BILL ANALYSIS �
AB 2028
Page 1
Date of Hearing: April 11, 2012
ASSEMBLY COMMITTEE ON EDUCATION
Julia Brownley, Chair
AB 2028 (Knight) - As Amended: March 22, 2012
SUBJECT : School employees: discipline: suspension and
dismissal.
SUMMARY : Requires significant modifications to the current
protocols used for the discipline of a certificated employee in
California; shortens the process for the dismissal or suspension
of a certificated employee for unprofessional conduct or
unsatisfactory performance; and, shifts the decision making
authority in disciplinary cases from the Commission on
Professional Competence (CPC) to the governing board of a school
district, among other changes. Specifically, this bill :
1)Specifies that a collective bargaining agreement entered into
or renewed on or after January 1, 2013 shall not require the
removal of an employee's records pertaining to discipline,
complaints, reprimands, or investigations of potential
offenses after any given time period.
2)Deletes three procedural timelines, including:
a) The prohibition on written notices of dismissal or
suspension being sent between May 15th and September 15th
of any year;
b) The prohibition on a governing board of a school
district from acting on charges of unprofessional conduct
until the employee has been provided with written notice
for at least 45 calendar days; and,
c) The prohibition on a governing board of a school
district from acting on charges of unsatisfactory
performance until the employee has been provided with
written notice for at least 90 calendar days.
3)Requires a governing board to transfer a certificated employee
to nonclassroom duties when the governing board has reasonable
cause to believe that the employee is under investigation by a
law enforcement agency for an act that would require the
employee to be put on a mandatory leave of absence; and,
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requires that the employee moved to nonclassroom duties
continue to receive his or her regular salary during the
transition period and only be allowed to return to classroom
duties upon passage of a school district governing board
resolution indicating a reason or reasons for return.
4)Deletes the provision that no testimony shall be given or
evidence introduced relating to matters that occurred more
than four years prior to the date of the notice that charges
have been filed and that no decision relating to the dismissal
or suspension of an employee shall be based on such
information.
5)Requires that a hearing provided for teacher dismissal or
suspension continue to be conducted by the CPC, but changes
the membership and structure of the CPC by having the CPC be
made up solely of an administrative law judge (ALJ) and by
eliminating:
a) The member selected by the certificated employee;
b) The member selected by the governing board of the school
district;
c) The selection procedures for these members;
d) The limitations indicating who may serve as these two
members;
e) The provision that the CPC record a vote on their
decision;
f) The provisions explaining the professional benefits and
conditions for serving on the CPC during the school year,
summer recess or vacation periods; and,
g) The provisions that the governing board pay the costs
incurred by the two members of the CPC who are not the ALJ.
6)Requires the decision of the CPC to be advisory and that the
final decision regarding the discipline of an employee be
determined by the governing board of the school district.
7)Authorizes a governing board to place an employee on unpaid
administrative leave for the duration of the dismissal or
suspension hearing; and, authorizes an employee to receive his
or her regular salary if he or she furnishes a suitable bond
or other security to the governing board as a guarantee that
the school district will be repaid the amount of salary during
the employee's leave if a final decision is made to terminate
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the employee.
8)Authorizes the ALJ to recommend and the local governing board
to adopt a suitable compensatory remedy such as reasonable
back wages and benefits for an employee who prevails at the
hearing; and, specifies that an employee who is reinstated is
entitled to reasonable back wages and benefits.
9)Authorizes the decision of the governing board to be reviewed
by a court of competent jurisdiction, on petition of the
employee.
