Amended in Senate September 6, 2013

Amended in Senate June 25, 2013

Amended in Assembly May 6, 2013

Amended in Assembly April 15, 2013

Amended in Assembly March 19, 2013

California Legislature—2013–14 Regular Session

Assembly BillNo. 375


Introduced by Assembly Member Buchanan

(Principal coauthor: Senator Padilla)

(Coauthor: Assembly Member Muratsuchi)

February 14, 2013


An act to amend 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: hearing.

(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 require that a notice of the governing board of the school district to an employee of its intention to dismiss or suspend the employee, together with written charges filed or formulated pursuant to those procedures, be sufficient to initiate a hearing, as prescribed, and would prohibit the governing board of the school district from being required to file or serve a separate accusation. The bill would revise various procedures for providing notice of dismissal or suspension and would authorize a notice of dismissal or suspension to be given at any time of year, except a notice for a proceeding involving only charges of unsatisfactory performance, which would only be given during the instructional year of the schoolsite where the employee is physically employed. 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 Hearings.begin insert The bill would prohibit a motion for immediate reversal of suspension from having a bearing on the authority of a governing board of a school district to determine the physical placement and assignment of an employee who is suspended or placed on administrative leave during the review of the motion or while dismissal charges are pending.end insert 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.

(2) 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.

(3) 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 by a closing of the record within 7 months from the date of the employee’s demand for a hearing.begin delete The bill would require that, if the record cannot be closed within that timeframe, the charges be dismissed without prejudice to the governing board of the school district to refile, as specified.end delete 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. The bill would require the governing board of the school district and the state to share equally the expenses of the hearing if the Commission on Professional Competence determines that the employee should be dismissed or suspended.

(4) 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.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes.

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

P3    1

SECTION 1.  

The Legislature finds and declares both of the
2following:

3(a) Pupils, educators, administrators, school boards, and school
4district employees need a teacher dismissal process that is both
5fair and efficient.

6(b) This act is intended to revise existing statutes in a manner
7that will update and streamline the procedures for teacher discipline
8and dismissal, making it more cost effective and reducing the time
9necessary to complete the teacher dismissal process.

10

SEC. 2.  

Section 44932 of the Education Code is amended to
11read:

12

44932.  

(a) A permanent employee shall not be dismissed
13except for one or more of the following causes:

14(1) Immoral conduct.

15(2) Unprofessional conduct.

P4    1(3) Commission, aiding, or advocating the commission of acts
2of criminal syndicalism, as prohibited by Chapter 188 of the
3Statutes of 1919, or in any amendment thereof.

4(4) Dishonesty.

5(5)  Unsatisfactory performance.

6(6) Evident unfitness for service.

7(7) Physical or mental condition unfitting him or her to instruct
8or associate with children.

9(8) Persistent violation of or refusal to obey the school laws of
10the state or reasonable regulations prescribed for the government
11of the public schools by the state board or by the governing board
12of the school district employing him or her.

13(9) Conviction of a felony or of any crime involving moral
14turpitude.

15(10) Violation of Section 51530 or conduct specified in Section
161028 of the Government Code, added by Chapter 1418 of the
17Statutes of 1947.

18(11) Alcoholism or other drug abuse that makes the employee
19unfit to instruct or associate with children.

20(b) The governing board of a school district may suspend
21without pay for a specific period of time on grounds of
22unprofessional conduct a permanent certificated employee or, in
23a school district with an average daily attendance of less than 250
24pupils, a probationary employee, pursuant to the procedures
25specified in Sections 44933, 44934, 44935, 44936, 44937, 44943,
26and 44944. This authorization shall not apply to a school district
27that has adopted a collective bargaining agreement pursuant to
28subdivision (b) of Section 3543.2 of the Government Code.

29

SEC. 3.  

Section 44934 of the Education Code is amended to
30read:

31

44934.  

