Senate Bill No. 546

Introduced by Senator Wright

February 22, 2013

An act to amend Section 44949 of the Education Code, and to amend Sections 11500, 11503, 11505, 11506, 11507, 11507.3, 11509, 11516, and 11520 of the Government Code, relating to education employment.

LEGISLATIVE COUNSEL’S DIGEST

SB 546, as introduced, Wright. Education employment: termination: hearing.

Existing law requires that, when a reduction in the number of certificated employees employed by a school district is authorized, the layoffs occur in order of employee seniority. Under existing law, when an employee is terminated due to a reduction in force pursuant to these provisions, the employee has the option to request a hearing to determine if there is cause for not reemploying him or her for the ensuing year. Existing law requires that this hearing be conducted in accordance with specified provisions of law. With respect to this hearing, existing law defines the “respondent” as any person against whom an accusation is filed pursuant to specified provisions of law. Additionally, existing law provides for a “notice of defense,” which, when signed by or on behalf of the respondent and returned to the agency, will acknowledge service of the accusation and constitute a notice of defense under specified provisions of law.

This bill would change the phrase “accusation” to “District Statement of Reduction in Force,” and “notice of defense” to “notice of participation” for purposes of the provisions relating to the termination of a certificated employee due to a reduction in force and would make conforming changes.

This bill would also make technical, nonsubstantive changes.

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

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

SECTION 1.  

Section 44949 of the Education Code is amended
to read:

44949.  

(a)  begin insert (1) end insert begin insert   end insert No later than March 15 and before an employee
is given notice by the governing board that his or her services will
not be required for the ensuing year for the reasons specified in
Section 44955, the governing board and the employee shall be
given written notice by the superintendent of the district or his or
her designee, or in the case of a begin insert school end insert district begin delete which end delete begin insert that end insert has no
superintendent by the clerk or secretary of the governing board,
that it has been recommended that the notice be given to the
employee, and stating the reasons therefor.

begin delete

Until

end delete

begin insert (2) end insert begin insert   end insert begin insert Until end insert the employee has requested a hearing as provided in
subdivision (b) or has waived his or her right to a hearing, the
notice and the reasons therefor shall be confidential and shall not
be divulged by any person, except as may be necessary in the
performance of duties. However, the violation of this requirement
of confidentiality, in and of itself, shall not in any manner be
construed as affecting the validity of any hearing conducted
pursuant to this section.

(b) The employee may request a hearing to determine if there
is cause for not reemploying him or her for the ensuing year. A
request for a hearing shall be in writing and shall be delivered to
the person who sent the notice pursuant to subdivision (a), on or
before a date specified in that subdivision, which shall not be less
than seven days after the date on which the notice is served upon
the employee. If an employee fails to request a hearing on or before
the date specified, his or her failure to do so shall constitute his or
her waiver of his or her right to a hearing. The notice provided for
in subdivision (a) shall advise the employee of the provisions of
this subdivision.

(c)  begin delete In the event end delete begin insert If end insert a hearing is requested by the employee, the
proceeding shall be 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 and the governing
board shall have all the power granted to an agency begin delete therein end delete begin insert in that
chapter end insert , except that all of the following shall apply:

(1) The respondent shall file his or her begin delete notice of defense end delete begin insert notice
of participation end insert , if any, within five days after service upon him or
her of the begin delete accusation end delete begin insert District Statement of Reduction in Force end insert and
he or she shall be notified of this five-day period for filing in the
begin delete accusation end delete begin insert District Statement of Reduction in Force end insert .

(2) The discovery authorized by Section 11507.6 of the
Government Code shall be available only if request is made
therefor within 15 days after service of the begin delete accusation end delete begin insert District
Statement of Reduction in Force end insert , and the notice required by Section
11505 of the Government Code shall so indicate.

(3) The hearing shall be conducted by an administrative law
judge who shall prepare a proposed decision, containing findings
of fact and a determination as to whether the charges sustained by
the evidence are related to the welfare of the schools and the pupils
begin delete thereof end delete begin insert of the schools end insert . The proposed decision shall be prepared
for the governing board and shall contain a determination as to the
sufficiency of the cause and a recommendation as to disposition.
However, the governing board shall make the final determination
as to the sufficiency of the cause and disposition. None of the
findings, recommendations, or determinations contained in the
proposed decision prepared by the administrative law judge shall
be binding on the governing board. Nonsubstantive procedural
errors committed by the school district or governing board of the
school district shall not constitute cause for dismissing the charges
unless the errors are prejudicial errors. Copies of the proposed
decision shall be submitted to the governing board and to the
employee on or before May 7 of the year in which the proceeding
is commenced. All expenses of the hearing, including the cost of
the administrative law judge, shall be paid by the governing board
from the district funds.

begin delete

The board may adopt from time to time such rules and procedures
not inconsistent with provisions of this section as may be necessary
to effectuate this section.

end delete

(d) Any notice or request shall be deemed sufficient when it is
delivered in person to the employee to whom it is directed, or when
it is deposited in the United States registered mail, postage prepaid
and addressed to the last known address of the employee.

