BILL ANALYSIS Ó
AB 1044
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Date of Hearing: April 29, 2015
ASSEMBLY COMMITTEE ON EDUCATION
Patrick O'Donnell, Chair
AB 1044
(Baker) - As Introduced February 26, 2015
SUBJECT: School employees: reduction in workforce
SUMMARY: Requires, by July 1, 2018, school districts to adopt
layoff policies that include a teacher's evaluation rating as a
significant factor in determining the order of dismissal.
Specifically, this bill:
1)Requires, by July 1, 2018, each governing board of a school
district, in consultation with the exclusive representative of
the certificated staff, if any, to adopt policies regarding
the dismissal of permanent and probationary employees when a
reduction in workforce is required due to declining enrollment
or insufficient funding to be used commencing with the 2018-19
school year.
2)Requires policies adopted to include as a significant factor
in determining the order of dismissal the evaluation rating of
certificated employees.
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3)Authorizes a school district to deviate from using the
evaluation rating of certificated employees as a significant
factor in determining the order of dismissal of certificated
employees if the school district demonstrates a specific need
for personnel to teach a specific course or course of study,
or to provide services authorized by a services credential
with a specialization in either pupil personnel services or
health for a school nurse, and that the certificated employee
has special training and experience necessary to teach that
course or course of study or to provide those services that
others with higher evaluation ratings do not possess.
4)Specifies to the extent that the provisions of the bill
conflict with a provision of a collective bargaining agreement
entered into by a public school employer and an exclusive
bargaining representative before January 1, 2016, pursuant to
Chapter 10.7 (commencing with Section 3540) of Division 4 of
Title 1 of the Government Code, the provisions of this section
shall not apply to the school district until expiration or
renewal of that collective bargaining agreement.
5)Repeals the following provisions as of July 1, 2018:
a) When school employees are terminated pursuant to a
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reduction in workforce, a school district shall terminate
the employees in order of seniority. Authorizes a school
district to deviate from the order of seniority for the
following reasons:
i) The school district demonstrates a specific need for
personnel to teach a specific course or course of study,
or to provide services authorized by a services
credential with a specialization in either pupil
personnel services or health for a school nurse, and that
the certificated employee has special training and
experience necessary to teach that course or course of
study or to provide those services, that others with more
seniority do not possess.
ii) For purposes of maintaining or achieving compliance
with constitutional requirements related to equal
protection of the laws.
b) The governing board of a school district may terminate
the services of any permanent or probationary certificated
employees of the school district during the time period
between 5 days after the enactment of the Budget Act and
August 15 of the fiscal year to which the Budget Act
applies if the governing board of the school district
determines that its total revenue limit per unit of average
daily attendance for the fiscal year of that Budget Act has
not increased by at least 2%, and if the governing board of
the school district determines it is therefore necessary to
decrease the number of permanent employees in the school
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district.
c) When the services of permanent employees are terminated
pursuant to a reduction in workforce, those terminated
employees have a preferred right to reappointment for 39
months and an opportunity for substitute service in order
of seniority, as specified.
d) For purposes of complying with those procedures, a
school district is prohibited from including time spent
employed in an administrative position by a certificated
employee, who transfers to a teaching position and who was
initially employed in an administrative position on or
after July 1, 1983, in determining seniority, except in the
case of a schoolsite administrator, who shall earn up to a
maximum of three years of seniority.
e) When the services of probationary employees are
terminated pursuant to a reduction in workforce, those
terminated employees have a preferred right to
reappointment for 24 months and an opportunity for
substitute service in order of seniority, as specified.
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f) If a probationary employee is terminated, due to
reduction in attendance or discontinuance of a particular
kind of service and the employee is reemployed within a 39
month period, that time shall not count as part of his or
her service and shall not count as a break in the
continuity of service, as specified.
g) Particular rights for permanent employees who services
are terminated because of the effect of wars in which the
United States is engaged or upon the maintenance of a
particular kind of service, as specified.
h) Certain statutory layoff provisions are inapplicable to
certain probationary certificated employees who are covered
by a collective agreement which contains provisions for the
layoff and reassignment of those employees.