EXISTING LAW :
1)Prohibits the dismissal of permanent employees except for one
or more of the following causes:
a) Immoral or unprofessional conduct;
b) Commissioning, aiding or advocating the commission of
acts of criminal syndicalism;
c) Dishonesty;
d) Unsatisfactory performance;
e) Evident unfitness for service;
f) Physical or mental condition unfitting him or her to
instruct or associate with children;
g) Persistent violation of or refusal to obey the school
laws of the state by the State Board of Education or by the
local governing board employing him or her;
h) Conviction of a felony or any crime involving moral
turpitude;
i) Advocating for or teaching communism with the intent of
indoctrinating the mind of any pupil;
j) Knowing membership by the employee in the Communist
party; or,
aa) Alcoholism or other drug abuse which makes the employee
unfit to instruct or associate with children. (Education
Code (EC) 44932)
2)Authorizes a permanent employee to be dismissed or suspended
on grounds of unprofessional conduct for other reasons, but
any such charge shall specify instances of behavior deemed
unprofessional conduct. (EC 44933)
3)Prohibits the notice of dismissal or suspension of a teacher
from being given between May 15th and September 15th in any
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year. (EC 44936)
4)Prohibits the governing board of a school district from acting
upon any charges of:
a) Unprofessional conduct unless it has given written
notice to the employee against whom the charge is filed at
least 45 calendar days prior to the date of the filing; or,
b) Unsatisfactory performance unless it has given written
notice to the employee against whom the charge is filed at
least 90 calendar days prior to the date of the filing. (EC
44938)
5)Authorizes the governing board of any school district to act
during the time period composed of the last one-fourth of
schooldays it has scheduled for purposes of computing
apportionments in any fiscal year if the governing board has
given the employee against whom the charge is filed written
notice of unsatisfactory performance prior to the beginning of
that time period. (EC 44938)
6)Authorizes the governing board of any school district to
immediately suspend a certificated employee, if it deems such
action necessary, on charges of:
a) Immoral conduct;
b) Conviction of a felony or of any crime involving moral
turpitude;
c) Incompetency due to mental disability;
d) Willful refusal to perform regular assignments without
reasonable cause;
e) With violation of teacher or inculcating Communism; or,
f) With knowing membership by the employee in the Communist
party. (EC 44939)
7)Requires that if a dismissal or suspension hearing is
requested by an employee, the hearing shall commence within 60
days from the date of the employee's demand for a hearing and
specifies the following:
a) Prohibits testimony or evidence relating to matters that
occurred more than four years prior to the date of the
filing of the notice; and, prohibits a decision relating to
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the dismissal or suspension of any employee from being 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) Requires that the hearing be conducted by a CPC made up
of three members:
i) One member to be selected by the certificated
employee;
ii) One member to be selected by the governing board;
and,
iii) One member to be an ALJ from the Office of
Administrative Hearings (OAH); and, assigns this person
to be the chairperson and a voting member of the
commission responsible for assuring that legal rights of
all parties involved are protected.
c) Provides that the decision made by the CPC is made by
majority vote and shall be deemed to be the final decision
of the governing board.
d) Specifies that the members of the CPC will 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.
e) Specifies that in the event that the governing board
determines that the employee will be dismissed or
suspended, the employee will share equally the expenses of
the hearing including the cost of the ALJ.
f) Specifies that in the event that the governing board
determines that the employee will not be dismissed or
suspended, the governing board shall pay the expenses of
the hearing including the cost of the ALJ, the member
selected by the governing board and the member selected by
the employee as well as reasonable attorney's fees incurred
by the employee. (EC 44944)
8)Authorizes the decision of the CPC to be reviewed by a court
of competent jurisdiction on the petition of either the
governing board or the employee. (EC 44945)
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9)Requires that if an employee is dismissed for immoral conduct
or conviction of a felony or crime involving moral turpitude,
the governing board must notify the Commission on Teacher
Credentialing and the county board of education which issued
the certificate to revoke their credential if the employee is
not reinstated upon appeal. (EC 44947)
FISCAL EFFECT : Unknown
COMMENTS : Background. According to the author, this bill
stems from the recent allegations of teacher misconduct in the
Los Angeles Unified School District (LAUSD). The case of Mark
Berndt demonstrated what proponents of this bill argue are
impediments in the process of removing a teacher when they are
suspected of unprofessional conduct. On March 13, 2012, the
LAUSD school board unanimously approved a resolution calling
upon state legislators to change the dismissal proceedings of
certificated employees. The author states that even dismissals
of teachers under police investigation generally cost a district
over $300,000 and take over 600 days.