(e) If after begin insert a end insert request for hearing pursuant to subdivision (b) begin delete any end delete
begin insert a end insert continuance is granted pursuant to Section 11524 of the
Government Code, the dates prescribed in subdivision (c) begin delete which end delete
begin insert that end insert occur on or after the date of granting the continuance and the
date prescribed in subdivision (c) of Section 44955 begin delete which end delete begin insert that end insert
occurs after the date of granting the continuance shall be extended
for a period of time equal to the continuance.

begin insert

(f) 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.

end insert

SEC. 2.  

Section 11500 of the Government Code is amended
to read:

11500.  

In this chapter unless the context or subject matter
otherwise requires:

(a) “Agency” includes the state boards, commissions, and
officers to which this chapter is made applicable by law, except
that wherever the word “agency” alone is used the power to act
may be delegated by the agency, and wherever the words “agency
itself” are used the power to act shall not be delegated unless the
statutes relating to the particular agency authorize the delegation
of the agency’s power to hear and decide.

(b) “Party” includes the agency, the respondent, and any person,
other than an officer or an employee of the agency in his or her
official capacity, who has been allowed to appear or participate in
the proceeding.

(c) “Respondent” means any person against whom an accusation
begin insert or District Statement of Reduction in Force end insert is filed pursuant to
Section 11503 or against whom a statement of issues is filed
pursuant to Section 11504.

(d) “Administrative law judge” means an individual qualified
under Section 11502.

(e) “Agency member” means any person who is a member of
any agency to which this chapter is applicable and includes any
person who himself or herself constitutes an agency.

SEC. 3.  

Section 11503 of the Government Code is amended
to read:

11503.  

begin insert (a) end insert begin insert   end insert A hearing to determine whether a right, authority,
license begin insert , end insert or privilege should be revoked, suspended, limited begin insert , end insert or
conditioned shall be initiated by filing an accusation begin insert or District
Statement of Reduction in Force end insert . The accusation begin insert or District
Statement of Reduction in Force end insert shall be a written statement of
charges begin delete which end delete begin insert that end insert shall set forth in ordinary and concise language
the acts or omissions with which the respondent is charged, to the
end that the respondent will be able to prepare his begin insert or her end insert defense.
It shall specify the statutes and rules begin delete which end delete begin insert that end insert the respondent is
alleged to have violated, but shall not consist merely of charges
phrased in the language of begin delete such end delete begin insert those end insert statutes and rules. The
accusation begin insert or District Statement of Reduction in Force end insert shall be
verified unless made by a public officer acting in his begin insert or her end insert official
capacity or by an employee of the agency before which the
proceeding is to be held. The verification may be on information
and belief.

begin insert

(b) In a hearing involving a reduction in force that is conducted
pursuant to Section 44949 of the Education Code, the hearing
shall be initiated by filing a “District Statement of Reduction in
Force.” For purposes of this chapter, a “District Statement of
Reduction in Force” shall have the same meaning as an
“accusation.” However, if conflicts exist as a result of the
characterization of an “accusation” as an “District Statement of
Reduction in Force,” all provisions of the Education Code,
including, but not limited to, Section 44949, shall prevail over
conflicting provisions in this chapter. Respondent’s responsive
pleading shall be entitled “Notice of Participation in Reduction
in Force Hearing.”

end insert

SEC. 4.  

Section 11505 of the Government Code is amended
to read:

11505.  

(a) Upon the filing of the accusation begin insert or District
Statement of Reduction in Force end insert the agency shall serve a copy
thereof on the respondent as provided in subdivision (c). The
agency may include with the accusation begin insert or District Statement of
Reduction in Force end insert any information begin delete which end delete begin insert that end insert it deems
appropriate, but it shall include a post card or other form entitled
Notice of Defense begin delete which end delete begin insert , or, as applicable, Notice of Participation,
that end insert , when signed by or on behalf of the respondent and returned
to the agency, will acknowledge service of the accusation begin insert or
District Statement of Reduction in Force end insert and constitute a notice
of defense begin insert , or, as applicable, notice of participation, end insert under Section
11506. The copy of the accusation begin insert or District Statement of
Reduction in Force end insert shall include or be accompanied by (1) a
statement that respondent may request a hearing by filing a notice
of defense begin insert , or, as applicable, notice of participation, end insert as provided
in Section 11506 within 15 days after service upon the respondent
of the accusation begin insert or District Statement of Reduction in Force end insert , and
that failure to do so will constitute a waiver of the respondent’s
right to a hearing, and (2) copies of Sections 11507.5, 11507.6,
and 11507.7.

