California Legislature—2013–14 Regular Session

Assembly Bill No. 1221

Introduced by Assembly Member Wilk

February 22, 2013

An act to amend Sections 44936, 44938, 44944, and 44945 of, and to add Sections 44932.5 and 44940.7 to, the Education Code, relating to school employees.

LEGISLATIVE COUNSEL’S DIGEST

AB 1221, as introduced, Wilk. School employees: discipline: suspension and dismissal.

(1) Existing law prohibits a permanent school employee from being dismissed except for one or more specified offenses.

This bill would prohibit a collective bargaining agreement entered into or renewed on or after January 1, 2014, from requiring the removal, after a specified time period, from an employee’s record of records pertaining to discipline, complaints, reprimands, or investigations relating to the employee’s commission, or potential commission, of one of those specified offenses.

(2) Existing law authorizes a governing board of a school district to give notice to a permanent employee of its intention to dismiss or suspend him or her for specified causes at the expiration of 30 days from the date of service of the notice, unless the employee demands a hearing. Existing law prohibits that notice from being given between May 15th and September 15th in any year.

This bill would remove that prohibition.

(3) Existing law prohibits the governing board of a school district from acting upon any charges of unprofessional conduct, or unsatisfactory performance, unless at least 45, or 90, calendar days, respectively, prior to the date of the filing of the charges the governing board, or its authorized representative, has given the employee written notice, as specified.

This bill would remove those 45-day and 90-day requirements.

(4) Existing law requires the governing board of a school district to immediately place an employee on compulsory leave of absence if the employee is charged with a mandatory leave of absence offense, as defined.

This bill would require the governing board to transfer a certificated employee to nonclassroom duties that do not involve contact with pupils if the governing board has reasonable cause to believe that the employee is under investigation by a law enforcement agency for commission of a mandatory leave of absence offense. The bill would require an employee transferred under these provisions to continue to receive his or her regular salary during the period of the transfer. If the governing board returns the employee to classroom duties, the bill would require the governing board to record the reason or reasons for the return in a resolution adopted by the governing board. By placing additional duties on school district governing boards regarding the transfer of employee duties, this bill would impose a state-mandated local program.

(5) Existing law establishes a Commission on Professional Competence for each dismissal or suspension hearing requested by an employee, consisting of specified members. Existing law deems the decision of the Commission on Professional Competence to be the final decision of the governing board of the school district.

This bill would make various changes to the provisions relating to the hearing, including requiring the Commission on Professional Competence to consist solely of an administrative law judge, as well as providing that the decision of the commission would be advisory, and the final decision regarding the discipline of the employee would be determined by action of the governing board of the school district. The bill would provide that an employee requesting a hearing may be placed on administrative leave without pay, and that an employee who is placed on administrative leave would be required to be paid his or her regular salary if he or she furnishes to the school district acceptable security, as specified.

(6) Existing law prohibits testimony from being given or evidence being introduced at the hearing relating to matters that occurred more than 4 years prior to the date of the filing of the notice of dismissal or suspension.

This bill would remove that 4-year limitation.

(7) This bill would make nonsubstantive and conforming changes.

(8) 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.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to these statutory provisions.

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

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

SECTION 1.  

Section 44932.5 is added to the Education Code,
to read:

44932.5.  

A collective bargaining agreement entered into or
renewed on or after January 1, 2014, shall not require the removal,
after a specified time period, from an employee’s record of records
pertaining to discipline, complaints, reprimands, or investigations
relating to the employee’s commission, or potential commission,
of an offense listed in Section 44932.

SEC. 2.  

Section 44936 of the Education Code is amended to
read:

44936.  

The notice of dismissal or suspension in a proceeding
initiated pursuant to Section 44934 shall begin delete not be given between
May 15th and September 15th in any year. It shall end delete be in writing
and be served upon the employee personally or by United States
registered mail addressed to begin delete him end delete begin insert the employee end insert at begin delete his end delete begin insert the employee’s end insert
last known address. A copy of the charges filed, containing the
information required by Section 11503 of the Government Code,
together with a copy of the provisions of this article, shall be
attached to the notice.

SEC. 3.  

Section 44938 of the Education Code is amended to
read:

44938.  

(a) The governing board of any school district shall
not act upon any charges of unprofessional conduct unless begin delete at least
45 calendar days prior to the date of the filing, end delete the begin insert governing end insert board
or its authorized representative has given the employee against
whom the charge is filed begin delete , end delete written notice of the unprofessional
conduct, specifying the nature begin delete thereof end delete begin insert of the unprofessional conduct end insert
with begin delete such end delete specific instances of behavior and with begin delete such end delete particularity
as to furnish the employee an opportunity to correct his or her
faults and overcome the grounds for the charge. The written notice
shall include the evaluation made pursuant to Article 11
(commencing with Section 44660) of Chapter 3, if applicable to
the employee.

