BILL NUMBER: SB 843 AMENDED
BILL TEXT
AMENDED IN SENATE FEBRUARY 25, 2014
INTRODUCED BY Senator Correa
JANUARY 7, 2014
An act to amend Section 1008 of Sections
44030.5, 44242.5, 44930, 44932, 44934, 44936, 44937, 44938, 44939,
44940, 44943, 44944, 44945, and 44947 of, to repeal Section 44941 of,
and to add Sections 44930.5, 44932.5, and 44944.5 to, the
Education Code, relating to county educational agencies.
school employees.
LEGISLATIVE COUNSEL'S DIGEST
SB 843, as amended, Correa. County boards of education:
vacancies. School employees: discipline: dismissal and
suspension.
(1) Existing law prohibits a permanent school employee from being
dismissed except for one or more specified reasons. Existing law
authorizes a governing board of a school district to 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, as provided. Existing law additionally
authorizes the governing board of a school district to immediately
suspend a permanent employee for specified reasons, as provided.
This bill would, among other things, add serious and egregious
conduct, as defined, to the list of specified reasons for which a
permanent employee may be dismissed. The bill would instead authorize
the governing board of a school district to suspend without pay for
more than 30 workdays those employees for any of the listed reasons
authorizing dismissal or suspension and pursuant to certain
procedures. The bill would also authorize the suspension of those
employees for up to 30 workdays pursuant to separate procedures, as
specified. The bill would also authorize the governing board of a
school district to immediately suspend a permanent employee for
specified charges.
(2) Existing law establishes a Commission on Professional
Competence for each dismissal or suspension hearing requested by an
employee, consisting of one member selected by the governing board,
one member selected by the employee, and an administrative law judge
as the 3rd member. Existing law requires the selected members to,
among other things, have 5 years' experience within the past 10 years
in the discipline of the employee.
This bill would instead require each hearing to be heard by a
hearing panel, consisting of, for specified charges, only an
administrative law judge, and for other specified charges, consisting
of a Commission on Professional Competence. The bill would instead
require the selected members of the commission to have only 3 years'
experience in the elementary or secondary grade level discipline of
the employee, as defined.
(3) Existing law requires in a dismissal or suspension proceeding
against a permanent employee, if a hearing is requested by the
employee, that the hearing be commenced within 60 days from the date
of the employee's demand for a hearing. Existing law prescribes
various procedures for the hearing, including, among others, a
prohibition against discovery occurring later than 30 calendar days
after the employee is served with a copy of the accusation, and a
prohibition against the use of evidence of any nature relating to
matters occurring more than 4 years prior to the filing of a notice
in a decision relating to the termination or suspension of any
employee.
This bill would instead require that any hearing be submitted for
decision within 12 months from the date of the employee's demand for
a hearing, as provided. The bill would revise various procedures for
the conduct of those hearings. The bill would, among other things,
require the administrative law judge on the hearing panel to hold a
final status conference at least 7 calendar days before the hearing
is to commence, as provided. The bill would also delete the
prohibitions identified above relating to discovery and instead
require discovery to be completed at least 7 calendar days before the
final status conference, and would authorize the use of evidence
relating to matters that occurred more than 4 years ago in the
resolution of a charge of serious and egregious conduct, or with
respect to any charge, for purposes of rebuttal, impeachment, or
showing that notice was given. The bill would require the employee to
pay the expenses of the hearing, except as provided, if the hearing
panel determines that the employee's decision to demand a hearing was
a frivolous tactic that wasted public resources.
(4) Existing law declares any contract or agreement, express or
implied, made by an employee to waive certain benefits is null and
void, except or provided.
This bill would, notwithstanding that provision, authorize an
employee to waive certain due process rights as part of a contract or
agreement between the school district, the employee, and if
applicable, the employee's exclusive representative.
(5) 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 15 and September 15 in any year.
This bill would instead authorize the governing board of a school
district to give the notice at any time of year. The bill would also
require the governing board of a school district to provide a copy of
the notice to the collective bargaining unit representing the
employee within one week of serving notice to the employee. The bill
would require that a notice of the governing board of the school
district to an employee of its intention to dismiss or suspend the
employee, together with written charges filed or formulated pursuant
to those procedures, be sufficient to initiate a hearing, as
prescribed, and would prohibit the governing board of the school
district from being required to file or serve a separate accusation.
