Amended in Assembly March 21, 2013

California Legislature—2013–14 Regular Session

Assembly Bill No. 947

Introduced by Assembly Member Olsen

February 22, 2013

An act to amend begin delete Section 60604 of end delete begin insert Sections 44955 and 44956 of, and to add Section 44955.2 to, end insert the Education Code, relating to begin delete pupil assessment. end delete begin insert school employees. end insert

LEGISLATIVE COUNSEL’S DIGEST

AB 947, as amended, Olsen. begin delete Pupil assessment: statewide program. end delete begin insert School employees: teachers: termination: reappointment: seniority deviation. end insert

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Existing law provides that, when the services of employees are terminated pursuant to a reduction in workforce, a school district is required to terminate the employees in order of seniority. Existing law further provides those employees with a preferred right to reappointment and an opportunity for substitute service in order of seniority. Existing law authorizes a school district to deviate from the order of seniority for those purposes for specified reasons, including compliance with constitutional requirements related to equal protection of the laws.

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This bill would provide additional reasons for which a school district may deviate from terminating employees in order of seniority, including authorizing school districts to terminate an employee on the basis of performance evaluations and on the basis that the employee is assigned to a schoolsite that has been selected by the governing board for exemption from certificated reductions in workforce, based upon the needs of the educational program. The bill would provide an exception to this authorization for an employee who has 18 months or less from his or her date of retirement, or is on medical leave.

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The bill would prohibit a school district that deviates from the order of seniority for purposes of terminating a certificated employee from taking into consideration whether an employee has exercised any of the rights guaranteed in the Educational Employment Relations Act.

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The bill would also authorize a school district, during the period of an employee’s preferred right to reappointment, to deviate from the order of seniority in offering the opportunity for substitute service for either of specified reasons.

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The bill would specify that the equal protection exception to the general requirement that terminations and reappointments occur in order of seniority applies to equal protection as that protection relates to pupils.

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The bill would make various nonsubstantive and clarifying changes.

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Existing law, the Leroy Greene California Assessment of Academic Achievement Act, which will become inoperative on July 1, 2014, and as of January 1, 2015, is repealed, requires the Superintendent of Public Instruction to design and implement a statewide pupil assessment program, and requires school districts, charter schools, and county offices of education to administer to each of its pupils in grades 2 to 11, inclusive, certain achievement tests, including a standards-based achievement test pursuant to the Standardized Testing and Reporting (STAR) Program.

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This bill would make nonsubstansive changes to those provisions relating to the design and implementation of a statewide pupil assessment program by the Superintendent.

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

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

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begin insert SECTION 1. end insert   

end insert

begin insert Section 44955 of the end insert begin insert Education Code end insert begin insert is amended
to read: end insert

44955.  

(a)  begin delete No end delete begin insert A end insert permanent employee shall begin insert not end insert be deprived
of his or her position for causes other than those specified in
Sections 44907 and 44923, and Sections 44932 to 44947, inclusive,
and begin delete no end delete begin insert a end insert probationary employee shall begin insert not end insert be deprived of his or
her position for cause other than as specified in Sections 44948 to
44949, inclusive.

(b)  begin insert (1) end insert begin insert   end insert begin delete Whenever end delete begin insert If end insert in any school year the average daily
attendance in all of the schools of a district for the first six months
in which school is in session begin delete shall have end delete begin insert has end insert declined below the
corresponding period of either of the previous two school years,
begin delete whenever end delete begin insert if end insert the governing board determines that attendance in a
district will decline in the following year as a result of the
termination of an interdistrict tuition agreement as begin delete defined end delete
begin insert described end insert in Section 46304, begin delete whenever end delete begin insert if end insert a particular kind of service
is to be reduced or discontinued not later than the beginning of the
following school year, or begin delete whenever end delete begin insert if end insert the amendment of state law
requires the modification of curriculum, and begin delete when end delete begin insert if end insert in the opinion
of the governing board of the district it begin delete shall have end delete begin insert has end insert become
necessary by reason of any of these conditions to decrease the
number of permanent employees in the district, the governing
board may terminate the services of not more than a corresponding
percentage of the certificated employees of the district, permanent
as well as probationary, at the close of the school year. Except as
otherwise provided by statute, the services of begin delete no end delete begin insert a end insert permanent
employee begin delete may end delete begin insert shall not end insert be terminated under the provisions of this
section while any probationary employee, or any other employee
with less seniority, is retained to render a service begin delete which said end delete begin insert that
the end insert permanent employee is certificated and competent to render.

begin delete

In

end delete

begin insert (2) end insert begin insert   end insert begin insert In end insert computing a decline in average daily attendance for
purposes of this section for a newly formed or reorganized school
district, each school of the district shall be deemed to have been
a school of the newly formed or reorganized district for both of
the two previous school years.

