BILL ANALYSIS Ó
SENATE COMMITTEE ON EDUCATION
Carol Liu, Chair
2013-14 Regular Session
BILL NO: AB 375
AUTHOR: Buchanan
AMENDED: September 6, 2013
FISCAL COMM: Yes HEARING DATE: September 10,
2013
URGENCY: No CONSULTANT: Lenin Del
Castillo
SUBJECT : School employees: dismissal or suspension.
SUMMARY
This bill modifies the suspension and dismissal procedures
for certificated employees who have attained permanent
status.
BACKGROUND
Current law prohibits the dismissal of a certificated
employee who has achieved permanent status except for one
or more of the following causes:
(Education Code § 44932)
Immoral or unprofessional conduct.
Commission, aiding, or advocating the commission of
acts of criminal syndicalism.
Dishonesty.
Unsatisfactory performance.
Evident unfitness for service.
Physical or mental condition unfitting him or her to
instruct or associate with children.
Persistent violation of or refusal to obey state laws
or regulations pertaining to schools.
Conviction of a felony or of any crime involving moral
turpitude.
Violation of the prohibition against advocating or
teaching communism with the intent to indoctrinate or
inculcate in the mind of any pupil a preference for
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communism.
Knowing membership in the Communist Party.
Alcoholism or other drug abuse which makes the
employee unfit to instruct or associate with children.
Current law also requires a governing board to notify an
employee in writing of its intention to dismiss or suspend
him or her at the expiration of 30 days unless the employee
demands a hearing. Current law prohibits a 30-day Notice
of Intent to Dismiss or Suspend from being issued between
May 15 and September 15 in any year. (Education Code §
44934 and § 44936)
The Legislature has established additional notice
requirements that school districts must follow when seeking
to suspend or dismiss an employee for unprofessional
conduct or unsatisfactory performance. Before a governing
board can take action to issue a 30-day notice for either
of these causes, the following must occur:
1) Unprofessional Conduct : The employee must be given
advance notice of at least 45 days. A Notice of
Unprofessional Conduct must specify the nature of the
cause, list specific instances of behavior and furnish
the employee an opportunity to correct the faults and
overcome the grounds of the charge. The notice must
also include a copy of the employee's evaluation.
(Education Code § 44938)
2) Unsatisfactory Performance : The employee must be
given advance notice of at least 90 days. A Notice of
Unsatisfactory Performance must specify the nature of
the performance issues, with specific instances of
behavior with "such particularity" as to furnish the
employee an opportunity to correct his or her faults
and overcome the grounds for the charge. The notice
must also include a copy of the employee's evaluation.
(Education Code § 44938)
Current law authorizes the immediate suspension of a
permanent employee for specified conduct including:
immoral conduct, conviction of a felony or any crime
involving moral turpitude, incompetency due to mental
disability, willful refusal to perform regular assignments
without reasonable cause, advocating or teaching communism,
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or knowing membership in the Communist Party.
(Education Code § 44939)
Existing law requires that a dismissal or suspension
hearing requested by an employee must begin within 60 days
of an employee's request and further:
1) Requires that the hearing be conducted by a Commission
on Professional Competence (CPC) made up of three
members:
a) One member selected by the employee;
b) One member selected by the governing board;
and,
c) An administrative law judge (ALJ) who serves
as the chair.
2) Provides that 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.
3) Specifies that members of the CPC may not be employees
of the district and must have at least five years of
experience (within the last ten) in the discipline of
the employee.
4) 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.
Specifies that evidence of records regularly kept by
the governing board may be introduced, but no decision
relating to the dismissal or suspension of any
employee can be made based on charges or evidence of
any nature relating to matters occurring more than
four years prior to the filing of the notice.
5) Specifies that members of a Commission on Professional
Competence (CPC) receive their regular salary, fringe
benefits, accumulated sick leave and other leaves and
benefits but shall receive no additional compensation.
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6) Specifies that in the event the employee is dismissed
or suspended, the employee will share equally the
expenses of the hearing including the cost of the
administrative law judge (ALJ).
