BILL ANALYSIS
SENATE COMMITTEE ON EDUCATION
Gloria Romero, Chair
2009-2010 Regular Session
BILL NO: SB 955
AUTHOR: Huff
AMENDED: April 13, 2010
FISCAL COMM: No HEARING DATE: April 21, 2010
URGENCY: Yes CONSULTANT:Beth Graybill
SUBJECT : School districts: Certificated staff.
SUMMARY
This bill, an urgency measure, makes various changes to
statutes governing staffing notification deadlines, layoff
and dismissal procedures, and reemployment preferences
pertaining to certificated educators.
BACKGROUND
Probationary employees
Existing law provides that a probationary employee becomes a
permanent employee after completing two consecutive school
years in a position requiring certification. School
districts must notify probationary employees of a decision to
elect or non-elect for permanent status by March 15th of the
employee's second consecutive year of employment by the
district. During the period of probation, an employee may be
dismissed without cause. (Education Code 44929.21)
Layoff and reappointment
Existing law requires districts to provide preliminary
notification of layoff by March 15th of the year prior to a
layoff and provide final notice by May 15th. Existing law
requires districts to terminate employees in the inverse of
the order in which they were employed. Districts may deviate
from the order of seniority if:
1) The district demonstrates a specific need to teach a
specific course or course of study, or to provide
services authorized by certain services credentials and
the retained individual has the specific experience or
training required to meet that need, or
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2) For purposes of marinating or achieving compliance with
constitutional requirements related to equal protection
of the laws. (EC 44949, 44955)
Suspension and dismissal
Existing law prohibits the dismissal of a teacher on
permanent status except for "cause," which includes but is
not limited to immoral or unprofessional conduct, conviction
of a felony or any crime involving moral turpitude,
unsatisfactory performance, or evident unfitness for service.
(Education Code 44932)
Existing law specifies the process by which suspension and
dismissal proceedings must abide. Districts provide the
employee with notice of the intent to dismiss. In general,
the dismissal becomes effective at the end of 30 days unless
the employee demands a hearing. Additional procedures may
apply when charges are filed for unsatisfactory performance.
Under most situations, employees who have been notified of a
district's intent to suspend or dismiss receive their full
pay until a final decision is made regarding their suspension
or termination. (EC 44934, 44938 and 44944)
Existing law requires school districts to place an employee
accused of certain crimes on a compulsory leave of absence.
An employee placed on a compulsory leave of absence must be
paid his or her regular salary during the leave period if he
or she furnishes a suitable bond or other security as a
guarantee that the employee will repay the salary if the
employee is convicted of the charges. (EC 44940.5)
Existing law requires suspension and dismissal hearings to be
conducted by a Commission on Professional Competence (CPC).
Current law specifies that a CPC consists of an individual
chosen by the employee, an individual chosen by the school
district, and an administrative law judge who serves as
chair. The members of the CPC may not be employees of the
district and must have at least five years experience (within
the last ten) in the discipline of the employee. The CPC
must issue a written decision containing findings of fact,
determination of the issues, and a disposition of the action.
By law, the decision of the CPC is deemed to be the final
decision of the governing board, although the decision may be
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reviewed by a court upon request by either the employee or
the school district.
(EC 44944)
ANALYSIS
This bill , an urgency measure, makes various changes to
statutes governing the non election of probationary
employees, for cause dismissal proceedings, and the layoff
and reappointment of certificated employees:
Probationary employees :
1) Changes the deadline by which the governing board of
school district must notify probationary employees in
their second consecutive year of service of the decision
to reelect or not elect the employee for the succeeding
school year from March 15 to June 15.
Dismissal for cause
2) Specifies that employees requesting a hearing are deemed
to be terminated by the initiating district as of the
time the governing board votes to approve an agenda item
to dismiss the employee.
3) Repeals the prohibition against providing notice of a
dismissal or suspension between May 15th and September
15th in any year, thereby allowing dismissals and
suspensions to occur during the summer.
4) Deletes the four-year evidence rule pertaining to
testimony or evidence introduced in a dismissal or
suspension proceeding.