(a) Upon the filing of written charges, duly signed and
32verified by the person filing them, with the governing board of the
33school district, or upon a written statement of charges formulated
34by the governing board of the school district, charging that there
35exists cause, as specified in Section 44932 or 44933, for the
36dismissal or suspension of a permanent employee of the school
37district, the governing board of the school district may, upon
38majority vote, except as provided in this article if it deems the
39action necessary, give notice to the permanent employee of its
40intention to dismiss or suspend him or her at the expiration of 30
P5    1days from the date of service of the notice, unless the employee
2demands a hearing as provided in this article. Suspension
3proceedings may be initiated pursuant to this section only if the
4governing board of the school district has not adopted a collective
5bargaining agreement pursuant to subdivision (b) of Section 3543.2
6of the Government Code.

7(b) Any written statement of charges of unprofessional conduct
8or unsatisfactory performance shall specify instances of behavior
9and the acts or omissions constituting the charge so that the teacher
10will be able to prepare his or her defense. It shall, where applicable,
11state the statutes and rules that the teacher is alleged to have
12violated, and it shall also set forth the facts relevant to each
13occasion of alleged unprofessional conduct or unsatisfactory
14performance.

15(c) If the governing board of the school district has given notice
16to a permanent employee of its intention to dismiss or suspend
17him or her, based upon written charges filed or formulated pursuant
18to this section, the charges may be amended only upon motion
19before an administrative law judge of the Office of Administrative
20Hearings. The amendment of charges shall not result in any
21prejudice to the responding party. No motion to amend shall be
22granted less than 90 days before the hearing on the charges if it
23would extend the close of the record beyond the seven-month
24deadline pursuant to paragraph (1) of subdivision (a) of Section
2544944.

26(d) A notice of the governing board of the school district to an
27employee of its intention to dismiss or suspend him or her, together
28with written charges filed or formulated pursuant to this section,
29shall be sufficient to initiate a hearing under Section 11503 of the
30Government Code, and the governing board of the school district
31shall not be required to file or serve a separate accusation.

32(e) This section shall also apply to the suspension of
33probationary employees in a school district with an average daily
34attendance of less than 250 pupils that has not adopted a collective
35bargaining agreement pursuant to subdivision (b) of Section 3542.2
36of the Government Code.

37

SEC. 4.  

Section 44936 of the Education Code is amended to
38read:

P6    1

44936.  

(a) The notice of dismissal or suspension in a
2proceeding initiated pursuant to Section 44934 may be given at
3any time of year.

4(b) Notwithstanding subdivision (a), the notice of dismissal or
5suspension in a proceeding involving only charges of unsatisfactory
6performance initiated pursuant to Section 44934 shall only be
7given during the instructional year of the schoolsite where the
8employee is physically employed.

9(c) The notice of dismissal or suspension given during the
10instructional year of the schoolsite where the employee is
11physically employed shall be in writing and be served upon the
12employee personally or by United States registered mail addressed
13to him or her at his or her last known address. A copy of the
14charges filed, containing the information required by Section 11503
15of the Government Code, together with a copy of the provisions
16of this article, shall be attached to the notice.

17(d) A notice of dismissal or suspension given outside of the
18instructional year of the schoolsite where the employee is
19physically employed shall be in writing and shall be served upon
20the employee personally. A copy of the charges filed, containing
21the information required pursuant to Section 11503 of the
22 Government Code, together with a copy of the provisions of this
23article, shall be attached to the notice.

24

SEC. 5.  

Section 44939 of the Education Code is amended to
25read:

26

44939.  

(a) Upon the filing of written charges, duly signed and
27verified by the person filing them with the governing board of a
28school district, or upon a written statement of charges formulated
29by the governing board of a school district, charging a permanent
30employee of the school district with immoral conduct, conviction
31of a felony or of any crime involving moral turpitude, with
32incompetency due to mental disability, or with willful refusal to
33perform regular assignments without reasonable cause, as
34prescribed by reasonable rules and regulations of the employing
35school district, the governing board may, if it deems that action
36necessary, immediately suspend the employee from his or her
37duties and give notice to him or her of his or her suspension, and
38that 30 days after service of the notice, he or she will be dismissed,
39unless he or she demands a hearing.

P7    1(b) (1) An employee who has been placed on suspension
2pursuant to this section may serve and file with the Office of
3Administrative Hearings a motion for immediate reversal of
4suspension. Review of a motion filed pursuant to this section shall
5be limited to a determination as to whether the facts as alleged in
6the statement of charges, if true, are sufficient to constitute a basis
7for immediate suspension under this section. The motion shall
8include a memorandum of points and authorities setting forth law
9and argument supporting the employee’s contention that the
10statement of charges does not set forth a sufficient basis for
11immediate suspension.