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As

end delete

begin insert (3) end insert begin insert   end insert begin insert As end insert between employees who first rendered paid service to
the district on the same date, the governing board shall determine
the order of termination solely on the basis of needs of the district
and the begin delete students thereof end delete begin insert pupils, including distinctions based upon
performance evaluations end insert . Upon the request of any employee whose
order of termination is so determined, the governing board shall
furnish in writing no later than five days begin delete prior to end delete begin insert before end insert the
commencement of the hearing held in accordance with Section
44949, a statement of the specific criteria used in determining the
order of termination and the application of the criteria in ranking
each employee relative to the other employees in the group. This
requirement that the governing board provide, on request, a written
statement of reasons for determining the order of termination shall
not be interpreted to give affected employees any legal right or
interest that would not exist without such a requirement.

(c) Notice of begin delete such end delete termination of services shall be given before
begin delete the 15th of end delete May begin insert 15 end insert in the manner prescribed in Section 44949,
and services of begin delete such end delete employees shall be terminated in the inverse
of the order in which they were employed, as determined by the
board in accordance with begin delete the provisions of end delete Sections 44844 and
44845. In the event that a permanent or probationary employee is
not given the notices and a right to a hearing as provided for in
Section 44949, he or she shall be deemed reemployed for the
ensuing school year.

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The governing board shall make assignments and reassignments
in such a manner that employees shall be retained to render any
service which their seniority and qualifications entitle them to
render. However, prior to assigning or reassigning any certificated
employee to teach a subject which he or she has not previously
taught, and for which he or she does not have a teaching credential
or which is not within the employee’s major area of postsecondary
study or the equivalent thereof, the governing board shall require
the employee to pass a subject matter competency test in the
appropriate subject.

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(d) Notwithstanding subdivision (b), begin insert a end insert begin insert nd except as specified in
subdivision (e), end insert a school district may deviate from terminating a
certificated employee in order of seniority for begin delete either end delete begin insert any end insert of the
following reasons:

(1) The district demonstrates a specific need for personnel to
teach a specific course or course of study, or to provide services
authorized by a services credential with a specialization in either
pupil personnel services or health for a school nurse, and that the
certificated employee has special training and experience necessary
to teach that course or course of study or to provide those services,
which others with more seniority do not possess.

(2) For purposes of maintaining or achieving compliance with
constitutional requirements related to equal protection of the laws
begin insert as it applies to pupils end insert .

begin insert

(3) On the basis of performance evaluations, if pursuant to a
process whereby employees with superior evaluations are retained
over those with inferior evaluations. The governing board may
exercise its discretion in developing the process, which shall be
applied uniformly to the entire class that is subject to the reduction
in workforce.

end insert begin insert

(4) On the basis that the employee is assigned to a schoolsite
that has been selected by the governing board for exemption from
certificated reductions in workforce, based upon the needs of the
educational program.

end insert begin insert

(e) A school district shall not deviate from terminating a
certificated employee in order of seniority if the employee has 18
months or less from his or her date of retirement, or is on medical
leave.

end insert

begin insert

begin insert SEC. end insert begin insert 2. end insert   

end insert

begin insert Section 44955.2 is added to the end insert begin insert Education Code end insert begin insert , to
read: end insert

begin insert

begin insert 44955.2. end insert   

A school district that deviates from the order of
seniority for purposes of terminating a certificated employee under
any provision of this chapter shall do so on the basis of one or
more of the items specified in subdivision (d) of Section 44955,
and shall not take into consideration whether an employee has
exercised any of the rights guaranteed under Chapter 10.7
(commencing with Section 3540) of Division 4 of Title 1 of the
Government Code.

end insert

begin insert

begin insert SEC. end insert begin insert 3. end insert   

end insert

begin insert Section 44956 of the end insert begin insert Education Code end insert begin insert is amended to
read: end insert

44956.  

begin delete (a) end delete begin delete   end delete begin delete Any end delete begin insert A end insert permanent employee whose services have
been terminated as provided in Section 44955 shall have the
following rights:

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(1)

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begin insert (a) end insert  For the period of 39 months from the date of begin delete such end delete begin insert the end insert
termination, any employee who in the meantime has not attained
the age of 65 years shall have the preferred right to reappointment,
in the order of original employment as determined by the board
in accordance with begin delete the provisions of end delete Sections 44831 to 44855,
inclusive, if the number of employees is increased or the
discontinued service is reestablished, with no requirements that
were not imposed upon other employees who continued in service;
provided, that no probationary or other employee with less seniority
shall be employed to render a service begin delete which said end delete begin insert that the end insert employee
is certificated and competent to render. However, prior to
reappointing any employee to teach a subject which he or she has
not previously taught, and for which he or she does not have a
teaching credential or which is not within the employee’s major
area of postsecondary study or the equivalent thereof, the governing
board shall require the employee to pass a subject matter
competency test in the appropriate subject.

