Amended in Senate June 6, 2013

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 begin delete repeal and end delete add Section begin delete 44030 of, end delete begin insert 44030.5 to, end insert 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: allegation of misconduct: reports to Commission on Teacher Credentialing.

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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.

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This bill would delete that provision.

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Existing law begin delete 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 end delete begin insert establishes end insert the Commission on Teacher Credentialing begin insert to, among other things, issue teaching and services credentials. Existing law requires the commission to appoint a Committee of Credentials and requires allegations of acts or omissions for which adverse action may be taken against applicants or holders of teaching or services credentials to be reported to the committee. Under existing law, the committee is authorized to commence an initial or formal review upon receipt of, among other things, a statement from an employer notifying the commission that an employee’s employment status has changed in one of specified ways as a result of, or during the pendency of, an allegation of misconduct. Existing law makes it a misdemeanor, punishable by a fine of not more than $100, for a principal, teacher, employee, or school officer of an elementary or secondary school to refuse or willfully neglect to make a report required by law end insert .

This bill begin insert would specify that a change in employment status due solely to unsatisfactory performance or a reduction in force is not a result of an allegation of misconduct for purposes of those provisions. The bill end insert would require the superintendent of a school district or county office of education, or the administrator of a charter school, begin delete with certificated employees end delete to report to the commission any change in the employment status of a begin delete credentialholder, end delete begin insert credentialholder working in a position requiring a credential end insert not later than 30 days after the begin delete change in end delete begin insert credentialholder’s end insert employment status begin delete , if the credentialholder, while working in a position requiring a credential, and end delete begin insert changes in one of specified ways end insert as a result of an allegation of misconduct or while an allegation of misconduct is pending begin delete , 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 end delete . The bill would make the failure to make the report unprofessional conduct begin delete and end delete begin insert , end insert would begin delete authorize end delete begin insert subject end insert the superintendent of the school district or county office of education, or the administrator of a charter school, to begin delete be subject to end delete adverse action by the commission, and would make the refusal or willful neglect to make the report a misdemeanor. By begin insert imposing additional duties on local agencies and by end insert creating a new crime, this bill would impose a state-mandated local program.

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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, 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.

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This bill would provide that 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.

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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.

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

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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.

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This bill would provide that with regard to certain mandates no reimbursement is required by this act for a specified reason.

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With regard to any other mandates, this bill would provide that, if the Commission on State Mandates determines that the bill contains costs so mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

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

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

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

(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 with public funds.

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begin insert SECTION 1. end insert   

end insert

begin insert Section 44030.5 is added to the end insert begin insert Education Code end insert begin insert ,
to read: end insert

begin insert

begin insert 44030.5. end insert   

(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 a
result of an allegation of misconduct.

(c) The failure to make the report required by subdivision (a)
is unprofessional conduct and 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) Notwithstanding Section 44030, refusing or willfully
neglecting to make the report required by subdivision (a) is a
misdemeanor, punishable by a fine of not less than five hundred
dollars ($500) or more than one thousand dollars ($1,000).

(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 with public funds.

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begin delete SEC. 3. end delete
begin insert SEC. 2. end insert   

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 begin insert an allegation of misconduct end insert , 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.

(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 begin insert a
result of end insert an allegation of misconduct.

(4) A notice from an employer that a complaint was filed with
the school district alleging sexual misconduct by a 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.

(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.

(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 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 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 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 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 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 governmental licensing entity that
reflect an administrative proceeding or investigation, otherwise
authorized by law or regulation, which has become final.

(5) A notice described in paragraph (5) of subdivision (b).

(6) A response or failure to disclose, as described in paragraph
(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 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 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.

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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.

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begin insert SEC. 3. end insert   

end insert begin insert

No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution for certain
costs that may be incurred by a local agency or school district
because, in that regard, 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.

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However, if the Commission on State Mandates determines that
this act contains other costs mandated by the state, reimbursement
to local agencies and school districts for those costs shall be made
pursuant to Part 7 (commencing with Section 17500) of Division
4 of Title 2 of the Government Code.

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