BILL ANALYSIS Ó
AB 375
Page 1
CONCURRENCE IN SENATE AMENDMENTS
AB 375 (Buchanan)
As Amended September 6, 2013
Majority vote
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|ASSEMBLY: |64-11|(May 29, 2013) |SENATE: |25-13|(September 12, |
| | | | | |2013) |
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Original Committee Reference: ED.
SUMMARY : Makes changes to the suspension and dismissal hearing
process for school employees, as specified.
The Senate amendments :
1)Specify that the notice of dismissal or suspension given
during the instructional year of the schoolsite where the
employee is physically employed shall be in writing and be
served upon the employee personally or by United States
registered mail addressed to him or her at his or her last
known address; and, specify that a notice of dismissal or
suspension given outside of the instructional year of the
schoolsite where the employee is physically employed shall be
in writing and shall be served upon the employee personally.
2)Specify that a motion for immediate reversal of suspension
shall have no bearing on the authority of a school district to
determine the assignment of an employee who is suspended or
placed on administrative leave while dismissal charges are
pending.
3)Specify that a continuance shall not extend the date for the
commencement of a dismissal hearing more than six months from
the date of the employee's request for a hearing, except for
extraordinary circumstances, as determined by the
administrative law judge (ALJ); specify that if extraordinary
circumstances are found that extend the date for the
commencement of the hearing, the deadline for concluding the
hearing and closing the record shall be extended for a period
of time equal to the continuance; and, specify that, if the
parties are not able to reach agreement on a date, the Office
of Administrative Hearings (OAH) shall unilaterally set a
date.
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4)Specify 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;
and, specify that when substantial progress has been made in
completing the dismissal hearing within the seven-month period
but the hearing cannot be completed, for good cause shown, the
period for completing the hearing may be extended by the
presiding ALJ.
5)Authorize testimony and evidence more than four years old at a
hearing if they are allegations of an act described in Section
44010 (sex offenses) or Sections 11165.2 to 11165.6,
inclusive, of the Penal Code (child abuse).
6)Specify that evidence of records regularly kept by the
governing board concerning the employee may be introduced
during a dismissal hearing, but no decision relating to the
dismissal or suspension of an employee shall be made based on
charges or evidence of any nature relating to matters
occurring more than four years before the filing of the
notice, except allegations of specified sex offenses and child
abuse offenses.
7)Specify that if the parties elect to waive a hearing before
the Commission on Professional Competence (CPC), the hearing
shall be initiated and conducted, and a decision made, and the
ALJ conducting the hearing shall have all the powers granted
to a CPC, as specified.
8)Define "discipline" for purposes of appointing members of a
CPC as follows:
a) For an employee subject to dismissal whose most recent
teaching assignment is in kindergarten or any of the grades
1 to 6, inclusive, "discipline" means a teaching assignment
in kindergarten or any of the grades 1 to 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
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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
the most recent teaching assignment of the employee subject
to dismissal.
EXISTING LAW :
1)Prohibits the dismissal of permanent employees 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 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. (Education
Code (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)
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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;
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
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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 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. Approximately $1.86 million annually in
ongoing personnel costs for OAH. 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. Significant increased workload and
costs to abide by new rules for LEAs. 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. 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.
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
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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,
authorizes dismissals to take place at any time of year for all
other charges except unsatisfactory performance, which shall be
given 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
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: 0002799