This bill requires a number of significant modifications to the
current protocols for certificated employee discipline used in
California. It shortens the process for a district to dismiss a
certificated employee for unprofessional conduct or
unsatisfactory performance and shifts the power to make any
dismissal decision away from the CPC and to the governing board
of a school district. The proposals in this bill can be broken
into nine different categories.
First, this bill prohibits locally bargained agreements entered
into after January 1, 2013 from removing any employee record
pertaining to discipline, complaints, reprimands or
investigations, from the employee's file after a specific period
of time. Second, this bill proposes to alter the timeline for
dismissing or suspending a teacher for unprofessional conduct or
unsatisfactory performance. It also eliminates the provision in
current law that prevents school districts from filing charges
of dismissal or suspension against a teacher from May 15th to
September 15th in any year. Third, it requires districts to
reassign a certificated employee to nonclassroom duties if a
school district has reasonable cause to suspect the employee is
under investigation for an offense that require a mandatory
leave of absence. Fourth, this bill eliminates a ban on evidence
and testimony from more than four years prior to the date the
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charge was filed. Fifth, it proposes to restructure the CPC by
eliminating two members, requiring it to consist solely of an
ALJ, and making conforming changes to sections that deal with
the other two members. Sixth, this bill shifts power for making
the final decision on disciplinary issues from the CPC to the
governing board. Seventh, it authorizes a governing board to
place a certificated employee on administrative leave without
pay during a dismissal proceeding and authorizes the
certificated employee placed on administrative leave without pay
to continue receiving his or her regular pay by furnishing the
district with a bond or other security as a guarantee of
repayment if the certificated employee is finally suspended or
dismissed. Eighth, this bill authorizes an ALJ and the local
governing board to adopt a suitable compensatory remedy, such as
back wages and benefits, for an employee who prevails at the
hearing. And ninth, it authorizes the decision of the governing
board to be reviewed by a court of competent jurisdiction if the
employee so petitions.
Contract prohibitions. This bill prohibits collective
bargaining agreements entered into or renewed after January 1,
2013 from allowing the removal of records from a certificated
employee's record pertaining to discipline, complaints,
reprimands, or investigations related to offenses that could
result in dismissal. It prohibits local negotiating bodies from
bargaining to have this information removed from an individual's
record after any given period of time. Opponents of the bill
state that under current law, this issue is not a required item
for negotiation by school districts. Making such a prohibition
in statute removes authority from local districts and collective
bargaining units. Allowing local bargaining units to have the
authority to address issues as they see fit is a fundamental
principal required in effective collective bargaining. While
this does not need to be a collectively bargained item, it is
unnecessary to tie the hands of parties involved in negotiating
collective bargaining agreements by disallowing it in statute.
Staff recommends eliminating this section of the bill
altogether.
Timeline changes. This bill alters three timelines that are in
place under current law governing the suspension or dismissal of
a certificated employee.
First, the bill eliminates a prohibition on when districts can
issue a notice of dismissal or suspension. Under current law,
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districts are not allowed to issue a notice of intent to start
the dismissal process between May 15th and September 15th of any
given school year. Concerns about summer break notification
issues led to the original adoption of this provision. During
this time period, certificated employees were not interacting
with students and many were also in locations away from their
home addresses for extended periods of time. This made it
unclear whether the certificated employee would receive the
required written notification during this time. Therefore, it
appears that questions about the necessity and efficiency of
issuing notices during this time period led to the current
restriction. There are, however, notable flaws with this
provision. There are summer schools operating at this time along
with regular schools that operate on a year round calendar.
Incidents leading a district to intend to dismiss or suspend a
certificated employee may occur in these settings. This change
appears to remove unnecessarily burdensome requirements on the
dismissal and suspension process.
Second, the bill eliminates the required number of days that an
employee must have between the notification of any charges of
unprofessional conduct and the governing board taking action.
Current law requires the governing board to wait at least 45
calendar days prior to taking action. This bill eliminates this
waiting period and authorizes districts to take action at their
discretion. While supporters of the bill say that the current
protocol is too restrictive for districts, eliminating such a
window would remove many employee protections.
