BILL NUMBER: AB 375 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY MARCH 19, 2013
INTRODUCED BY Assembly Member Buchanan
FEBRUARY 14, 2013
An act to amend Section 44932 Sections
44932, 44934, 44936, 44939, 44940, 44941, and 44944 of ,
and to add Section 44944.2 to, the Education Code, relating to
school employees.
LEGISLATIVE COUNSEL'S DIGEST
AB 375, as amended, Buchanan. School employees: dismissal or
suspension.
Existing
(1) Existing law prohibits a
permanent employee from being dismissed except for one or more of
specified causes, including, among other causes, immoral or
unprofessional conduct. 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.
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.
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.
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.
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.
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.
(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.
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.
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.
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.
This bill would make nonsubstantive changes to this provision.
Vote: majority. Appropriation: no. Fiscal committee: no
yes . State-mandated local program: no
yes .
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. The Legislature finds and declares the
following:
(a) Pupils, educators, administrators, school boards, school
district employees, and judges need a teacher dismissal process that
is both fair and efficient.
(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.
SECTION 1. SEC. 2. 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.
(11) Knowing membership by the employee in the Communist Party.
(12)
(11) 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.
SEC. 3. Section 44934 of the Education
Code is amended to read:
44934. (a) 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.
Any
(b) Any 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 which that 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.
(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.
(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.
This
(e) This section shall
also apply to the suspension of probationary employees in a school
district with an average daily attendance of less than 250 pupils
which that has not adopted a collective
bargaining agreement pursuant to subdivision (b) of Section 3542.2
of the Government Code.
SEC. 4. Section 44936 of the Education
Code is amended to read:
44936. (a) The notice of dismissal or
suspension in a proceeding initiated pursuant to Section 44934 shall
not be given between May 15th and September 15th in any
year. It only be given during either of the following:
(1) The instructional year of the
schoolsite where the employee is physically employed.
(2) The summer session, if the employee
is employed for that purpose.
(b) The notice of dismissal or
suspension shall be in writing and be served upon
the employee personally or by United States registered mail addressed
to him or her at his or her 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.
SEC. 5. Section 44939 of the Education
Code is amended to read:
44939. (a) 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, or with willful refusal to perform
regular assignments without reasonable cause, as prescribed by
reasonable rules and regulations of the employing school district,
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, the governing board
may, if it deems such that action
necessary, immediately suspend the employee from his or her
duties and give notice to him or her of his or
her suspension, and that 30 days after service of the notice,
he or she will be dismissed, unless he or she
demands a hearing.
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.
(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.
(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.
(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.
(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.
(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.
(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.
SEC. 6. Section 44940 of the Education
Code is amended to read:
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, with a violation or attempted violation of
Section 187 of the Penal Code, 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 Section Sections
11054, 11055, and 11056 of the Health and Safety Code
, with the exception of marijuana, mescaline, peyote, or
tetrahydrocannabinols .
(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, or a violation or attempted
violation of Section 187 of the Penal Code, or Sections
11357 to 11361, inclusive, or Section 11363, 11364, or
11370.1 of the Health and Safety Code, insofar as these sections
relate to any controlled substances except marijuana,
mescaline, peyote, or tetrahydrocannabinols .
(c) For purposes of this section and Section 44940.5, the term
"school district" includes county offices of education.
(d) (1) Whenever any If a
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) Whenever any If a
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.
SEC. 7. Section 44941 of the Education
Code is amended to read:
44941. (a) 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 or her 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 or she
may be dismissed upon the expiration of 30 days after service
of the notice.
(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.
SEC. 8. Section 44944 of the Education
Code is amended to read:
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 60 days
six months from the date of the employee's demand for a
hearing , and the heari ng shall be completed within
seven months from the date of the employee's demand for a hearing
. 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 The hearing date shall be
established after consultation with the employee and the governing
board, or their representatives , 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.
. The hearing da te 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.
(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.
(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.
(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.
(5)
(2) (A) 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 prior
to before the date of the filing of the notice
, except as provided in subparagraph (B) . 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
prior to before the filing of the
notice , except as provided in subparagraph (B) .
(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.
(b) (1) The hearing provided for in this section shall be
conducted by a Commission on Professional Competence , 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
. One member
(2) If the parties elect not to waive a
hearing before a Commission on Professional Competence,
one member 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. 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
(3) The governing board and the
employee shall select commission members no later than 45 days
b efore 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 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.
(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.
(2)
(5) 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 and . Each member
shall hold a currently valid credential and have at least
five three 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 governing 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) (A) 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.
(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.
(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.
SEC. 9. Section 44944.2 is added to the
Education Code , to read:
44944.2. (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.
SEC. 10. 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.