Amended in Assembly April 25, 2013

Amended in Assembly March 19, 2013

California Legislature—2013–14 Regular Session

Assembly Bill No. 449

Introduced by Assembly Member Muratsuchi

February 19, 2013

An act to amend Section 44242.5 of, and to repeal and add Section 44030 of, the Education Code, relating to elementary and secondary education.

LEGISLATIVE COUNSEL’S DIGEST

AB 449, as amended, Muratsuchi. Elementary and secondary education: certificated school employees: begin delete school district superintendent: end delete begin insert allegation of misconduct: end insert reports to Commission on Teacher Credentialing.

Existing law provides that any principal, teacher, employee, or school officer of any elementary or secondary school who refuses or willfully neglects to make such reports as are required by law is guilty of a misdemeanor and is punishable by a fine of not more than $100.

This bill would delete that provision.

Existing law provides for the employment of certificated school employees by school districts. Existing law provides for the credentialing of certificated employees of a school district by the Commission on Teacher Credentialing.

This bill would require the superintendent of a school district begin insert or county office of education, or the administrator of a charter school, end insert with certificated employees to report to the commission any change in the employment status of a credentialholder, not later than 30 days after the change in employment status, if the credentialholder, while working in a position requiring a credential, and as a result of an allegation of misconduct or while an allegation of misconduct is pending, is dismissed, is nonreelected, resigns, is suspended or placed on unpaid administrative leave for more than 10 days as a final adverse action, retires, or is otherwise terminated by a decision not to employ or reemploy. The bill would make begin insert the end insert failure to make the report unprofessional conduct and begin delete subject end delete begin insert would authorize end insert the superintendent of the school district begin insert or county office of education, or the administrator of a charter school, to be subject end insert to adverse action by the commission, and would make the refusal or willful neglect to make the report a misdemeanor. By creating a new crime, this bill would impose a state-mandated local program.

Under existing law, each allegation of an act or omission by an applicant for, or holder of, a credential, for which he or she may be subject to an adverse action, is required to be presented to the Committee of Credentials. Existing law provides that the committee has jurisdiction to commence an initial review and a formal review upon receipt begin delete of any of specified records, declarations, statements, notices, or responses end delete begin insert of, among other things, a statement from an employer notifying the commission that, as a result of, or while an allegation of misconduct is pending, a credentialholder has been dismissed, nonreelected, suspended for more than 10 days, or placed pursuant to a final adverse employment action on unpaid administrative leave for more than 10 days, or has resigned or otherwise left employment end insert .

This bill would provide that begin delete the committee has jurisdiction to commence an initial review also upon receipt of a writing, as defined, notifying the Commission on Teacher Credentialing that a superintendent of a school district employing a person with a credential has failed to make the report described above regarding the change in employment status of a credentialholder. The bill would provide that the committee has jurisdiction to commence a formal review also upon receipt of official records of a school district or of the commission that confirm that the report described above was not made by a superintendent of a school district end delete begin insert for purposes of the statement received from an employer, as described above, a change in status due solely to unsatisfactory performance or a reduction in force, as specified, is not an allegation of misconduct end insert .

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes.

The people of the State of California do enact as follows:

SECTION 1.  

Section 44030 of the Education Code is repealed.

SEC. 2.  

Section 44030 is added to the Education Code, to read:

44030.  

(a) The superintendent of a school district begin insert or county
office of education, or the administrator of a charter school, end insert
employing a person with a credential shall report any change in
the employment status of the credentialholder to the commission
not later than 30 days after the change in employment status, if
the credentialholder, while working in a position requiring a
credential, and as a result of an allegation of misconduct or while
an allegation of misconduct is pending, is dismissed, is
nonreelected, resigns, is suspended or placed on unpaid
administrative leave for more than 10 days as a final adverse action,
retires, or is otherwise terminated by a decision not to employ or
reemploy.

(b) For purposes of subdivision (a), a change of employment
status due solely to unsatisfactory performance pursuant to
paragraph (4) of subdivision (a) of Section 44932 or a reduction
in force pursuant to Sections 44955 to 44958, inclusive, is not an
allegation of misconduct.

(c) The failure to make the report required by subdivision (a)
is unprofessional conduct and begin delete shall end delete begin insert may end insert subject the superintendent
of the school district begin insert or county office of education, or the
administrator of a charter school, end insert to adverse action by the
commission.

