistent with this section as may be necessary
to effectuate this section.

(6) The governing board and the employee shall have the right
to be represented by counsel.

(d) (1) If the member selected by the governing board or the
member selected by the employee is employed by any school
district in this state, the member shall, during any service on a
Commission on Professional Competence, continue to receive
salary, fringe benefits, accumulated sick leave, and other leaves
and benefits from the district in which the member is employed,
but shall receive no additional compensation or honorariums for
service on the commission.

(2) If service on a Commission on Professional Competence
occurs during summer recess or vacation periods, the member shall
receive compensation proportionate to that received during the
current or immediately preceding contract period from the
member’s employing district, whichever amount is greater.

(e) (1) If the Commission on Professional Competence
determines that the employee should be dismissed or suspended,
the governing board and the employee shall share equally the
expenses of the hearing, including the cost of the administrative
law judge. The state shall pay any costs incurred under paragraph
(2) of subdivision (d), the reasonable expenses, as determined by
the administrative law judge, of the member selected by the
governing board and the member selected by the employee,
including, but not limited to, payments or obligations incurred for
travel, meals, and lodging, and the cost of the substitute or
substitutes, if any, for the member selected by the governing board
and the member selected by the employee. The Controller shall
pay all claims submitted pursuant to this paragraph from the
General Fund, and may prescribe reasonable rules, regulations,
and forms for the submission of the claims. The employee and the
governing board shall pay their own attorney’s fees.

(2) If the Commission on Professional Competence determines
that the employee should not be dismissed or suspended, the
governing board shall pay the expenses of the hearing, including
the cost of the administrative law judge, any costs incurred under
paragraph (2) of subdivision (d), the reasonable expenses, as
determined by the administrative law judge, of the member selected
by the governing board and the member selected by the employee,
including, but not limited to, payments or obligations incurred for
travel, meals, and lodging, the cost of the substitute or substitutes,
if any, for the member selected by the governing board and the
member selected by the employee, and reasonable attorney’s fees
incurred by the employee.

(3) As used in this section, “reasonable expenses” shall not be
deemed “compensation” within the meaning of subdivision (d).

(4) If either the governing board or the employee petitions a
court of competent jurisdiction for review of the decision of the
commission, the payment of expenses to members of the
commission required by this subdivision shall not be stayed.

(5)  begin delete (A) end delete begin delete   end delete If the decision of the commission is finally reversed or
vacated by a court of competent jurisdiction, either the state, having
paid the commission members’ expenses, shall be entitled to
reimbursement from the governing board for those expenses, or
the governing board, having paid the expenses, shall be entitled
to reimbursement from the state.

begin delete

(B) Additionally, either the employee, having paid a portion of
the expenses of the hearing, including the cost of the administrative
law judge, shall be entitled to reimbursement from the governing
board for the expenses, or the governing board, having paid its
portion and the employee’s portion of the expenses of the hearing,
including the cost of the administrative law judge, shall be entitled
to reimbursement from the employee for that portion of the
expenses.

end delete

(f) The hearing provided for in this section shall be conducted
in a place selected by agreement among the members of the
commission. In the absence of agreement, the place shall be
selected by the administrative law judge.

begin insert

begin insert SEC. 9. end insert   

end insert

begin insert Section 44944.2 is added to the end insert begin insert Education Code end insert begin insert , to
read: end insert

begin insert

begin insert 44944.2. end insert   

(a) In a dismissal or suspension proceeding under
Section 44944, in lieu of written discovery required pursuant to
Section 11507.6 of the Government Code, the parties shall make
disclosures as described in this section.

(1) An initial disclosure shall comply with the following
requirements:

(A) A party shall, without awaiting a discovery request, provide
to the other parties both of the following:

(i) The name and, if known, the address and telephone number
of each individual likely to have discoverable information, along
with the subjects of that information, that the disclosing party may
use to support its claims or defenses, unless the use would be solely
for impeachment purposes.

(ii) A copy of all documents, electronically stored information,
and tangible items that the disclosing party has in its possession,
custody, or control and may use to support its claims or defenses,
unless the use would be solely for impeachment.

(B) The school district shall make its initial disclosures within
30 days of the date of service of the notice of intention to dismiss
or suspend. The employee shall make his or her initial disclosures
within 30 days of the date of service of the school district’s initial
disclosures.

(C) A party shall make its initial disclosures based on the
information then reasonably available to it. A party is not excused
from making its disclosures because it has not fully investigated
the case or because it challenges the sufficiency of another party’s
disclosures. A party’s failure to make initial disclosures within
the deadlines set forth in this section shall preclude the party from
introducing witnesses or evidence not disclosed at the hearing,
unless the party shows good cause for its failure to timely disclose.

(D) A party has an obligation to promptly supplement its initial
disclosures as new information or evidence becomes known or
available. Supplemental disclosures shall be made as soon as
possible, and no later than 60 days before the date of
commencement of the hearing. A party’s failure to make
supplemental disclosures promptly upon discovery or availability
of new information or evidence shall preclude the party from
introducing witnesses or evidence not disclosed at the hearing,
unless the party shows good cause for its failure to timely disclose.

(2) The disclosure of expert testimony shall comply with the
following requirements:

(A) A party shall also disclose to the other parties the identities
of any expert witnesses whose testimony it may use at the hearing.

(B) The disclosure specified in subparagraph (A) shall be
accompanied by a summary of the witness’s expected testimony,
including a description of the facts and data considered by the
witness; a description of the witness’s qualifications, including a
list of all publications authored in the previous 10 years; a list of
all other cases in which, during the previous four years, the witness
testified as an expert at a hearing or by deposition; and a statement
of the compensation to be paid to the expert witness.

(C) Expert witness disclosures shall be made no later than 60
days before the date of commencement of hearing. A party’s failure
to make full and timely expert witness disclosures shall preclude
the party’s use of the expert witness’ testimony or evidence at the
hearing.

(3) Prehearing disclosures shall comply with the following
requirements:

(A) In addition to the disclosures required in paragraphs (1)
and (2), a party shall provide to the other parties the following
information about the evidence that it may present at the hearing:

(i) The name, and if not previously provided, the address and
telephone number of each witness, separately identifying those the
party expects to present and those it may call if the need arises.

(ii) An identification of each exhibit, separately identifying those
items the party expects to offer and those it may offer if the need
arises.

(B) Prehearing disclosures shall be made at least 30 days before
the hearing.

(i) Within 14 days after prehearing disclosures are made, a
party shall file and serve any objections, along with the grounds
for each objection, to the admissibility of evidence.

(ii) These objections shall be decided on the first day of hearing,
or at a prehearing conference conducted pursuant to Section
11511.5 of the Government Code. Documents and individuals not
timely disclosed without good cause shall be precluded from
admission at the hearing.

(b) In addition to the disclosures required by subdivision (a),
the parties may obtain discovery by oral deposition in California,
in accordance with Sections 2025.010 to 2025.620, inclusive, of
the Code of Civil Procedure, except as described in this article.
The school district may take the depositions of the employee and
no more than four other witnesses, and the employee may take
depositions of no more than five witnesses. Each witness deposition
is limited to seven hours.

(c) If the right to disclosures or oral depositions is denied by
either the employee or the governing board, the exclusive right of
a party seeking an order compelling production of discovery shall
be pursuant to Section 11507.7 of the Government Code. If a party
seeks protection from unreasonable or oppressive discovery
demands, the exclusive right of a party seeking an order for
protection shall be pursuant to Section 11450.30 of the Government
Code.

end insert

begin insert

begin insert SEC. 10. end insert   

end insert begin 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.

end insert