BILL ANALYSIS Ó
AB 449
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Date of Hearing: April 17, 2013
ASSEMBLY COMMITTEE ON EDUCATION
Joan Buchanan, Chair
AB 449 (Muratsuchi) - As Amended: March 19, 2013
SUBJECT : Elementary and secondary education: certificated
school employees: school district superintendent: reports to
Commission on Teacher Credentialing.
SUMMARY : Specifies that if a school superintendent fails to
report to the Commission on Teacher Credentialing (CTC) when a
certificated employee has a change in employment status, the
superintendent shall be subject to adverse action by the CTC;
specifies that failure to make such a report is a misdemeanor
punishable by a fine of between $500 and $1000 for the first
offense and between $1000 and $5000 for subsequent offenses;
and, makes changes to what evidence constitutes jurisdiction for
the Committee on Credentials (COC), as specified. Specifically,
this bill :
1)Deletes the existing requirement that any principal, teacher,
employee, or school officer of any elementary or secondary
school who refuses or willfully neglects to make a report is
guilty of a misdemeanor and is punishable by a fine of not
more than one hundred dollars ($100).
2)Requires the superintendent of a school district employing a
person with a credential to report any change in the
employment status of the credential holder to the CTC not
later than 30 days after the change in employment status, if
the credential holder, 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.
3)Specifies that a change of employment status due solely to
unsatisfactory performance or a reduction in force is not an
allegation of misconduct.
4)Specifies that the failure to make the report to the CTC is
unprofessional conduct and shall subject the superintendent of
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the school district to adverse action by the CTC.
5)Specifies the refusal or willful neglect to make the report to
the CTC is a misdemeanor, punishable as follows:
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 or not
less than one thousand dollars ($1,000) or more than five
thousand dollars ($5,000).
6)Specifies that all fines imposed are the personal
responsibility of the superintendent of the school district
and may not be paid or reimbursed by any other person, source,
or entity.
7)Specifies that the COC has jurisdiction to commence an initial
review upon receipt of a writing, as defined by Section 250 of
the Evidence Code, notifying the CTC that a superintendent of
a school district employing a person with a credential has
failed to make the report to the CTC; and, specifies for
allegations of misconduct that are presented to the Committee
on Credentials (COC), a change in status due solely to
unsatisfactory performance or a reduction in force is not an
allegation of misconduct.
8)Specifies that the COC has jurisdiction to commence a formal
review upon receipt of official records of a school district
or of the CTC that confirm that the report was not made as
required.
EXISTING LAW :
1)Specifies any principal, teacher, employee, or school officer
of any elementary or secondary school who refuses or willfully
neglects to make reports as are required by law to the CTC is
guilty of a misdemeanor and is punishable by a fine of not
more than one hundred dollars ($100). (Education Code 44030)
2)Specifies that whenever a credential holder, working in a
position requiring a credential is dismissed or nonreelected;
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resigns; is suspended or placed on unpaid administrative leave
as a final adverse employment action for more than 10 days;
retires; or is otherwise terminated by a decision not to
employ or re-employ; as a result of an allegation of
misconduct or while an allegation of misconduct is pending,
the superintendent of the employing school district shall
report the change in employment status to the Commission not
later than 30 days after the employment action. Specifies the
report shall contain all known information about each alleged
act of misconduct. Specifies the report shall be made to the
CTC regardless of any proposed or actual agreement,
settlement, or stipulation not to make such a report. The
report shall also be made if allegations served on the holder
are withdrawn in consideration of the holder's resignation,
retirement or other failure to contest the truth of the
allegations. Failure to make a report required under this
section constitutes unprofessional conduct. The Committee may
investigate any superintendent who holds a credential who
fails to file reports required by this section. The
superintendent of an employing school direct shall, in
writing, inform a credential holder of the content of this
regulation whenever that credential holder, working in a
position requiring a credential, is dismissed, nonreelected,
resigns, is suspended or placed on unpaid administrative leave
as a final adverse employment action for more than ten days,
retires or is otherwise terminated by a decision not to employ
or re-employ as a result of an allegation of misconduct or
while an allegation of misconduct is pending. Failure to
comply with this subdivision by a superintendent of schools
constitutes unprofessional conduct which shall be investigated
by the Committee of Credentials. (California Code of
Regulations Title 5 Section 80303)
3)Specifies that the COC has jurisdiction to commence an initial
review upon receipt of any of the following:
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) An affidavit or declaration signed by person or persons
with personal knowledge of the acts alleged to constitute
misconduct.