The bill would authorize the governing board of a school district to
amend written charges, as provided, and rescind the notice at any
time before the matter is submitted for decision.
(6) 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 of the school district, or its authorized
representative, has given the employee written notice, as specified.
This bill would delete those provisions and instead prohibit the
governing board from acting upon certain charges unless at least 30
workdays before the date of the filing of the charges the governing
board, or its authorized representative, has given the employee
written notice.
(7) Existing law prohibits information of a derogatory nature to
be entered into an employee's personnel records unless the employee
is given an opportunity to review and comment on that information.
This bill would, notwithstanding that provision, prohibit, among
other things, the governing board of a school district or its
authorized representative from amending, renewing, or entering into
an agreement that requires the removal from a school employees'
records any evidence of credible complaints, substantiated
investigations, or discipline relating to the school employee's
commission, or alleged commission, of serious and egregious conduct.
The bill would specify that provisions in the bill authorizing an
employee's waiver of his or her due process employment rights, as
provided, does not supersede these provisions.
(8) Existing law provides that a certificated employee may be
charged with a mandatory leave of absence offense for certain sex
offenses or controlled substance offenses 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 additionally authorize a certificated employee to
be charged with a mandatory leave of absence offense for the
commission of a violent or serious felony, as specified. Because this
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.
(9) This bill would also make conforming changes and numerous
nonsubstantive changes, and would delete obsolete references.
(10) 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.
Existing law prescribes requirements for the appointment of
members to a county board of education. Existing law specifies that
when any vacancy exists on the county board of education of any
county on or after December 1, 1978, the vacancy shall be filled in a
prescribed mannner.
This bill would delete the obsolete reference to the date in the
above provision prescribing requirements for the filling of vacancies
on a county board of education.
Vote: majority. Appropriation: no. Fiscal committee: no
yes . State-mandated local program: no
yes .
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 44030.5 of the
Education Code is amended to read:
44030.5. (a) The superintendent of a school district or county
office of education, or the administrator of a charter school,
employing a person with a credential shall report any change in the
employment status of the credentialholder to the commission not later
than 30 days after the change in employment status, if the
credentialholder, while working in a position requiring a credential,
and as a result of an allegation of misconduct or while an
allegation of misconduct is pending, is dismissed, is nonreelected,
resigns, is suspended or placed on unpaid administrative leave for
more than 10 days as a final adverse action, retires, or is otherwise
terminated by a decision not to employ or reemploy.
(b) For purposes of subdivision (a), a change of employment status
due solely to unsatisfactory performance pursuant to paragraph
(4) (6) of subdivision (a) of Section
44932 or a reduction in force pursuant to Sections 44955 to 44958,
inclusive, is not a result of an allegation of misconduct.
(c) The failure to make the report required by subdivision (a) is
unprofessional conduct and may subject the superintendent of the
school district or county office of education, or the administrator
of a charter school, to adverse action by the commission.
(d) (1) Notwithstanding Section 44030, refusing or willfully
neglecting to make the report required by subdivision (a) is a
misdemeanor, punishable by a fine of not less than five hundred
dollars ($500) or more than one thousand dollars ($1,000).
(2) All fines imposed pursuant to this subdivision are the
personal responsibility of the superintendent of the school district
or county office of education, or the administrator of a charter
school, and may not be paid or reimbursed with public funds.
SEC. 2. Section 44242.5 of the
Education Code is amended to read:
44242.5. (a) Each allegation of an act or omission by an
applicant for, or holder of, a credential for which he or she may be
subject to an adverse action shall be presented to the Committee of
Credentials.
(b) The committee has jurisdiction to commence an initial review
upon receipt of any of the following:
(1) (A) Official records of the Department of Justice, of a law
enforcement agency, of a state or federal court, and of any other
agency of this state or another state.
(B) For purposes of subparagraph (A), "agency of this state" has
the same meaning as that of "state agency" as set forth in Section
11000 of the Government Code.
(2) An affidavit or declaration signed by a person or persons with
personal knowledge of the acts alleged to constitute misconduct.
