BILL NUMBER: AB 1221 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY APRIL 24, 2013
INTRODUCED BY Assembly Member Wilk
( Coauthors: Assembly Members
Conway, Beth Gaines, Gorell,
Harkey, Jones, Morrell, and Nestande
)
FEBRUARY 22, 2013
An act to amend Sections 44936, 44938, 44939, 44944,
and 44945 of, and to add Sections
Section 44932.5 and 44940.7
to, and to repeal Section 45047 of, the Education Code,
relating to school employees.
LEGISLATIVE COUNSEL'S DIGEST
AB 1221, as amended, 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)
(4) Existing law establishes a Commission on
Professional Competence for each dismissal or suspension hearing
requested by an employee, consisting of specified members , and
requires the proceeding to be conducted in accordance with the
Administrative Procedure Act . 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 delete
the provisions providing for the establishment of a
Commission on Professional Competence to consist solely of
, and would instead require the proceedings to be
conducted pursuant to the Administrative Procedure Act by an
administrative law judge , as well as providing
. The bill would provide that the decision of the
commission administrative law judge 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)
(5) 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)
(6) This bill would make nonsubstantive and conforming
changes.
(8)
(7) 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 be in writing and be served
upon the employee personally or by United States registered mail
addressed to the employee at the employee's 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 the governing
board or its authorized representative has given the employee against
whom the charge is filed written notice of the unprofessional
conduct, specifying the nature of the unprofessional conduct with
specific instances of behavior and with 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) The governing board or its authorized representative has given
the employee against whom the charge is filed, written notice of the
unsatisfactory performance, specifying the nature of the
unsatisfactory performance with specific instances of behavior and
with 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, before the
beginning of that time period, the governing board or its authorized
representative has given the employee against whom the charge is
filed written notice of the unsatisfactory performance, specifying
the nature of the unsatisfactory performance with specific instances
of behavior and with 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.
(c) (1) "Unprofessional 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.
(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.
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. 4. Section 44939 of the Education
Code is amended to read:
44939. (a) Upon the filing of written
charges, duly signed and verified by the person filing them with the
governing board of a school district, or upon a written statement of
charges formulated by the governing board, charging a permanent
employee of the district with immoral conduct, conviction of a felony
or of any crime involving moral turpitude, with incompetency due to
mental disability, with willful refusal to perform regular
assignments without reasonable cause, as prescribed by reasonable
rules and regulations of the employing school district, with
violation of Section 51530, with knowing membership by the employee
in the Communist Party or with violation of any provision in Sections
7001 to 7007, inclusive, the governing board may, if it deems such
action necessary, immediately suspend the employee from his or
her duties and give notice to him the
employee of his or her suspension, and that 30 days
after service of the notice, he or she will be dismissed,
unless he or she demands a hearing.
If
(b) If the permanent employee is
suspended upon charges of knowing membership by the employee in the
Communist Party or for any violation of Section 7001, 7002, 7003,
7006, 7007, or 51530, he or she may within 10 days after
service upon him of notice of such
suspension , file with the governing board a
verified denial, in writing, of the charges. In such event
the A permanent employee who demands a hearing
within the 30-day period shall continue to be paid his or her
regular salary during the period of suspension and until the
entry of the final decision of the
Commission on Professional Competence,
governing board of the school district, if and during such time
as he the employee furnishes to the
school district a suitable bond, or other security acceptable to the
governing board, as a guarantee that the employee will repay to the
school district the amount of salary so paid
to him during the period of suspension in case the
decision of the Commission on Professional Competence
governing board is that he
the employee shall be dismissed. If it is determined that
the employee may not be dismissed, the school board shall reimburse
the employee for the cost of the bond.
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 governing board 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, and the court of proper jurisdiction to
entertain his or her motion 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 paragraph (3).
(5) A witness shall not be permitted to testify at the hearing
except upon oath or affirmation.
(b) The hearing provided for in this section shall be conducted by
a Commission on Professional Competence which shall consist
solely of an administrative law judge of the Office of
Administrative Hearings who shall be responsible for ensuring that
the legal rights of the parties are protected at the hearing.
(c) (1) The commission administrative law
judge 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 commission
administrative law judge 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 administrative law
judge 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 commission
administrative law judge 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.
(5) The governing 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.
(d) (1) If the governing board 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 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 governing board 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.
(3) If the employee petitions a court of competent jurisdiction
for review of the decision of the governing board, the payment of
expenses to the administrative law judge required by this subdivision
shall not be stayed.
(4) If the decision of the governing board is finally reversed or
vacated by a court of competent jurisdiction, 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 the expenses.
(e) The hearing provided for in this section shall be conducted in
a place selected by agreement. In the absence of agreement, the
place shall be selected by the administrative law judge.
(f) (1) For the duration of the hearing conducted pursuant to this
section, the employee may be placed on administrative leave without
pay.
(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.
(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.
SEC. 6. Section 44945 of the Education Code is amended to read:
44945. The decision of the governing board may, on petition of
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. Section 45047 of the Education
Code is repealed.
45047. Service on a commission on professional competence
pursuant to Section 44944, in the employing school district or in
some other district, by a person employed by a district in a position
requiring certification qualifications shall not be considered time
off job with respect to Section 45041. Neither the amount paid to a
substitute required to be hired to replace such a person serving on a
commission on professional competence pursuant to Section 44945 in
the employing school district or in some other district nor the
amount which would have been paid to a substitute had a substitute
been employed, shall be deducted from the person's salary pursuant to
Section 45042.
SEC. 7. SEC. 8. 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.