BILL ANALYSIS Ó
AB 375
Page 1
Date of Hearing: April 3, 2013
ASSEMBLY COMMITTEE ON EDUCATION
Joan Buchanan, Chair
AB 375 (Buchanan) - As Amended: March 19, 2013
[Note: This bill is double referred to the Committee on
Judiciary and will be heard by that committee as it relates to
issues under its jurisdiction.]
SUBJECT : School employees: dismissal or suspension.
SUMMARY : Makes changes to the suspension and dismissal hearing
process for school employees, as specified. Specifically, this
bill :
1)Removes "knowing membership by the employee in the Communist
Party" from the list of reasons a permanent school employee
can be dismissed or suspended and deletes incorrect code
references.
2)Specifies that once a governing board has given notice to
suspend or dismiss an employee, the charges may only be
amended upon motion before an administrative law judge (ALJ)
of the Office of Administrative Hearings (OAH) at least 90
days before the hearing; and, specifies the amendment of
charges shall be substantially related to the original charge.
3)Requires that a notice of suspension or dismissal only be
given during the instructional year of the school site where
the employee is physically employed or during the summer
session, if the employee is employed for that purpose.
4)Authorizes an employee who has been suspended to request a
motion for immediate reversal of the suspension before an ALJ;
and, specifies the review of a motion shall be limited to a
determination as to whether the facts as alleged in the
charges, if true, are sufficient to constitute a basis for
immediate suspension, as specified.
5)Removes marijuana, mescaline, peyote, and
tetrahydrocannabinols as exceptions to the controlled
substance offenses for which a certificated employee may be
charged with a mandatory or optional leave of absence offense.
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6)Adds murder and attempted murder to the list of mandatory
leave of absence offenses.
7)Specifies that a suspension or dismissal hearing shall
commence within six months of the employee's request for a
hearing and must be completed within seven months; and,
specifies the hearing may not be continued beyond seven months
except for good cause as deemed by the OAH.
8)Authorizes testimony and evidence relating to matters that
occurred more than four years in the past that involve any act
as described in Section 44010 (sexual offences) and Penal Code
Sections 11165.2 to 111652.6 (child abuse offences), as deemed
relevant by the OAH.
9)Authorizes suspension and dismissal hearings to be presided
over by an ALJ alone, instead of the full Commission on
Professional Competence (CPC), if both parties agree in
writing.
10) Specifies that members of the CPC shall have three years of
experience in the last 10 years in the same discipline of the
teacher being suspended or dismissed; requires the members of
the CPC to be selected 45 days prior to the hearing date; and,
specifies that if a party believes that a selected commission
member is not qualified, that party may file an objection with
OAH within 10 days of their selection and within seven days of
that objection an ALJ shall rule on the objection.
11)Deletes the requirement that the employee pay the expenses
incurred by the district at the hearing if a court overturns
the decision of a CPC; and, conversely deletes the requirement
that the district pay the expenses incurred by the employee at
the hearing if a court overturns the decision of a CPC.
12)Deletes the existing discovery process and instead creates a
new discovery process where school districts must disclose
information within 30 days of serving the notice to suspend or
dismiss an employee, and an employee must disclose information
within 30 days of receiving the district's disclosure; and,
specifies all disclosures must be made no later than 60 days
before the start of the hearing, as specified.
13)Makes findings and declarations that pupils, educators,
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administrators, school boards, school district employees, and
judges need a teacher dismissal process that is both fair and
efficient; and, that this measure 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.