(3) (A) A statement from an employer notifying the commission
that, as a result of an allegation of misconduct, or while an
allegation of misconduct is pending, a credentialholder has been
dismissed, nonreelected, suspended for more than 10 days, or placed
pursuant to a final adverse employment action on unpaid
administrative leave for more than 10 days, or has resigned or
otherwise left employment.
(B) The employer shall provide the notice described in
subparagraph (A) to the commission not later than 30 days after the
dismissal, nonreelection, suspension, placement on unpaid
administrative leave, resignation, or departure from employment of
the employee.
(C) For purposes of subparagraphs (A) and (B), a change in status
due solely to unsatisfactory performance pursuant to paragraph
(4) (6) of subdivision (a) of Section
44932 or a reduction in force pursuant to Sections 44955 to 44958,
inclusive, is not a result of an allegation of misconduct.
(4) A notice from an employer that a complaint was filed with the
school district alleging sexual misconduct by a credentialholder.
Results of an investigation by the committee based on this paragraph
shall not be considered for action by the committee unless there is
evidence presented to the committee in the form of a written or oral
declaration under penalty of perjury that confirms the personal
knowledge of the declarant regarding the acts alleged to constitute
misconduct.
(5) A notice from a school district, employer, public agency, or
testing administrator of a violation of Section 44420, 44421.1,
44421.5, or 44439.
(6) (A) An affirmative response on an application submitted to the
commission as to any conviction, adverse action on, or denial of, a
license, or pending investigation into a criminal allegation or
pending investigation of a noncriminal allegation of misconduct by a
governmental licensing entity.
(B) Failure to disclose any matter set forth in subparagraph (A).
(c) An initial review commences on the date that the written
notice is mailed to the applicant or credentialholder that his or her
fitness to hold a credential is under review. Upon commencement of a
formal review pursuant to Section 44244, the committee shall
investigate all alleged misconduct and the circumstances in
mitigation and aggravation. The investigation shall include, but not
be limited to, all of the following:
(1) Investigation of the fitness and competence of the applicant
or credentialholder to perform the duties authorized by the
credential for which he or she has applied or that he or she
presently holds.
(2) Preparation of a summary of the applicable law, a summary of
the facts, contested and uncontested, and a summary of any
circumstances in aggravation or mitigation of the allegation.
(3) Determination of probable cause for an adverse action on the
credential. If the allegation is for unprofessional or immoral
conduct, the committee, in any formal review conducted pursuant to
Section 44244 to determine probable cause, shall permit the employer
of the credentialholder to be present while testimony is taken. If
the allegation of unprofessional or immoral conduct involves sexual
abuse, the employer shall be examined in the meeting for any relevant
evidence relating to the sexual abuse.
(A) If the committee determines that probable cause for an adverse
action does not exist, the committee shall terminate the
investigation.
(B) If the committee determines that probable cause for an adverse
action on the credential exists, upon receipt of a request from an
applicant or a credentialholder pursuant to Section 44244.1, the
commission shall initiate an adjudicatory hearing, as prescribed by
Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of
Title 2 of the Government Code, by filing an accusation or statement
of issues.
(d) The committee has jurisdiction to commence a formal review
pursuant to Section 44244 upon receipt of any of the following:
(1) (A) Official records of a state or federal court that reflect
a conviction or plea, including a plea of nolo contendere, to a
criminal offense or official records of a state court that adjudge a
juvenile to be a dependent of the court pursuant to Section 300 of
the Welfare and Institutions Code due to allegations of sexual
misconduct or physical abuse by a credentialholder or applicant.
(B) Nothing in subparagraph (A) shall be construed to relieve the
commission from the confidentiality provisions, notice, and due
process requirements set forth in Section 827 of the Welfare and
Institutions Code.
(2) An affidavit or declaration signed by a person or persons with
personal knowledge of the acts alleged to constitute misconduct.
(3) A statement described in paragraph (3) of subdivision (b).
(4) Official records of a governmental licensing entity that
reflect an administrative proceeding or investigation, otherwise
authorized by law or regulation, which has become final.
(5) A notice described in paragraph (5) of subdivision (b).
(6) A response or failure to disclose, as described in paragraph
(6) of subdivision (b).
