BILL ANALYSIS Ó
AB 375
Page 1
Date of Hearing: April 30, 2013
ASSEMBLY COMMITTEE ON JUDICIARY
Bob Wieckowski, Chair
AB 375 (Buchanan) - As Amended: April 15, 2013
As Proposed to Be Amended
SUBJECT : SCHOOL EMPLOYEES: SUSPENSION AND DISMISSAL
KEY ISSUE : SHOULD EXISTING PROCEDURES FOR TEACHER DISCIPLINE
AND DISMISSAL BE UPDATED AND STREAMLINED IN ORDER TO REDUCE THE
TIME NECESSARY TO COMPLETE THE DISCIPLINE PROCESS WHILE
PRESERVING FAIRNESS AND DUE PROCESS?
FISCAL EFFECT : As currently in print this bill is keyed fiscal.
SYNOPSIS
According to the author, the current teacher discipline and
dismissal process is outdated, cumbersome, and warrants
significant revision. In particular, the author contends that
the lack of any deadline for completion of the dismissal appeal
process can allow costly proceedings to drag on for 12-18 months
or longer through use of continuances and other dilatory
tactics. This bill reflects the author's thoughtful and
comprehensive efforts to update and streamline the teacher
discipline and dismissal process. As proposed to be amended,
the bill attempts to strike a careful balance between competing
interests of streamlining procedures but also protecting due
process rights, which cannot always be rushed. Supporters of
the bill, including teacher unions and nonprofits, contend that
the bill will help ensure due process for teachers subject to
discipline, but will also reduce the time needed to complete the
dismissal process, thereby potentially saving school districts
time and money. The bill is opposed by a number of school
districts, however, who contend that the bill does not do what
it purports to do, but in fact creates additional procedures
that lengthen the appeals process, raise the cost of dismissing
a teacher, and ultimately make it more difficult for districts
to dismiss teachers, including those accused of serious offenses
against students. This bill previously was approved by the
Assembly Education Committee by a 7-0 vote.
SUMMARY : Revises the suspension and dismissal process for
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school employees, as specified. Specifically, this bill :
1)Permits a notice of suspension or dismissal to be given at any
time of the year, but limits the notice of dismissal or
suspension involving only charges of unsatisfactory
performance to be given during the instructional year of the
school site where the employee is physically employed.
2)Specifies that a suspension or dismissal hearing shall
commence within six months of the employee's demand for a
hearing and the close of record in the hearing must be
completed within seven months of the demand for hearing.
3)Provides that no continuance to the hearing may extend the
date for close of the record more than seven months from the
date of the request for hearing, except for extraordinary
circumstances as deemed by the administrative law judge (ALJ).
Further provides that if the record cannot be closed within
the seven month period, then the charges shall be dismissed
without prejudice to the board to refile within 30 days a
notice of dismissal on the same charges.
4)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 offenses) and Penal Code
Sections 11165.2 to 111652.6 (child abuse offenses), except as
deemed relevant by the Office of Administrative Hearings
(OAH).
5)Deletes the existing discovery process and instead creates a
new limited discovery process, that, among other things:
a) Requires the school district and the employee to make
their initial disclosures within 45 days of the employees'
demand for a hearing, and requires all supplemental
disclosures to be made no later than 60 days before the
start of the hearing, as specified.
b) Allows the school district to take the depositions of
the employee and no more than four other witnesses, and
allows the employee to take depositions of no more than
five witnesses, with a maximum length of each witness
deposition limited to seven hours
6)Authorizes an employee who has been suspended to request a
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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.
7)Requires the ALJ to issue an order denying or granting the
motion no later than 15 days after the hearing, and provides
that the grant or denial of the motion shall be without
prejudice to consideration by the Commission of Professional
Competence (CPC), and shall not be considered by the CPC in
determining the validity of the grounds for dismissal.
Further provides that the motion for immediate reversal of
suspension shall be the exclusive means of obtaining
interlocutory review of suspension pending dismissal and is
not subject to interlocutory judicial review.
8)Requires an employee who demands a hearing to file a single
document containing the Request for Hearing and the Notice of
Defense, as specified.
9)Provides that once a governing board has given notice to
suspend or dismiss an employee, the charges may only be
amended upon motion before an ALJ of the OAH. Further
provides that the amendment of charges shall not result in any
prejudice to the responding party, and that no motion to amend
shall be granted less than 90 days before the hearing if it
would extend the close of record beyond seven months from the
date of the employee's request for hearing.
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.
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EXISTING LAW :
1)Permits the governing board of a school district to give
notice to a 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. (Education Code Section 44934. Unless otherwise
stated, all further references are to this code.)
2)Prohibits the notice of dismissal or suspension of a teacher
from being given between May 15th and September 15th in any
year. (Section 44936.)
3)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. (Section 44944.)
4)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. (Section 44945.)
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5)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. (Section 44944.)
6)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
in the discipline of the employee. (Section 44944(b)(5).)
7)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. (Section
44944(e)(5).)
