BILL NUMBER: AB 449 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY APRIL 25, 2013
AMENDED IN ASSEMBLY MARCH 19, 2013
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: school district
superintendent: allegation of misconduct:
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
or county office of education, or the administrator of a charter
school, 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 the failure to make the
report unprofessional conduct and subject
would authorize the superintendent of the school district
or county office of education, or the administrator of a charter
school, to be subject 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 of any of specified records, declarations,
statements, notices, or responses 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 .
This bill would provide that 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 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 .
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 or county
office of education, or the administrator of a charter school,
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 shall may
subject the superintendent of the school district or county
office of education, or the administrator of a charter school,
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 as follows:
by a fine of not less than five hundred dollars
($500) or more than one thousand dollars ($1,000).
(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).
(2) All fines imposed pursuant to this subdivision are the
personal responsibility of the superintendent of the school district
or county office of education, or the administrator of a charter
school, and may not be paid or reimbursed by any
other person, source, or entity with public funds
.
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 a 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 credential holder 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.
(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.
(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.
(5)
(4) A notice from an employer that a complaint was
filed with the school district alleging sexual misconduct by a
credential holder credentialholder .
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.
(6)
(5) A notice from a school district, employer, public
agency, or testing administrator of a violation of Section 44420,
44421.1, 44421.5, or 44439.
(7)
(6) (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 credential holder
credentialholder 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 credential holder credentialholder
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 credential holder credentialholder
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 credential holder
credentialholder pursuant to Section 44244.1, the commission
shall initiate an adjudicatory hearing, as prescribed by Chapter 5
(commencing with Section 11500) of Part 1 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 credential holder
credentialholder 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).
(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.
(5)
(4) Official records of a governmental licensing entity
that reflect an administrative proceeding or investigation,
otherwise authorized by law or regulation, which has become final.
(6)
(5) A notice described in paragraph (6)
(5) of subdivision (b).
(7)
(6) A response or failure to disclose, as described in
paragraph (7) (6) 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 credential
holder credentialholder 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 credential holder
credentialholder 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.