(b) The statement to respondent shall be substantially in the
following form:

Unless a written request for a hearing signed by or on behalf of
the person named as respondent in the accompanying accusation
begin insert or District Statement of Reduction in Force end insert is delivered or mailed
to the agency within 15 days after the accusation begin insert or District
Statement of Reduction in Force end insert was personally served on you or
mailed to you, (here insert name of agency) may proceed upon the
accusation begin insert or District Statement of Reduction in Force end insert without a
hearing. The request for a hearing may be made by delivering or
mailing the enclosed form entitled Notice of Defense begin insert , or, as
applicable, Notice of Participation end insert , or by delivering or mailing a
notice of defense begin insert , or, as applicable, notice of participation, end insert as
provided by Section 11506 of the Government Code to: (here insert
name and address of agency). You may, but need not, be
represented by counsel at any or all stages of these proceedings.

If you desire the names and addresses of witnesses or an
opportunity to inspect and copy the items mentioned in Section
11507.6 of the Government Code in the possession, custody or
control of the agency, you may contact: (here insert name and
address of appropriate person).

The hearing may be postponed for good cause. If you have good
cause, you are obliged to notify the agency or, if an administrative
law judge has been assigned to the hearing, the Office of
Administrative Hearings, within 10 working days after you
discover the good cause. Failure to give notice within 10 days will
deprive you of a postponement.

(c) The accusation begin insert or District Statement of Reduction in Force end insert
and all accompanying information may be sent to the respondent
by any means selected by the agency. But no order adversely
affecting the rights of the respondent shall be made by the agency
in any case unless the respondent shall have been served personally
or by registered mail as provided herein, or shall have filed a notice
of defense begin insert , or, as applicable, notice of participation, end insert or otherwise
appeared. Service may be proved in the manner authorized in civil
actions. Service by registered mail shall be effective if a statute or
agency rule requires the respondent to file the respondent’s address
with the agency and to notify the agency of any change, and if a
registered letter containing the accusation begin insert or District Statement of
Reduction in Force end insert and accompanying material is mailed,
addressed to the respondent at the latest address on file with the
agency.

begin insert

(d) For purposes of this chapter, for hearings involving a
reduction in force that are conducted pursuant to Section 44949
of the Education Code, a “Notice of Participation” shall have the
same meaning as a “Notice of Defense.” However, if conflicts
exist as a result of the characterization of the “Notice of
Participation” as a “Notice of Defense,” all provisions of the
Education Code, including, but not limited to, Section 44949, shall
prevail over conflicting provisions in this chapter.

end insert

SEC. 5.  

Section 11506 of the Government Code is amended
to read:

11506.  

(a) Within 15 days after service of the accusation begin insert or
District Statement of Reduction in Force end insert the respondent may file
with the agency a notice of defense begin insert , or, as applicable, notice of
participation, end insert in which the respondent may:

(1) Request a hearing.

(2) Object to the accusation begin insert or District Statement of Reduction
in Force end insert upon the ground that it does not state acts or omissions
upon which the agency may proceed.

(3) Object to the form of the accusation begin insert or District Statement
of Reduction in Force end insert on the ground that it is so indefinite or
uncertain that the respondent cannot identify the transaction or
prepare a defense.

(4) Admit the accusation begin insert or District Statement of Reduction in
Force end insert in whole or in part.

(5) Present new matter by way of defense.

(6) Object to the accusation begin insert or District Statement of Reduction
in Force end insert upon the ground that, under the circumstances, compliance
with the requirements of a regulation would result in a material
violation of another regulation enacted by another department
affecting substantive rights.

(b) Within the time specified begin insert the end insert respondent may file one or
more notices of defense begin insert , or, as applicable, notices of participation, end insert
upon any or all of these grounds but all of these notices shall be
filed within that period unless the agency in its discretion authorizes
the filing of a later notice.

(c) The respondent shall be entitled to a hearing on the merits
if the respondent files a notice of defense begin insert or notice of participation end insert ,
and the notice shall be deemed a specific denial of all parts of the
accusation begin insert or District Statement of Reduction in Force end insert not
expressly admitted. Failure to file a notice of defense begin insert or notice of
participation end insert shall constitute a waiver of respondent’s right to a
hearing, but the agency in its discretion may nevertheless grant a
hearing. Unless objection is taken as provided in paragraph (3) of
subdivision (a), all objections to the form of the accusation begin insert or
District Statement of Reduction in Force end insert shall be deemed waived.

(d) The notice of defense begin insert or notice of participation end insert shall be in
writing signed by or on behalf of the respondent and shall state
the respondent’s mailing address. It need not be verified or follow
any particular form.

(e) As used in this section, “file,” “files,” “filed,” or “filing”
means “delivered or mailed” to the agency as provided in Section
11505.