(e) (1) Upon completion of its investigation, the committee shall
report its actions and recommendations to the commission, including
its findings as to probable cause, and if probable cause exists, its
recommendations as to the appropriate adverse action.
(2) The findings shall be available, upon its request, to the
employing or last known employing school district, or, if adverse
action is recommended by the committee and the credentialholder has
not filed a timely appeal of the recommendation of the committee
pursuant to Section 44244.1, upon a request made within five years of
the date of the committee's recommendations to a school district
providing verification that the credentialholder has applied for
employment in the school district. The findings, for all purposes,
shall remain confidential and limited to school district personnel in
a direct supervisory capacity in relation to the person
investigated. Any person who otherwise releases findings received
from the committee or the commission, absent a verified release
signed by the person who is the subject of the investigation, shall
be guilty of a misdemeanor.
(3) The findings shall not contain any information that reveals
the identity of persons other than the person who is the subject of
the investigation.
(f) (1) Except as provided in paragraph (2) and, notwithstanding
subdivision (b), for purposes of determining whether jurisdiction
exists under subdivision (b), the commission, in accordance with
Section 44341, may make inquiries and requests for production of
information and records only from the Department of Justice, a law
enforcement agency, a state or federal court, and a licensing agency
of this state or a licensing agency of another state.
(2) For purposes of determining whether jurisdiction exists,
paragraph (1) does not apply to release of personnel records.
SEC. 3. Section 44930 of the Education
Code is amended to read:
44930. (a) Governing boards of school districts
Subject to Section 44930.5, the governing board of a
school district shall accept the resignation of any employee
and shall fix the time when the resignation takes effect, which,
except as provided by subdivision (b), shall not be later than the
close of the school year during which the resignation has been
received by the board. governing board of the
school district.
(b) Notwithstanding any other provision of law,
but subject to Section 44930.5, an employee and the
governing board of a school district may agree that a resignation
will be accepted at a mutually agreed upon date not later than two
years beyond the close of the school year during which the
resignation is received by the board.
governing board of the school district.
SEC. 4. Section 44930.5 is added to the
Education Code , to read:
44930.5. Notwithstanding any other law, on or after January 1,
2015, the governing board of a school district or its authorized
representative shall not amend, renew, or enter into an agreement
that does either of the following:
(a) Requires the removal from a school employee's records any
evidence of credible complaints, substantiated investigations, or
discipline relating to the school employee's commission of, or
alleged commission of, serious and egregious conduct, as described in
Section 44932. This prohibition does not preclude the removal of
documents containing unfounded, erroneous, or false allegations from
a school employee's permanent personnel file, as otherwise required
by law.
(b) Prevents an employee of the school district from complying
with the requirements of Section 44947 or prevents an employee of the
school district from sending to the Commission on Teacher
Credentialing a report, including, but not limited to, a report
mandated by Section 44030.5, of any change in employment status of a
school district employee alleged to have engaged in serious and
egregious conduct. For purposes of this section, a change in
employment status includes, but is not limited to, dismissal,
nonreelection, resignation, suspension or placement on administrative
leave for more than 10 days as a final adverse action, retirement,
or termination by a decision not to employ or reemploy.
SEC. 5. Section 44932 of the Education
Code is amended to read:
44932. (a) No A permanent employee
shall not be dismissed except for one or more of the
following causes:
(1) Immoral or unprofessional conduct.
(2) Unprofessional conduct, including, but not limited to,
excessive absences, excessive tardiness, and insubordination.
(3) Serious and egregious conduct as specified in subdivision (b).
(2)
(4) 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
to that chapter .
(3)
(5) Dishonesty.
(4)
(6) Unsatisfactory performance.
(5)
(7) Evident unfitness for service.
(6)
(8) Physical or mental condition unfitting him or her
to instruct or associate with children.
(7)
(9) 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 State Board of
Education state board or by the governing board
of the school district employing him or her.
(8)
(10) Conviction of a felony or of any crime involving
moral turpitude.
(9) Violation of Section 51530 or conduct specified in Section
1028 of the Government Code, added by Chapter 1418 of the Statutes of
1947.
(10) Knowing membership by the employee in the Communist Party.
(11) Alcoholism or other drug abuse which 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 any school district which has
adopted a collective bargaining agreement pursuant to subdivision (b)
of Section 3543.2 of the Government Code.
