BILL ANALYSIS Ó
Senate Appropriations Committee Fiscal Summary
Senator Kevin de León, Chair
AB 375 (Buchanan) - School Employees: Dismissal or Suspension
Amended: September 6, 2013 Policy Vote: Education 5-0
Urgency: No Mandate: Yes
Hearing Date: September 11, 2013
Consultant: Jacqueline Wong-Hernandez
This bill meets the criteria for referral to the Suspense File.
Bill Summary: AB 375 modifies the suspension and dismissal
procedures for certificated employees who have attained
permanent status.
Fiscal Impact: This bill has the potential to result in both
costs and savings to the state and to local education agencies
(LEAs). The costs and savings realized will depend on the
actions of individual parties in specific cases, and will vary
by action and year (as is true under existing law). It is
unclear whether a streamlined dismissal process will increase
the number of cases brought forth.
Office of Administrative Hearings (OAH): Approximately
$1.86 million annually in ongoing personnel costs. The OAH
estimates it would require 8 additional administrative law
judges (ALJs), four additional clerical staff, and one
additional legal support supervisor, to complete the
substantial additional workload imposed by this bill. It is
unclear whether LEAs would be responsible for the OAH costs;
to the extent that they are, those costs would likely be
mitigated by savings in court costs.
LEAs: Significant increased workload and costs to abide by
new rules. Potentially substantial savings in reduced
liability (in civil litigation) to the extent that certified
employees who commit egregious acts of misconduct against
children can be dismissed more quickly.
Mandate: Potentially significant reimbursable mandate on
LEAs, to the extent that certificated employees are accused
of committing controlled substance offenses involving
marijuana, mescaline, peyote, or tetrahydrocannabinols, and
placed on mandatory leave.
Background: Existing law prohibits the dismissal of a
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certificated employee who has achieved permanent status 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 state laws or regulations pertaining to schools;
h) conviction of a felony or of any crime involving moral
turpitude; i) 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 communism; j) knowing
membership in the Communist Party; or, k) alcoholism or other
drug abuse which makes the employee unfit to instruct or
associate with children. (Education Code § 44932)
Existing law 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 (30-day Notice) from being given between May 15 and
September 15 in any year. (EC § 44934 and EC § 44936)
Additionally, before a governing board can take action to issue
a 30-day Notice for unprofessional conduct or unsatisfactory
performance, the following must occur:
Unprofessional Conduct : The employee must be given advance
notice of at least 45 days, and the notice 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. (EC § 44938(a))
Unsatisfactory Performance : The employee must be given advance
notice of at least 90 days, and the notice 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. (EC § 44938(b))
Existing law authorizes immediate suspension of a permanent
employee for specified conduct, and requires that a dismissal or
suspension hearing requested by an employee must begin within 60
days of an employee's request. Additionally, the hearing must be
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conducted by a Commission on Professional Competence (CPC) made
up of three members: 1) One member selected by the employee; 2)
one member selected by the governing board; and, 3) an ALJ who
serves as the chair.
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. Mandatory offenses include sex offenses
specified in EC § 44010 and offenses involving aiding or
abetting the unlawful sale, use, or exchange to minors of
specified controlled substances with the exception of marijuana,
mescaline, peyote, or tetrahydrocannabinols. (EC § 44940 and §
44940.5)
The decision made by the CPC is made by majority vote and is
deemed to be the final decision of the governing board. Existing
law also 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.
Members of a CPC receive their regular salary, fringe benefits,
accumulated sick leave and other leaves and benefits, but
receive no additional compensation. If the result is that the
employee is dismissed or suspended, the employee will share
equally the expenses of the hearing including the cost of the
ALJ. If the employee is not 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 fees incurred by the employee. (EC
§ 44944)
Proposed Law: AB 375 declares the intent of the Legislature to
update and streamline the procedures for teacher discipline and
dismissal, and makes the following changes to the current
process:
1) Removes Communist Party membership from the list of reasons
a permanent school employee can be dismissed or suspended;
removes marijuana, mescaline, peyote, and
tetrahydrocannabinols as exceptions to the list of
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controlled substance offenses for which a certificated
employee may be charged with a mandatory or optional leave
of absence offense; adds murder and attempted murder to the
list of mandatory leave of absence offenses.
2) 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 OAH, 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 7-month deadline.
3) 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.
4) Deletes the prohibition against sending a 30-day notice
between May 15 and September 15, as specified.
5) 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.
6) Provides that an employee who has been placed on suspension
may serve and file with the OAH 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
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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 the motion is
filed with the OAH.
d) Requires the 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 5 days of service of the order and the school
district to make the employee whole, as specified,
within 14 days of service of an order granting the
motion.
7) 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.
8) Specifies that a dismissal or dismissal hearing shall
commence within 6 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 6 months from the date of the employee's request for a
hearing, except for extraordinary circumstances, as
determined by the 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 OAH shall unilaterally
set a date in compliance with this section.