(b) The governing board of any school district shall not act upon
any charges of unsatisfactory performance unless it acts in
accordance with the provisions of paragraph (1) or (2):

(1)  begin delete At least 90 calendar days prior to the date of the filing, the end delete
begin insert The governing end insert board or its authorized representative has given the
employee against whom the charge is filed, written notice of the
unsatisfactory performance, specifying the nature begin delete thereof end delete begin insert of the
unsatisfactory performance end insert with begin delete such end delete specific instances of behavior
and with begin delete such end delete particularity as to furnish the employee an
opportunity to correct his or her faults and overcome the grounds
for the charge. The written notice shall include the evaluation made
pursuant to Article 11 (commencing with Section 44660) of
Chapter 3, if applicable to the employee.

(2) The governing board may act during the time period
composed of the last one-fourth of the schooldays it has scheduled
for purposes of computing apportionments in any fiscal year if,
begin delete prior to end delete begin insert before end insert the beginning of that time period, the begin insert governing end insert
board or its authorized representative has given the employee
against whom the charge is filed begin delete , end delete written notice of the
unsatisfactory performance, specifying the nature begin delete thereof end delete begin insert of the
unsatisfactory performance end insert with begin delete such end delete specific instances of behavior
and with begin delete such end delete particularity as to furnish the employee an
opportunity to correct his or her faults and overcome the grounds
for the charge. The written notice shall include the evaluation made
pursuant to Article 11 (commencing with Section 44660) of
Chapter 3, if applicable to the employee.

begin delete

(c) “Unsatisfactory performance” as used in this section means,
and refers only to, the unsatisfactory performance particularly
specified as a cause for dismissal in Section 44932 and does not
include any other cause for dismissal specified in Section 44932.

end delete begin delete

“Unprofessional

end delete

begin insert (c) end insert begin insert   end insert begin insert (1) end insert begin insert   end insert begin insert “Unprofessional end insert conduct” as used in this section means,
and refers to, the unprofessional conduct particularly specified as
a cause for dismissal or suspension in Sections 44932 and 44933
and does not include any other cause for dismissal specified in
Section 44932.

begin insert

(2) “Unsatisfactory performance” as used in this section means,
and refers only to, the unsatisfactory performance particularly
specified as a cause for dismissal in Section 44932 and does not
include any other cause for dismissal specified in Section 44932.

end insert

SEC. 4.  

Section 44940.7 is added to the Education Code, to
read:

44940.7.  

(a) The governing board shall transfer a certificated
employee to nonclassroom duties that do not involve contact with
pupils if the governing board has reasonable cause to believe that
the employee is under investigation by a law enforcement agency
for commission of a mandatory leave of absence offense within
the meaning of subdivision (a) of Section 44940.

(b) An employee transferred pursuant to this section shall
continue to receive his or her regular salary during the period of
the transfer.

(c) If the governing board returns the certificated employee to
classroom duties that involve contact with pupils, the governing
board shall record the reason or reasons for the return in a
resolution adopted by the governing board.

SEC. 5.  

Section 44944 of the Education Code is amended to
read:

44944.  

(a) (1) In a dismissal or suspension proceeding initiated
pursuant to Section 44934, if a hearing is requested by the
employee, the hearing shall be commenced within 60 days from
the date of the employee’s demand for a hearing. The hearing shall
be initiated, conducted, and a decision made in accordance with
Chapter 5 (commencing with Section 11500) of Part 1 of Division
3 of Title 2 of the Government Code. However, the hearing date
shall be established after consultation with the employee and the
governing board, or their representatives, and the Commission on
Professional Competence shall have all of the power granted to
an agency in that chapter, except that the right of discovery of the
parties shall not be limited to those matters set forth in Section
11507.6 of the Government Code but shall include the rights and
duties of any party in a civil action brought in a superior court
under Title 4 (commencing with Section 2016.010) of Part 4 of
the Code of Civil Procedure. Notwithstanding any provision to the
contrary, and except for the taking of oral depositions, no discovery
shall occur later than 30 calendar days after the employee is served
with a copy of the accusation pursuant to Section 11505 of the
Government Code. In all cases, discovery shall be completed prior
to seven calendar days before the date upon which the hearing
commences. If any continuance is granted pursuant to Section
11524 of the Government Code, the time limitation for
commencement of the hearing as provided in this subdivision shall
be extended for a period of time equal to the continuance. However,
the extension shall not include that period of time attributable to
an unlawful refusal by either party to allow the discovery provided
for in this section.