COMMENTS : This bill reflects the author's thoughtful and
comprehensive efforts to update and streamline the teacher
discipline and dismissal process. As proposed to be amended,
the bill attempts to strike a careful balance between the
competing interests of streamlining procedures and protecting
due process rights.
Author's Statement: 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. This bill 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
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responsibilities of both school districts and teachers with
respect to the appeal process.
Summary of Key Issues, Opposition Arguments, and Proposed
Amendments Which Should Reduce Opposition Concerns. In a
continuing effort to improve and clarify the process, the author
has proposed helpful amendments in response to opposition
concerns and Committee suggestions, although there remain
outstanding areas of disagreement to which the author has
pledged to give continued consideration.
1. Suspension of employees . As currently in print, this bill
authorizes an employee who has been suspended to request a
motion for immediate reversal of the suspension before an ALJ,
and requires review of the motion to 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. The ALJ must then issue an order
denying or granting the motion no later than 15 days after the
hearing.
Argument in opposition: School districts who oppose the bill
contend the bill is misleading and creates more ambiguity. They
state:
On the one hand, the bill purports to allow school
districts to immediately suspend an employee from their
duties. However, on the other hand, in Section
44939(b), numerous procedural hurdles are proposed. An
employee who has been placed on suspension may serve
and file with OAH a motion for immediate reversal of
the suspension. Section 44939(b) imposes strict
timelines for filing the motion and for OAH to make a
decision on the motion, and if the motion is granted,
the school district will be liable for back wages and
benefits. The current language works and should not be
changed. The bill adds another layer of procedural
hurdles which will lead to more lengthy and costly
litigation.
Author's proposed amendment. As proposed to be amended, the
bill clarifies that the grant or denial of the motion shall be
without prejudice to consideration by the Commission of
Professional Competence (CPC) of the validity of the grounds for
dismissal, and shall not be considered by the CPC in determining
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the validity of the grounds for dismissal. This proposed
amendment is intended to alleviate concerns that an adverse
decision on the suspension issue may prejudice the CPC's
decision on the validity of the grounds for dismissal. It is
not known whether this proposed amendment addresses any of the
concerns expressed by the district opponents in this area.
2. Timelines for completion of hearing . A cornerstone feature
of this bill is that if the employee requests a hearing on the
charges filed against him or her, then the hearing shall be
commenced within six months and completed within seven months of
the date of the request for hearing. According to the author,
these two deadlines will ensure that discipline hearings do not
stretch out endlessly due to continuances and other dilatory
tactics.
Argument in opposition: School districts who oppose the bill,
however, contend it will be extremely detrimental to school
districts attempting to dismiss permanent teachers. They state:
By requiring that the hearing be completed by a certain
date, it provides leverage to the attorney for the
teacher to make motions, raise procedural issues, and
delay the hearing in order to force a dismissal of the
proceeding solely on lapse of time and not on the
merits.
The amendments to Section 44944(a)(1) do authorize a
continuance of the hearing date, but further state, ".
. . except that no continuance shall extend the date
for completion of the hearing more than seven months
from the date of the employee's request for a hearing,
except for good cause, as determined by the Office of
Administrative Hearings." This language is vague as to
when the administrative law judge may extend the
hearing more than seven months. For example, would good
cause include a heavy case load that does not allow the
Office of Administrative Hearings to complete the
hearing within seven months? With state funding
cut-backs, it may be difficult for the Office of
Administrative Hearings to complete the hearing within
seven months. In effect, these proposed amendments are
a "poison pill" that would make it extremely difficult,
if not impossible, to dismiss a teacher.
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Author's proposed amendments : To make possible continuances in
the hearing even less likely, the author has proposed to amend
the bill to tighten the standard even further, so that the ALJ
must find that "extraordinary circumstances" exist rather than
"good cause" to grant a continuance. This may help alleviate
some of the opponents' concerns, but their questions about how
OAH may interpret a different standard (i.e. "extraordinary
circumstances") are still applicable.
In addition, the author proposes to amend the bill to disallow
any continuance to the hearing that may extend the date for
close of the record more than seven months from the date of the
request for hearing, except for extraordinary circumstances as
deemed by the ALJ. By tying the deadline to "close of record"
rather than "completion of the hearing," the author seeks to
reduce ambiguity about whether the hearing is completed when the
last evidence by either side has been entered into the record,
or when, for example, the ALJ has issued his final decision. It
is not known whether this recasting of the deadline alleviates
opponents' concerns, or whether, more likely, they continue to
oppose any time-certain deadline for completing the hearing
process.
Finally, the author proposes to amend the bill to provide that
if the record cannot be closed within the seven month period,
then the charges shall be dismissed without prejudice to the
board to re-file within 30 days a notice of dismissal on the
same charges. There is an outstanding issue regarding whether
attorney's fees must be paid if the charges are dismissed as the
result of missing the deadline. According to both proponents
and opponents of the bill, case law suggests that the school
district may be liable for a teacher's attorneys' fees in some
cases where charges were dropped after a hearing has already
commenced. It is not clear under the bill or the proposed
amendments what happens with respect to attorneys' fees in cases
where the record cannot be closed before the prescribed
deadline. The author may wish to consider if an additional
proposed amendment to this bill might be appropriate to attempt
to resolve those unanswered questions, which likely will be a
source of contention in practical situations in practice.