The definition of unprofessional conduct varies based on
individual circumstances. However, case law usually supports the
notion that unprofessional conduct revolves around an employee's
duties and responsibilities relative to the employment setting,
such as the employee's job specific duties and how the employee
relates to his or her colleagues. In general, unprofessional
conduct is not something that would necessitate immediate
removal of the employee from children. Actions by employees,
such as writing love notes to students, that many individuals
may feel necessitate immediate removal of the employee from
children; generally do not fall under the category of
unprofessional conduct. Instead, this example would fall under
one of the other categories listed as grounds for dismissal,
such as immoral conduct, which does not require a preliminary
notice. Current law already authorizes an employer to
immediately suspend an employee for immoral conduct and give a
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30 day notice. Reducing the notice timeline for unprofessional
conduct, therefore, does not impact a district's ability to
remove a certificated employee who is acting immorally, from
interacting with children. Staff recommends eliminating the
proposed change to this timeline and allowing the 45 calendar
day period to remain in statute.
Third, the bill eliminates the required number of days that an
employee must have between the notification of any charges of
unsatisfactory performance and the governing board taking
action. Current law requires the governing board to wait at
least 90 calendar days prior to taking action. This bill
eliminates this waiting period and authorizes districts to take
action at their discretion.
In general, unsatisfactory performance includes situations when
a certificated employee has difficulty with classroom
management, delivery of content, etc. While this is certainly
problematic, the current 90 day time window allows at least a
minimum amount of time for the teacher to improve their practice
before the governing board can act on those charges. For this
type of dismissal, the current 90 calendar day timeline seems
reasonable in order to allow certificated employees a final
opportunity to improve. Staff recommends eliminating the
proposed change to this timeline and allowing the 90 calendar
day period to remain in statute.
Transfer to nonclassroom duties. This bill requires the
governing board of a school district to transfer a certificated
employee to nonclassroom duties if the board has reasonable
cause to believe that the employee is under investigation for an
offense that would require a mandatory leave of absence. While
some districts may have nonclassroom duties that a certificated
employee can undertake, many districts in California would not
be able to provide such assignments. This provision would
mandate that districts develop what opponents of the bill call,
a "rubber room," where those certificated employees are sent to
work on nonclassroom duties. Additionally, this provision does
not take into account that the term certificated employee
includes more than just the individuals working in the
classroom. Certificated employees include counselors, coaches
and speech language pathologists, among others. Many of these
individuals already work in a nonclassroom setting, but still
interact with students on a regular basis. For this section to
work appropriately, amendments would need to be made to address
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specific certificated staff who are not assigned to classroom
duties. Due to the burden this section of the bill will have on
school districts, staff recommends eliminating this section of
the bill altogether.
Relevant, but dated evidence and testimony. This bill
authorizes testimony and evidence relating to matters that
occurred in the past to be used for a dismissal decision.
Current law does not allow testimony about or evidence relating
to matters more than four years prior to the filing of a notice
of charges during a certificated employee's suspension or
dismissal hearing. Further, current law prohibits this
information from being the basis of a decision relating to the
dismissal or suspension of a certificated employee. Questions
about this prohibition, however, have recently surfaced.
According to the author, in the case of Mark Berndt, the Los
Angeles County Sherriff's department found a track record of
immoral conduct dating back to 1994 and resurfacing again in
2005, 2006, 2007 and 2008. This information, no matter how
relevant, was not available to the CPC during the hearing
process. This inability to bring in evidence and testimony from
earlier years also hindered the district's ability to
demonstrate a pattern of behavior that could have been an
influential factor in the dismissal hearing.
Effectively, this bill would allow for past evidence and
testimony to be used to make a decision about whether or not to
suspend or dismiss a certificated employee. In matters of such
importance as the dismissal of a certificated employee, it seems
that having all possible evidence to help illuminate patterns of
behavior is reasonable.
Commission on Professional Competence (CPC) reconfiguration.