12(2) The motion shall be served upon the governing board of the
13school district and filed within 30 days after service upon the
14employee of the initial pleading in the matter. The governing board
15of the school district shall have the right to serve and file a written
16response to the motion before or at the time of hearing.

17(3) The hearing on the motion for immediate reversal of
18suspension shall be held no later than 30 days after the motion is
19filed with the Office of Administrative Hearings.

20(4) The administrative law judge shall, no later than 15 days
21after the hearing, issue an order denying or granting the motion.
22The order shall be in writing, and a copy of the order shall be
23served by the Office of Administrative Hearings upon the parties.
24The grant or denial of the motion shall be without prejudice to
25 consideration by the Commission on Professional Competence,
26based upon the full evidentiary record before it, of the validity of
27the grounds for dismissal. The ruling shall not be considered by
28the commission in determining the validity of the grounds for
29dismissal, and shall not have any bearing on the commission’s
30determination regarding the grounds for dismissal.

31(5) An order granting a motion for immediate reversal of
32suspension shall become effective within five days of service of
33the order. The school district shall make the employee whole for
34any lost wages, benefits, and compensation within 14 days of
35service of an order granting the motion.

36(6) A motion made pursuant to this section shall be the exclusive
37means of obtaining interlocutory review of suspension pending
38 dismissal. The grant or denial of the motion shall not be subject
39to interlocutory judicial review.

begin insert

P8    1(c) A motion for immediate reversal of suspension pursuant to
2this section shall have no bearing on the authority of a governing
3board of a school district to determine the physical placement and
4assignment of an employee who is suspended or placed on
5administrative leave during the review of the motion or while
6dismissal charges are pending.

end insert
7

SEC. 6.  

Section 44940 of the Education Code is amended to
8read:

9

44940.  

(a) For purposes of this section, “charged with a
10mandatory leave of absence offense” is defined to mean charged
11by complaint, information, or indictment filed in a court of
12competent jurisdiction with the commission of any sex offense as
13defined in Section 44010, with a violation or attempted violation
14of Section 187 of the Penal Code, or with the commission of any
15offense involving aiding or abetting the unlawful sale, use, or
16exchange to minors of controlled substances listed in Schedule I,
17II, or III, as contained in Sections 11054, 11055, and 11056 of the
18Health and Safety Code.

19(b) For purposes of this section, “charged with an optional leave
20 of absence offense” is defined to mean a charge by complaint,
21information, or indictment filed in a court of competent jurisdiction
22with the commission of any controlled substance offense as defined
23in Section 44011 or 87011, Sections 11357 to 11361, inclusive,
24or Section 11363, 11364, or 11370.1 of the Health and Safety
25Code, insofar as these sections relate to any controlled substances.

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

28(d) (1) If a certificated employee of a school district is charged
29with a mandatory leave of absence offense, as defined in
30subdivision (a), upon being informed that a charge has been filed,
31the governing board of the school district shall immediately place
32 the employee on compulsory leave of absence. The duration of
33the leave of absence shall be until a time not more than 10 days
34after the date of entry of the judgment in the proceedings. No later
35than 10 days after receipt of the complaint, information, or
36indictment described by subdivision (a), the school district shall
37forward a copy to the Commission on Teacher Credentialing.

38(2) Upon receiving a copy of a complaint, information, or
39indictment described in subdivision (a) and forwarded by a school
40district, the Commission on Teacher Credentialing shall
P9    1automatically suspend the employee’s teaching or service
2credential. The duration of the suspension shall be until a time not
3more than 10 days after the date of entry of the judgment in the
4proceedings.

5(e) (1) If a certificated employee of a school district is charged
6with an optional leave of absence offense as defined in subdivision
7(b), the governing board of the school district may immediately
8place the employee upon compulsory leave in accordance with the
9procedure in this section and Section 44940.5. If any certificated
10employee is charged with an offense deemed to fall into both the
11mandatory and the optional leave of absence categories, as defined
12in subdivisions (a) and (b), that offense shall be treated as a
13mandatory leave of absence offense for purposes of this section.
14No later than 10 days after receipt of the complaint, information,
15or indictment described by subdivision (a), the school district shall
16forward a copy to the Commission on Teacher Credentialing.