7) Specifies that in the event that the employee will not
be dismissed or suspended, the governing board will
pay the expenses of the hearing, including the cost of
the ALJ, the cost of the educators serving on the CPC,
and reasonable attorney's fees incurred by the
employee. (Education Code § 44944)
ANALYSIS
This bill :
1) Makes findings and declarations of the Legislature
that:
a) Pupils, educators, administrators, school
boards, and school district employees, need a
teacher dismissal process that is both fair and
efficient.
b) This act 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.
2) Removes "knowing membership of the Communist Party"
from the list of reasons a permanent school employee
can be dismissed or suspended.
3) Provides that if the governing board of the school
district has given notice to a permanent employee of
its intention to dismiss or suspend him or her, based
upon written charges filed or formulated, the charges
may be amended only upon a motion before an ALJ of the
Office of Administrative Hearings, specifies that the
amendment of charges shall not result in any prejudice
to the responding party; and requires that no motion
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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4) Provides that a notice of the governing board to
dismiss or suspend an employee, together with written
charges filed or formulated, shall be sufficient to
initiate a hearing, as specified, and the governing
board shall not be required to file or serve a
separate accusation.
5) Deletes the prohibition against sending a 30-day
notice between May 15 and September 15 and allows it
to be given at any time of the year except for a
notice in a proceeding involving charges of
unsatisfactory performance, which shall be given
during the instructional year at the school site where
the employee is physically employed.
6) Provides that a 30-day notice given outside of the
instructional year of the school site where the
employee is physically employed shall be in writing
and shall be served upon the employee personally with
a copy of the charges filed, as specified, attached to
the notice.
7) Provides that an employee who has been placed on
suspension may serve and file with the Office of
Administrative Hearings a motion for immediate
reversal of suspension.
a) Requires that review of the motion shall be
limited to a determination as to whether the
facts as alleged in the statement of charges, if
true, are sufficient to constitute a basis for
immediate suspension.
b) Requires the motion to include a memorandum
of points and authorities setting forth law and
argument supporting the employee's contention
that the statement of charges does not set forth
a sufficient basis for immediate suspension.
c) Requires the motion to be served upon the
governing board of the school district and filed
within 30 days after service upon the employee of
the initial pleading in the matter; requires the
hearing on the motion for immediate reversal of
suspension to be held no later than 30 days after
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the motion is filed with the Office of
Administrative Hearings.
d) Requires the administrative law judge (ALJ)
to issue an order denying or granting the motion
no later than 15 days after the hearing; requires
an order granting a motion for immediate reversal
of suspension to become effective within five
days of service of the order and the school
district to make the employee whole for any lost
wages, benefits, and compensation within 14 days
of service of an order granting the motion.
e) Provides that a motion shall be the
exclusive means of obtaining interlocutory review
of suspension pending dismissal and that the
grant or denial of the motion shall not be
subject to interlocutory judicial review.
f) Provides that a motion pursuant to this
section shall have no bearing on the authority of
a governing board to determine the physical
placement and assignment of an employee who is
suspended or placed on administrative leave
during review of the motion or while dismissal
charges are pending.
8) Adds murder and attempted murder to the list of
mandatory leave of absence offenses.
9) Removes marijuana, mescaline, peyote, and
tetrahydrocannabinols as exceptions to the list of
controlled substance offenses for which a certificated
employee may be charged with a mandatory or optional
leave of absence offense.
10) Requires an employee who demands a hearing to file a
single document containing his or her request for a
hearing and a notice of defense, as specified.
11) Specifies that a dismissal or dismissal hearing shall
commence within six months from the date of the
employee's request for a hearing; provides that a
continuance shall not extend the date for commencement
of the hearing more than six months from the date of
the employee's request for a hearing, except for
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extraordinary circumstances, as determined by the
administrative law judge (ALJ).
a) Provides that if extraordinary circumstances
are found that extend the date for commencement,
the deadline for concluding the hearing and
closing the record shall be extended for a period
of time equal to the continuance.
b) Requires the hearing date to be established
after consultation with the employee and the
governing board, except that if the parties are
not able to reach agreement on a date, the Office
of Administrative Hearings shall unilaterally set
a date in compliance with this section.
c) Requires the hearing to be completed by a
closing of the record within seven months of the
date of the employee's demand for a hearing.
d) Provides that a continuance shall not extend
the date for the close of the record more than
seven months from the date of the employee's
request for a hearing, except for good cause as
determined by the ALJ.
e) Provides that if substantial progress has
been made in completing the previously scheduled
days of the hearing within the seven-month period
but the hearing cannot be completed, for good
cause shown, within the seven-month period, the
period for completing the hearing may be extended
by the presiding ALJ and he or she shall
establish a reasonable timetable for completion
of the hearing and closing of the record.