5) Modifies the Commission on Professional Competence
process and authorizes governing boards to establish a
Commission on Professional Competence (CPC) by one of
two methods:
a) Three-member Commission : Comprised of an
administrative law judge (ALJ), one member to be
selected by the governing board, and one member to
be selected by the employee. Specifies that the
ALJ serves as chair and a voting member of the
Commission and requires members selected by the
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governing board and employee must hold a current,
valid credential and have at least five years'
teaching or administrative experience.
b) ALJ Commission : Consisting solely of an
administrative law judge.
6) Requires the decision of the CPC to be advisory to the
governing board and requires the final decision
regarding the discipline of the employee to be
determined by action of the governing board of the
school district.
7) Authorizes the ALJ to recommend a suitable compensatory
remedy, including back wages and benefits if the
employee is reinstated. Specifies that an employee who
is reinstated either by the governing board or a court
of competent jurisdiction is entitled to reasonable back
wages and benefits.
Layoff and reappointment
8) Repeals the March 15th deadline by which districts must
provide certificated employees with preliminary
notification of a lay off.
9) Repeals provisions establishing a process for
pre-termination due process hearings for certificated
employees.
10) Authorizes governing boards, when determining the order
of termination between employees who first rendered
service on the same date to consider distinctions based
on performance evaluations.
11) Adds conditions in which a governing board may deviate
from the order of seniority by authorizing a school
district to "skip" on the basis of:
a) Performance evaluations whereby employees with
superior evaluations are retained over those with
inferior evaluations.
b) Employees assigned to a school site that has
been selected by the governing board for exemption
from certificated reductions in force, based upon
the needs of the educational program.
12) Authorizes a governing board to exercise its discretion
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in developing an evaluation process that shall apply to
the entire class that is subject to the reduction in
fore.
13) Authorizes a school district, county office of
education, or a charter school to assign, reassign, and
transfer teachers and administrators based on
effectiveness and subject matter needs, without regard
to years of service.
14) Deletes provisions in current law requiring teachers who
have been terminated as a result of a reduction in force
and who substitute more than 21 days within a 60 day
period to be compensated retroactively at an amount not
less than the amount the employee would receive if he or
she were being reappointed.
Urgency
15) Declares this act as an urgency statute in order to
implement statutory changes to implement the Budget Act
of 2010 at the earliest possible time.
STAFF COMMENTS
1) Need for the bill . In his 2010-11 Budget proposal,
Governor Arnold Schwarzenegger included several reforms
aimed at providing greater flexibility to schools to
allow them to protect classroom spending and build on
reforms embodied in President Obama's Race to the Top
Initiative. This bill, sponsored by the Governor,
implements many of the proposed reforms. According to
the author, this purpose of this bill is to relieve the
cost pressures and impacts of current statutes that
govern suspension and dismissal proceedings, teacher
seniority and layoffs, staffing notification
requirements, and preferred rights to substitute
service.
2) Due process . Many school districts complain the
dismissal process prescribed in current law is
cumbersome and makes it difficult to fire teachers who
should not be in the classroom. Further they argue that
because educators remain on pay status during the
proceedings, there is little incentive for timeliness.
Notwithstanding the benefits that would be derived by
establishing a less costly and more efficient dismissal
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process, the courts have held that permanent employees
have "property rights" to their positions. In Gilbert
v. Homar (1997) 520 U.S. 924 (Gilbert), the Supreme
Court noted that "public employees who can be discharged
only for cause have a constitutionally protected
property interest in their tenure and cannot be fired
without due process." It is unclear how the changes
proposed in this bill would affect the due process
rights of certificated employees.
This bill modifies the existing process for layoffs by
repealing the statute that governs pre-termination due
process hearings, commonly called Reduction in Force or
RIF hearings. It is unclear then, what due process laid
off employees would have if this measure is enacted.
Would certificated staff have due process rights under
the Administrative Procedures Act, which governs due
process rights of other public employees?
Under the provisions of this bill, a certificated employee
would not receive his or her salary during a dismissal
hearing. By deeming an employee to be "terminated by
the initiating district as of the time the governing
board votes to approve an agenda item to dismiss the
employee," does SB 955 authorize a district to fire an
employee before "due process" has been completed? Would
suspending without pay be more reasonable? Should
employees charged with unsatisfactory performance be
entitled to obtain a bond for compensation in the same
way as employees charged with crimes that require their
immediate removal from the classroom?