17(2) Upon receiving a copy of a complaint, information, or
18indictment described in subdivision (a) and forwarded by a school
19district, the Commission on Teacher Credentialing shall
20automatically suspend the employee’s teaching or service
21credential. The duration of the suspension shall be until a time not
22more than 10 days after the date of entry of the judgment in the
23proceedings.

24

SEC. 7.  

Section 44941 of the Education Code is amended to
25read:

26

44941.  

(a) The notice of suspension and intention to dismiss
27shall be in writing and be served pursuant to Section 44936. A
28copy of the charges filed, containing the information required by
29Section 11503 of the Government Code, together with a copy of
30the provisions of this article, shall be attached to the notice. If the
31employee does not demand a hearing within the 30-day period, he
32or she may be dismissed upon the expiration of 30 days after
33service of the notice.

34(b) An employee who demands a hearing shall file a single
35document containing his or her request for a hearing pursuant to
36this section and a notice of defense pursuant to Sections 11505
37and 11506 of the Government Code.

38

SEC. 8.  

Section 44944 of the Education Code is amended to
39read:

P10   1

44944.  

(a) (1) begin insert(A)end insertbegin insertend insertIn a dismissal or suspension proceeding
2initiated pursuant to Section 44934, if a hearing is requested by
3the employee, the hearing shall be commenced within six months
4from the date of the employee’s demand for a hearing. A
5continuance shall not extend the date for the commencement of
6the hearing more than six months from the date of the employee’s
7request for a hearing, except for extraordinary circumstances, as
8 determined by the administrative law judge. If extraordinary
9circumstances are found that extend the date for the commencement
10of the hearing, the deadline for concluding the hearing and closing
11the record pursuant to this subdivision shall be extended for a
12period of time equal to the continuance. The hearing date shall be
13established after consultation with the employee and the governing
14board, or their representatives, except that, if the parties are not
15able to reach agreement on a date, the Office of Administrative
16Hearings shall unilaterally set a date in compliance with this
17section. The hearing shall be completed by a closing of the record
18within seven months of the date of the employee’s demand for a
19hearing. A continuance shall not extend the date for the close of
20the record more than seven months from the date of the employee’s
21request for a hearing, except forbegin delete extraordinary circumstancesend deletebegin insert good
22causeend insert
, as determined by the administrative lawbegin delete judge, or, whereend delete
23begin insert judge.end insert

24begin insert (B)end insertbegin insertend insertbegin insertWhereend insert substantial progress has been made in completing
25the previously scheduled days of the hearing within the
26seven-month period but the hearing cannot be completed, for good
27cause shown, within the seven-month period, the period for
28completing the hearing may be extended by the presiding
29administrative lawbegin delete judge for a period not to exceed 30 daysend deletebegin insert judge.
30If the administrative law judge grants a continuance under this
31subparagraph, he or she shall establish a reasonable timetable
32for the completion of the hearing and the closing of the recordend insert
.
33The hearing shall be initiated and conducted, and a decision made,
34in accordance with Chapter 5 (commencing with Section 11500)
35of Part 1 of Division 3 of Title 2 of the Government Code, and the
36Commissionbegin delete ofend deletebegin insert onend insert Professional Competence shall have all of the
37power granted to an agency pursuant to that chapter, except as
38described in this article.

begin delete

39(2) If the record cannot be closed within the timeframe
40established by paragraph (1), the charges shall be dismissed without
P11   1prejudice to the governing board to refile within 30 days a notice
2of dismissal on the same charges.

3(3)

end delete

4begin insert(2)end insert (A) A witness shall not be permitted to testify at the hearing
5except upon oath or affirmation. No testimony shall be given or
6evidence introduced relating to matters that occurred more than
7four years before the date of the filing of the notice, except
8 allegations of an act described in Section 44010 of this code or
9Sections 11165.2 to 11165.6, inclusive, of the Penal Code.