(2) If the right of discovery granted under paragraph (1) is
denied by either the employee or the governing board, all of the
remedies in Chapter 7 (commencing with Section 2023.010) of
Title 4 of Part 4 of the Code of Civil Procedure shall be available
to the party seeking discovery begin insert , end insert and the court of proper jurisdiction begin delete , end delete
to entertain his or her motion begin delete , end delete shall be the superior court of the
county in which the hearing will be held.

(3) The time periods in this section and of Chapter 5
(commencing with Section 11500) of Part 1 of Division 3 of Title
2 of the Government Code and of Title 4 (commencing with
Section 2016.010) of Part 4 of the Code of Civil Procedure shall
not be applied so as to deny discovery in a hearing conducted
pursuant to this section.

(4) The superior court of the county in which the hearing will
be held may, upon motion of the party seeking discovery, suspend
the hearing so as to comply with the requirement of begin delete the preceding
paragraph end delete begin insert paragraph (3) end insert .

(5)  begin delete No end delete begin insert A end insert witness shall begin insert not end insert be permitted to testify at the hearing
except upon oath or affirmation. begin delete No testimony shall be given or
evidence introduced relating to matters that occurred more than
four years prior to the date of the filing of the notice. Evidence of
records regularly kept by the governing board concerning the
employee may be introduced, but no decision relating to the
dismissal or suspension of any employee shall be made based on
charges or evidence of any nature relating to matters occurring
more than four years prior to the filing of the notice. end delete

(b)  begin delete (1) end delete begin delete   end delete The hearing provided for in this section shall be
conducted by a Commission on Professional Competence begin delete . One
member of the commission shall be selected by the employee, one
member shall be selected by the governing board, and one member
shall be end delete begin insert which shall consist solely of end insert an administrative law judge
of the Office of Administrative Hearings who shall be begin delete chairperson
and a voting member of the commission and shall be responsible
for assuring end delete begin insert responsible for ensuring end insert that the legal rights of the
parties are protected at the hearing. begin delete If either the governing board
or the employee for any reason fails to select a commission member
at least seven calendar days prior to the date of the hearing, the
failure shall constitute a waiver of the right to selection, and the
county board of education or its specific designee shall immediately
make the selection. If the county board of education is also the
governing board of the school district or has by statute been granted
the powers of a governing board, the selection shall be made by
the Superintendent, who shall be reimbursed by the school district
for all costs incident to the selection. end delete

begin delete

(2) The member selected by the governing board and the
member selected by the employee shall not be related to the
employee and shall not be employees of the district initiating the
dismissal or suspension and shall hold a currently valid credential
and have at least five years’ experience within the past 10 years
in the discipline of the employee.

end delete

(c) (1) The begin delete decision of the Commission on Professional
Competence shall be made by a majority vote, and the end delete commission
shall prepare a written decision containing findings of fact,
determinations of issues, and a disposition that shall be, solely,
one of the following:

(A) That the employee should be dismissed.

(B) That the employee should be suspended for a specific period
of time without pay.

(C) That the employee should not be dismissed or suspended.

(2) The decision of the begin delete Commission on Professional Competence end delete
begin insert commission end insert that the employee should not be dismissed or
suspended shall not be based on nonsubstantive procedural errors
committed by the school district or governing board unless the
errors are prejudicial errors.

(3) The commission shall not have the power to dispose of the
charge of dismissal by imposing probation or other alternative
sanctions. The imposition of suspension pursuant to subparagraph
(B) of paragraph (1) shall be available only in a suspension
proceeding authorized pursuant to subdivision (b) of Section 44932
or Section 44933.

(4) The decision of the begin delete Commission on Professional Competence
shall be deemed to be the final decision of the governing board end delete
begin insert commission shall be advisory, and the final decision regarding
the discipline of the employee shall be determined by actions of
the governing board of the school district end insert .

(5) The begin insert governing end insert board may adopt from time to time rules and
procedures not inconsistent with this section as may be necessary
to effectuate this section.

(6) The governing board and the employee shall have the right
to be represented by counsel.

begin delete

(d) (1) If the member selected by the governing board or the
member selected by the employee is employed by any school
district in this state, the member shall, during any service on a
Commission on Professional Competence, continue to receive
salary, fringe benefits, accumulated sick leave, and other leaves
and benefits from the district in which the member is employed,
but shall receive no additional compensation or honorariums for
service on the commission.

end delete begin delete

(2) If service on a Commission on Professional Competence
occurs during summer recess or vacation periods, the member shall
receive compensation proportionate to that received during the
current or immediately preceding contract period from the
member’s employing district, whichever amount is greater.

end delete begin delete

(e)

end delete

begin insert (d) end insert  (1) If the begin delete Commission on Professional Competence end delete
begin insert governing board end insert determines that the employee should be dismissed
or suspended, the governing board and the employee shall share
equally the expenses of the hearing, including the cost of the
administrative law judge. The begin delete state shall pay any costs incurred
under paragraph (2) of subdivision (d), the reasonable expenses,
as determined by the administrative law judge, of the member
selected by the governing board and the member selected by the
employee, including, but not limited to, payments or obligations
incurred for travel, meals, and lodging, and the cost of the substitute
or substitutes, if any, for the member selected by the governing
board and the member selected by the employee. The end delete Controller
shall pay all claims submitted pursuant to this paragraph from the
General Fund, and may prescribe reasonable rules, regulations,
and forms for the submission of the claims. The employee and the
governing board shall pay their own attorney’s fees.