EXISTING LAW:
1)Requires, when school employees are terminated pursuant to a
reduction in workforce, a school district to terminate the
employees in order of seniority. Authorizes a school district
to deviate from the order of seniority for the following
reasons:
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a) The school district demonstrates a specific need for
personnel to teach a specific course or course of study, or
to provide services authorized by a services credential
with a specialization in either pupil personnel services or
health for a school nurse, and that the certificated
employee has special training and experience necessary to
teach that course or course of study or to provide those
services, that others with more seniority do not possess.
b) For purposes of maintaining or achieving compliance with
constitutional requirements related to equal protection of
the laws. (Education Code (EC) 44955)
2)Authorizes the governing board of a school district to
terminate the services of any permanent or probationary
certificated employees of the school district during the time
period between 5 days after the enactment of the Budget Act
and August 15 of the fiscal year to which the Budget Act
applies if the governing board of the school district
determines that its total revenue limit per unit of average
daily attendance for the fiscal year of that Budget Act has
not increased by at least 2%, and if the governing board of
the school district determines it is therefore necessary to
decrease the number of permanent employees in the school
district. (EC 44955.5)
3)Specifies when the services of permanent employees are
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terminated pursuant to a reduction in workforce, those
terminated employees have a preferred right to reappointment
for 39 months and an opportunity for substitute service in
order of seniority, as specified. (EC 44956)
4)Prohibits, for purposes of complying with those procedures, a
school district from including time spent employed in an
administrative position by a certificated employee, who
transfers to a teaching position and who was initially
employed in an administrative position on or after July 1,
1983, in determining seniority, except in the case of a
schoolsite administrator, who shall earn up to a maximum of
three years of seniority. (EC 44956.5)
5)Specifies when the services of probationary employees are
terminated pursuant to a reduction in workforce, those
terminated employees have a preferred right to reappointment
for 24 months and an opportunity for substitute service in
order of seniority, as specified. (EC 44957)
6)Specifies that if a probationary employee is terminated, due
to reduction in attendance or discontinuance of a particular
kind of service and the employee is reemployed within a 39
month period, that time shall not count as part of his or her
service and shall not count as a break in the continuity of
service, as specified. (EC 44958)
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7)Specifies particular rights for permanent employees who
services are terminated because of the effect of wars in which
the United States is engaged or upon the maintenance of a
particular kind of service, as specified. (EC 44959)
8)Specifies that certain statutory layoff provisions are
inapplicable to certain probationary certificated employees
who are covered by a collective agreement which contains
provisions for the layoff and reassignment of those employees.
(EC 44959.5)
9)Specifies notwithstanding Section 44955 of the Education Code,
the public school employer and the exclusive representative
shall, upon request of either party, meet and negotiate
regarding procedures and criteria for the layoff of
certificated employees for lack of funds. If the public school
employer and the exclusive representative do not reach mutual
agreement, Section 44955 of the Education Code shall apply.
(Government Code 3543.2)
FISCAL EFFECT: Legislative counsel has keyed this bill as a
state mandated local program.
COMMENTS: This bill requires school districts to adopt layoff
policies that include a teacher's evaluation rating as a
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significant factor in determining the order of dismissal, by
July 1, 2018.
According to the author, this bill promotes local control and
the retention of effective teaching staff by repealing the
statutory last in first out (LIFO) requirements. By repealing
LIFO and allowing school districts to consider more than just
seniority, we create an opportunity for teachers,
administrators, and community leaders to design a system that's
good for both teachers and students. The bill empowers local
governing boards, in consultation with the exclusive
representative of the certified staff, where applicable, to
adopt policies regarding the dismissal of permanent and
temporary employees when a reduction in force (RIF) is required
due to declining enrollment or insufficient funding. This
allows schools to consider teaching performance, school needs
and student needs, not just seniority in making RIF decisions.
Additionally, this bill honors existing collective bargaining
agreements, in place before January 1, 2016, until those
agreements expire. LIFO contains no consideration of anything
other than seniority for RIF decisions. Last-in, first-out,
allows no reflection of how gifted a junior teacher may be, and
no consideration of school needs. This leads to irrational
results. For example, in 2012, Sacramento Teacher of the Year,
Michelle Apperson, was laid off during RIF layoffs due to budget
constraints. This illustration of LIFO labor reductions
demonstrates a lack of essential consideration of a teacher's
effectiveness and the wellbeing of students as the highest
priority.
Vergara v. California: In 2012, nine students, including Beatriz
Vergara filed a lawsuit in Los Angeles Superior Court against
the State arguing their civil rights were being violated under
the equal protection clause of the California Constitution based
on the following three teacher laws:
1)Seniority and Layoffs - Basing layoffs on seniority status
also known as Last In, First Out (LIFO).