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(2)

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begin insert (b) end insert  The begin delete aforesaid end delete right to reappointment begin insert set out in subdivision
(a) end insert may be waived by the employee, without prejudice, for not
more than one school year, unless the board extends this right, but
begin delete such end delete begin insert the end insert waiver shall not deprive the employee of his begin insert or her end insert right
to subsequent offers of reappointment.

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(3)

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begin insert (c) end insert  Notwithstanding begin delete paragraph (1) end delete begin insert subdivision (a) end insert , a school
district may deviate from reappointing a certificated employee in
order of seniority for either of the following reasons:

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(A)

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begin insert (1) end insert  The district demonstrates a specific need for personnel to
teach a specific course or course of study, or to provide services
authorized by a services credential with a specialization in either
pupil personnel services or health for a school nurse, and that the
employee has special training and experience necessary to teach
that course or course of study, or to provide those services, which
others with more seniority do not possess.

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(B)

end delete

begin insert (2) end insert  For purposes of maintaining or achieving compliance with
constitutional requirements related to equal protection of the begin delete laws. end delete
begin insert laws as that protection applies to pupils. end insert

begin delete

(4) As to any such

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begin insert (d) end insert begin insert   end insert begin insert For an end insert employee who is reappointed, the period of his begin insert or
her end insert absence shall be treated as a leave of absence and shall not be
considered as a break in the continuity of his begin insert or her end insert service, he begin insert or
she end insert shall retain the classification and order of employment he begin insert or
she end insert had when his begin insert or her end insert services were terminated, and credit for
prior service under any state or district retirement system shall not
be affected by begin delete such end delete begin insert the end insert termination, but the period of his begin insert or her end insert
absence shall not count as a part of the service required for
retirement.

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(5)

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begin insert (e) end insert  During the period of begin delete his end delete begin insert an employee’s end insert preferred right to
reappointment, begin delete any such end delete begin insert the end insert employee begin delete shall end delete , in the order of original
employment, begin insert shall end insert be offered prior opportunity for substitute
service during the absence of any other employee who has been
granted a leave of absence or who is temporarily absent from duty;
provided, that his begin insert or her end insert services may be terminated upon the
return to duty of begin delete said end delete begin insert the end insert other employee and that begin delete said end delete begin insert the end insert substitute
service shall not affect the retention of his begin insert or her end insert previous
classification and rights. If, in any school year the employee serves
as a substitute in any position requiring certification for begin delete any end delete 21
days or more within a period of 60 schooldays, the compensation
the employee receives for substitute service in that 60-day period,
including his or her first 20 days of substitute service, shall begin insert not end insert be
begin delete not end delete less than the amount the employee would receive if he or she
were being reappointed.

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(f) Notwithstanding subdivision (e), a school district may deviate
from the order of seniority in offering the opportunity for substitute
service for either of the following reasons:

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(1) The district demonstrates a specific need for personnel to
teach a specific course or course of study, or to provide services
authorized by a services credential with a specialization in either
pupil personnel services or health for a school nurse, and the
employee has special training and experience, and has
demonstrated the competency necessary to teach in a specified
grade level or course of study, or to provide those services, that
others with more seniority do not possess or are not able to
provide.

end insert begin insert

(2) For purposes of maintaining or achieving compliance with
constitutional requirements related to equal protection of the laws
as that protection applies to pupils.

end insert begin delete

(6)

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begin insert (g) end insert   begin insert (1) end insert begin insert   end insert During the period of the employee’s preferred right to
reappointment, the governing board of the district, if it is also the
governing board of one or more other districts, may assign begin delete him end delete
begin insert the employee end insert to begin delete service, which end delete begin insert services that end insert he begin insert or she end insert is certificated
and competent to render, in begin delete said end delete begin insert one of the end insert other begin delete district or districts;
provided, that the end delete begin insert districts. The end insert compensation begin delete he end delete begin insert the employee end insert
receives begin delete therefor may end delete begin insert , end insert in the discretion of the governing board begin insert ,
may end insert be the same as begin delete he end delete begin insert the employee end insert would have received had he
begin insert or she end insert been serving in the district from which begin delete his end delete begin insert the employee’s end insert
services were begin delete terminated, that his end delete begin insert terminated. The employee’s end insert
service in the begin delete said end delete other district or districts shall be counted toward
the period required for both state and local retirement begin delete , as defined
by Section 22102, end delete as though rendered in the district from which
begin delete his end delete begin insert the employee’s end insert services were begin delete terminated, and that no permanent end delete
begin insert terminated. The end insert employee begin delete in said end delete begin insert shall not displace any other
permanent employee in the end insert other district or districts begin delete shall be
displaced by him end delete .