(2) If the begin delete Commission on Professional Competence end delete begin insert governing
board end insert determines that the employee should not be dismissed or
suspended, the governing board shall pay the expenses of the
hearing, including the cost of the administrative law judge begin delete , any
costs incurred under paragraph (2) of subdivision (d), the
reasonable expenses, as determined by the administrative law
judge, of the member selected by the governing board and the
member selected by the employee, including, but not limited to,
payments or obligations incurred for travel, meals, and lodging,
the cost of the substitute or substitutes, if any, for the member
selected by the governing board and the member selected by the
employee, and reasonable attorney’s fees incurred by the employee end delete .

begin delete

(3) As used in this section, “reasonable expenses” shall not be
deemed “compensation” within the meaning of subdivision (d).

end delete begin delete

(4)

end delete

begin insert (3) end insert  If begin delete either the governing board or end delete the employee petitions a
court of competent jurisdiction for review of the decision of the
begin delete commission end delete begin insert governing board end insert , the payment of expenses to begin delete members
of the commission end delete begin insert the administrative law judge end insert required by this
subdivision shall not be stayed.

begin delete

(5)

end delete

begin insert (4) end insert   begin delete (A) end delete begin delete   end delete If the decision of the begin delete commission end delete begin insert governing board end insert is
finally reversed or vacated by a court of competent jurisdiction,
begin delete either the state, having paid the commission members’ expenses,
shall be entitled to reimbursement from the governing board for
those expenses, or the governing board, having paid the expenses,
shall be entitled to reimbursement from the state. end delete

begin delete (B) end delete begin delete   end delete begin delete Additionally, either end delete the employee, having paid a portion of
the expenses of the hearing, including the cost of the administrative
law judge, shall be entitled to reimbursement from the governing
board for begin delete the expenses, or the governing board, having paid its
portion and the employee’s portion of the expenses of the hearing,
including the cost of the administrative law judge, shall be entitled
to reimbursement from the employee for that portion of end delete the
expenses.

begin delete

(f)

end delete

begin insert (e) end insert  The hearing provided for in this section shall be conducted
in a place selected by begin delete agreement among the members of the
commission end delete begin insert agreement end insert . In the absence of agreement, the place
shall be selected by the administrative law judge.

begin insert

(f) (1) For the duration of the hearing conducted pursuant to
this section, the employee may be placed on administrative leave
without pay.

end insert begin insert

(2) If an employee is placed on administrative leave pursuant
to this section, the employee shall continue to be paid his or her
regular salary during the period of his or her administrative leave
of absence if during that time he or she furnishes to the school
district a suitable bond or other security acceptable to the
governing board, as a guarantee that the school district will be
repaid the amount of salary during the employee’s leave of absence
if, by action of the governing board, a final decision is made to
terminate the employee, or the employee fails or refuses to return
to service following a decision not to terminate the employee. If
the governing board determines that the employee should not be
dismissed, the governing board shall reimburse the employee for
the cost of the bond upon his or her return to service in the school
district.

end insert begin insert

(3) If the employee prevails at the hearing, the administrative
law judge may recommend a suitable compensatory remedy,
including back wages and benefits, which the governing board
may adopt if the employee is reinstated. An employee who is
reinstated pursuant to this section, either by the governing board
or by order of a court of competent jurisdiction, is entitled to
reasonable back wages and benefits.

end insert

SEC. 6.  

Section 44945 of the Education Code is amended to
read:

44945.  

The decision of the begin delete Commission on Professional
Competence end delete begin insert governing board end insert may, on petition of begin delete either the
governing board or end delete the employee, be reviewed by a court of
competent jurisdiction in the same manner as a decision made by
a hearing officer under Chapter 5 (commencing with Section
11500) of Part 1 of Division 3 of Title 2 of the Government Code.
The court, on review, shall exercise its independent judgment on
the evidence. The proceeding shall be set for hearing at the earliest
possible date and shall take precedence over all other cases, except
older matters of the same character and matters to which special
precedence is given by law.

SEC. 7.  

If the Commission on State Mandates determines that
this act contains 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.