BILL ANALYSIS Ó
AB 375
Page 1
Date of Hearing: May 15, 2012
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Mike Gatto, Chair
AB 375 (Buchanan) - As Amended: May 6, 2013
Policy Committee: Education
Vote:7-0
Judiciary 7-1
Urgency: No State Mandated Local Program:
Yes Reimbursable: Yes
SUMMARY
This bill makes the following changes to the dismissal and
suspension process for permanent certificated employees
(teachers):
1)Requires the dismissal or suspension hearing, requested by the
permanent certificated employee (employee), to begin within
six months from the date of the employee's demand, and
requires the hearing to be completed within seven months from
the date of the employee's initial demand.
2)Authorizes a dismissal or suspension charge against an
employee to be amended only once upon motion before an
administrative law judge (ALJ) of the Office of Administrative
Hearings (OAH). Further prohibits an amended motion from
being granted less than 90 days before the hearing on all
charges, if it would extend the close of the record beyond the
seventh month deadline, as specified.
3)Authorizes the notice of dismissal or suspension to be given
at any time of the year. Further requires a notice to dismiss
or suspend for unsatisfactory performance be given only during
the instructional year of the schoolsite where the employee is
physically located.
4)Authorizes an employee immediately suspended for immoral
conduct, conviction of a felony or of any crime involving
moral turpitude, or willful refusal to perform regular
assignments without reasonable cause, to file a motion with
OAH for an immediate reversal of suspension, as specified.
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Further prohibits the Commission on Teacher Credentialing
(CTC) from considering the ALJ's ruling on this issue and
requires the ruling to have no bearing on the CTC"s
determination regarding grounds for a dismissal.
FISCAL EFFECT
1)On-going GF costs of approximately $1.8 million to OAH for
increased workload due to the streamlined provisions in this
bill, including requiring the ALJ to review employee's motions
for the reversal of an immediate suspension, reviewing
discovery disputes, and being finished with the entire hearing
process within seven months. According to OAH, it averages
roughly 175 cases a year and approximately one-half involve
teacher suspensions.
2)To the extent this process will avoid a prolonged dismissal
and suspension process, there will likely be an indeterminate
amount of local savings by school districts, particularly if
the process ends within seven months and they no longer incur
court costs for any motion challenges. Conversely, if the
process does not finish within the seven month period, a
district will incur additional costs if they choose to refile
charges. The 2013-14 hourly rate for an ALJ is $187 per hour.
A school district is required to pay this cost.
SUMMARY CONTINUED
1)Requires the school district to make the employee whole for
any lost wages, benefits, and compensation within 14 days of
an order granting immediate reversal of a suspension as
referenced above.
2)Adds the charge of murder to definition of mandatory leave of
absence offenses and removes the exception of marijuana,
mescaline, peyote, or tetrahydro-cannabinols (i.e.,
hallucinogens) for drug offenses under these provisions.
3)Requires a dismissal or suspension hearing to be established
after consultation with the employee and the governing board
and authorizes the hearing date to be continued in accordance
with existing law. This measure prohibits a continuation from
extending the close of the record beyond seven months of the
employee's initial request of a hearing date (except for
extraordinary circumstances determined by the ALJ).
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4)Requires dismissal or suspension charges to be dismissed
without prejudice to the governing board and be refiled within
30 days, if the record cannot be closed within seven months,
as specified.
5)Provides authority to the ALJ to include testimony and
evidence more than four years before the filing date of the
charges, if he or she deems this information relevant to
charges involving sex and child abuse offenses, as specified.
6)Authorizes dismissal and suspension hearings to be presided
over by an ALJ, if both parties waive the right to convene the
current Commission on Professional Competence (CPC) process
for dismissal and suspension hearings.
7)Specifies the make-up of the CPC as follows: (a) one member
selected by the employee, (b) one member selected by the
governing board, and (c) one member selected by an ALJ who
will be chairperson and voting member of the panel, as
specified. Changes the qualifications of the membership by
requiring members to have only three years of experience
within the last 10 years in the same subject area of as the
teacher who is the subject of the proceedings.
8)Repeals the requirement the employee pay the hearing expenses
incurred by the governing board if a court overturns the
decision of the CPC. Likewise, this bill repeals the
requirement the district pay the expenses incurred by the
employee if a court overturns the decision.
9)Repeals the existing hearing discovery process that allows for
appeal to superior court. Instead, this bill requires the
school district and the employee to make their initial
disclosure within 45 days of the date the employee demanded a
hearing. Further establishes supplemental disclosure to occur
60 days before the date of the hearing, as specified.