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c) Requires the hearing to be completed by a closing
of the record within 7 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 7 months
from the date of the employee's request for a hearing,
except for extraordinary circumstances or where
substantial progress has been made in completing the
previously scheduled days of the hearing within the
7-month period but the hearing cannot be completed,
for good cause shown, within the 7-month period, the
period for completing the hearing may be extended by
the presiding ALJ for a period not to exceed 30 days.
9) Provides that if the record cannot be closed within the
timeframes, as specified, the charges shall be dismissed
without prejudice to the governing board to refile within
30 days a notice of dismissal on the same charges.
10) 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; instead, creates a new discovery process
in which 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 all disclosures must
be made no later than 60 days before the start of the
hearing, as specified.
11) Authorizes testimony or evidence and decisions to be made
relating to matters that occurred more than 4 years prior
to the date of the filing of the notice that involve sexual
offences and child abuse offenses, as specified.
12) Authorizes a suspension and dismissal hearing to be
conducted by a single ALJ instead of the full CPC if both
parties agree in writing.
13) 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 5 to 3.
14) Requires members of the CPC to be selected no later than 45
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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 OAH.
15) Specifies that if a party believes that a selected CPC
member is not qualified, that party may file an objection
with the OAH within 10 days of the selection; and within 7
days of that objection an ALJ shall rule on the objection.
16) 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.
Related Legislation: SB 531 (Knight) would have modified
procedures relating to the evaluation, suspension, and dismissal
of certificated employees. That bill failed passage in the
Senate Education Committee.
SB 453 (Huff) would have modified procedures relating to the
suspension, dismissal and leave of absence of employees. That
bill failed passage in the Senate Education Committee.
SB 1530 (Padilla) 2012 would have modified procedures relating
to the suspension, dismissal, and leave of absence of employees.
That bill failed passage in the Assembly Education Committee.
Staff Comments: This bill makes numerous changes to statute
governing the dismissal or suspension of certificated school
employees, only a small portion of which would result in fiscal
impacts. To the extent that these changes streamline the
dismissal process, LEAs will likely realize savings, which will
allow them to spend their (mostly Proposition 98 General Fund)
money on other educational purposes. To the extent that the bill
makes certain dismissals more cumbersome or difficult to
achieve, there will be costs to LEAs, including costs to settle
cases they cannot afford to defend.
AB 375 imposes substantial additional duties on the OAH. The
bill requires an ALJ to review certificated employees' motions
to reverse suspensions and, specifically, that a hearing be
conducted and a written ruling issued in a specified timeframe.
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Currently, that action would be taken in a superior court. This
bill also requires an ALJ to review amendments to written
charges filed by the LEA (which is not required under existing
law), and expands requirements for pre-hearing disclosures of
evidence and witnesses to be reviewed by an ALJ. Currently, the
OAH handles about 175 certified employee dismissal cases per
year, and this bill would expand the OAH's duties with regard to
each of those cases, and potentially result in increased cases.
As part of the discovery process established by the bill, an ALJ
would be responsible for hearing and ruling on discovery
disputes. Discovery disputes are common, and are often handled
in superior courts. This bill establishes a limited discovery
process rather than allowing for full civil discovery, including
a restriction on the number of depositions for each party (no
more than five at seven hours each) and a limited timeline to
make disclosures. These changes are likely to result in
increased discovery disputes.
This bill requires the commencement of a dismissal hearing
within six months from the date of the employee's request for a
hearing unless the ALJ determines that "extraordinary
circumstances" exist. It also requires dismissal and suspension
proceedings to conclude no more than seven months from the date
an employee demands a hearing unless the ALJ determines that
good cause exists. These provisions are likely to make the OAH
dispense with most proceedings more quickly. In circumstances
where an LEA needs more time, however, it will have to argue as
much before the ALJ, which could result in additional expense.
If the ALJ denies the extension, an LEA will have to proceed
without having a complete case, or to drop the case and start
again. To the extent that the tightened timeline results in LEAs
dismissing certified employees more quickly who are otherwise on
paid administrative leave, LEAs will realize savings.
This bill also creates a new state reimbursable mandate.
Existing law which specifies the offenses for which a
certificated employee must be immediately placed on a mandatory
leave of absence (pending a hearing, in most cases) includes
offenses involving aiding or abetting the unlawful sale, use, or
exchange to minors of controlled substances, but specifically
excludes marijuana, mescaline, peyote, or tetrahydrocannabinols.
This bill strikes that statutory exception for the identified
controlled substances. In so doing, it requires school districts
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to place employees on mandatory leaves of absence for a new set
of offenses.
Because this would be a new state mandate to place employees on
leaves of absence for offenses which would not have previously
triggered the action, school districts could file a test claim
for reimbursement for expenses related to that mandate, such as
the cost of substitute teachers and, potentially, the cost of
suspension and dismissal hearings for those specific offenses.
State costs would depend upon the number of certificated
employees accused of committing controlled substance offenses
involving marijuana, mescaline, peyote, or
tetrahydrocannabinols.