10(B) Evidence of records regularly kept by the governing board
11concerning the employee may be introduced, but no decision
12relating to the dismissal or suspension of an employee shall be
13made based on charges or evidence of any nature relating to matters
14occurring more than four years before the filing of the notice,
15except allegations of an act described in Section 44010 of this code
16or Sections 11165.2 to 11165.6, inclusive, of the Penal Code.

17(b) (1) The hearing provided for in this section shall be
18conducted by a Commission on Professional Competence, unless
19the parties submit a statement in writing to the Office of
20Administrative Hearings, indicating that both parties waive the
21right to convene a Commission on Professional Competence and
22stipulate to having the hearing conducted by a single administrative
23law judge. If the parties elect to waive a hearing before the
24Commission on Professional Competence, the hearing shall be
25initiated and conducted, and a decision made, in accordance with
26Chapter 5 (commencing with Section 11500) of Part 1 of Division
273 of Title 2 of the Government Code and the administrative law
28judge conducting the hearing shall have all the powers granted to
29a Commission on Professional Competence pursuant to that
30chapter, except as described in this article.

31(2) If the parties elect not to waive a hearing before a
32Commission on Professional Competence, one member of the
33commission shall be selected by the employee, one member shall
34be selected by the governing board, and one member shall be an
35administrative law judge of the Office of Administrative Hearings
36who shall be chairperson and a voting member of the commission
37and shall be responsible for assuring that the legal rights of the
38parties are protected at the hearing.

39(3) The governing board and the employee shall select
40Commission on Professional Competence members no later than
P12   145 days before the date set for hearing, and shall serve notice of
2their selection upon all other parties and upon the Office of
3Administrative Hearings. Failure to meet this deadline shall
4constitute a waiver of the right to selection, and the county board
5of education or its specific designee shall immediately make the
6selection. If the county board of education is also the governing
7board of the school district or has by statute been granted the
8powers of a governing board, the selection shall be made by the
9Superintendent, who shall be reimbursed by the school district for
10all costs incident to the selection.

11(4) Any party who believes that a selected Commission on
12Professional Competence member is not qualified may file an
13objection, including a statement describing the basis for the
14objection, with the Office of Administrative Hearings and serve
15the objection and statement upon all other parties within 10 days
16of the date that the notice of selection is filed. Within seven days
17after the filing of any objection, the administrative law judge
18assigned to the matter shall rule on the objection or convene a
19teleconference with the parties for argument.

20(5) begin insert(A)end insertbegin insertend insertThe member selected by the governing board and the
21member selected by the employee shall not be related to the
22employee and shall not be employees of the school district initiating
23the dismissal or suspension. Each member shall hold a currently
24valid credential and have at least three years’ experience within
25the past 10 years in the discipline of the employee.

begin insert

26(B) For purposes of this paragraph, the following terms have
27the following meanings:

end insert
begin insert

28(i) For an employee subject to dismissal whose most recent
29teaching assignment is in kindergarten or any of the grades 1 to
306, inclusive, “discipline” means a teaching assignment in
31kindergarten or any of the grades 1 to 6, inclusive.

end insert
begin insert

32(ii) For an employee subject to dismissal whose most recent
33assignment requires an education specialist credential or a services
34credential, “discipline” means an assignment that requires an
35education specialist credential or a services credential,
36respectively.

end insert
begin insert

37(iii) For an employee subject to dismissal whose most recent
38teaching assignment is in any of the grades 7 to 12, inclusive,
39“discipline” means a teaching assignment in any of grades 7 to
4012, inclusive, in the same area of study, as that term is used in
P13   1Section 51220, as the most recent teaching assignment of the
2employee subject to dismissal.

end insert

3(c) (1) The decision of the Commission on Professional
4Competence shall be made by a majority vote, and the commission
5shall prepare a written decision containing findings of fact,
6determinations of issues, and a disposition that shall be, solely,
7one of the following:

8(A) That the employee should be dismissed.

9(B) That the employee should be suspended for a specific period
10of time without pay.

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

12(2) The decision of the Commission on Professional Competence
13that the employee should not be dismissed or suspended shall not
14be based on nonsubstantive procedural errors committed by the
15school district or governing board unless the errors are prejudicial
16errors.