(b) For purposes of this section, "serious and egregious conduct"
means any of the following:
(1) Any offense defined in Section 44010 or 44011.
(2) Any offense defined in Section 187 or 206 of, or Sections
11165.1 to 11165.6, inclusive, of, the Penal Code.
(3) Any offense under state or federal law that is punishable by
death or life imprisonment without the possibility of parole.
SEC. 6. Section 44932.5 is added to the
Education Code , to read:
44932.5. (a) The governing board of a school district may suspend
without pay for more than 30 workdays 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, and on the grounds listed in Section 44932 or
44933. This authorization shall not apply to any school district that
has adopted a collective bargaining agreement pursuant to
subdivision (b) of Section 3543.2 of the Government Code.
(b) The governing board of a school district may suspend without
pay for up to 30 workdays a permanent certificated employee, or in a
school district with an average daily attendance of less than 250
pupils, a probationary employee, in accordance with the procedures
specified in Chapter 5 (commencing with Section 11500) of Part 1 of
Division 3 of Title 2 of the Government Code.
SEC. 7. Section 44934 of the Education
Code is amended to read:
44934. (a) Upon the filing of written
charges, duly signed and verified by the person filing them, with the
governing board of the a school
district, or upon a written statement of charges formulated by the
governing board, board of a school district,
charging that there exists cause, as specified in Section 44932
or 44933, for the dismissal or suspension for more than 30
workdays of a permanent employee of the district, the governing
board of the school district may, upon majority vote,
except as provided in this article if it deems the action necessary,
give notice to the permanent employee of its intention to dismiss
him or her or suspend him or her for more than 30
workdays at the expiration of 30 days from the date of service
of the notice, unless the employee demands a hearing as provided in
this article. Suspension proceedings
Proceedings for suspensions for more than 30 workdays may be
initiated pursuant to this section only if the governing board
of the school district has not adopted a collective bargaining
agreement pursuant to subdivision (b) of Section 3543.2 of the
Government Code.
Any
(b) Any written statement of
charges of unprofessional conduct or unsatisfactory
performance shall specify instances of behavior and the
acts or omissions constituting the charge so that the teacher will be
able to prepare his or her defense. It shall, where applicable,
state the statutes and rules which that
the teacher is alleged to have violated, but it shall also
set forth the facts relevant to each occasion of alleged
unprofessional conduct or unsatisfactory performance.
violated.
(c) A notice by the governing board of a school district to an
employee of its intention to dismiss him or her or suspend him or her
for more than 30 workdays, together with written charges filed or
formulated pursuant to this section, shall be sufficient to initiate
a hearing pursuant to Section 11503 of the Government Code, and the
governing board of the school district shall not be required to file
or serve a separate accusation.
(d) The governing board of a school district may amend written
charges pursuant to Sections 11507 and 11516 of the Government Code.
This
(e) This section shall also apply
to the suspension of probationary employees for more than 30
workdays in a school district with an average daily attendance
of less than 250 pupils which that has
not adopted a collective bargaining agreement pursuant to subdivision
(b) of Section 3542.2 of the Government Code.
SEC. 8. Section 44936 of the Education
Code is amended to read:
44936. (a) The notice of dismissal or
suspension for more than 30 workdays in a proceeding
initiated pursuant to Section 44934 shall not be given
between May 15th and September 15th in any may be
given at any time of year. It shall be in writing and be served
upon the employee personally or by United States registered mail
addressed to him the employee at his
or her 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. No additional
documentation shall be required to notice the employee. A copy of the
notice shall also be sent to the collective bargaining unit that
represents the employee wit hin one week of serving the
employee with the notice of dismissal or suspension for more than 30
workdays.
(b) An employee who demands a hearing within 30 days after service
of the notice dismissal or suspension for more than 30 workdays
shall file a notice of defense, as described in Sections 11505 and
11506 of the Government Code.
SEC. 9. Section 44937 of the Education
Code is amended to read:
44937. In a proceeding for a dismissal or suspension
proceeding for more than 30 workdays
initiated pursuant to Section 44934, if the employee does not demand
a hearing by filing a written request for hearing with the governing
board, he or she may be dismissed or he or she may be
suspended without pay for a specific period of time for more
than 30 workdays at the expiration of the 30-day period.