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c) A statement from an employer notifying the commission
that, as a result of, or while an allegation of misconduct
is pending, a credential holder 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. 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.
d) A notice from an employer that a complaint was filed
with the school district alleging sexual misconduct by a
credential holder. 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.
e) A notice from a school district, employer, public
agency, or testing administrator of a violation of Section
44420, 44421.1, 44421.5, or 44439.
f) 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; or, failure to disclose any of these
matters. (Education Code 42424.5)
4)Specifies the COC has jurisdiction to commence a formal review
pursuant to Section 44244 upon receipt of any of the
following:
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
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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 or applicant.
b) An affidavit or declaration signed by a person or
persons with personal knowledge of the acts alleged to
constitute misconduct.
c) A statement from an employer notifying the commission
that, as a result of, or while an allegation of misconduct
is pending, a credential holder 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. 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.
d) Official records of a governmental licensing entity that
reflect an administrative proceeding or investigation,
otherwise authorized by law or regulation, which has become
final.
e) A notice from a school district, employer, public
agency, or testing administrator of a violation of Section
44420, 44421.1, 44421.5, or 44439.
f) 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; or, failure to disclose any of these
matters. (Education Code 42424.5)
5) Specifies any mandated reporter who fails to report an
incident of known or reasonably suspected child abuse or
neglect is guilty of a misdemeanor punishable by up to six
months confinement in a county jail or by a fine of one
thousand dollars ($1,000) or by both that imprisonment and
fine. (Penal Code 11166)
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6) Specifies that except in cases where a different
punishment is prescribed by any law of this state, every
offense declared to be a misdemeanor is punishable by
imprisonment in the county jail not exceeding six months,
or by fine not exceeding one thousand dollars ($1,000), or
by both. (Penal Code 19)
FISCAL EFFECT : Unknown
COMMENTS : According to the author, in November 2012, the
California State Auditor released a report regarding Los Angeles
Unified School District's (LAUSD) handling of allegations of
teacher misconduct. The State Auditor found that LAUSD failed
to timely report at least 144 cases of teacher misconduct when
required to do so, with at least 31 of these cases reported 3
years late. As a result, the CTC was not able to review
teachers who may have been unfit for the classroom.
In particular, the State Auditor's report highlighted one case
where the Superintendent failed to report an allegation of
sexual misconduct for three years. This teacher allegedly had a
sexual relationship with a student; however the district's lack
of timely reporting meant that for 3.5 years the CTC could not
take any steps to revoke the teacher's certificate and thus
prevent the teacher from working in other school districts.
Reporting delays not only jeopardize the safety of the students
at the teacher's current school, but also any school district
throughout the State.
Existing law does not clearly state that it is a
superintendent's duty to report to the CTC when a school
district takes employment action against a credential holder as
a result of an allegation of misconduct, and does not grant the
CTC clear authority to investigate or hold a superintendent
accountable for failure to make such a report.
AB 449 would remedy this deficiency in current law, and help
ensure the welfare and safety of school children. This bill
specifies that a superintendent must report to the CTC within 30
days when a school district takes employment action against a
credential holder as a result of an allegation of misconduct,
and grants the CTC jurisdiction to investigate should the report
not occur. This bill would hold superintendents accountable by
constituting a failure to report as unprofessional conduct and
could subject the superintendent to fines and adverse action by
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the CTC.
Additionally, the State Auditor's report found that LAUSD
reported many cases that did not require reporting, thereby
unnecessarily amplifying the workload for the CTC. By
improperly labeling and reporting as "misconduct" unsatisfactory
teaching performance, lay-offs, or reduction in work force,
school districts consume valuable CTC resources that should be
invested in reviewing final employment actions that arise from
genuine misconduct, such as sexual misconduct. AB 449 clarifies
that such cases are not considered as allegations of misconduct,
and will help eliminate reporting of such cases to the CTC where
the final employment actions do not arise from true misconduct.
AB 449 seeks to protect children and ensure that they are safe
at school. This bill fills in the gaps in current law by
creating a statutory duty to report to the CTC and provides the
CTC with clear authority to investigate and hold the
superintendent accountable when there is a breach in that duty.
Criminal Charges for Superintendents who Fail to Report to CTC :
This bill requires school district superintendents to report
changes in employment status of credentialed employees to the
CTC when allegations of misconduct are pending; and, creates a
misdemeanor and fines up to $5,000 for district superintendents
who fail to report. While the author has indicated that the
intent is for the CTC to report superintendents who fail to make
such reports, to the Sacramento District Attorney's office
regarding possible charges, this is not enumerated in the bill.
Since it is not current practice for the CTC to report such
activity to the District Attorney, it is unclear whether this
will occur as a result of this bill. Additionally, the bill only
requires school district superintendents to make such reports
and does not require county office of education superintendents
or administrators of charter schools to make the same reports.
Committee staff recommends the bill be amended to include county
superintendents and administrators of charter schools.
Further this bill specifies that all fines are the personal
responsibility of the superintendent and may not be paid or
reimbursed by any other person, source or entity. The author
intends to prohibit school district funds from paying such
fines, therefore, committee staff recommends the bill be amended
to specify that a person, source or entity includes but is not
limited to a school district, charter school or county office of
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education.
This bill deletes existing law which requires a $100 fine for
all school employees who fail to make reports of any kind. The
law is vague and does not reference what types of reports a
school employee can be charged for, if they fail to report. The
committee should consider whether it is appropriate to delete
this code section, or whether it is appropriate to add
specificity to the law with regard to which reporting
requirements this section is referring to. The committee should
further consider whether it is appropriate to fine
superintendents up to $5000 for failure to make reports to the
CTC, while at the same time deleting the existing $100 fine for
all school employees who fail to make reports. Committee staff
recommends the bill be amended to limit these fines to $1000,
which is consistent with other misdemeanors.
