BILL ANALYSIS Ó
AB 375
Page 1
ASSEMBLY THIRD READING
AB 375 (Buchanan)
As Amended May 6, 2013
Majority vote
EDUCATION 7-0 JUDICIARY 7-1
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|Ayes:|Buchanan, Olsen, Campos, |Ayes:|Wieckowski, Alejo, Chau, |
| |Chávez, Nazarian, Weber, | |Dickinson, Garcia, |
| |Williams | |Muratsuchi, Stone |
| | | | |
|-----+--------------------------+-----+--------------------------|
| | |Nays:|Gorell |
| | | | |
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APPROPRIATIONS 13-0
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|Ayes:|Gatto, Bocanegra, | | |
| |Bradford, | | |
| |Ian Calderon, Campos, | | |
| |Eggman, Gomez, Hall, | | |
| |Ammiano, Linder, Pan, | | |
| |Quirk, Weber | | |
| | | | |
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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); and, specifies
that no motion to amend shall be granted less than 90 days
before the hearing on the charges if it would extend the close
of the record beyond the seven-month deadline.
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3)Requires that a notice of suspension or dismissal for
unsatisfactory performance only be given during the
instructional year of the school site where the employee is
physically employed; authorizes a notice of suspension or
dismissal to be given at any time of year for other suspension
or dismissal reasons; and, specifies the notice of dismissal
or suspension shall be in writing and be served upon the
employee personally at his or her last known address.
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.
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 by a closing
of the record; specifies the hearing may not be continued
beyond seven months except for extraordinary circumstances as
deemed by the ALJ; and, specifies that if the record cannot be
closed within the timeframe established, the charges shall be
dismissed without prejudice to the governing board to refile
within 30 days a notice of dismissal on the same charges.
8)Authorizes testimony and evidence relating to matters that
occurred more than four years in the past that involve any act
as described in Education Code (EC) Section 44010 (sexual
offences) and Penal Code Sections 11165.2 to 111652.6 (child
abuse offences), as deemed relevant by the ALJ.
9)Authorizes suspension and dismissal hearings to be presided
over by an ALJ alone, instead of the full Commission on
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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; 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; and,
requires the state and the school district to share the costs
of a hearing if an employee is dismissed or suspended by a
CPC.
12)Deletes the existing discovery process and instead creates a
new discovery process where the school district and the
employee must disclose information within 45 days of the
employee's demand for a hearing; 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,
administrators, school boards, and school district employees
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 update and streamline
the procedures for teacher discipline and dismissal, making it
more cost effective and reducing 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;
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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. (EC Section
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 Section 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;
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d) Willful refusal to perform regular assignments without
reasonable cause;
e) With violation of teacher or inculcating Communism; or,
f) With knowing membership by the employee in the Communist
party. (EC Section 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 Section 44944)
FISCAL EFFECT : According to the Assembly Appropriations
Committee, on-going General Fund 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
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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. 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.
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. 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 responsibilities
of both school districts and teachers with respect to the appeal
process.
This bill 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.
This bill saves time and money by requiring the entire appeal
process to be complete within seven months. The bill allows the
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parties to stipulate to a hearing with an ALJ only. The bill
removes the ability of litigants to take discovery disputes and
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.
This bill 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.
Analysis Prepared by : Chelsea Kelley / ED. / (916) 319-2087
FN: 0000799