12) Deletes the existing discovery process that includes
the rights and duties of any party in a civil action
brought in a Superior Court under Title 4 of Part 4 of
the Code of Civil Procedure; creates a new discovery
process where the school district and employee are
required to make initial disclosures within 45 days of
the date of the employee's demand for a hearing; and
specifies that all disclosures must be made no later
than 60 days before the start of the hearing, as
specified.
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13) Authorizes testimony or evidence and decisions to be
made relating to matters that occurred more than four
years prior to the date of the filing of the notice
that involve sexual offences and child abuse offences,
as specified.
14) Authorizes a suspension and dismissal hearing to be
conducted by a single administrative law judge (ALJ)
instead of the full Commission on Professional
Competence (CPC) if both parties agree in writing.
15) Reduces the number of years of experience that CPC
members are required to have in the discipline of the
employee being suspended or dismissed from five to
three. For purposes of the required discipline of CPC
members:
a) For an employee subject to dismissal whose
most recent teaching assignment is in any of the
grades Kindergarten to grade six, inclusive,
"discipline" means a teaching assignment in any
of grades Kindergarten to grade six, inclusive.
b) For an employee subject to dismissal whose
most recent assignment requires an education
specialist credential or a services credential
"discipline" means an assignment that requires an
education specialist credential or a services
credential, respectively.
c) For an employee subject to dismissal whose
most recent teaching assignment is in any of the
grades seven to 12, inclusive, "discipline" means
a teaching assignment in any of grades seven to
12, inclusive, in the same area of study, as that
term is used in Section 51220, as the most recent
teaching assignment of the employee subject to
dismissal.
16) Requires members of the Commission on Professional
Competence (CPC) to be selected no later than 45 days
before the start of the hearing; and requires the
governing board and the employee to serve notice of
their selection upon all parties and the Office of
Administrative Hearings.
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17) Specifies that if a party believes that a selected CPC
member is not qualified, that party may file an
objection with the Office of Administrative Hearings
within 10 days of the selection; and within seven days
of that objection an administrative law judge (ALJ)
shall rule on the objection.
18) Requires that if a CPC member is a retired employee,
the member shall receive pay at the daily substitute
teacher rate in the school district that is a party to
the hearing.
19) Deletes the requirement that the employee pay the
expenses incurred by the school district at the
hearing if a court overturns the decision of a CPC;
and 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.
STAFF COMMENTS
1) Need for the bill : According to the author's office,
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. According to the author's office, 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.
2) Procedural reforms . This bill makes a number of
procedural reforms that the author maintains would
establish more efficient suspension and dismissal
procedures.
a) Removes the summer moratorium on issuing
30-day notices. The purpose of the prohibition
against issuing a 30-day notice between May 15
and September 15 is to ensure a teacher on summer
break does not inadvertently forfeit his or her
right to a hearing by not receiving the notice
promptly and not having adequate time to prepare
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a response. However, employers argue that the
notice moratorium limits their ability to address
misconduct issues in a timely manner.
Additionally, the moratorium makes little sense
if misconduct occurs between May 15 and September
15, during summer school, or at school operating
on a year-round schedule. While an argument
could be made that vacation schedules may make it
more challenging to schedule hearings during the
summer, it appears that lifting the moratorium
would remove a burdensome restriction on the
notification process for teacher misconduct
issues (the summer moratorium would still apply
to unsatisfactory performance).
b) Allows the introduction of historical
information. Current law prohibits testimony or
evidence relating to matters more than four years
old to be introduced at a hearing. This bill
would make it easier to include relevant evidence
by allowing information that is more than four
years old involving sexual offenses and child
abuse to be considered during a hearing. This
change could enable employers to establish a
pattern of behavior that could be relevant to
their case by having access to all possible
evidence.
c) Commission on Professional Competence (CPC).
