BILL NUMBER: AB 947 AMENDED BILL TEXT AMENDED IN ASSEMBLY MAY 15, 2013 AMENDED IN ASSEMBLY MARCH 21, 2013 INTRODUCED BY Assembly MemberOlsenBeth Gaines ( Coauthors: Assembly Members Allen, Conway, Grove, Harkey, Jones, Mansoor, Morrell, Nestande, and Wilk ) 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,OlsenBeth Gaines . 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 has implemented specific models of intervention and has been selected by the governing board of the school district for exemption from certificated reductions in workforce, based upon the needs of pupils in 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 school 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 of the school district determines that attendance in a school 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 school district it has become necessary by reason of any of these conditions to decrease the number of permanent employees in the school district, the governing board of the school district may terminate the services of not more than a corresponding percentage of the certificated employees of the school 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 school district shall be deemed to have been a school of the newly formed or reorganized school district for both of the two previous school years. (3) As between employees who first rendered paid service to the school district on the same date, the governing board of the school district shall determine the order of termination solely on the basis of needs of the school 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 of the school district 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 of the school district 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 gov erning board of the school district 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 school 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 of the school district 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 has implemented the turnaround model or restart model of intervention pursuant to Section 53202 and has been selected by the governing board of the school district for exemption from certificated reductions in workforce, based upon the needs of pupils in 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 theboardgoverning boa rd of the school district 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,prior tobefore 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 of the school district 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 theboardgoverning board of the school district 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 sc hool 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 school 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 school 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 school district, if it is also the governing board of one or more other school districts, may assign the employee to services that he or she is certificated and competent to render, in one of the other school districts. The compensation the employee receives, in the discretion of the governing board of the school district , may be the same as the employee would have received had he or she been serving in the school district from which the employee's services were terminated. The employee's service in the other school district or districts shall be counted toward the period required for both state and local retirement as though rendered in the school district from which the employee's services were terminated. The employee shall not displace any other permanent employee in the other school 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 timeprior tobefore 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 school district retirement system for the period of his or her absence, but it shall not be obligatory on the state or school 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 school 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.