EXISTING LAW :
1)Prohibits the dismissal of permanent employees except for one
or more of the following causes:
a) Immoral or unprofessional conduct;
b) Commissioning, aiding or advocating the commission of
acts of criminal syndicalism;
c) Dishonesty;
d) Unsatisfactory performance;
e) Evident unfitness for service;
f) Physical or mental condition unfitting him or her to
instruct or associate with children;
g) Persistent violation of or refusal to obey the school
laws of the state by the State Board of Education or by the
local governing board employing him or her;
h) Conviction of a felony or any crime involving moral
turpitude;
i) Advocating for or teaching communism with the intent of
indoctrinating the mind of any pupil;
j) Knowing membership by the employee in the Communist
party; or,
aa) Alcoholism or other drug abuse which makes the employee
unfit to instruct or associate with children. (Education
Code (EC) 44932)
2)Prohibits the notice of dismissal or suspension of a teacher
from being given between May 15th and September 15th in any
year. (EC 44936)
3)Authorizes the governing board of any school district to
immediately suspend a certificated employee, if it deems such
action necessary, on charges of:
a) Immoral conduct;
b) Conviction of a felony or of any crime involving moral
turpitude;
c) Incompetency due to mental disability;
d) Willful refusal to perform regular assignments without
reasonable cause;
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e) With violation of teacher or inculcating Communism; or,
f) With knowing membership by the employee in the Communist
party. (EC 44939)
4)Requires that if a dismissal or suspension hearing is
requested by an employee, the hearing shall commence within 60
days from the date of the employee's demand for a hearing and
specifies the following:
a) Prohibits testimony or evidence relating to matters that
occurred more than four years prior to the date of the
filing of the notice; and, prohibits a decision relating to
the dismissal or suspension of any employee from being made
based on charges or evidence of any nature relating to
matters occurring more than four years prior to the filing
of the notice.
b) Requires that the hearing be conducted by a CPC made up
of three members:
i) One member to be selected by the certificated
employee;
ii) One member to be selected by the governing board;
and,
iii) One member to be an ALJ from the OAH; and, assigns
this person to be the chairperson and a voting member of
the commission responsible for assuring that legal rights
of all parties involved are protected.
c) Provides that the decision made by the CPC is made by
majority vote and shall be deemed to be the final decision
of the governing board. (EC 44944)
5)Authorizes the decision of the CPC to be reviewed by a court
of competent jurisdiction on the petition of either the
governing board or the employee. (EC 44945)
6)Specifies 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
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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, 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,
as specified. Specifies that if the right of discovery
granted 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.
7)Specifies that "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,
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 11054, 11055, and 11056 of the Health and
Safety Code, with the exception of marijuana, mescaline,
peyote, or tetrahydrocannabinols; and, specifies that "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, 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.
(EC 44940)
8)Prohibits the member of the CPC selected by the governing
board and the member selected by the employee from being
related to the employee and specifies they shall not be
employees of the district initiating the dismissal or
suspension and shall hold a currently valid credential and
have at least five years' experience within the past 10 years
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in the discipline of the employee.
9)Specifies that if the decision of the CPC is finally reversed
or vacated by a court of competent jurisdiction, the employee,
having paid a portion of the expenses of the hearing,
including the cost of the ALJ, 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 ALJ, shall be entitled to reimbursement from
the employee for that portion of the expenses. (EC 44944)
FISCAL EFFECT : Unknown
COMMENTS : According to the author, the current teacher
discipline and dismissal process is outdated and cumbersome.
The law has not kept pace with today's school calendars or
practice. In addition, there is no deadline for completion of
the dismissal appeal process and continuances can allow costly
litigation to drag on for 12-18 months, or longer. AB 375
updates and streamlines the teacher discipline and dismissal
process, saving school districts time and money while at the
same time ensuring due process. In addition, the bill removes
outdated references to code and clarifies the responsibilities
of both school districts and teachers with respect to the appeal
process.
AB 375 increases protections for children by allowing, and in
some cases requiring, school districts to place employees on
leave when they have been criminally charged with certain drug
offenses. The bill requires school districts to place an
employee on leave should he or she be criminally charged with
homicide or attempted homicide. The bill allows evidence more
than four years old to be presented at hearing in cases of child
abuse or sexual abuse. The bill maintains the ability of a
district to immediately remove a teacher accused of child abuse
or sexual abuse from the classroom and issue a notice of
dismissal at any time, including the summer months; and, for
other offenses, a school district may file a notice of dismissal
at any time during the school year.
