BILL NUMBER: SB 531 INTRODUCED
BILL TEXT
INTRODUCED BY Senator Knight
(Coauthors: Senators Anderson, Berryhill, Emmerson, Fuller,
Gaines, Huff, Nielsen, Walters, and Wyland)
(Coauthor: Assembly Member Wilk)
FEBRUARY 21, 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
SB 531, as introduced, Knight. School employees: discipline:
suspension and dismissal.
(1) Existing law prohibits a permanent school employee from being
dismissed except for one or more specified causes.
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 causes for dismissal.
(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 of
written notice to the charged employee.
(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. By increasing the
duties of a governing board in this regard, this bill would impose a
state-mandated local program.
(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 additional changes that are
nonsubstantive and conforming.
(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 a
cause 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 not be
given between May 15th and September 15th in any year. It
shall be in writing and be served upon the employee
personally or by United States registered mail addressed to
him at his 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 at
least 45 calendar days prior to the date of the filing, the
governing board or its authorized representative has
given the employee against whom the charge is filed,
filed written notice of the unprofessional
conduct, specifying the nature thereof of the
unprofessional conduct with such specific
instances of behavior and with such 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) At least 90 calendar days prior to the date of the
filing, the 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 thereof
of the unsatisfactory performance with
such specific instances of behavior and with such
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, prior to
before the beginning of that time period, the
governing board or its authorized representative has given
the employee against whom the charge is filed,
filed written notice of the unsatisfactory performance,
specifying the nature thereof of the
unsatisfactory performance with such
specific instances of behavior and with such 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) "Unsatisfactory performance" (1)
"Unprofessional conduct" as used in this
section means, and refers only to, the
unsatisfactory performance unprofessional conduct
particularly specified as a cause for dismissal or
suspension in Section Sections
44932 and 44933 and does not include any other cause for
dismissal specified in Section 44932.
"Unprofessional conduct"
(2) "Unsatisfactory performance"
as used in this section means, and refers only to, the
unprofessional conduct unsatisfactory
performance particularly specified as a cause for dismissal
or suspension in Sections in Section
44932 and 44933 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. 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 discovery, and
the court of proper jurisdiction, jurisdiction
to entertain his or her motion, 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 the
preceding paragraph. paragraph (3).
(5) No A witness shall not
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 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.
(b) (1) The hearing provided
for in this section shall be conducted by a Commission on
Professional Competence. One member of the commission
Competence, which shall be selected by
the employee, one member shall be selected by the governing board,
and one member shall be consist solely of 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 assuring
ensuring 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 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.
(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.
(c) (1) The decision of the Commission on
Professional Competence 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 Commission on Professional
Competence commission 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 Commission on Professional
Competence commission shall be deemed
to be advisory, and the final decision
regarding the discipline of the employee shall be
determined by action of the governing board
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 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.
(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.
(e)
(d) (1) If the Commission on Professional
Competence 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
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 Commission on Professional Competence
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, 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
judge .
(3) As used in this section, "reasonable expenses" shall not be
deemed "compensation" within the meaning of subdivision (d).
(4)
(3) If either the governing board or
the employee petitions a court of competent jurisdiction for review
of the decision of the commission, governing
board, the payment of expenses to members of
for the commission administrative
law judge required by this subdivision shall not be stayed.
(5) (A) If the decision of the commission 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
(4) If the decision 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,
is finally reversed or the governing board,
vacated by a court of competent jurisdiction, the employee,
having paid its a 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
governing board for that portion of the
expenses.
(f)
(e) The hearing provided for in this section shall be
conducted in a place selected by agreement among the members
of the commission 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 Commission on Professional
Competence governing board may, on petition of
either the governing board or 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.