3. Disclosure requirements . Under the bill as currently in
print, a party's failure to make initial disclosures within
specified deadlines precludes the party from introducing
witnesses or evidence not disclosed at the hearing, unless the
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party shows good cause for its failure to timely disclose.
Although a party may supplement its initial disclosures if new
information or evidence becomes known, the supplemental
disclosures must be made no later than 60 days before the start
of the hearing. If a party fails to make supplemental
disclosures promptly upon discovery or availability of new
information or evidence, the party is precluded from introducing
witnesses or evidence not disclosed prior to the hearing unless
the party shows good cause for its failure to timely disclose.
Finally, the school district is required to make its initial
disclosures within 30 days of the date of service of notice of
intention to dismiss or suspend, and then the employee shall
make his or her initial disclosures within 30 days of service of
the district's initial disclosures.
Argument in opposition: School districts who oppose this bill
contend that it provides the attorney for the teacher with an
additional opportunity to exclude evidence while at the same
time potentially prohibiting the district from introducing
critical evidence. They state:
While the language in Section 44944.2 applies to both
parties, it is the school district which has the
burden of proof and which must initially disclose
information. If the district fails to disclose a piece
of information or discovers the information later, it
may be precluded from using that evidence in the
hearing. At a minimum, it would lead to a hearing on
whether the information may be introduced and will
lengthen the litigation which is up against a 7 month
deadline.
The bill adds additional requirements for introducing
expert testimony and the disclosure of expert
testimony.
These additional timelines and procedural requirements
will make it more difficult for a school district to
prepare a teacher dismissal case and will increase the
cost of dismissal proceedings.
Author's proposed amendment : As proposed to be amended, the
bill requires the school district and the employee to make their
initial disclosures within 45 days of the employees' demand for
a hearing, and requires all supplemental disclosures to be made
no later than 60 days before the start of the hearing, as
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specified. It is believed that the author's proposed amendment
to require simultaneous initial disclosures appears to address
one of the main concerns expressed by the opponents on this
subject.
4. New limited discovery process. As part of the limited
discovery procedures established by this bill, in addition to
the disclosures discussed above, the parties may obtain
discovery by oral deposition. Under this bill, 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.
The bill provides that 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 existing
civil discovery (Government Code section 11507.7.) If a party
seeks protection from unreasonable or oppressive discovery
demands, the exclusive right of a party seeking an order for
protection shall also be made pursuant to existing civil
discovery (Government Code section 11450.30.)
Opponents of the bill contend generally that this set of new
limited discovery procedures "will lengthen the litigation
process and raise the cost of dismissing a teacher." Generally
speaking, the school districts oppose the bill because they
believe the bill will make it more difficult to dismiss tenured
teachers, even those who have been accused of serious offenses
against students.
5. Amendment of charges . Under this bill as proposed to be
amended, once the board has given notice to suspend or dismiss
an employee, the charges may only be amended upon motion before
an ALJ. In addition, the amendment of charges shall not result
in any prejudice to the responding party, and that no motion to
amend shall be granted less than 90 days before the hearing if
it would extend the close of record beyond seven months from the
date of the employee's request for hearing.
While this provision laudably seeks to ensure that amendment of
charges by the board cannot be used as a tactic to delay closing
of record in the hearing (and ultimate completion of the
disciplinary matter), the requirement that any amendment of
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charges not result in "prejudice" to the responding party may
cause some confusion. Of course, every set of charges alleged
to be grounds for discipline is inherently prejudicial to the
interests of an employee. The bill uses the term "prejudicial"
to refer to the procedural rights, not the substance of the
amendments. Nevertheless, read literally, this point may not be
entirely clear, and the author may wish to consider further
clarification.
PREVIOUS RELATED LEGISLATION: SB 1530 (Padilla) of 2012 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. This bill failed passage in the Assembly Education
Committee.
SB 1059 (Huff) of 2011 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. This bill
failed passage in the Senate Education Committee.
AB 2028 (Knight) of 2011 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. This bill died in the Assembly
Appropriations Committee.
SB 955 (Huff) of 2010 would have required changes to the
timeline for teacher layoff notices, changed 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. This bill died in the Senate Rules
Committee.
REGISTERED SUPPORT / OPPOSITION :
Support
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Advancement Project
California Council of Nonprofit Organizations
California Catholic Conference
California Federation of Teachers
Crime Victims United of California
Los Angeles Unified School District
Oppose
California Right to Life Committee, Inc.
EdVoice
Oppose Unless Amended
Orange County Department of Education
Inyo County Office of Education
San Diego Unified School District
Sonoma County Office of Education
Analysis Prepared by : Anthony Lew / JUD. / (916) 319-2334