AB 375 saves time and money by requiring the entire appeal
process to be complete within seven months. The bill allows the
parties to stipulate to a hearing with an ALJ only. The bill
removes the ability of litigants to take discovery disputes and
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suspension appeals to Superior Court and establishes a limited
discovery process. The bill requires the parties to nominate
their respective members of the CPC 45 days prior to the date
set for hearing. Further the bill increases the number of
teachers eligible to serve on the CPC by lowering from five to
three the number of years of teaching experience the panel
member must have in the discipline of the teacher subject to
dismissal.
AB 375 clarifies current law by updating the grounds for
dismissal and removing the ground for membership in the
Communist Party; removing duplicative notice requirements; and,
removing a provision that has been deemed unconstitutional by
the California Supreme Court.
Dismissal Notices between May 15th and September 15th : Under
current law, districts are not allowed to issue a notice of
intent to start the dismissal process between May 15th and
September 15th of any given year. It is believed that concerns
about summer break notification issues and the availability of
witnesses led to the original adoption of this prohibition.
Additionally, it could be argued that most employees are not
interacting with students during the summer months so there is
no urgent need to dismiss employees over the summer. There are
a few exceptions to these theories however, which do allow some
employees access to students during the summer. First, some
schools operate on a year round basis. Second, summer school is
in session and some teachers are employed for that purpose.
Incidents leading a district to intend to dismiss or suspend a
certificated employee may occur in these settings. This bill
authorizes districts to initiate dismissal proceedings during
the instructional year at the school site where the employee is
physically employed and during summer session if the employee is
employed for that purpose. Committee staff recommends the bill
be amended to authorize all types of dismissal notices, with the
exception of unsatisfactory performance, at any time of year as
long as they are delivered by personal service; and, delete the
provision authorizing dismissal notices for unsatisfactory
performance if an employee is employed during summer school
since in those cases, it is likely that the employee is not
working for the same administrator or at the same school site.
Past Evidence in Dismissal Hearing . This bill authorizes
testimony and evidence relating to matters that occurred in the
past to be used for a dismissal decision if the testimony and
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evidence is related to sexual abuse or child abuse. Current law
does not allow testimony about or evidence relating to matters
more than four years old during a suspension or dismissal
hearing. Further, current law prohibits this information from
being the basis of a decision relating to the dismissal or
suspension of a certificated employee. Questions about this
prohibition, however, have recently surfaced. There have been
cases of immoral conduct by teachers where evidence older than
four years, if it had been presented during the hearing, could
have demonstrated a pattern of behavior and could have
potentially given the school district and the CPC a clearer
picture of the ongoing nature of the behavior.
This bill would allow for past evidence and testimony to be used
to make a decision about whether or not to suspend or dismiss a
certificated employee if that evidence is related to sexual
abuse or child abuse. It seems that having all possible evidence
to help illuminate patterns of behavior is reasonable during a
dismissal hearing related to sexual abuse or child abuse.
Commission on Professional Competence : According to the author,
AB 375 allows a school district and an employee subject to
dismissal to decide that instead of convening a three-person
panel, the CPC, to hear the case in administrative court, they
can mutually decide to bring their case before an ALJ sitting by
him or herself. This would only be possible if both parties
agree. If both parties want to proceed this way, they will save
time and expense in finding and appointing members of the panel.
Further the bill changes the membership requirement for the CPC
by requiring that teachers appointed have 3 years of experience
out of the last 10 years teaching in the same discipline as the
teacher being dismissed. Current law requires the teachers
appointed to have 5 years of experience out of the last 10 years
in the same discipline as the teacher being dismissed. Some
argue that finding panel members with 5 years of experience
within the last 10 years is difficult.
Suspension Hearings & Discovery Process : According to the
author, under current law, when an employee is suspended from
his or her duties and then provided a notice of dismissal, the
appeal of the suspension is heard in Superior Court. Many
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times, this results in a delay in the administrative process,
and similar issues are heard in both courts. AB 375 requires
the appeal of a suspension to be heard in administrative court.
By the same token, when there are disputes regarding discovery,
both parties can seek a discovery order in Superior Court under
current law. Again, this often results in delays in the
administrative process.
