Senate Bill No. 10

Introduced by Senator Padilla

December 3, 2012

An act to amend Sections 44932, 44936, 44939, 44940, and 44944 of the Education Code, relating to school employees.

LEGISLATIVE COUNSEL’S DIGEST

SB 10, as introduced, Padilla. School employees: dismissal, suspension, and leave of absence procedures.

(1) Under existing law, a permanent school employee is prohibited from being dismissed, except for one or more of certain enumerated causes, including for immoral or unprofessional conduct and unsatisfactory performance. Upon a charging that there exists cause for the dismissal or suspension of a permanent employee, existing law authorizes the governing board of a school district to give notice to the employee of its intention to dismiss or suspend the employee, as specified. Existing law prohibits the governing board of a school district from giving notice of dismissal or suspension of a permanent employee between May 15 and September 15 of any year.

This bill would include serious or egregious unprofessional conduct, as specified, as a ground for dismissal of a permanent school employee, and would except from the prohibition of giving notice to the employee between May 15 and September 15 proceedings where the charges involve specified offenses.

(2) Existing law authorizes the governing board of a school district to immediately suspend a permanent employee under specified conditions, including immoral conduct, and give the employee notice of the suspension, as specified.

This bill would include serious or egregious unprofessional conduct, as defined, within the conditions that a governing board may immediately suspend a permanent employee.

(3) Existing law provides that a certificated employee may be charged with a mandatory leave of absence offense for certain specified sex offenses or controlled substance offenses with the exception of marijuana, mescaline, peyote, or tetrahydrocannabinols. Existing law also provides that a certificated employee may be charged with an optional leave of absence offense for certain offenses, including controlled substance offenses, as specified, with the exception of marijuana, mescaline, peyote, or tetrahydrocannabinols. Existing law requires the governing board of a school district to immediately place a certificated employee on compulsory leave of absence if the employee is charged with a mandatory leave of absence offense.

This bill would remove marijuana, mescaline, peyote, and tetrahydrocannabinols as exceptions to the controlled substance offenses for which a certificated employee may be charged with a mandatory leave of absence offense or an optional leave of absence offense.

Because this bill would increase the number of employees subject to immediate placement on compulsory leave of absence, thereby increasing the duties of school districts, the bill would impose a state-mandated local program.

(4) Existing law requires that a requested hearing on the dismissal or suspension of a permanent employee be conducted by a Commission on Professional Competence, as specified, and provides that the decision of the commission is deemed to be the final decision of the governing board of a school district. Existing law prohibits testimony from being given and evidence from being introduced relating to matters that occurred more than 4 years prior to the filing of the notice, and prohibits a decision relating to the dismissal or suspension of an employee from being made based on charges or evidence relating to matters that occurred more than 4 years before the filing of the notice of charges for the dismissal or suspension of the employee.

This bill would, for hearings on the dismissal or suspension of a permanent employee that involve certain sex offenses, controlled substance offenses, or child abuse offenses, as specified, require these hearings to be conducted solely by an administrative law judge of the Office of Administrative Hearings and would provide that the decision of the administrative law judge related to these specified offenses would be advisory, and require the final decision regarding the discipline of the employee to be determined by action of the governing board of the school district, as specified. The bill would require the governing board, before making its final determination, to allow the employee to submit a written statement or response or, at the election of the governing board, an oral statement concerning the disciplinary action, and to only consider the record produced during the hearing conducted by the administrative law judge, and would require the governing board’s final determination to be subject to review and appeal, as specified. The bill also would exempt hearings that involve these specified offenses from the prohibition on giving testimony and introducing evidence relating to matters that occurred more than 4 years before the date of the filing of the notice, and would, for hearings that involve the specified offenses, permit a decision relating to the dismissal or suspension of an employee to be made based on charges or evidence related to matters occurring more than 4 years before the date of the filing of the notice of charges for the dismissal or suspension of the employee.

(5) This bill also would make nonsubstantive and conforming changes to these provisions.

(6) 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 of the Education Code is amended
to read:

44932.  