This bill reconfigures the CPC by reducing the membership on the
commission down to a single ALJ. Currently, the CPC is composed
of three members. The first member and chairperson of the CPC is
an ALJ. This member's responsibility is to assure that the legal
rights of all parties are protected at the hearing. The second
member is chosen by the certificated employee. The third member
is chosen by the governing board of the district. The second and
third members may not be employed within the same district, may
not be related to the employee in question and must have at
least five years of experience in the last ten years in the same
teaching discipline as the employee.
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Removing the two individuals with professional teaching
experience from the CPC would essentially remove the
professional competence from the CPC. The ALJ assigned to the
disciplinary hearing may not have professional experience in
education. Staff recommends allowing the current membership to
remain on the CPC by removing this section, and all sections
that conform to this change, from the bill.
Shifting power to the governing board. This bill shifts the
power to make a final dismissal or suspension to the governing
board and away from the CPC. The CPC, which would consist solely
of an ALJ, would become an advisory opinion to the governing
board. Current law provides the CPC with the power to make a
final decision about dismissal or suspension. In practice,
however, it seems unlikely that a governing board would deviate
from the CPC even if their decision is only advisory. Such an
action would likely encourage the certificated employee facing
dismissal to file a wrongful termination lawsuit against the
district. In addition, it is unclear what process the governing
board would implement to make a final decision. Historically,
dismissal decisions have been made privately by the CPC to
protect the rights of the certificated employee. By requiring
the governing board to make the final decision, including the
passage of a board resolution in some cases, it opens a
personnel matter to the public. The potential for public
humiliation and for the certificated employee to be ostracized
as a result of the public nature of this process seems
unnecessarily high. Staff recommends eliminating the language
that makes the CPC an advisory opinion and instead shifts this
decision making authority to the governing board.
Placing a certificated employee on leave without pay. This bill
authorizes districts to place a certificated employee on
administrative leave without pay for the duration of dismissal
hearing procedures after the district takes action against the
employee. In most cases, current law authorizes certificated
employees who are charged with dismissal or suspension to
continue receiving their scheduled salary. For a narrow range of
offenses, generally including the mandatory leave of absence
offenses, current law authorizes districts to place a
certificated employee on leave without pay. This bill proposes a
significant departure from current protocol. It makes it far
more likely that an accused teacher, who may still be entirely
innocent, be placed on leave without pay.
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Leave without pay would place a significant burden on a teacher
who would have to cover the cost of living expenses for the time
when they are going through the dismissal proceedings. Opponents
to this change argue that since there is a reasonable likelihood
that some certificated employees who are charged with
unprofessional conduct or unsatisfactory performance will be
reinstated after the investigation, it is not the employee who
should be penalized. Adding this provision would codify the
assumption that the certificated employee is guilty until proven
innocent. Such a protocol is unnecessarily harsh and does not
protect the certificated employee. Staff recommends eliminating
this section of the bill altogether.
Suitable compensatory remedy for prevailing employee. This bill
authorizes the ALJ to recommend a suitable compensatory remedy,
including back wages and benefits, for a prevailing employee who
was placed on administrative leave without pay. In accordance
with a previous recommendation to eliminate the section of the
bill allowing a certificated employee to be placed on
administrative leave without pay, staff recommends eliminating
this section of the bill altogether.
Review of governing board's final decision by a court of
competent jurisdiction. This bill authorizes the final decision
made by the governing board to be reviewed by a court of
competent jurisdiction. Current law already allows the final
decision of the CPC to be reviewed by a court of competent
jurisdiction upon petition of the employee or the governing
board. In accordance with a previous recommendation to eliminate
the section of the bill allowing the governing board to have
final decision making authority, staff recommends eliminating
this section of the bill altogether.
Committee Amendments. Staff recommends the bill be amended to
delete the contents of the measure except for the following
provisions:
1) Section 2 of the bill: Maintain the changes to Section
44936 by continuing to eliminate the prohibition on school
districts from initiating a suspension or dismissal between
May 15th and September 15th in any year.
2) Section 5 of the bill: Maintain the changes to Section
44944 (a)(5) by continuing to eliminate the prohibition on
testimony and evidence (that is more than 4 years old) from
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being introduced during a hearing.