Under current law, both employees and school districts have full
civil discovery rights. This means that they can ask for an
unlimited number of documents to be produced and conduct an
unlimited number of depositions for an unlimited amount of time.
In addition to consolidating the discovery dispute process into
the administrative court, AB 375 places limits on discovery.
Under AB 375, both parties must make pre-trial disclosures early
in the process, which will allow for a timely exchange of
documentation and notice of witnesses. This bill allows
employees to conduct depositions with five witnesses; school
districts may depose the employee plus four additional
witnesses; and, depositions are limited in time to seven hours.
Length of Dismissal Hearing : This bill requires that the
dismissal hearing begin within six months of the employee's
request for a hearing and limits the total length of the
dismissal hearing to seven months from the date that the
employee requests a hearing. The bill specifies that
continuances may be granted, but cannot extend the date for
completion of the hearing more than seven months, except for
good cause, as determined by the OAH. The author's intent is
that a continuance that would extend the hearing beyond the
seven month deadline, shall only be considered for instances out
of the district's or the employee's control, such as the acute
illness of a witness or emergency surgery. A continuance can be
considered by the ALJ only in these types of cases.
Murder, Attempted Murder & Marijuana : This bill removes
marijuana, mescaline, peyote, and
tetrahydrocannabinols as exceptions to the controlled substance
offenses for which a certificated employee may be charged with a
mandatory or optional leave of absence offense; and, adds murder
and attempted murder to the list of mandatory leave of absence
offenses. The author contends that attempted murder and murder
should be a mandatory leave of absence offense due to the
violent nature of the crime. Further, the sale, use or exchange
to minors of marijuana, mescaline, peyote and
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tetrahydrocannabinols should be an optional or mandatory leave
of absence, depending on the nature of the crime.
Code Clean Up : This bill removes "knowing membership by the
employee in the Communist Party" from the list of reasons a
permanent school employee can be dismissed or suspended. This
code section is outdated and obsolete. The bill further deletes
a provision of law requiring, if a decision of a CPC is reversed
or vacated by a court of competent jurisdiction, the district or
the employee, having paid costs during the hearing shall
reimburse the other party. This section has been found to be
unconstitutional, therefore the bill removes this section from
the law. Committee staff recommends, in order to create
consistency with existing law and remove unconstitutional
provisions, the bill be amended to specify that the state and
the district share equally the cost of the CPC when the
commission determines that the employee should be dismissed or
suspended.
California Supreme Court Decision . In 1999, the California
Supreme Court found that "Education Code section 44944,
subdivision (e), provides that whenever a teacher exercises his
or her constitutional right to request a hearing regarding a
threatened suspension or dismissal, but ultimately does not
prevail at the hearing, the teacher is required to pay to the
state one-half the cost of the administrative law judge. This
cost is imposed in every case in which the teacher ultimately is
suspended or dismissed, even if the teacher reasonably and in
good faith has challenged the district's disciplinary action,
and even if the teacher has prevailed on some of the district's
charges. A teacher also is liable for this cost where the
hearing results in a decision that the teacher should not be
suspended or dismissed but where the favorable decision at the
administrative hearing ultimately is reversed on judicial
review.
We agree with the trial court and Court of Appeal that this cost
provision is unconstitutional. The imposition upon such a
teacher of the open-ended cost of the adjudicator conflicts with
the centuries-old common law tradition that the salaries of
judges are to be borne by the state, and not by the litigants.
By its terms, the cost provision at issue in the present case -
which is not limited to frivolous hearing requests but applies
whenever the teacher ultimately is suspended or dismissed,
without regard to the reasonableness of the teacher's position -
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advances no legitimate governmental interest. Furthermore, the
state interest that is claimed to be advanced by this cost
provision does not justify the risk of error posed by the
provision, because substitute procedures limiting the imposition
of costs to teachers engaging in frivolous tactics would
conserve public resources while safeguarding the substantial
liberty and property interests at stake in these proceedings."