SEC. 6.  

Section 11507 of the Government Code is amended
to read:

11507.  

At any time before the matter is submitted for decision begin insert , end insert
the agency may file or permit the filing of begin insert , end insert an amended or
supplemental accusation begin insert or District Statement of Reduction in
Force end insert . All parties shall be notified begin delete thereof end delete begin insert of the filing end insert . If the
amended or supplemental accusation begin insert or District Statement of
Reduction in Force end insert presents new charges the agency shall afford
begin insert the end insert respondent a reasonable opportunity to prepare his begin insert or end insert defense
thereto, but he begin insert or she end insert shall not be entitled to file a further pleading
unless the agency in its discretion so orders. Any new charges shall
be deemed controverted, and any objections to the amended or
supplemental accusation begin insert or District Statement of Reduction in
Force end insert may be made orally and shall be noted in the record.

SEC. 7.  

Section 11507.3 of the Government Code is amended
to read:

11507.3.  

(a) When proceedings that involve a common
question of law or fact are pending, the administrative law judge
on the judge’s own motion or on motion of a party may order a
joint hearing of any or all the matters at issue in the proceedings.
The administrative law judge may order all the proceedings
consolidated and may make orders concerning the procedure that
may tend to avoid unnecessary costs or delay.

(b) The administrative law judge on the judge’s own motion or
on motion of a party, in furtherance of convenience or to avoid
prejudice or when separate hearings will be conducive to expedition
and economy, may order a separate hearing of any issue, including
an issue raised in the notice of defense begin insert or notice of participation end insert ,
or of any number of issues.

SEC. 8.  

Section 11509 of the Government Code is amended
to read:

11509.  

The agency shall deliver or mail a notice of hearing to
all parties at least 10 days prior to the hearing. The hearing shall
not be prior to the expiration of the time within which the
respondent is entitled to file a notice of defense begin insert , or, as applicable,
notice of participation end insert .

The notice to respondent shall be substantially in the following
form but may include other information:

You are hereby notified that a hearing will be held before [here
insert name of agency] at [here insert place of hearing] on the ____
day of ____, 19__, at the hour of ____, upon the charges made in
the accusation begin insert or District Statement of Reduction in Force end insert served
upon you. If you object to the place of hearing, you must notify
the presiding officer within 10 days after this notice is served on
you. Failure to notify the presiding officer within 10 days will
deprive you of a change in the place of the hearing. You may be
present at the hearing. You have the right to be represented by an
attorney at your own expense. You are not entitled to the
appointment of an attorney to represent you at public expense.
You are entitled to represent yourself without legal counsel. You
may present any relevant evidence, and will be given full
opportunity to cross-examine all witnesses testifying against you.
You are entitled to the issuance of subpoenas to compel the
attendance of witnesses and the production of books, documents
or other things by applying to [here insert appropriate office of
agency].

SEC. 9.  

Section 11516 of the Government Code is amended
to read:

11516.  

The agency may order amendment of the accusation
begin insert or District Statement of Reduction in Force end insert after submission of
the case for decision. Each party shall be given notice of the
intended amendment and opportunity to show that he begin insert or she end insert will
be prejudiced thereby unless the case is reopened to permit the
introduction of additional evidence begin delete in end delete begin insert on end insert his begin insert or her end insert behalf. If such
prejudice is shown begin insert , end insert the agency shall reopen the case to permit the
introduction of additional evidence.

SEC. 10.  

Section 11520 of the Government Code is amended
to read:

11520.  

(a) If the respondent either fails to file a notice of
defense begin insert , or, as applicable, notice of participation, end insert or to appear at
the hearing, the agency may take action based upon the
respondent’s express admissions or upon other evidence and
affidavits may be used as evidence without any notice to
respondent; and where the burden of proof is on the respondent to
establish that the respondent is entitled to the agency action sought,
the agency may act without taking evidence.

(b) Notwithstanding the default of the respondent, the agency
or the administrative law judge, before a proposed decision is
issued, has discretion to grant a hearing on reasonable notice to
the parties. If the agency and administrative law judge make
conflicting orders under this subdivision, the agency’s order takes
precedence. The administrative law judge may order the
respondent, or the respondent’s attorney or other authorized
representative, or both, to pay reasonable expenses, including
attorney’s fees, incurred by another party as a result of the
respondent’s failure to appear at the hearing.

(c) Within seven days after service on the respondent of a
decision based on the respondent’s default, the respondent may
serve a written motion requesting that the decision be vacated and
stating the grounds relied on. The agency in its discretion may
vacate the decision and grant a hearing on a showing of good cause.
As used in this subdivision, good cause includes, but is not limited
to, any of the following:

(1) Failure of the person to receive notice served pursuant to
Section 11505.

(2) Mistake, inadvertence, surprise, or excusable neglect.