BILL NUMBER: AB 2219 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY APRIL 19, 2010
AMENDED IN ASSEMBLY APRIL 5, 2010
INTRODUCED BY Assembly Member Fuentes
FEBRUARY 18, 2010
An act to amend Section Sections 44943 and
44944 of the Education Code, relating to school employees.
LEGISLATIVE COUNSEL'S DIGEST
AB 2219, as amended, Fuentes. School employees.
Existing law provides a certificated employee of a school district
who is subject to a dismissal or suspension proceeding with the
right to demand a hearing conducted by a Commission on Professional
Competence and specifies the procedural requirements for conducting
the hearing.
This bill would make clarifying changes to those provisions.
Existing law establishes notice and hearing requirements for the
dismissal or suspension of a permanent employee of a school district
on specified grounds, and requires the Commission on Professional
Competence to conduct a hearing upon the employee's request. Under
existing law, if the commission determines that the employee should
be dismissed or suspended, the governing board and the employee are
required to share equally the expenses of the hearing.
This bill would instead require either the governing board of the
school district or the state to pay those expenses.
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
no . State-mandated local program: yes
no .
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 44943 of the
Education Code is amended to read:
44943. When any employee who has been served with notice 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 within the timelines specified in Section
44944 .
SECTION 1. SEC. 2. 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 calendar 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.
(5) No witness shall be permitted to testify at the hearing except
upon oath or affirmation. No testimony shall be given or evidence
introduced relating to matters that occurred more than four years
prior to 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.
(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 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) 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 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
shall be deemed to be the final decision of the governing board.
(5) The 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 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, either
the state or the governing board shall pay 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 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.
In the absence of agreement, the place shall be selected by the
administrative law judge.
SEC. 2. 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.