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It

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begin insert (2) end insert begin insert   end insert begin insert It end insert is the intent of this begin delete subsection end delete begin insert subdivision end insert that the
employees of a school district, the governing board of which is
also the governing board of one or more other school districts,
shall not be at a disadvantage as compared with employees of a
unified school district.

begin delete

(7)

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begin insert (h) end insert  At any time prior to the completion of one year after begin delete his end delete begin insert the
employee’s end insert return to service, begin delete he end delete begin insert the employee end insert may continue or
make up, with interest, his begin insert or her end insert own contributions to any state
or district retirement system begin delete , end delete for the period of his begin insert or her end insert absence,
but it shall not be obligatory on begin insert the end insert state or district to match begin delete such end delete
begin insert the end insert contributions.

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(8) Should be become

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begin insert (i) end insert begin insert   end insert begin insert If the employee becomes end insert disabled or begin delete reach end delete begin insert reaches end insert retirement
age at any time before his begin insert or her end insert return to service, begin delete he end delete begin insert the employee end insert
shall receive, in any state or district retirement system of which
begin delete he end delete begin insert the employee end insert was a member, all benefits to which he begin insert or she end insert
would have been entitled begin delete had such event end delete begin insert if the disability or
retirement end insert occurred at the time of his begin insert or her end insert termination of service,
plus any benefits begin delete he end delete begin insert the employee end insert may have qualified for thereafter,
as though still employed.

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SECTION 1.  

Section 60604 of the Education Code is amended
to read:

60604.  

(a) The Superintendent shall design and implement,
consistent with the timetable and plan required pursuant to
subdivision (b), a statewide pupil assessment program consistent
with the testing requirements of this article and in accordance with
the objectives set forth in Section 60602. That statewide pupil
assessment program shall include all of the following:

(1) A plan for producing valid, reliable, and comparable
individual pupil scores in grades 2 to 11, inclusive, and a
comprehensive analysis of these scores based on the results of the
achievement test designated by the state board that assesses a broad
range of basic academic skills pursuant to the Standardized Testing
and Reporting (STAR) Program established by Article 4
(commencing with Section 60640).

(2) A method of working with publishers to ensure valid,
reliable, and comparable individual, grade-level, school-level,
district-level, county-level, and statewide scores in grades 2 to 11,
inclusive.

(3) Statewide academically rigorous content and performance
standards that reflect the knowledge and skills that pupils will need
to succeed in the information-based, global economy of the 21st
century. These skills shall not include personal behavioral standards
or skills, including, but not limited to, honesty, sociability, ethics,
or self-esteem.

(4) A statewide system that provides the results of testing in a
manner that reflects the degree to which pupils are achieving the
academically rigorous content and performance standards adopted
by the state board.

(5) The alignment of assessment with the statewide academically
rigorous content and performance standards adopted by the state
board.

(6) The active, ongoing involvement of parents, classroom
teachers, administrators, other educators, governing board members
of school districts, and the public in all phases of the design and
implementation of the statewide pupil assessment program.

(7) The development of a contract or contracts with a publisher
or publishers, after the approval of statewide academically rigorous
content standards by the state board, for the development of
performance standards and assessments of applied academic skills
designed to test pupils’ knowledge of academic skills and abilities
to apply that knowledge and those skills to solve problems and
communicate.

(b) The Superintendent shall develop and annually update for
the Legislature a five-year cost projection, implementation plan,
and timetable for implementing the program described in
subdivision (a). The annual update shall be submitted on or before
March 1 of each year to the chairperson of the fiscal subcommittee
considering budget appropriations in each house. The update shall
explain any significant variations from the five-year cost projection
for the current year budget and the proposed budget.

(c) The Superintendent shall provide each school district with
guidelines for professional development that are designed to assist
classroom teachers to use the results of the assessments
administered pursuant to this chapter to modify instruction for the
purpose of improving pupil learning. These guidelines shall be
developed in consultation with classroom teachers and approved
by the state board before dissemination.

(d) The Superintendent and the state board shall consider
comments and recommendations from school districts and the
public in the development, adoption, and approval of assessment
instruments.

(e) The results of the achievement test administered pursuant
to Article 4 (commencing with Section 60640) shall be returned
to the school district within the period of time specified by the
state board.

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