(a)  begin delete No end delete begin insert A end insert permanent employee shall begin insert not end insert be dismissed
except for one or more of the following causes:

(1) Immoral begin insert conduct end insert or unprofessional conduct.

begin insert

(2) Serious or egregious unprofessional conduct as defined in
Section 44939.

end insert begin delete

(2)

end delete

begin insert (3) end insert  Commission, aiding, or advocating the commission of acts
of criminal syndicalism, as prohibited by Chapter 188 of the
Statutes of 1919, or in any amendment thereof.

begin delete

(3)

end delete

begin insert (4) end insert  Dishonesty.

begin delete

(4)

end delete

begin insert (5) end insert  Unsatisfactory performance.

begin delete

(5)

end delete

begin insert (6) end insert  Evident unfitness for service.

begin delete

(6)

end delete

begin insert (7) end insert  Physical or mental condition unfitting him or her to instruct
or associate with children.

begin delete

(7)

end delete

begin insert (8) end insert  Persistent violation of or refusal to obey the school laws of
the state or reasonable regulations prescribed for the government
of the public schools by the begin delete State Board of Education end delete begin insert state board end insert
or by the governing board of the school district employing him or
her.

begin delete

(8)

end delete

begin insert (9) end insert  Conviction of a felony or of begin delete any end delete begin insert a end insert crime involving moral
turpitude.

begin delete

(9)

end delete

begin insert (10) end insert  Violation of Section 51530 or conduct specified in Section
1028 of the Government Code, added by Chapter 1418 of the
Statutes of 1947.

begin delete

(10)

end delete

begin insert (11) end insert  Knowing membership by the employee in the Communist
Party.

begin delete

(11)

end delete

begin insert (12) end insert  Alcoholism or other drug abuse begin delete which end delete begin insert that end insert makes the
employee unfit to instruct or associate with children.

(b) The governing board of a school district may suspend
without pay for a specific period of time on grounds of
unprofessional conduct a permanent certificated employee or, in
a school district with an average daily attendance of less than 250
pupils, a probationary employee, pursuant to the procedures
specified in Sections 44933, 44934, 44935, 44936, 44937, 44943,
and 44944. This authorization shall not apply to begin delete any end delete begin insert a end insert school
district begin delete which end delete begin insert that end insert has adopted a collective bargaining agreement
pursuant to subdivision (b) of Section 3543.2 of the Government
Code.

SEC. 2.  

Section 44936 of the Education Code is amended to
read:

44936.  

begin insert (a) end insert begin insert   end insert The notice of dismissal or suspension in a
proceeding initiated pursuant to Section 44934 shall not be given
between May begin delete 15th end delete begin insert 15 end insert and September begin delete 15th in any year. It end delete begin insert 15. The end insert
begin insert notice end insert shall be in writing and be served upon the employee
personally or by United States registered mail addressed to him begin delete at end delete
begin delete his end delete begin insert or her at 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.

begin insert

(b) The notice of dismissal or suspension in a proceeding
initiated pursuant to charges described in Section 44939 may be
given at any time during the calendar year. This subdivision is
intended to codify the holding of Board of Education v. Commission
on Professional Competence (1976) 61 Cal.App.3d 664.

end insert

SEC. 3.  

Section 44939 of the Education Code is amended to
read:

44939.  

begin insert (a) end insert begin insert   end insert 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 begin insert serious or egregious unprofessional conduct, end insert
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 begin insert or her end insert duties and give
notice to begin delete him end delete begin insert the employee end insert of his begin insert or her end insert suspension, and that 30
days after service of the notice, begin delete he end delete begin insert the employee end insert will be dismissed,
unless he begin insert or she end insert demands a hearing.

begin delete

If

end delete

begin insert (b) end insert begin insert   end insert begin insert If end insert the permanent employee is suspended upon charges of
knowing membership by the employee in the Communist Party or
for begin delete any end delete begin insert a end insert violation of Section 7001, 7002, 7003, 7006, 7007, or
51530, begin delete he end delete begin insert the employee end insert may begin insert , end insert within 10 days after service upon
him begin insert or her end insert of notice of begin delete such end delete begin insert the end insert suspension begin insert , end insert file with the governing
board a verified denial, in writing, of the charges. In begin delete such end delete begin insert that end insert
event begin insert , end insert the permanent employee who demands a hearing within the
30-day period shall continue to be paid his begin insert or her end insert regular salary
during the period of suspension and until the entry of the decision
of the Commission on Professional Competence, if and during
begin delete such end delete begin insert the end insert time begin delete as he end delete begin insert that the employee end insert 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 begin insert or her end insert during the period of
suspension in case the decision of the Commission on Professional
Competence is that begin delete he end delete begin insert the employee end insert 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.

begin insert

(c) As used in this article, “serious or egregious unprofessional
conduct” means misconduct reasonably related to any offense
described in Sections 44010 and 44011 of this code, and Sections
11165.2 to 11165.6, inclusive, of the Penal Code.

end insert

SEC. 4.  