(d) (1) The refusal or willful neglect to make the report required
by subdivision (a) is a misdemeanor, punishable begin delete as follows: end delete begin insert by a
fine of not less than five hundred dollars ($500) or more than one
thousand dollars ($1,000). end insert

begin delete

(A) Upon a first conviction, by a fine of not less than five
hundred dollars ($500) or more than one thousand dollars ($1,000).

(B) Upon a second or subsequent conviction, by a fine of not
less than one thousand dollars ($1,000) or more than five thousand
dollars ($5,000).

end delete

(2) All fines imposed pursuant to this subdivision are the
personal responsibility of the superintendent of the school district
begin insert or county office of education, or the administrator of a charter
school, end insert and may not be paid or reimbursed begin delete by any other person,
source, or entity end delete begin insert with public funds end insert .

SEC. 3.  

Section 44242.5 of the Education Code is amended to
read:

44242.5.  

(a) Each allegation of an act or omission by an
applicant for, or holder of, a credential for which he or she may
be subject to an adverse action shall be presented to the Committee
of Credentials.

(b) The committee has jurisdiction to commence an initial
review upon receipt of any of the following:

(1) (A) Official records of the Department of Justice, of a law
enforcement agency, of a state or federal court, and of any other
agency of this state or another state.

(B) For purposes of subparagraph (A), “agency of this state”
has the same meaning as that of “state agency” as set forth in
Section 11000 of the Government Code.

(2) An affidavit or declaration signed by begin insert a end insert person or persons
with personal knowledge of the acts alleged to constitute
misconduct.

(3) (A) A statement from an employer notifying the commission
that, as a result of, or while an allegation of misconduct is pending,
a begin delete credential holder end delete begin insert credentialholder end insert has been dismissed,
nonreelected, suspended for more than 10 days, or placed pursuant
to a final adverse employment action on unpaid administrative
leave for more than 10 days, or has resigned or otherwise left
employment.

(B) The employer shall provide the notice described in
subparagraph (A) to the commission not later than 30 days after
the dismissal, nonreelection, suspension, placement on unpaid
administrative leave, resignation, or departure from employment
of the employee.

(C) For purposes of subparagraphs (A) and (B), a change in
status due solely to unsatisfactory performance pursuant to
paragraph (4) of subdivision (a) of Section 44932 or a reduction
in force pursuant to Sections 44955 to 44958, inclusive, is not an
allegation of misconduct.

begin delete

(4) A writing, as defined by Section 250 of the Evidence Code,
notifying the commission that a superintendent of a school district
employing a person with a credential has failed to make the report
required by subdivision (a) of Section 44030.

end delete begin delete

(5)

end delete

begin insert (4) end insert  A notice from an employer that a complaint was filed with
the school district alleging sexual misconduct by a begin delete credential holder end delete
begin insert credentialholder end insert . Results of an investigation by the committee
based on this paragraph shall not be considered for action by the
committee unless there is evidence presented to the committee in
the form of a written or oral declaration under penalty of perjury
that confirms the personal knowledge of the declarant regarding
the acts alleged to constitute misconduct.

begin delete

(6)

end delete

begin insert (5) end insert  A notice from a school district, employer, public agency, or
testing administrator of a violation of Section 44420, 44421.1,
44421.5, or 44439.

begin delete

(7)

end delete

begin insert (6) end insert  (A) An affirmative response on an application submitted
to the commission as to any conviction, adverse action on, or denial
of, a license, or pending investigation into a criminal allegation or
pending investigation of a noncriminal allegation of misconduct
by a governmental licensing entity.

(B) Failure to disclose any matter set forth in subparagraph (A).

(c) An initial review commences on the date that the written
notice is mailed to the applicant or begin delete credential holder end delete
begin insert credentialholder end insert that his or her fitness to hold a credential is under
review. Upon commencement of a formal review pursuant to
Section 44244, the committee shall investigate all alleged
misconduct and the circumstances in mitigation and aggravation.
The investigation shall include, but not be limited to, all of the
following:

(1) Investigation of the fitness and competence of the applicant
or begin delete credential holder end delete begin insert credentialholder end insert to perform the duties
authorized by the credential for which he or she has applied or that
he or she presently holds.

