Amended in Assembly May 15, 2013

Amended in Assembly March 21, 2013

California Legislature—2013–14 Regular Session

Assembly Bill No. 947

Introduced by Assembly Member begin delete Olsen end delete begin insert Beth Gaines end insert

begin insert

(Coauthors: Assembly Members Allen, Conway, Grove, Harkey, Jones, Mansoor, Morrell, Nestande, and Wilk)

end insert

February 22, 2013

An act to amend Sections 44955 and 44956 of, and to add Section 44955.2 to, the Education Code, relating to school employees.

LEGISLATIVE COUNSEL’S DIGEST

AB 947, as amended, begin delete Olsen end delete   begin insert Beth Gaines end insert . School employees: teachers: termination: reappointment: seniority deviation.

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.

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 begin insert has implemented specific models of intervention and end insert has been selected by the governing board begin insert of the school district end insert for exemption from certificated reductions in workforce, based upon the needs of begin insert pupils in end insert 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.

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.

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.

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.

The bill would make various nonsubstantive and clarifying changes.

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

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

SECTION 1.  

Section 44955 of the Education Code is amended
to read:

44955.  

(a) A permanent employee shall not 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 a
probationary employee shall not be deprived of his or her position
for cause other than as specified in Sections 44948 to 44949,
inclusive.

(b) (1) If in any school year the average daily attendance in all
of the schools of a begin insert school end insert district for the first six months in which
school is in session has declined below the corresponding period
of either of the previous two school years, if the governing board
begin insert of the school district end insert determines that attendance in a begin insert school end insert district
will decline in the following year as a result of the termination of
an interdistrict tuition agreement as described in Section 46304,
if a particular kind of service is to be reduced or discontinued not
later than the beginning of the following school year, or if the
amendment of state law requires the modification of curriculum,
and if in the opinion of the governing board of the begin insert school end insert district
it has become necessary by reason of any of these conditions to
decrease the number of permanent employees in the begin insert school end insert district,
the governing board begin insert of the school district end insert may terminate the
services of not more than a corresponding percentage of the
certificated employees of the begin insert school end insert district, permanent as well as
probationary, at the close of the school year. Except as otherwise
provided by statute, the services of a permanent employee shall
not 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 that the permanent employee is
certificated and competent to render.

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

(3) As between employees who first rendered paid service to
the begin insert school end insert district on the same date, the governing board begin insert of the
school district end insert shall determine the order of termination solely on
the basis of needs of the begin insert school end insert district and the pupils, including
distinctions based upon performance evaluations. Upon the request
of any employee whose order of termination is so determined, the
governing board begin insert of the school district end insert shall furnish in writing no
later than five days before 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 begin insert of the school district end insert 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 termination of services shall be given before May
15 in the manner prescribed in Section 44949, and services of
employees shall be terminated in the inverse of the order in which
they were employed, as determined by the begin insert governing end insert board begin insert of the
school district end insert in accordance with 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.

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

(1) The begin insert school end insert 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
as it applies to pupils.

(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 begin insert of the
school district end insert 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.

(4) On the basis that the employee is assigned to a schoolsite
that begin insert has implemented the turnaround model or restart model of
intervention pursuant to Section 53202 and end insert has been selected by
the governing board begin insert of the school district end insert for exemption from
certificated reductions in workforce, based upon the needs of begin insert pupils
in end insert the educational program.

(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.

SEC. 2.  

Section 44955.2 is added to the Education Code, to
read:

44955.2.  

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.

SEC. 3.  

Section 44956 of the Education Code is amended to
read:

44956.  

A permanent employee whose services have been
terminated as provided in Section 44955 shall have the following
rights:

(a) For the period of 39 months from the date of the 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 begin delete board end delete begin insert governing
board of the school district end insert in accordance with 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 that the employee is
certificated and competent to render. However, begin delete prior to end delete begin insert before end insert
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 begin insert of the school district end insert shall require the employee to pass a
subject matter competency test in the appropriate subject.

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

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

(1) The begin insert school end insert 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.

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

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

(e) During the period of an employee’s preferred right to
reappointment, the employee, in the order of original employment,
shall 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
or her services may be terminated upon the return to duty of the
other employee and that the substitute service shall not affect the
retention of his or her previous classification and rights. If, in any
school year the employee serves as a substitute in any position
requiring certification for 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 not be less than the amount the employee
would receive if he or she were being reappointed.

(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:

(1) The begin insert school end insert 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.

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

(g) (1) During the period of the employee’s preferred right to
reappointment, the governing board of the begin insert school end insert district, if it is
also the governing board of one or more other begin insert school end insert districts,
may assign the employee to services that he or she is certificated
and competent to render, in one of the other begin insert school end insert districts. The
compensation the employee receives, in the discretion of the
governing board begin insert of the school district end insert , may be the same as the
employee would have received had he or she been serving in the
begin insert school end insert district from which the employee’s services were
terminated. The employee’s service in the other begin insert school end insert district or
districts shall be counted toward the period required for both state
and local retirement as though rendered in the begin insert school end insert district from
which the employee’s services were terminated. The employee
shall not displace any other permanent employee in the other begin insert school end insert
district or districts.

(2) It is the intent of this subdivision 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.

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

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