Section 44940 of the Education Code is amended to
read:

44940.  

(a) For purposes of this section, “charged with a
mandatory leave of absence offense” is defined to mean charged
by complaint, information, or indictment filed in a court of
competent jurisdiction with the commission of begin delete any end delete begin insert a end insert sex offense
as defined in Section 44010, or with the commission of begin delete any end delete begin insert an end insert
offense involving aiding or abetting the unlawful sale, use, or
exchange to minors of controlled substances listed in Schedule I,
II, or III, as contained in begin delete Section end delete begin insert Sections end insert 11054, 11055, and 11056
of the Health and Safety begin delete Code, with the exception of marijuana, end delete
begin delete mescaline, peyote, or tetrahydrocannabinols. end delete begin insert Code. end insert

(b) For purposes of this section, “charged with an optional leave
of absence offense” is defined to mean a charge by complaint,
information, or indictment filed in a court of competent jurisdiction
with the commission of begin delete any end delete begin insert a end insert controlled substance offense as
defined in Section 44011 or 87011, or a violation or attempted
violation of Section 187 of the Penal Code, begin delete or end delete Sections 11357 to
11361, inclusive, begin insert or end insert Section 11363, 11364, or 11370.1 of the
Health and Safety Code, insofar as these sections relate to begin delete any end delete
begin delete controlled substances except marijuana, mescaline, peyote, or end delete
begin delete tetrahydrocannabinols end delete begin insert controlled substances end insert .

(c) For purposes of this section and Section 44940.5, the term
“school district” includes county offices of education.

(d) (1)  begin delete Whenever any end delete begin insert If a end insert certificated employee of a school
district is charged with a mandatory leave of absence offense, as
defined in subdivision (a), upon being informed that a charge has
been filed, the governing board of the school district shall
immediately place the employee on compulsory leave of absence.
The duration of the leave of absence shall be until a time not more
than 10 days after the date of entry of the judgment in the
proceedings. No later than 10 days after receipt of the complaint,
information, or indictment described by subdivision (a), the school
district shall forward a copy to the Commission on Teacher
Credentialing.

(2) Upon receiving a copy of a complaint, information, or
indictment described in subdivision (a) and forwarded by begin delete a end delete begin insert the end insert
school district, the Commission on Teacher Credentialing shall
automatically suspend the employee’s teaching or service
credential. The duration of the suspension shall be until a time not
more than 10 days after the date of entry of the judgment in the
proceedings.

(e) (1)  begin delete Whenever any end delete begin insert If a end insert certificated employee of a school
district is charged with an optional leave of absence offense begin insert , end insert as
defined in subdivision (b), the governing board of the school
district may immediately place the employee begin delete upon end delete begin insert on end insert compulsory
leave in accordance with the procedure in this section and Section
44940.5. If begin delete any end delete begin insert a end insert certificated employee is charged with an offense
deemed to fall into both the mandatory and the optional leave of
absence categories, as defined in subdivisions (a) and (b), that
offense shall be treated as a mandatory leave of absence offense
for purposes of this section. No later than 10 days after receipt of
the complaint, information, or indictment described by subdivision
(a), the school district shall forward a copy to the Commission on
Teacher Credentialing.

(2) Upon receiving a copy of a complaint, information, or
indictment described in subdivision (a) and forwarded by begin delete a end delete begin insert the end insert
school district, the Commission on Teacher Credentialing shall
automatically suspend the employee’s teaching or service
credential. The duration of the suspension shall be until a time not
more than 10 days after the date of entry of the judgment in the
proceedings.