SEC. 10. Section 44938 of the Education
Code is amended to read:
44938. (a) The governing board of any a
school district shall not act upon any charges of
unprofessional conduct initiated pursuant to paragraph
(2), (6), or (9) of subdivision (a) of Section 44932, or Section
44933 unless at least 45 calendar days prior to
30 workdays before the date of the filing, the
governing board of the school district or its
authorized representative has given the employee against whom the
charge is filed, written notice of the unprofessional
conduct, co nduct leading to the charges,
specifying the nature thereof of the
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
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 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 the
beginning of that time period, the 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 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" as used in this section means,
and refers only to, the unsatisfactory performance particularly
specified as a cause for dismissal in Section 44932 and does not
include any other cause for dismissal specified in Section 44932.
"Unprofessional conduct" as used in this section means, and refers
to, the unprofessional conduct particularly specified as a cause for
dismissal or suspension in Sections 44932 and 44933 and does not
include any other cause for dismissal specified in Section 44932.
(b) For purposes of this section, "workday" means any day that
the employee is normally expected to work, regardless of whether he
or she actually does work.
SEC. 11. Section 44939 of the Education
Code is amended to read:
44939. Upon the filing of written charges,
charges pursuant to paragraph (1), (3), (4), (5), (7), (8),
(10), or (11) of subdivision (a) of Section 44932, duly signed
and verified by the person filing them with the governing board of a
school district, or upon a written statement of charges pursuant
to paragraph (1), (3), (4), (5), (7), (8), (10), or (11) of
subdivision (a) of Section 44932 formulated by the governing
board, charging board of a school district,
to dismiss a permanent employee of the district with
immoral conduct, conviction of a felony or of any crime involving
moral turpitude, with incompetency due to mental disability, with
willful refusal to perform regular assignments without reasonable
cause, as prescribed by reasonable rules and regulations of the
employing school district, with violation of Section 51530, with
knowing membership by the employee in the Communist Party or with
violation of any provision in Sections 7001 to 7007, inclusive,
school district, the governing board of the
school district may, if it deems such
the action necessary, immediately suspend the employee from his
or her duties and give notice to him
the permanent employee of his or her
suspension, and that 30 days after service of the notice, he
the permanent employee will be dismissed,
unless he or she demands a hearing.
If the permanent employee is suspended upon charges of knowing
membership by the employee in the Communist Party or for any
violation of Section 7001, 7002, 7003, 7006, 7007, or 51530, he may
within 10 days after service upon him of notice of such suspension
file with the governing board a verified denial, in writing, of the
charges. In such event the permanent employee who demands a hearing
within the 30-day period shall continue to be paid his regular salary
during the period of
suspension and until the entry of the decision of the Commission on
Professional Competence, if and during such time as he furnishes to
the school district a suitable bond, or other security acceptable to
the governing board, as a guarantee that the employee will repay to
the school district the amount of salary so paid to him during the
period of suspension in case the decision of the Commission on
Professional Competence is that he shall be dismissed. If it is
determined that the employee may not be dismissed, the school board
shall reimburse the employee for the cost of the bond.
SEC. 12. 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 any sex offense as defined in
Section 44010, or with the commission of any
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 Section Sections
11054, 11055, and 11056 of the Health and Safety Code, with the
exception of marijuana, mescaline, peyote, or
tetrahydrocannabinols. tetrahydrocannabinols, or with
the commission of a violent or serious felony, as listed in
subdivision (c) of Section 667.5 of, or subdivision (c) of Section
1192.7 of, the Penal Code.
(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 any controlled substance offense as defined
in Section 44011 or 87011, or a violation or attempted violation of
Section 187 of the Penal Code, or Sections 11357 to 11361, inclusive,
Section of, or Section 11363, 11364,
or 11370.1 of , the Health and Safety Code, insofar as
these sections relate to any controlled substances except marijuana,
mescaline, peyote, or tetrahydrocannabinols.
(c) For purposes of this section and Section 44940.5, the term
"school district" includes county offices of education.
(d) (1) Whenever any If a
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 certificated
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 notice of the
judgment in the proceedings. proceedings has
been received by the school district. 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 a 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 notice of the
judgment in the proceedings. proceedings has
been received by the Commission on Teacher Credentialing.