10)Prohibits an employee from being dismissed for being a member
of the Communist Party.
COMMENTS
1)Purpose . With the recent high profile cases of teacher
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misconduct in the state, a conversation has ensued regarding
the requirements associated with dismissing and suspending a
teacher. Specifically, school districts, parents, and
community members have expressed frustration with the length
of the process and the numerous requirements involved.
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."
The author contends this bill makes changes to current law
that will save school districts and employees time and money.
Specifically, the author argues that by requiring the entire
administrative hearing process to be completed within seven
months of the initial notice to dismiss or suspend, districts
will save thousands of dollars in administrative and legal
costs.
2)Opposition . The Association of California School
Administrators (ACSA) oppose the requirement to finish the
dismissal process within seven months because it will have
unintended consequences. Specifically, they state: "There is
a shortage of administrative law judges making adherence to
this provision very difficult. In addition, requiring the
hearing to be completed by a specific date provides leverage
to the attorney for the employee to make motions, raise
procedural issues and delay the hearing in order to force a
dismissal."
3)Existing law establishes the following provisions related to
the dismissal and suspension of permanent certificated
employees (employees).
a) Grounds for dismissal and suspension. Statute prohibits
the dismissal of a permanent certificated employee except
for specified causes, including immoral or unprofessional
conduct, unsatisfactory performance, evidence of unfitness
for service, conviction of a felony or any crime involving
moral turpitude, and knowing membership in the Communist
Party. This bill repeals the authority to dismiss an
employee for being a member of the Communist Party.
Current law also authorizes the immediate suspension of an
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employee for specified conduct, including immoral conduct
and conviction of a felony or any crime involving moral
turpitude. This measure authorizes the employee to file a
request for immediate reversal of this suspension with OAH,
as specified.
Existing law establishes certain crimes as mandatory leave
of absence offenses and requires school districts to place
an employee criminally charged with those offenses on a
compulsory leave of absence. These offenses include sex
offenses and those involving minors and specified
controlled substances, with the exception of marijuana,
mescaline, peyote, or tetrahydro-cannabinols (i.e.,
hallucinogens). This measure removes these exceptions and
therefore, makes these offenses mandatory leaves of
absences. Likewise, it adds the charge of murder to this
definition.
b) Dismissal and suspension hearing process. Current law
requires a governing board to notify an employee in writing
of his or her intention to dismiss or suspend him or her
within 30 days of the initial notice, unless the employee
demands a hearing. Statute prohibits the initial notice
from being given to the employee between May 15 and
September 15 in any year. This bill authorizes the notice
to be given at any time of the year. Also under current
law, a notice to dismiss or suspend for unsatisfactory
performance can only be given during the instructional year
of the schoolsite where the employee is physically located.
Existing law requires a dismissal or suspension hearing
demanded by an employee to begin within 60 days of the
request and further requires the hearing to be conducted by
a CPC made up of three members (a member selected by the
employee, a member selected by the governing board, and an
ALJ - who serves as the chair). The members of the CPC are
prohibited from being employees of the district and are
required to have at least five years experience (within the
last 10 years) in the same subject as the employee. This
bill reduces the years of experience to three, but still
within the last 10 years.
The decision made by the CPC is made by majority vote and
deems the decision of the CPC to be the final decision of
the governing board. The measure authorizes both parties
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to agree to alternative process other than the CPC, which
involves an ALJ presiding over the hearing.
Under current law, testimony or evidence relating to
matters that occurred more than four years prior to the
date of the filing of the notice is prohibited from being
included in the hearing, as specified. This bill
authorizes the ALJ to ignore this exemption if he or she
deems this information relevant to charges involving sex
and child abuse offenses.
Statute also requires the employee to share equally the
expenses of the hearing (including the cost of the ALJ) in
the event the employee is dismissed or suspended.
Likewise, the governing board is required to pay the
hearing expenses (including the cost of the ALJ), if the
employee is not dismissed or suspended. These provisions
are repealed in this measure.
4)Similar legislation . SB 10 (Padilla) contains many of the
same provisions in AB 375. This bill remains in the Senate
Education Committee in March 2013 and he is now a principal
co-author on this measure.
5)Previous legislation . SB 1530 (Padilla), similar to this
measure, failed in the Assembly Education Committee in June
2012 on a 5-2 vote (four members abstained).
Analysis Prepared by : Kimberly Rodriguez / APPR. / (916)
319-2081