Evidence Code 250 : This bill specifies that any "writing" as
defined in the evidence code can give the COC jurisdiction to
commence an initial review into allegations that a
superintendent failed to report to the CTC. A "writing" under
this definition could include an anonymous email, letter or
phone voicemail. Existing law requires a person with personal
knowledge to sign an affidavit that such a report was not filed
by a superintendent or that any credential holder is being
accused of misconduct. The bill creates a lower bar of evidence
for superintendents than for all other credential holders. The
committee should consider whether a lower evidence bar is
necessary for superintendents who fail to report changes in
employment status for employees accused of misconduct, and
whether the evidence disparity is acceptable. Committee staff
recommends the bill be amended to delete the reference to
Evidence Code 250 in Section 44242.5(b)(4) and the corresponding
reference to official records of the district or commission in
Section 44242.5(d)(4), regarding the COC jurisdiction.
Requires adverse action on a superintendent's credential: This
bill requires adverse action be taken on a superintendent's
credential when they fail to make necessary reports to the CTC.
Existing law authorizes the CTC to take adverse action on a
credential holder's certificate when misconduct occurs, except
in specific instances where the Legislature has required
revocation or suspension of a credential for certain crimes. The
committee should consider whether it is appropriate to require
the CTC to take adverse action in these types of cases, but not
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specify what action should be taken. Committee staff recommends
the bill be amended to authorize the CTC to take adverse action
in these cases.
CTC Regulation Changes : The CTC is currently in the process of
making changes to their regulations regarding a superintendent's
duty to report changes in employment status of credential
holders when allegations of misconduct are pending. The
regulatory changes mirror some of the pieces in this measure.
First, the regulatory changes clarify that superintendent's must
only report changes in employment status when allegations of
misconduct are pending and, that dismissal for unsatisfactory
performance or layoff due to reduction in force do not need to
be reported to the CTC.
The CTC is also proposing regulatory changes that are beyond the
scope of this bill and those changes include specifying which
documents should be submitted to the CTC when a superintendent
reports a change in employment status for a credential holder;
and, specifying that the COC shall (instead of may) investigate
any superintendent that holds a credential who fails to file
such reports. Further the regulatory changes specify
requirements for official records, specify that the CTC will
establish jurisdiction based upon an affidavit or declaration of
facts that a superintendent has failed to report; and, require
the CTC to send a letter to the superintendent when the CTC has
information or belief that a report has not been made.
Arguments in Support : The California Teachers Association
supports the bill and argues, "AB 449 is needed to create in the
Education Code a statutory duty of a public school
superintendent to report to the Commission on Teacher
Credentialing when a school district takes an adverse employment
action against a credential holder when the basis for that
action warrants it. AB 449 authorizes the CTC to investigate
California school superintendents who fail to perform their duty
to report to the CTC adverse employment actions by credentialed
employees because of serious "misconduct;" and clarifies for
school districts what constitutes "misconduct" in order for the
CTC to better utilize its investigative resources. Where a
district superintendent is not a credential holder and therefore
is not subject to discipline by the CTC, AB 449 imposes
potential misdemeanor penalties enforced at the discretion of
local district attorneys."
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Arguments in Opposition : The Association of California School
Administrators opposes the bill and argues, "AB 449 eliminates
the reporting requirement for all school employees and replaces
it with a punitive requirement only for superintendents. The
Commission on Teacher Credentialing (CTC) through Title 5 Code
of Regulations Section 80303 clarifies Education Code Section
44940. The Code of Regulations requires the superintendent to
notify the CTC upon a change in employment status of a
certificated employee and failure to report constitutes
unprofessional conduct. The CTC through their Committee of
Credentials is already authorized to investigate a
superintendent who has failed to report. AB 449 places the Code
of Regulation language into statute and goes further by creating
a crime with a financial penalty as well as requiring the CTC to
subject the superintendent to an adverse action by the
Commission."
Committee Amendments :
1) Clarify that superintendents of school districts, county
offices of education and administrators of charter schools
are required to report changes in employment status to the
CTC.
2) Delete the reference to Evidence Code 250 in Section
44242.5(b)(4) and the corresponding reference to official
records of the district or commission in Section
44242.5(d)(4), regarding the COC jurisdiction.
3) Authorize (instead of require) the CTC to take adverse
action in cases where a superintendent fails to report
changes in employment status to the CTC.
4) Clarify that public funds cannot be used to pay the
fines owed by a superintendent for this crime.
5) Limit superintendent fines to $1000, which is consistent
with other misdemeanors.
REGISTERED SUPPORT / OPPOSITION :
Support
California Teachers Association (Sponsor)
California Federation of Teachers
Redondo Beach Unified School District
Torrance Unified School District
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Opposition
Association of California School Administrators
Analysis Prepared by : Chelsea Kelley / ED. / (916) 319-2087