(e) (1) Whenever any If a
certificated employee of a school district is charged with an
optional leave of absence offense as defined in subdivision (b), the
governing board of the school district may immediately place the
certificated employee upon compulsory leave in accordance with
the procedure in this section and Section 44940.5. If any
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 a 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 notice of the
judgment in the proceedings. proceedings has
been received by the school district.
SEC. 13. Section 44941 of the Education
Code is repealed.
44941. The notice of suspension and intention to dismiss, shall
be in writing and be served upon the employee personally or by United
States registered mail addressed to the employee at his 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. If the employee does not demand a hearing within the 30-day
period, he may be dismissed upon the expiration of 30 days after
service of the notice.
SEC. 14. Section 44943 of the Education
Code is amended to read:
44943. When any employee who has been served with
The governing board may, without prejudice, rescind a
notice served pursuant to Section 44934 of
the governing board's intention to dismiss or suspend him or her
demands a hearing, the governing board shall have the option either
(a) to rescind its action, or (b) schedule a hearing on the matter.
at any time before the matter is submitted for
decision.
SEC. 15. Section 44944 of the Education
Code is amended to read:
44944. (a) (1) In a proceeding for dismissal or
suspension proceeding for more than 30
workdays initiated pursuant to Section 44934, if a hearing is
requested by the employee, the hearing matter
shall be commenced within 60 days
submitted for decision within 12 months from the date of the
employee's demand for a hearing. The hearing
administrative law judge on the hearing panel may grant extensions
beyond 12 months for good cause, and shall grant extensions beyond 12
months upon a stipulation by all parties.
(2) 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 hearing panel 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 pursuant to
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 at least 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. final
status conference required by subdivision (b).
(2)
(3) (A) If the right of discovery
granted under paragraph (1) (2) is
denied by either the employee or the governing board, all of the
remedies specified 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)
(B) The time periods specified 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.
(C) Delays incurred pursuant to this paragraph shall not count
toward the deadline by which the matter must be submitted for
decision required by paragraph (1).
(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.
(5) No A witness shall not
be permitted to testify at the hearing except upon oath or
affirmation. No testimony shall Testimony
shall not be given or evidence introduced relating to matters
that occurred more than four years prior to
before 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. notice unless
it is relevant to the resolution of a charge pursuant to paragraph
(3) of subdivision (a) of Section 449 32 or, with respect
to any charge, it is relevant for purposes of rebuttal, impeachment
of a witness, or showing that notice was given.
(b) The administrative law judge on the hearing panel shall hold a
final status conference at least seven calendar days before the
hearing is to commence to rule on procedural matters, including, but
not limited to, challenges to the qualifications of members of the
Commission on Professional Competence, as specified in paragraph (2)
of subdivision (c), if applicable, discovery disputes, and other
procedural motions. The administrative law judge on the hearing panel
may require other status or case management conferences as
necessary.
(b) (1) The hearing provided for in this section shall be
conducted by
(c) (1) If the
employee is charged with a charge pursuant to paragraph (2), (6), or
(9) of subdivision (a) of Section 44932, a Commission on
Professional Competence. Competence shall
conduct the hearing provided for in this section and shall comprise
the hearing panel. One member of the commission
Commission on Professional Competence shall be
selected by the employee, one member shall be selected by the
governing board, and one the third
member shall be an administrative law judge of the Office of
Administrative Hearings who shall be chairperson and
of the Commission on Professional Competence, a
voting member of the commission Commission on
Professional Competence, and shall be
responsible for assuring performing all
duties required of an administrative law judge by this article,
ruling on procedural motions, and 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 Commission on Professional
Competence member at least seven 30
calendar days prior to before 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) (A) 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 three
years' experience within the past 10 years in the elementary or
secondary grade level discipline of the employee.
(B) For purposes of subparagraph (A), "elementary grade level"
means kindergarten and grades 1 to 6, inclusive, and "secondary grade
level" means grades 7 to 12, inclusive.
(3) If an employee is charged with a charge pursuant to paragraph
(1), (3), (4), (5), (7), (8), (10), or (11) of subdivision (a) of
Section 44932, the hearing panel shall be comprised solely of an
administrative law judge of the Office of Administrative Hearings.