Arguments in support. LAUSD writes, "In 2009 and 2012, the Los
Angeles Unified School District's Board of Education recommended
the following changes that are consistent with AB 2028:
The right to discontinue paying a teacher during the
appeals process.
Elimination of the prohibition to introduce personnel
information involving charges of misconduct that is more
than four years old.
Permitting dismissal notices to be filed throughout the
year and shortening the 45- or 90-day grace period before
the board could initiate dismissal proceedings.
While the District is supportive of most of the provisions in AB
2028, we urge the committee to consider changes to a few of the
provisions in the proposed legislation. AB 2028 requires school
districts to adopt a board resolution in order to return a
teacher to the classroom if the individual has been cleared of
allegations for a mandatory leave offense under EC 44940. We
believe that this requirement could make it cumbersome and
potentially difficult to reinstate individuals who are found
innocent of any wrongdoing."
The Riverside County Schools Superintendent adds that, "AB 2028
removes artificial restrictions imposed on school district
governing boards that are the responsible employers in a school
district from suspending, and when appropriate dismissing,
school employees when cause for discipline is warranted without
encroaching on an employee's right for due process or recourse."
Arguments in opposition. The California Teachers Association
(CTA) writes, "This bill makes multiple significant changes to
existing due process protections for education employees by
creating new mandates for teacher dismissal. Existing law
establishes a multi-step discipline process to address
allegations of educator misconduct in order to (1) keep students
safe; (2) safeguard the integrity of the profession; and (3)
protect the due process rights of credential holders. The
district is not harmed and the public is not endangered by
protecting the due process rights of employees."
CTA further states that, "The Legislature must balance
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administrative efficiency against fairness to teachers. EC
Section 44938 represents statutory attempts to accommodate these
competing pressures and to give teachers an opportunity to
remedy correctable faults in order to mitigate or possibly
eliminate grounds for dismissal based on unprofessional conduct.
AB 2028 does not address the cascading failures of leadership in
the Los Angeles Unified School District and will not increase
the needed accountability for district administrators which will
ensure that learning environments are safe for our students.
Taken as a whole, this bill would move California in the
opposite direction of what sensible reform entails by creating
new alternate procedural policies at the expense of a
constitutional guarantee of due process. These changes would
make education an incredibly insecure profession and add
significant complications to the dismissal process."
Related legislation. SB 1059 (Huff), pending in the Senate
Education Committee, addresses teacher discipline procedures and
protocols and contains identical language to this bill.
SB 1530 (Padilla), pending in the Senate Education Committee,
addresses teacher discipline procedures and protocols by
removing the prohibition on dismissal notices from May 15th to
September 15th and the prohibition on evidence and testimony
from prior to four years before the case was filed for specific
types of offenses.
Previous legislation. SB 955 (Huff) of 2010 required changes to
the timeline for teacher layoff notices, changes to the teacher
evaluation and assessment process and modified the teacher
discipline process in ways that are closely related to those
presented in this bill. SB 955 was held in the Senate Rules
Committee.
AB 2219 (Fuentes) of 2010 required the state or the governing
board to pay for the expenses of a hearing or administrative law
judge, if the Commission on Professional Competences (CPC)
determines that a school employee should be dismissed or
suspended. AB 2219 was held in the Assembly Education Committee.
SB 1303 (Runner) Chapter 579, Statutes of 2008, specified that
employees placed on compulsory leave who do not elect to furnish
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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.
AB 506 (Lieu) of 2007 required school districts to take certain
actions in response to a situation where they suspect an
investigation of criminal offenses that require a compulsory
leave of absence. AB 506 was held in the Senate Appropriations
Committee.
REGISTERED SUPPORT / OPPOSITION :
Support
Los Angeles Unified School District
Riverside County Superintendent of Schools
Opposition
American Federation of State, County and Municipal Employees,
AFL-CIO
California Teachers Association
Analysis Prepared by : Mark Murphy and Chelsea Kelley / ED. /
(916) 319-2087