Historical Costs of CPCs . According to LAUSD, 356 CPC's have
been utilized to review teacher suspension and dismissal cases
state-wide between 1990 and 2010. This breaks down to 225 cases
from 1990-2000 and 131 cases from 2000-2010. This equates to
approximately 18 CPC's per year state-wide. The total costs
associated with a CPC can range from $15,000 to $22,000 per
case.
Arguments in Support : The California Teachers Association
supports the bill and states, "AB 375 (Buchanan) has proposed
strict guidelines to pare down the time and expense and as a
result create a fair hearing process which would save money and
create significant new efficiencies by limiting the time to
complete dismissal hearings; eliminating delays in completing
depositions and discovery; and finally, eliminating overlapping
statutory and regulatory requirements."
Arguments in Opposition : The California Right to Life
Committee, Inc. opposes the bill and states, AB 375 refers to
the deletion of the Communist Party as a reason for dismissal as
a deletion of obsolete language. "Obsolete is defined as "out of
date" or "no longer used." The Communist Party USA continues to
be an active organization fielding candidates at various levels
and having a continuing presence in California. It is not
obsolete."
Committee Amendments :
1) Authorize all types of dismissal notices, with the
exception of unsatisfactory performance, at any time of
year as long as they are delivered by personal service;
and, delete the provision authorizing dismissal notices for
unsatisfactory performance if an employee is employed
during summer school.
2) To create consistency with existing law, specify that
the state and the district share equally the cost of the
CPC when the commission determines that the employee should
be dismissed or suspended.
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3) Technical clean up amendments to delete duplicative
language and minor drafting errors.
Related legislation . SB 10 (Padilla), which is in the Senate
Education Committee, would make changes to the procedures used
for dismissal and suspension proceedings for permanent
certificated employees that are dismissed for serious or
egregious unprofessional conduct, as defined.
Previous legislation . SB 1530 (Padilla) from 2012, which failed
passage in the Assembly Education Committee, would have made
changes to the procedures used for dismissal and suspension
proceedings for permanent certificated employees that are
dismissed for serious or egregious unprofessional conduct, as
defined.
SB 1059 (Huff) from 2011, which failed passage in the Senate
Education Committee, would have required significant
modifications to the current protocols used for the discipline
of a certificated employee in California; shortened the process
for the dismissal or suspension of a certificated employee for
unprofessional conduct or unsatisfactory performance; and,
shifted the decision making authority in disciplinary cases from
the Commission on Professional Competence (CPC) to the governing
board of a school district, among other changes.
AB 2028 (Knight) from 2011, which was held in the Assembly
Appropriations Committee, would have repealed the requirement
that dismissal or suspension notices not be given between May 15
and September 15 in any year; and, repealed the requirement that
no testimony be given or introduced at a certificated employee's
dismissal or suspension hearing relating to matters that
occurred more than four years before to the date of the filing
notice, as specified.
SB 955 (Huff) of 2010 required changes to the timeline for
teacher layoff notices, changes to the teacher evaluation and
assessment process and modified the teacher discipline process
in ways that are closely related to those presented in this
bill. SB 955 was held in the Senate Rules Committee.
AB 2219 (Fuentes) of 2010 required the state or the governing
board to pay for the expenses of a hearing or administrative law
judge, if the Commission on Professional Competences (CPC)
determines that a school employee should be dismissed or
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suspended. AB 2219 was held in the Assembly Education Committee.
SB 1303 (Runner) Chapter 579, Statutes of 2008, specified that
employees placed on compulsory leave who do not elect to furnish
a bond or other security acceptable to the governing board of
the district shall be compensated for the period of leave if
they are acquitted of the offense or charges against the
employee are dismissed without his or her guilt being
established.
AB 506 (Lieu) of 2007 required school districts to take certain
actions in response to a situation where they suspect an
investigation of criminal offenses that require a compulsory
leave of absence. AB 506 was held in the Senate Appropriations
Committee.
REGISTERED SUPPORT / OPPOSITION :
Support
California Teachers Association
Opposition
California Right to Life Committee, Inc.
Analysis Prepared by : Chelsea Kelley / ED. / (916) 319-2087