(c) (1) The
(d) (1) For a
charge pursuant to paragraph (2), (6), or (9) of subdivision (a) of
Section 44932, or Section 44933, the decision of the Commission
on Professional Competence shall be made by a majority
vote, and the commission shall vote. For all other
charges, the decision shall be made solely by the administrative law
judge.
(2) The hearing panel 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)
(3) The decision of the Commission on
Professional Competence hearing panel that the
employee should not be dismissed or suspended shall not be based on
nonsubstantive procedural errors committed by the school district or
the governing board unless the errors are prejudicial
errors.
(3)
(4) The commission hearing panel
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)
(5) The decision of the Commission on
Professional Competence hearing panel
shall be deemed to be the final decision of the governing board.
(5)
(6) 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)
(7) The governing board and the employee shall have the
right to be represented by counsel. counsel
before the hearing panel.
(d)
(e) (1) If the Commission on Professional
Competence 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. Commission on Professional Competence.
(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)
(f) (1) If the Commission on Professional
Competence hearing panel determines that the
employee should be dismissed or suspended, the governing board
and the employee shall share equally
pay 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),
(e), and, if the Commission on Professional Competence comprises
the hearing panel, the reasonable expenses, as determined by
the administrative law judge, judge on the
hearing panel, or another administrative law judge assigned by the
Office of Administrative Hearings, 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 to the state 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
hearing panel 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), (e), and, if the Commission on
Professional Competence co mprises the hearing panel,
the reasonable expenses, as determined by the administrative
law judge, judge on the hearing panel,
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.
The governing board and the employee shall pay their own attorney's
fees.
(3) Notwithstanding paragraph (1), the employee shall pay all the
expenses identified in paragraph (1), except the governing board's
attorney fees, if the hearing panel determines that the employee's
decision to demand a hearing was a frivolous tactic that wasted
public resources.
(3)
(4) As used in this section, "reasonable expenses"
shall not be deemed "compensation" within the meaning of subdivision
(d) (e) .
(4)
(5) If either the governing board or the employee
petitions a court of competent jurisdiction for review of the
decision of the commission, Commission on
Professional Competence, the payment of expenses to members of
the commission Commission on Professional
Competence required by this subdivision shall not be stayed.
(5) (A)
(6) If the decision of the commission
Commission on Professional Competence is finally
reversed or vacated by a court of competent jurisdiction, either the
state, having paid the commission Commission
on Professional Competence 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
(g) If the employee is charged with a
charge pursuant to paragraph (2), (6), or (9) of subdivision (a) of
Section 44932, or Section 44933, the hearing provided for in
this section shall be conducted in a place selected by agreement
among the members of the commission. In the absence of
agreement, hearing panel. For all other hearings,
the place shall be selected by the administrative law judge
on the hearing panel .
SEC. 16. Section 44944.5 is added to the
Education Code , to read:
44944.5. Notwithstanding Section 44924, an employee may waive his
or her due process rights afforded pursuant to this article as part
of a contract or agreement between the school district, the employee,
and if applicable, the employee's exclusive representative. Nothing
in this section shall supersede the requirements of Section 44930.5.
SEC. 17. Section 44945 of the Education
Code is amended to read:
44945. The decision of the Commission on Professional
Competence hearing panel 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. 18. Section 44947 of the Education
Code is amended to read:
44947. If an employee is dismissed for immoral conduct
or conviction of a felony or crime involving moral turpitude,
based on a charge pursuant to paragraph (1), (3), (4),
(5), (7), (8), (10), or (11) of subdivision (a) of Section 44932,
the governing board shall transmit to the Commission on Teacher
Credentialing and to the county board of education which
that issued the certificate under which the
employee was serving at the time of his dismissal, a copy of the
reporter's transcript of the hearing accompanied by a request that
any certificate issued by the county board of education to the
employee be revoked if the employee is not reinstated upon appeal.
SEC. 19. 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.
SECTION 1. Section 1008 of the Education Code
is amended to read:
1008. If a vacancy exists on the county board of education of any
county , the vacancy shall be filled in the manner prescribed in
Article 3 (commencing with Section 5090) of Chapter 1 of Part 4.