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2)Permanent Status - Granting permanent status after two years
of employment.
3)Dismissal - The process for dismissing an ineffective teacher.
In June 2014, the Los Angeles Superior Court issued a tentative
ruling in favor of the students on all three issues. The final
judgment detailing arguments supporting the ruling was issued in
August 2014. The Judge's ruling was stayed pending appeal, but
if upheld this decision would strike down these laws statewide.
The ruling was as follows:
1)Seniority and Lay-Offs - The Judge ruled that lay-offs based
solely on seniority are unconstitutional because the system
removes junior teachers who may be more effective, while
retaining senior teachers who may be ineffective. The Judge's
ruling didn't rely on the fact that districts can stray from
seniority under existing law.
2)Permanent Status - The Judge ruled that both students and
teachers are unfairly and unnecessarily disadvantaged by the
permanent employment statutes. The Judge ruled that the
current two year probationary period is not a long enough
period of time to evaluate a new teacher.
3)Dismissal - The Judge ruled the current dismissal system to be
too complex, time consuming and expensive; and, ruled that the
current dismissal process for classified employees provides an
alternative process that protects due process rights.
In September 2014, Governor Brown and Attorney General Harris
filed an appeal of the decision. The California Teachers
Association (CTA) and the California Federation of Teachers
(CFT), formal interveners in the case, also filed an appeal of
the decision. The appeal is awaiting hearing at the appellate
court level and a decision is expected in the fall of 2015.
The author references the Vergara lawsuit in the background
worksheet, but it is unclear whether adding teacher evaluation
ratings to the layoff process will address the concerns raised
in the Vergara case. Also, without a consistent state-wide
evaluation system, it is unclear how this will be implemented at
districts across the state. The committee should consider
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whether a uniform teacher evaluation system should first be
implemented before making uniform changes to the teacher layoff
system.
Districts can already negotiate a different layoff process.
Government Code Section 3543.2(c) authorizes districts and
unions to negotiate a different layoff procedure, if they
mutually agree. If no agreement is reached then Education Code
Section 44955 (seniority based layoffs) applies. This bill
repeals Education Code Section 44955, making that authorization
to negotiate something different, invalid. The provisions of
this bill would be the only authorized layoff procedure
state-wide. It is unclear whether any districts have negotiated
different layoff procedures, but it is possible. The committee
should consider how this bill might affect districts that may
have already negotiated a different layoff procedure and whether
the committee wishes to keep the existing statute authorizing
such a negotiated procedure to remain in place.
The committee should also consider that while this bill requires
the new layoff procedures to be negotiated with the exclusive
representative of certificated staff, if the district and the
union do not mutually agree, then the district is authorized to
impose the policy of their choosing.
Collective Bargaining Agreements: This bill specifies that to
the extent that the provisions conflict with a provision of a
collective bargaining agreement entered into by a public school
employer and an exclusive bargaining representative before
January 1, 2016, pursuant to Chapter 10.7 (commencing with
Section 3540) of Division 4 of Title 1 of the Government Code,
the provisions of this section shall not apply to the school
district until expiration or renewal of that collective
bargaining agreement. State statute cannot supersede a
collective bargaining contract, therefore, the committee should
consider whether this bill should instead state that the
provisions of the bill shall be implemented on July 1, 2018 or
upon the adoption of a successor collective bargaining
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agreement, if such an agreement exists on July 1, 2018.
Layoff Decisions based on Seniority and Evaluations. This bill
requires school districts to adopt layoff policies that include
a teacher's evaluation rating as a significant factor in
determining the order of dismissal. While many, if not a
majority of school districts use the California Standards for
the Teaching Profession as a basis for their evaluations, it is
not clear that there is uniformity in the evaluation forms or
the rating rubrics. Moreover, it is not clear that there would
be consistency and fairness among administrators in evaluating
teachers. What it would take to be rated "superior" by one
principal may be different than what it would take to earn that
same rating by a different principal in the same school
district. To ensure that layoff decisions based whole or in
part on performance evaluations are defensible, a district would
need to ensure the evaluations are valid and reliable
assessments of teacher effectiveness. Such a ranking system
would most certainly require significant and on-going training
and may need to account for site-specific circumstances that may
also impact teacher effectiveness. Otherwise the system could
allow discrimination and/or arbitrary decisions, which would
create an invitation for lawsuits. The committee should consider
whether it is appropriate to authorize districts to make
staffing decisions based on evaluation systems that do not
currently exist. The committee should also consider whether it
is more appropriate for the state to establish a uniform teacher
evaluation system before authorizing districts to use this type
of information in the layoff process.
