BILL NUMBER: SB 1164 INTRODUCED
BILL TEXT
INTRODUCED BY Senator Liu
FEBRUARY 20, 2014
An act to amend Sections 44932, 44936, 44939, 44940, and 44944 of
the Education Code, relating to school employees.
LEGISLATIVE COUNSEL'S DIGEST
SB 1164, as introduced, Liu. School employees: discipline:
dismissal and suspension.
(1) Existing law prohibits a permanent school employee from being
dismissed except for one or more specified reasons, including, among
others, knowing membership in the Communist Party.
This bill would delete knowing membership in the Communist Party
as a reason for which a permanent employee may be dismissed.
(2) Existing law authorizes a governing board of a school
district to give notice to a permanent employee of its intention to
dismiss or suspend him or her for specified causes at the expiration
of 30 days from the date of service of the notice, unless the
employee demands a hearing. Existing law prohibits that notice from
being given between May 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, except for a notice
in a proceeding involving only charges of unsatisfactory
performance, which the bill would require to be given during the
instructional year of the schoolsite at which the employee is
physically employed.
(3) Existing law prescribes various procedures for the hearing,
including, among others, a prohibition against the giving of
testimony or the introduction of evidence relating to matters
occurring more than 4 years prior to the filing of a notice. Existing
law further prohibits any decision relating to the dismissal or
suspension of any employee from being made based on charges or
evidence of any nature relating to matters occurring more than 4
years prior to the filing of a notice.
This bill would exempt charges of unprofessional conduct involving
specified sex offenses, substance abuse offenses, and child
endangerment offenses from these prohibitions.
(4) Existing law provides that a certificated employee may be
charged with a mandatory leave of absence offense for certain
specified sex offenses or controlled substance offenses with the
exception of marijuana, mescaline, peyote, or tetrahydrocannabinols.
Existing law 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 murder and
attempted murder. 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.
(5) This bill would also make conforming and nonsubstantive
changes.
(6) The California Constitution requires the state to reimburse
local agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that, if the Commission on State Mandates
determines that the bill contains costs mandated by the state,
reimbursement for those costs shall be made pursuant to these
statutory provisions.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 44932 of the Education Code is amended to read:
44932. (a) No A permanent employee
shall not be dismissed except for one or more of the
following causes:
(1) Immoral or unprofessional conduct.
(2) 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) Dishonesty.
(4) Unsatisfactory performance.
(5) Evident unfitness for service.
(6) Physical or mental condition unfitting him or her to instruct
or associate with children.
(7) 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) Conviction of a felony or of any a
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)
(10) Alcoholism or other drug abuse which
that 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 a
school district which that has adopted
a collective bargaining agreement pursuant to subdivision (b) of
Section 3543.2 of the Government Code.
SEC. 2. Section 44936 of the Education Code is amended to read:
44936. (a) The notice of dismissal or
suspension in a proceeding initiated pursuant to Section 44934
shall not be given between May 15th and September 15th in
any year. It may be given at any time of year.
(b) Notwithstanding subdivision (a), in a proceeding initiated
pursuant to Section 44934 involving only charges of unsatisfactory
performance, the notice of dismissal or suspension shall only be
given during the instructional year of the schoolsite where the
employee is physically employed.
(c) The notice of dismissal or
suspension 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.
SEC. 3. Section 44939 of the Education Code is amended to read:
44939. (a) Upon the filing of written
charges, duly signed and verified by the person filing them with the
governing board of a school district, or upon a written statement of
charges formulated by the governing board,
board of a school district, charging a permanent employee of
the district with immoral conduct, conviction of a felony or of
any a crime involving moral turpitude,
with incompetency due to mental disability, or with
willful refusal to perform regular assignments without reasonable
cause, as prescribed by reasonable rules and regulations of the
employing school district, or 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, 51530, the governing board
of the school district may, if it deems such action
necessary, immediately suspend the employee from his or her
duties and give notice to him the
employee of his or her suspension, and that 30 days
after service of the notice, he the employee
will be dismissed, unless he or she demands a
hearing.
If
(b) 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 for a violation of
Section 51530, the employee may within 10 days after service
upon him or her of notice of such
the suspension file with the governing board of the school
district a verified denial, in writing, of the charges. In
such that event the permanent employee
who demands a hearing within the 30-day period shall continue to be
paid his or her 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
the time that the employee furnishes to the
school district a suitable bond, or other security acceptable to the
governing board, board of the school
district, as a guarantee that the employee will repay to the
school district the amount of salary so paid to him or her
during the period of suspension in case the decision of the
Commission on Professional Competence is that he
the employee shall be dismissed. If it is determined that
the employee may not be dismissed, the school
governing board of the school district shall
reimburse the employee for the cost of the bond.