3) Bargaining implications . The Public Employees Relation
Board has ruled that the decision to reduce services and
lay off employees is a non-bargainable employer
prerogative. However, school districts have a "general
duty" to bargain over the impact or consequences of the
decision to lay off such as continuation of benefits,
increase in class size, transfers, assignments and
reassignments, and competency standards used in
determining which employees will be effected by the
layoff. Opponents of this measure argue that this bill
gives districts rights that are currently negotiable in
local union contracts. The contract clause of the
federal constitution limits the ability of a state to
abrogate rights created by pre-existing contracts. It
is unclear whether certain provisions contained this
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measure would have the effect of abrogating the terms of
existing collective bargaining agreements.
4) Who's included ? Other than Section 7 of the bill, it is
not clear whether county offices of education or charter
schools would be governed by this measure. Staff
recommends that this be clarified.
5) Notification dates . This bill requires probationary
teachers to receive notice of non election to tenure by
June 15th. Given that this date may be after the last
school day for many districts and is after the date in
which final layoff notifications go out, could the June
15th deadline unfairly disadvantage a teacher from
getting a job with another district? Since current law
requires certificated probationary employees to receive
a written evaluation not later than 30 days before the
last school day scheduled on the school calendar, one
option would be to have the notification date for non
tenure coincide with the date by which local education
agencies must provide the employee with a copy of his or
her evaluation. Staff recommends that the Committee
discuss this.
6) Evaluations . This bill authorizes school districts to
consider employee performance evaluations in
establishing their layoff lists. 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 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.
7) Preference for substitute teaching . Anecdotal evidence
suggests the preferences and compensation requirements
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given to laid off teachers who substitute teach offset
at least some of the savings a district may otherwise
realize from a reduction in force. At least one
district has indicated that of the $1.3 million it
anticipated saving as a result of teacher layoffs, it
only saved $300,000 because the district had to pay laid
off teachers their old wage when they served as
substitutes for more than 21 days. To the extent that
local bargaining agreements do not address preferences
for substitute teaching, this bill could provide
districts with needed flexibility. At the same time, it
can be argued that the current law safeguards teachers
from districts that may layoff more highly compensated
employees only to turn around and rehire them as
substitutes at a lower rate of pay. Are there other
options that would enable students to benefit from
experienced teachers serving as substitutes while
reducing the financial impact on school districts?
8) Related and prior legislation .
AB 2219 (Fuentes) makes clarifying changes to
statutes that govern dismissal or suspension
proceedings.
ABX3 32 (Silva, 2009) would have required that
in 2009 only, the deadline for the notice of
termination of services be changed to June 15. The
hearing was canceled at the request of the author.
SB 1303 (Runner, Chapter 579, Statutes of
2008) specifies that employees placed on compulsory
leave who do not elect to furnish a bond or other
security acceptable to the governing board of the
district shall be compensated for the period of
leave if they are acquitted of the offense or
charges against the employee are dismissed without
his or her guilt being established.
SB 1655 (Scott, Chapter 518, Statutes of 2006)
- Prohibits, among other things, the governing
board of a school district from adopting a policy
or regulation, or entering into a collective
bargaining agreement that assigns priority to a
teacher who requests to be transferred to another
school over other qualified applicants who have
applied for positions requiring certification SB
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1655 provided that, if its prohibitions were in
direct conflict with the terms of a collective
bargaining agreement in effect on the date of
enactment of that bill (January 1, 2007), those
prohibitions would become operative for any
successor agreements.
9) Policy arguments
Proponents of this measure maintain that SB
955 permits schools to make their own staffing
decisions that place a higher priority on teacher
effectiveness. They also argue SB 955 allows
governing boards to assure that students have the
very best teachers in the classroom, not just those
who have been teaching the longest.
Opponents of this measure contend that the
bill eliminates due process rights of educators in
public schools. They also argue that permitting
evaluations to be used for layoffs could create a
perverse incentive to evaluate older teachers out
of the workforce without the benefit of a for-cause
dismissal.
SUPPORT
California Charter Schools Association
California Hispanic Chambers of Commerce
City of San Joaquin
Ed Voice
Greater Los Angeles African American Chamber of Commerce
La Habra City School District
Los Angeles County Business Federation
Orange County Department of Education
The Education Trust - West
The William D. Lynch Foundation for Children
Letters from individuals
OPPOSITION
American Federation of State, County and Municipal Employees
California Federation of Teachers
California Labor Federation
California Professional Firefighters
California Teachers Association
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