Opponents argue that educational scholar Richard Rothstein has
long pointed out that the evaluation model within the public
school system is inadequate because principals are often tasked
with evaluating twenty or more teachers on top of the rest of
their management responsibilities. In the private sector,
six-to-one evaluation process of supervisors to subordinates is
the highest ratio for effective mentoring and evaluations. For
this reason, and a myriad of others, it is not surprising that
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the evaluation process is the most flawed of measurement for
professional educators. The committee should consider whether
administrators are competent to perform uniform evaluation
without further training and whether they have the time to do a
thorough evaluation of so many teachers.
Layoffs & Skipping. According to a 2012 survey and report by
the Legislative Analyst's Office (LAO) entitled A Review of the
Teacher Layoff Process in California, "The majority of districts
in our survey report developing criteria to "skip" junior
teachers with specialized credentials or experience. State law
allows school districts to retain certain junior employees if
the district can prove certain types of trained and experienced
teachers meet a specific need within the district. The most
common types of teachers protected under this skipping criteria
are special education teachers and language specialists.
Whereas almost all survey respondents develop tie-breaking
criteria (94 percent), about two-thirds of survey respondents
deviated from seniority to skip junior employees."
The LAO also states, "Chapter 498, Statutes of 1983 (SB 813,
Hart), amended the original 1976 teacher layoff statute to allow
districts to deviate from seniority-based layoffs "for purposes
of maintaining and achieving compliance with constitutional
requirements related to equal protection of the laws." When this
clause was added, the provision was intended primarily to
"ensure that the teaching force reflects the multicultural
makeup of the state." Since Proposition 209 (approved by voters
in 1996) constitutionally banned discrimination against or
preferential treatment of any individual or group on the basis
of race, sex, color, ethnicity, or national origin in public
employment-including public education employment-a district no
longer can skip certain teachers during the layoff process in an
effort to maintain cultural diversity. Districts recently have
begun to use the equal protection provision to skip certain
teachers employed at certain schools serving disadvantaged
students. In some instances, seniority-based layoffs result in
some schools laying off a significant proportion of their
teachers. Some public advocates have raised concern that such
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high proportions of layoffs in these schools, coupled with other
educational disadvantages, cause major disruption for students
and the quality and continuity of their education
program-threatening students' equal protection of the laws."
Further the LAO states, "Of the districts we surveyed, very
few report exploring their discretion to deviate from
seniority for the purpose of equal protection of the laws.
Only five districts reported having used this discretion in
developing criteria to break ties amongst employees with
the same start date. Another four reported developing
skipping criteria for this purpose. For layoffs operative
in the 2012-13, one district to date has ventured in this
direction. San Francisco Unified School District (SFUSD)
conducted their layoff determinations and used the equal
protection clause to protect junior teachers in 14 schools
they classify as having high-need students with low
academic performance."
Arguments in Support: StudentsFirst supports the bill and
states, "Under AB 1044, California school districts would be
mandated to use the evaluation rating of teachers as a
"significant factor" in layoff decisions, but would not be
required to make it the most important factor in the decision.
The bill does not prohibit seniority from being the most
important factor in the decision and does not define
"significant factor," so districts would likely still be able to
use seniority as the primary factor in layoff decisions.
Prohibiting the use of seniority as the primary factor in
determining layoffs and clearly defining "significant factor"
would strengthen the law by ensuring performance, and not
seniority is driving layoff decisions at the local level."
Arguments in Opposition: California School Employees Association
opposes the bill and states, "Seniority is a way to objectively
release employees, in order to prevent subjective retaliation,
nepotism, graft and retain the most experienced teaching
professionals. This long-standing policy prevents termination
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policies that single out and abuse workers to circumvent the
collective bargaining process. Seniority based layoff and
reappointement procedures have been validated as an equitable
process that protects the rights of all employees."
REGISTERED SUPPORT / OPPOSITION:
Support
CalChamber
StudentsFirst
Opposition
American Federation of State, County and Municipal Employees
(AFSCME)
California Federation of Teachers
California Labor Federation
California Professional Firefighters
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California School Employees Association
California Teachers Association
Public Employees Union Local 1
Service Employees International Union
Analysis Prepared by:Chelsea Kelley / ED. / (916) 319-2087