BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 375|
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THIRD READING
Bill No: AB 375
Author: Buchanan (D), et al.
Amended: 9/6/13 in Senate
Vote: 21
SENATE EDUCATION COMMITTEE : 4-0, 7/3/13 (FAIL)
AYES: Block, Hueso, Monning, Torres
NO VOTE RECORDED: Liu, Wyland, Correa, Hancock, Huff
SENATE EDUCATION COMMITTEE : 5-0, 9/10/13
AYES: Liu, Hancock, Hueso, Monning, Torres
NO VOTE RECORDED: Wyland, Block, Correa, Huff
SENATE APPROPRIATIONS COMMITTEE : 5-2, 9/11/13
AYES: De León, Hill, Lara, Padilla, Steinberg
NOES: Walters, Gaines
ASSEMBLY FLOOR : 64-11, 5/29/13 - See last page for vote
SUBJECT : School employees: dismissal or suspension
SOURCE : Author
DIGEST : This bill modifies the suspension and dismissal
procedures for certificated employees who have attained
permanent status.
ANALYSIS : Existing law prohibits the dismissal of a
certificated employee who has achieved permanent status except
for one or more of the following causes:
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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/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 communism.
Knowing membership in the Communist Party.
Alcoholism or other drug abuse which makes the employee
unfit to instruct or associate with children.
Existing law also requires a governing board to notify an
employee in writing of its intention to dismiss or suspend
him/her at the expiration of 30 days unless the employee demands
a hearing. Existing law prohibits a 30-day Notice of Intent to
Dismiss or Suspend from being issued between May 15 and
September 15 in any year.
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:
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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.
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/her faults and overcome the
grounds for the charge. The Notice must also include a copy
of the employee's evaluation.
Existing 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, or knowing membership in the Communist
Party.
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. Mandates 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 10) in the discipline of the employee.
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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 CPC receive their regular salary,
fringe benefits, accumulated sick leave and other leaves and
benefits but shall receive no additional compensation.
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 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.
This bill:
1. Makes legislative findings and declarations 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.
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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/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 (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 seven-month deadline.
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 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 statement of charges
does not set forth a sufficient basis for immediate
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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 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/her request for a hearing and a
notice of defense, as specified.
11.Specifies that a dismissal or dismissal hearing shall
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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 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.
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/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
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hearing, as specified.
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 ALJ instead of the full 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.
A. For an employee subject to dismissal whose most recent
teaching assignment is in any of the grades Kindergarten
to grade 6, inclusive, "discipline" means a teaching
assignment in any of grades Kindergarten to grade 6,
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 7 to 12,
inclusive, "discipline" means a teaching assignment in any
of grades 7 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 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 OAH.
17.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 seven days of
that objection an ALJ shall rule on the objection.
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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.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: Yes
According to the Senate Appropriations Committee, 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.
OAH . Approximately $1.86 million annually in ongoing
personnel costs. The OAH estimates it would require eight
additional 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.
SUPPORT : (Verified 9/11/13)
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Superintendent of Public Instruction
California Federation of Teachers
California State PTA
California Teachers Association
United Teacher Los Angeles
OPPOSITION : (Verified 9/11/13)
Arcadia School District
Association of California School Administrators
California Association of School Business Officials
California School Boards Association
Castaic Union School District
Claremont Unified School District
Contra Costa County Office of Education
Dry Creek Joint Elementary School District
Eureka Union School District
Franklin McKinley School District
Garvey School District
Glendora Unified School District
Keppel Unified School District
Mountain View School District
Newcastle Elementary School District
Newhall School District
Palmdale School District
Placer County Office of Education
Placer Hills Union School District
Placer Union High School District
Planada Elementary School District
Pomona Unified School District
Roseville High School District
San Bernardino County Office of Education
San Diego County Office of Education
San Francisco Unified School District
Santa Ana Unified School District
Santa Clara County Office of Education
School Employers Association of California
Small School Districts Association
Temple City Unified School District
Tustin Unified School District
Wilsona School District
Wiseburn School District
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ARGUMENTS IN SUPPORT : 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, 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.
ARGUMENTS IN OPPOSITION : The Association of California School
Administrators (ACSA) argues:
AB 375 continues to be a very technical and legalese piece of
legislation that attempts to reduce the time, and therefore
the costs, of a certificated employee dismissal. Based on
input from practitioners and attorneys, their conclusion is
that the bill is still fatally flawed. Among our concerns
are:
Severely restricts the ability of a school district to
amend the charges in a suspension or dismissal proceeding
if additional information comes to light. This will
restrict the ability of a school district from entering
newly discovered evidence or documents that may be critical
to the dismissal proceeding and necessary for protecting
children.
Adds another procedural layer to the dismissal process
adding more time and details to an already lengthy process.
Retains the "extraordinary circumstances" standard for
continuing the commencement of a hearing. There is no
legal definition or court record of the term "extraordinary
circumstances." ACSA is concerned that this term will lead
to extensive litigation to determine its meaning.
The disclosure requirements added to the dismissal
process under AB 375 will favor the employee and will give
the employee numerous opportunities to discredit
disclosures made by the district in an attempt to delay and
defeat the district.
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While ACSA appreciates your attempt to make changes to
the Commission in Professional Competence, the language
actually does not fully address the concerns we raised.
ACSA suggested removing any reference to the discipline of
study and allowing a teacher who taught in the grade span
to be able to serve on the CPC. The language contained in
AB 375 will not result in much more flexibility than is
currently allowed.
ASSEMBLY FLOOR : 64-11, 5/29/13
AYES: Achadjian, Alejo, Ammiano, Atkins, Bloom, Blumenfield,
Bocanegra, Bonilla, Bonta, Bradford, Brown, Buchanan, Ian
Calderon, Campos, Chau, Chávez, Chesbro, Cooley, Daly,
Dickinson, Eggman, Fong, Fox, Frazier, Beth Gaines, Garcia,
Gatto, Gomez, Gonzalez, Gordon, Gray, Hall, Roger Hernández,
Jones-Sawyer, Levine, Linder, Logue, Lowenthal, Maienschein,
Medina, Melendez, Mitchell, Morrell, Mullin, Muratsuchi,
Nazarian, Nestande, Olsen, Pan, Patterson, Perea, V. Manuel
Pérez, Quirk, Quirk-Silva, Rendon, Salas, Skinner, Stone,
Ting, Weber, Wieckowski, Williams, Yamada, John A. Pérez
NOES: Allen, Bigelow, Conway, Donnelly, Grove, Hagman, Jones,
Mansoor, Wagner, Waldron, Wilk
NO VOTE RECORDED: Dahle, Gorell, Harkey, Holden, Vacancy
PQ:k:n 9/11/13 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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