BILL NUMBER: SB 546 INTRODUCED
BILL TEXT
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) (1) 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 school
district which that 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.
Until
(2) Until 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) In the event If 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
therein in that chapter , except that
all of the following shall apply:
(1) The respondent shall file his or her notice of
defense notice of participation , if any, within
five days after service upon him or her of the accusation
District Statement of Reduction in Force and he
or she shall be notified of this five-day period for filing in the
accusation District Statement of Reduction in
Force .
(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 accusation District
Statement of Reduction in Force , 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
thereof of the schools . 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.
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.
(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 a request for hearing pursuant to
subdivision (b) any a continuance is
granted pursuant to Section 11524 of the Government Code, the dates
prescribed in subdivision (c) which that
occur on or after the date of granting the continuance and the
date prescribed in subdivision (c) of Section 44955 which
that occurs after the date of granting the
continuance shall be extended for a period of time equal to the
continuance.
(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.
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
or District Statement of Reduction in Force 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. (a) A hearing to determine whether a
right, authority, license , or privilege should be
revoked, suspended, limited , or conditioned shall be
initiated by filing an accusation or District Statement of
Reduction in Force . The accusation or District Statement
of Reduction in Force shall be a written statement of charges
which that 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 or her defense. It shall specify the statutes and
rules which that the respondent is
alleged to have violated, but shall not consist merely of charges
phrased in the language of such those
statutes and rules. The accusation or District Statement of
Reduction in Force shall be verified unless made by a public
officer acting in his or her 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.
(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."
SEC. 4. Section 11505 of the Government Code is amended to read:
11505. (a) Upon the filing of the accusation or District
Statement of Reduction in Force the agency shall serve a copy
thereof on the respondent as provided in subdivision (c). The agency
may include with the accusation or District Statement of
Reduction in Force any information which
that it deems appropriate, but it shall include a post
card or other form entitled Notice of Defense which
, or, as applicable, Notice of
Participation , that , when signed by or on behalf
of the respondent and returned to the agency, will acknowledge
service of the accusation or District Statement of Reduction in
Force and constitute a notice of defense , or, as
applicable, notice of participation, under Section 11506. The
copy of the accusation or District Statement of Reduction in
Force shall include or be accompanied by (1) a statement that
respondent may request a hearing by filing a notice of defense ,
or, as applicable, notice of participation, as provided in
Section 11506 within 15 days after service upon the respondent of the
accusation or District Statement of Reduction in Force ,
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 or
District Statement of Reduction in Force is delivered or
mailed to the agency within 15 days after the accusation or
District Statement of Reduction in Force was
personally served on you or mailed to you, (here insert name of
agency) may proceed upon the accusation or District Statement of
Reduction in Force without a hearing. The request for a
hearing may be made by delivering or mailing the enclosed form
entitled Notice of Defense , or, as applicable, Notice of
Participation , or by delivering or mailing a notice of defense
, or, as applicable, notice of participation, 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 or District Statement of Reduction in
Force 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 , or, as applicable, notice of
participation, 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 or District Statement of Reduction
in Force and accompanying material is mailed,
addressed to the respondent at the latest address on file with the
agency.
(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.
SEC. 5. Section 11506 of the Government Code is amended to read:
11506. (a) Within 15 days after service of the accusation or
District Statement of Reduction in Force the respondent may
file with the agency a notice of defense , or, as applicable,
notice of participation, in which the respondent may:
(1) Request a hearing.
(2) Object to the accusation or District Statement of
Reduction in Force 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 or District
Statement of Reduction in Force 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 or District Statement of Reduction
in Force in whole or in part.
(5) Present new matter by way of defense.
(6) Object to the accusation or District Statement of
Reduction in Force 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 the respondent may file
one or more notices of defense , or, as applicable, notices of
participation, 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 or notice of
participation , and the notice shall be deemed a specific
denial of all parts of the accusation or District Statement of
Reduction in Force not expressly admitted. Failure to file a
notice of defense or notice of participation 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 or District
Statement of Reduction in Force shall be deemed waived.
(d) The notice of defense or notice of participation
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
, the agency may file or permit the filing of ,
an amended or supplemental accusation or District Statement of
Reduction in Force . All parties shall be notified
thereof of the filing . If the amended or
supplemental accusation or District Statement of Reduction in
Force presents new charges the agency shall afford the
respondent a reasonable opportunity to prepare his or
defense thereto, but he or she 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 or District
Statement of Reduction in Force 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 or notice of participation
, 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 , or, as
applicable, notice of participation .
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 or District Statement of Reduction in Force
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 or
District Statement of Reduction in Force after submission of
the case for decision. Each party shall be given notice of the
intended amendment and opportunity to show that he or she
will be prejudiced thereby unless the case is reopened to permit the
introduction of additional evidence in on
his or her behalf. If such prejudice is shown ,
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 , or, as applicable, notice of participation, 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.