SEC. 4. Section 44940 of the Education Code is amended to read:
44940. (a) For purposes of this section, "charged with a
mandatory leave of absence offense" is defined to mean charged by
complaint, information, or indictment filed in a court of competent
jurisdiction with the commission of any sex offense as defined in
Section 44010, with a violation or attempted violation of
Section 187 of the Penal Code, 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.
(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, of this
code, or Sections 11357 to 11361, inclusive, 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 of the judgment in the proceedings. No later than
10 days after receipt of the complaint, information, or indictment
described by subdivision (a), the school district shall forward a
copy to the Commission on Teacher Credentialing.
(2) Upon receiving a copy of a complaint, information, or
indictment described in subdivision (a) and forwarded by 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 of the judgment in the proceedings.
(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 on
compulsory leave in accordance with the procedure in this section and
Section 44940.5. If any a 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 certificated employee's teaching or service
credential. The duration of the suspension shall be until a time not
more than 10 days after the date of entry of the judgment in the
proceedings.
SEC. 5. Section 44944 of the Education Code is amended to read:
44944. (a) (1) In a dismissal or suspension proceeding initiated
pursuant to Section 44934, if a hearing is requested by the employee,
the hearing shall be commenced within 60 days from the date of the
employee's demand for a hearing. The hearing shall be initiated,
conducted, and a decision made in accordance with Chapter 5
(commencing with Section 11500) of Part 1 of Division 3 of Title 2 of
the Government Code. However, the hearing date shall be established
after consultation with the employee and the governing board, or
their representatives, and the Commission on Professional Competence
shall have all of the power granted to an agency in that chapter,
except that the right of discovery of the parties shall not be
limited to those matters set forth in Section 11507.6 of the
Government Code but shall include the rights and duties of any party
in a civil action brought in a superior court under Title 4
(commencing with Section 2016.010) of Part 4 of the Code of Civil
Procedure. Notwithstanding any provision to the contrary, and except
for the taking of oral depositions, no discovery shall occur later
than 30 calendar days after the employee is served with a copy of the
accusation pursuant to Section 11505 of the Government Code. In all
cases, discovery shall be completed prior to seven calendar days
before the date upon which the hearing commences. If any continuance
is granted pursuant to Section 11524 of the Government Code, the time
limitation for commencement of the hearing as provided in this
subdivision shall be extended for a period of time equal to the
continuance. However, the extension shall not include that period of
time attributable to an unlawful refusal by either party to allow the
discovery provided for in this section.
(2) If the right of discovery granted under paragraph (1) is
denied by either the employee or the governing board , all
of the remedies in Chapter 7 (commencing with Section 2023.010) of
Title 4 of Part 4 of the Code of Civil Procedure shall be available
to the party seeking discovery and the court of proper jurisdiction,
to entertain his or her motion, shall be the superior court of the
county in which the hearing will be held.
(3) The time periods in this section and of Chapter 5 (commencing
with Section 11500) of Part 1 of Division 3 of Title 2 of the
Government Code and of Title 4 (commencing with Section 2016.010) of
Part 4 of the Code of Civil Procedure shall not be applied so as to
deny discovery in a hearing conducted pursuant to this section.
(4) The superior court of the county in which the hearing will be
held may, upon motion of the party seeking discovery, suspend the
hearing so as to comply with the requirement of the
preceding paragraph. paragraph (3).
(5) No witness
(5) (A) A witness
shall not be permitted to testify at the hearing
except upon oath or affirmation. No testimony
(B) Testimony shall not
be given or and evidence
shall not be introduced relating to matters that occurred more
than four years prior to before the
date of the filing of the notice. Evidence
notice, except for in a hearing that involves an offense defined or
described in Section 44010 or 44011 of this code, or Sections 11165.2
to 11165.6, inclusive, of the Penal Code.
(C) 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 an employee shall be made based
on charges or evidence of any nature relating to matters occurring
more than four years prior to before the
filing of the notice. notice, except for in
a hearing that involves an offense defined or described in Section
44010 or 44011 of this code, or Sections 11165.2 to 11165.6,
inclusive, of the Penal Code.
(b) (1) The hearing provided for in this section shall be
conducted by a Commission on Professional Competence. One member of
the commission shall be selected by the employee, one member shall be
selected by the governing board and one member shall be an
administrative law judge of the Office of Administrative Hearings who
shall be chairperson and a voting member of the commission and shall
be responsible for assuring that the legal rights of the parties are
protected at the hearing. If either the governing board or the
employee for any reason fails to select a commission member at least
seven calendar days prior to 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
the governing board, the selection shall be made by the
Superintendent, who shall be reimbursed by the school district for
all costs incident to the selection.