(2) Preparation of a summary of the applicable law, a summary
of the facts, contested and uncontested, and a summary of any
circumstances in aggravation or mitigation of the allegation.

(3) Determination of probable cause for an adverse action on
the credential. If the allegation is for unprofessional or immoral
conduct, the committee, in any formal review conducted pursuant
to Section 44244 to determine probable cause, shall permit the
employer of the begin delete credential holder end delete begin insert credentialholder end insert to be present
while testimony is taken. If the allegation of unprofessional or
immoral conduct involves sexual abuse, the employer shall be
examined in the meeting for any relevant evidence relating to the
sexual abuse.

(A) If the committee determines that probable cause for an
adverse action does not exist, the committee shall terminate the
investigation.

(B) If the committee determines that probable cause for an
adverse action on the credential exists, upon receipt of a request
from an applicant or a begin delete credential holder end delete begin insert credentialholder end insert pursuant
to Section 44244.1, the commission shall initiate an adjudicatory
hearing, as prescribed by Chapter 5 (commencing with Section
11500) begin insert of Part 1 end insert of Division 3 of Title 2 of the Government Code,
by filing an accusation or statement of issues.

(d) The committee has jurisdiction to commence a formal review
pursuant to Section 44244 upon receipt of any of the following:

(1) (A) Official records of a state or federal court that reflect a
conviction or plea, including a plea of nolo contendere, to a
criminal offense or official records of a state court that adjudge a
juvenile to be a dependent of the court pursuant to Section 300 of
the Welfare and Institutions Code due to allegations of sexual
misconduct or physical abuse by a begin delete credential holder end delete
begin insert credentialholder end insert or applicant.

(B) Nothing in subparagraph (A) shall be construed to relieve
the commission from the confidentiality provisions, notice, and
due process requirements set forth in Section 827 of the Welfare
and Institutions Code.

(2) An affidavit or declaration signed by a person or persons
with personal knowledge of the acts alleged to constitute
misconduct.

(3) A statement described in paragraph (3) of subdivision (b).

begin delete

(4) Official records of a school district or of the commission
that confirm that the report required by subdivision (a) of Section
44030 was not made as required by that section.

end delete begin delete

(5)

end delete

begin insert (4) end insert  Official records of a governmental licensing entity that
reflect an administrative proceeding or investigation, otherwise
authorized by law or regulation, which has become final.

begin delete

(6)

end delete

begin insert (5) end insert  A notice described in paragraph begin delete (6) end delete begin insert (5) end insert of subdivision (b).

begin delete

(7)

end delete

begin insert (6) end insert  A response or failure to disclose, as described in paragraph
begin delete (7) end delete begin insert (6) end insert of subdivision (b).

(e) (1) Upon completion of its investigation, the committee
shall report its actions and recommendations to the commission,
including its findings as to probable cause, and if probable cause
exists, its recommendations as to the appropriate adverse action.

(2) The findings shall be available, upon its request, to the
employing or last known employing school district, or, if adverse
action is recommended by the committee and the begin delete credential holder end delete
begin insert credentialholder end insert has not filed a timely appeal of the
recommendation of the committee pursuant to Section 44244.1,
upon a request made within five years of the date of the
committee’s recommendations to a school district providing
verification that the begin delete credential holder end delete begin insert credentialholder end insert has applied
for employment in the school district. The findings, for all
purposes, shall remain confidential and limited to school district
personnel in a direct supervisory capacity in relation to the person
investigated. Any person who otherwise releases findings received
from the committee or the commission, absent a verified release
signed by the person who is the subject of the investigation, shall
be guilty of a misdemeanor.

(3) The findings shall not contain any information that reveals
the identity of persons other than the person who is the subject of
the investigation.

(f) (1) Except as provided in paragraph (2) and, notwithstanding
subdivision (b), for purposes of determining whether jurisdiction
exists under subdivision (b), the commission, in accordance with
Section 44341, may make inquiries and requests for production
of information and records only from the Department of Justice,
a law enforcement agency, a state or federal court, and a licensing
agency of this state or a licensing agency of another state.

(2) For purposes of determining whether jurisdiction exists,
paragraph (1) does not apply to release of personnel records.

SEC. 4.  

No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of
the Government Code, or changes the definition of a crime within
the meaning of Section 6 of Article XIII B of the California
Constitution.