17(3) The Commission on Professional Competence shall not have
18the power to dispose of the charge of dismissal by imposing
19probation or other alternative sanctions. The imposition of
20suspension pursuant to subparagraph (B) of paragraph (1) shall be
21available only in a suspension proceeding authorized pursuant to
22subdivision (b) of Section 44932 or Section 44933.

23(4) The decision of the Commission on Professional Competence
24shall be deemed to be the final decision of the governing board.

25(5) The governing board may adopt from time to time rules and
26procedures not inconsistent with this section as may be necessary
27to effectuate this section.

28(6) The governing board and the employee shall have the right
29to be represented by counsel.

30(d) (1) If the member selected by the governing board or the
31member selected by the employee is employed by any school
32district in this state, the member shall, during any service on a
33Commission on Professional Competence, continue to receive
34salary, fringe benefits, accumulated sick leave, and other leaves
35and benefits from the school district in which the member is
36employed, but shall receive no additional compensation or
37honorariums for service on the commission.

38(2) If the member selected is a retired employee, the member
39shall receive pay at the daily substitute teacher rate in the school
40district that is a party to the hearing. Service on a Commission on
P14   1Professional Competence shall not be credited toward retirement
2benefits.

3(3) If service on a Commission on Professional Competence
4occurs during summer recess or vacation periods, the member shall
5receive compensation proportionate to that received during the
6current or immediately preceding contract period from the
7member’s employing school district, whichever amount is greater.

8(e) (1) If the Commission on Professional Competence
9determines that the employee should be dismissed or suspended,
10the governing board and the state shall share equally the expenses
11of the hearing, including the cost of the administrative law judge.
12The state shall pay any costs incurred under paragraphs (2) and
13(3) of subdivision (d), the reasonable expenses, as determined by
14the administrative law judge, of the member selected by the
15governing board and the member selected by the employee,
16including, but not limited to, payments or obligations incurred for
17travel, meals, and lodging, and the cost of the substitute or
18substitutes, if any, for the member selected by the governing board
19and the member selected by the employee. The Controller shall
20pay all claims submitted pursuant to this paragraph from the
21General Fund, and may prescribe reasonable rules, regulations,
22and forms for the submission of the claims. The employee and the
23governing board shall pay their own attorney’s fees.

24(2) If the Commission on Professional Competence determines
25that the employee should not be dismissed or suspended, the
26governing board shall pay the expenses of the hearing, including
27the cost of the administrative law judge, any costs incurred under
28paragraphs (2) and (3) of subdivision (d), the reasonable expenses,
29as determined by the administrative law judge, of the member
30selected by the governing board and the member selected by the
31employee, including, but not limited to, payments or obligations
32incurred for travel, meals, and lodging, the cost of the substitute
33or substitutes, if any, for the member selected by the governing
34board and the member selected by the employee, and reasonable
35attorney’s fees incurred by the employee.

36(3) As used in this section, “reasonable expenses” shall not be
37deemed “compensation” within the meaning of subdivision (d).

38(4) If either the governing board or the employee petitions a
39court of competent jurisdiction for review of the decision of the
40Commission on Professional Competence, the payment of expenses
P15   1to members of the commission required by this subdivision shall
2not be stayed.

3(5) If the decision of the Commission on Professional
4Competence is finally reversed or vacated by a court of competent
5jurisdiction, either the state, having paid the commission members’
6expenses, shall be entitled to reimbursement from the governing
7board for those expenses, or the governing board, having paid the
8expenses, shall be entitled to reimbursement from the state.

9(f) The hearing provided for in this section shall be conducted
10in a place selected by agreement among the members of the
11Commission on Professional Competence. In the absence of
12agreement, the place shall be selected by the administrative law
13judge.

14

SEC. 9.  

Section 44944.2 is added to the Education Code, to
15read:

16

44944.2.  

(a) In a dismissal or suspension proceeding under
17Section 44944, in lieu of written discovery required pursuant to
18Section 11507.6 of the Government Code, the parties shall make
19disclosures as described in this section.

20(1) An initial disclosure shall comply with the following
21requirements:

22(A) A party shall, without awaiting a discovery request, provide
23to the other parties both of the following:

24(i) The name and, if known, the address and telephone number
25of each individual likely to have discoverable information, along
26with the subjects of that information, that the disclosing party may
27use to support its claims or defenses, unless the use would be solely
28for impeachment purposes.