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 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 begin delete the preceding end delete
begin delete paragraph. end delete begin insert paragraph (3). end insert

begin insert

(5) (A) A witness shall not be permitted to testify at the hearing
except upon oath or affirmation.

end insert begin insert

(B) Except for hearings that involve an offense defined in
Sections 44010 and 44011 of this code, and Sections 11165.2 to
11165.6, inclusive, of the Penal Code:

end insert begin insert

(i) Testimony shall not be given or evidence introduced relating
to matters that occurred more than four years before the date of
the filing of the notice.

end insert begin delete

(5) No witness shall be permitted to testify at the hearing except
upon oath or affirmation. 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

end delete

begin insert (ii) end insert begin insert   end insert begin insert Evidence end insert of records regularly kept by the governing board
concerning the employee may be introduced, but no decision
relating to the dismissal or suspension of begin delete any end delete begin insert an end insert employee shall
be made based on charges or evidence of any nature relating to
matters occurring more than four years begin delete prior to end delete begin insert before end insert the filing
of the notice.

begin insert

(b) The hearing provided for in this section shall be conducted
as follows:

end insert begin insert

(1) A hearing that involves any offense defined in Sections 44010
and 44011 of this code, and Sections 11165.2 to 11165.6, inclusive,
of the Penal Code, shall be conducted solely by an administrative
law judge of the Office of Administrative Hearings.

end insert begin insert

(2) Hearings not specified in paragraph (1) shall be conducted
by the Commission on Professional Competence, which shall be
comprised as follows:

end insert begin delete

(b) (1) The hearing provided for in this section shall be
conducted by a Commission on Professional Competence. One

end delete

begin insert (A) end insert begin insert   end insert begin insert One end insert member of the commission shall be selected by the
employee, one member shall be selected by the governing board,
and one member shall be an administrative law judge of the Office
of Administrative Hearings who shall be chairperson and a voting
member of the commission and shall be responsible for begin delete assuring end delete
begin insert ensuring end insert that the legal rights of the parties are protected at the
hearing. If either the governing board or the employee for any
reason fails to select a commission member at least seven calendar
days begin delete prior to end delete begin insert before end insert 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.

begin delete

(2)

end delete

begin insert (B) end insert  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.

(c) (1) The decision of the Commission on Professional
Competence begin insert , with regard to a hearing conducted pursuant to end insert
begin insert paragraph (2) of subdivision (b), end insert shall be made by a majority vote,
and the 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, with regard to a hearing conducted pursuant to end insert
begin insert paragraph (2) of subdivision (b), 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)  begin insert (A) end insert begin insert   end insert The decision of the begin delete Commission on Professional end delete
begin delete Competence end delete begin insert commission with regard to a hearing conducted end insert
begin insert pursuant to paragraph (2) of subdivision (b) end insert shall be deemed to
be the final decision of the governing board.

begin insert

(B) The decision of the administrative law judge with regard to
a hearing conducted pursuant to paragraph (1) of subdivision (b)
shall be advisory, and the final decision regarding the discipline
of the employee shall be determined by action of the governing
board of the school district. The governing board shall, before
making its final determination, allow the employee to submit a
written statement or response or, at the election of the governing
board, an oral statement concerning the disciplinary action and
shall only consider the record produced during the hearing
conducted by the administrative law judge. The governing board’s
final determination shall be subject to review and appeal pursuant
to Section 1094.5 of the Code of Civil Procedure.

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.

(d) (1) If the member selected by the governing board or the
member selected by the employee is employed by begin delete any end delete begin insert a end insert school
district in this state, the member shall, during begin delete any end delete 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.

(2) If service on a begin delete Commission on Professional Competence end delete
begin insert commission end insert 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.

(e) (1) If the Commission on Professional Competence
determines begin insert in a hearing conducted pursuant to paragraph (2) end insert begin insert of end insert
begin insert subdivision (b) end insert 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 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 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 determines end delete
begin insert commission determines in a hearing conducted pursuant to end insert
begin insert paragraph (2) of subdivision (b) end insert 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,
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.

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

(4) If either the governing board or the employee petitions a
court of competent jurisdiction for review of the decision of the
commission, the payment of expenses to members of the
commission required by this subdivision shall not be stayed.

(5) (A) If the decision of the commission begin insert in a hearing conducted end insert
begin insert pursuant to paragraph (2) of subdivision (b) end insert is finally reversed or
vacated by a court of competent jurisdiction, 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.

(B) Additionally, either 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, 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 the
expenses.

(f) The hearing provided for in begin delete this section end delete begin insert paragraph (2) of end insert
begin insert subdivision (b) end insert shall be conducted in a place selected by agreement
among the members of the commission. In the absence of
agreement, begin insert and for hearings conducted pursuant to paragraph (1) end insert
begin insert of subdivision (b), end insert the place shall be selected by the administrative
law judge.

SEC. 6.  

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.