(2) The member selected by the governing board and the member
selected by the employee shall not be related to the employee and
shall not be employees of the district initiating the dismissal or
suspension and shall hold a currently valid credential and have at
least five years' experience within the past 10 years in the
discipline of the employee.
(c) (1) The decision of the Commission on Professional Competence
shall be made by a majority vote, and the commission shall prepare a
written decision containing findings of fact, determinations of
issues, and a disposition that shall be, solely, one of the
following:
(A) That the employee should be dismissed.
(B) That the employee should be suspended for a specific period of
time without pay.
(C) That the employee should not be dismissed or suspended.
(2) The decision of the Commission on Professional
Competence commis sion that the
employee should not be dismissed or suspended shall not be based on
nonsubstantive procedural errors committed by the school district or
governing board unless the errors are prejudicial errors.
(3) The commission shall not have the power to dispose of the
charge of dismissal by imposing probation or other alternative
sanctions. The imposition of suspension pursuant to subparagraph (B)
of paragraph (1) shall be available only in a suspension proceeding
authorized pursuant to subdivision (b) of Section 44932 or Section
44933.
(4) The decision of the Commission on Professional
Competence commission shall be deemed to be the
final decision of the governing board.
(5) The board governing board may
adopt from time to time rules and procedures not inconsistent with
this section as may be necessary to effectuate this section.
(6) The governing board and the employee shall have the right to
be represented by counsel.
(d) (1) If the member selected by the governing board or the
member selected by the employee is employed by any school district in
this state, the member shall, during any service on a Commission on
Professional Competence, continue to receive salary, fringe benefits,
accumulated sick leave, and other leaves and benefits from the
district in which the member is employed, but shall receive no
additional compensation or honorariums for service on the commission.
(2) If service on a Commission on Professional Competence
commission occurs during summer recess or
vacation periods, the member shall receive compensation proportionate
to that received during the current or immediately preceding
contract period from the member's employing district, whichever
amount is greater.
(e) (1) If the Commission on Professional Competence determines
that the employee should be dismissed or suspended, the governing
board and the employee shall share equally the expenses of the
hearing, including the cost of the administrative law judge. The
state shall pay any costs incurred under paragraph (2) of subdivision
(d), the reasonable expenses, as determined by the administrative
law judge, of the member selected by the governing board and the
member selected by the employee, including, but not limited to,
payments or obligations incurred for travel, meals, and lodging, and
the cost of the substitute or substitutes, if any, for the member
selected by the governing board and the member selected by the
employee. The Controller shall pay all claims submitted pursuant to
this paragraph from the General Fund, and may prescribe reasonable
rules, regulations, and forms for the submission of the claims. The
employee and the governing board shall pay their own attorney's fees.
(2) If the Commission on Professional Competence
commission determines that the employee should
not be dismissed or suspended, the governing board shall pay the
expenses of the hearing, including the cost of the administrative law
judge, any costs incurred under paragraph (2) of subdivision (d),
the reasonable expenses, as determined by the administrative law
judge, of the member selected by the governing board and the member
selected by the employee, including, but not limited to, payments or
obligations incurred for travel, meals, and lodging, the cost of the
substitute or substitutes, if any, for the member selected by the
governing board and the member selected by the employee, and
reasonable attorney's fees incurred by the employee.
(3) As used in this section, "reasonable expenses" shall not be
deemed "compensation" within the meaning of subdivision (d).
(4) If either the governing board or the employee petitions a
court of competent jurisdiction for review of the decision of the
commission, the payment of expenses to members of the commission
required by this subdivision shall not be stayed.
(5) (A) If the decision of the commission is finally reversed or
vacated by a court of competent jurisdiction, either the state,
having paid the commission members' expenses, shall be entitled to
reimbursement from the governing board for those expenses, or the
governing board, having paid the expenses, shall be entitled to
reimbursement from the state.
(B) Additionally, either the employee, having paid a portion of
the expenses of the hearing, including the cost of the administrative
law judge, shall be entitled to reimbursement from the governing
board for the expenses, or the governing board having paid its
portion and the employee's portion of the expenses of the hearing,
including the cost of the administrative law judge, shall be entitled
to reimbursement from the employee for that portion of the expenses.
(f) The hearing provided for in this section shall be conducted in
a place selected by agreement among the members of the
commission Commission on Professional Competence
. In the absence of agreement, the place shall be selected by the
administrative law judge.
SEC. 6. If the Commission on State Mandates determines that this
act contains costs mandated by the state, reimbursement to local
agencies and school districts for those costs shall be made pursuant
to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of
the Government Code.