29(ii) A copy of all documents, electronically stored information,
30and tangible items that the disclosing party has in its possession,
31custody, or control and may use to support its claims or defenses,
32unless the use would be solely for impeachment.

33(B) The school district and the employee shall make their initial
34disclosures within 45 days of the date of the employee’s demand
35for a hearing.

36(C) A party shall make its initial disclosures based on the
37information then reasonably available to it. A party is not excused
38from making its disclosures because it has not fully investigated
39the case or because it challenges the sufficiency of another party’s
40disclosures. A party’s failure to make initial disclosures within the
P16   1deadlines set forth in this section shall preclude the party from
2introducing witnesses or evidence not disclosed at the hearing,
3unless the party shows good cause for its failure to timely disclose.

4(D) A party has an obligation to promptly supplement its initial
5disclosures as new information or evidence becomes known or
6available. Supplemental disclosures shall be made as soon as
7possible, and no later than 60 days before the date of
8commencement of the hearing. A party’s failure to make
9supplemental disclosures promptly upon discovery or availability
10of new information or evidence shall preclude the party from
11introducing witnesses or evidence not disclosed at the hearing,
12unless the party shows good cause for its failure to timely disclose.

13(2) The disclosure of expert testimony shall comply with the
14following requirements:

15(A) A party shall also disclose to the other parties the identities
16of any expert witnesses whose testimony it may use at the hearing.

17(B) The disclosure specified in subparagraph (A) shall be
18accompanied by a summary of the witness’ expected testimony,
19including a description of the facts and data considered by the
20witness; a description of the witness’ qualifications, including a
21list of all publications authored in the previous 10 years; a list of
22all other cases in which, during the previous four years, the witness
23testified as an expert at a hearing or by deposition; and a statement
24of the compensation to be paid to the expert witness.

25(C) Expert witness disclosures shall be made no later than 60
26days before the date of commencement of the hearing. A party’s
27failure to make full and timely expert witness disclosures shall
28preclude the party’s use of the expert witness’ testimony or
29evidence at the hearing.

30(3) Prehearing disclosures shall comply with the following
31requirements:

32(A) In addition to the disclosures required in paragraphs (1) and
33(2), a party shall provide to the other parties the following
34information about the evidence that it may present at the hearing:

35(i) The name, and if not previously provided, the address and
36telephone number of each witness, separately identifying those
37the party expects to present and those it may call if the need arises.

38(ii) An identification of each exhibit, separately identifying
39those items the party expects to offer and those it may offer if the
40need arises.

P17   1(B) Prehearing disclosures shall be made at least 30 days before
2the hearing.

3(i) Within 14 days after prehearing disclosures are made, a party
4shall file and serve any objections, along with the grounds for each
5objection, to the admissibility of evidence.

6(ii) These objections shall be decided on the first day of hearing,
7or at a prehearing conference conducted pursuant to Section
811511.5 of the Government Code. Documents and individuals not
9timely disclosed without good cause shall be precluded from
10admission at the hearing.

11(b) In addition to the disclosures required by subdivision (a),
12the parties may obtain discovery by oral deposition in California,
13in accordance with Sections 2025.010 to 2025.620, inclusive, of
14the Code of Civil Procedure, except as described in this article.
15The school district may take the depositions of the employee and
16no more than four other witnesses, and the employee may take
17depositions of no more than five witnesses. Each witness deposition
18is limited to seven hours.

19(c) If the right to disclosures or oral depositions is denied by
20either the employee or the governing board, the exclusive right of
21a party seeking an order compelling production of discovery shall
22be pursuant to Section 11507.7 of the Government Code. If a party
23seeks protection from unreasonable or oppressive discovery
24demands, the exclusive right of a party seeking an order for
25protection shall be pursuant to Section 11450.30 of the Government
26Code.

27

SEC. 10.  

If the Commission on State Mandates determines
28that this act contains costs mandated by the state, reimbursement
29to local agencies and school districts for those costs shall be made
30pursuant to Part 7 (commencing with Section 17500) of Division
314 of Title 2 of the Government Code.



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