Current law requires suspension and dismissal
hearings to be conducted by a CPC made up of
three members-one member selected by the
employee; one member selected by the governing
board; and an administrative law judge (ALJ) who
serves as the chair. Members of the CPC may not
be employees of the district and must have at
least five years of experience (within the last
ten) in the discipline of the employee. This
bill authorizes the hearings to be presided over
by an ALJ alone, instead of the full CPC, if both
parties agree in writing. The bill also reduces
the number of years of experience that members of
the CPC shall have from five years to three years
in the same discipline of the teacher being
suspended or dismissed and for employees subject
to dismissal whose most recent teaching
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assignments are in grades seven to twelve, the
bill broadens the definition of "discipline" to
mean the same area of study, as specified. These
changes could help increase the number of
teachers eligible to serve on the CPC and thereby
reduce the delays that school districts may
otherwise encounter under existing law.
d) Mandatory Leave of Absence Offenses. This
bill adds murder and attempted murder to the list
of mandatory leave of absence offenses, therefore
school districts would be required to place an
employee on leave should he or she be criminally
charged with murder or attempted murder. This
bill also removes the sale, use, or exchange of
marijuana, mescaline, peyote, and
tetrahydrocannabinols to minors as exceptions to
the list of controlled substance offenses for
which a certificated employee may be charged with
a mandatory leave of absence offense. These
provisions could help increase protections for
children in school.
3) Streamlining the dismissal process . The stated
objective of
AB 375 is to streamline the dismissal process and
reduce the timeframe associated with suspension and
dismissal proceedings in order to save school
districts time and money, while at the same time
ensuring due process for certificated employees.
Specifically, the bill proposes the following
provisions to achieve that objective:
a) Commencement of a hearing. The bill
requires the commencement of a dismissal hearing
to be within six months from the date of the
employee's request for a hearing. However, if
the administrative law judge (ALJ) determines
that "extraordinary circumstances" exist, he or
she may grant a continuance to extend the date
for the start of the hearing.
b) Timeline to complete a hearing. The bill
requires dismissal and suspension proceedings to
conclude no more than seven months from the date
an employee demands a hearing. If this deadline
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cannot be met, the ALJ has the authority to
extend the deadline if he or she believes good
cause exists and establish a reasonable timetable
for completion of the hearing.
c) Limited discovery process. The bill
establishes a limited discovery process rather
than allowing for full civil discovery. This
process includes the requirement that the school
district and employee make their initial
disclosures within 45 days of the employee's
demand for a hearing and for expert witness
disclosures to be made no later than 60 days
before the commencement of the hearing. The bill
also limits the number of depositions for each
party to no more than five and limits them to
seven hours each.
d) Limit on the amendment of charges. The bill
prohibits a motion to amend charges less than 90
days before the hearing if it would extend the
close of the record beyond the seven-month
deadline.
e) Selection of Commission on Professional
Competence (CPC) members. The bill requires the
governing board and the employee to select CPC
members no later than 45 days before the date set
for the hearing. It also creates a mechanism to
challenge the selection of CPC members. If a
party believes that a selected CPC member is not
qualified, that party may file an objection with
the Office of Administrative Hearings within 10
days of the selection.
The author may wish to address the following issues
worth consideration in assessing whether the bill
would achieve its objective to streamline the
dismissal process:
§ Does the Office of Administrative
Hearings have the capacity and resources to
conduct and complete the hearings within the
prescribed timeline?
§ Is the standard of "extraordinary
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circumstances" for granting a continuance to
commence a hearing appropriate or is it too
high of a standard to meet?
1) Related and prior legislation .
SB 531 (Knight) would have modified procedures
relating to the evaluation, suspension, and dismissal
of certificated employees. SB 531 failed passage in
this Committee.
SB 453 would have modified procedures relating to the
suspension, dismissal and leave of absence of
employees. SB 453 failed passage in this Committee.
SB 1530 (Padilla, 2012) modified procedures relating
to the suspension, dismissal, and leave of absence of
employees. SB 1530 failed passage in the Assembly
Education Committee.
SUPPORT
None of the current version of the bill.
OPPOSITION
None on the current version of the bill.