BILL NUMBER: SB 266 AMENDED
BILL TEXT
AMENDED IN SENATE MARCH 24, 2011
INTRODUCED BY Senator Dutton
FEBRUARY 10, 2011
An act to amend , repeal, and add Section 44956 of
, and to add Section 44956.1 to, the Education Code, relating
to education employment.
LEGISLATIVE COUNSEL'S DIGEST
SB 266, as amended, Dutton. Education employment: termination,
reappointment, and opportunity for substitute service.
Existing law provides that, when employees are terminated pursuant
to a reduction in workforce, a school district is required to
terminate the employees in order of seniority. Existing law further
provides those employees with preferred right to reappointment and
opportunity for substitute service in order of seniority.
Existing law requires that, if a terminated employee who is
offered the opportunity for substitute service serves for at least 21
out of 60 schooldays, the compensation received by the employee in
that 60-day period be no less than the compensation the employee
would receive if he or she were being reappointed.
This bill would temporarily delete the above-referenced
requirement relating to compensation for the period of January
1, 2012, to June 30, 2015, inclusive .
The bill would also prohibit local educational agencies from
creating a vacant position, as defined, and subsequently filling that
position with a substitute employee, as defined.
The bill would make various technical and nonsubstantive
clarifying changes.
Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. The Legislature finds and declares all
of the following:
(a) Current statutory requirements regarding the placement and pay
of specified substitute teachers impose significant, unnecessary
costs on local educational agency budgets, forcing local educational
agencies to cut basic educational programs and make staff reductions.
(b) It is essential that the state provide local educational
agencies with maximum local flexibility to set substitute teacher pay
rates that reflect locally determined priorities for ensuring that
essential pupil programs are maintained in the most effective manner.
(c) To ensure local authority and flexibility to prioritize and
protect core pupil services and personnel essential to these
services, current statutory substitute teacher pay requirements
should be temporarily repealed through the 2014-15 fiscal year, in
alignment with other local flexibility afforded to local educational
agencies in accommodation of the current fiscal crisis.
SECTION 1. SEC. 2. Section 44956 of
the Education Code is amended to read:
44956. A permanent employee whose services have been terminated
as provided in Section 44955 shall have the following rights:
(a) For the period of 39 months from the date of the termination,
any employee who in the meantime has not attained the age of
65 years 65 years of age shall have the
preferred right to reappointment, in the order of original employment
as determined by the governing board in accordance with
Sections 44831 to 44855, inclusive, if the number of employees is
increased or the discontinued service is reestablished, with no
requirements that were not imposed upon other employees who continued
in service; provided, that no probationary or other employee with
less seniority shall be employed to render a service that the
employee is certificated and competent to render. However, prior to
reappointing any employee to teach a subject which
that he or she has not previously taught, and for which
he or she does not have a teaching credential or which
that is not within the employee's major area of
postsecondary study or the equivalent thereof, the governing board
shall require the employee to pass a subject matter competency test
in the appropriate subject.
(b) The right to reappointment pursuant to
described in subdivision (a) may be waived by the employee,
without prejudice, for not more than one school year, unless the
governing board extends this right, but the waiver shall not
deprive the employee of his or her right to subsequent offers of
reappointment.
(c) Notwithstanding subdivision (a), a school district may deviate
from reappointing a certificated employee in order of seniority for
either of the following reasons:
(1) The 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 employee has special training and experience
necessary to teach that course or course of study, or to provide
those services, which others with more seniority do not possess.
(2) For purposes of maintaining or achieving compliance with
constitutional requirements related to equal protection of the laws.
(d) For an employee who is reappointed, the period of his or her
absence shall be treated as a leave of absence and shall not be
considered as a break in the continuity of his or her service, he or
she shall retain the classification and order of employment he or she
had when his or her services were terminated, and credit for prior
service under any state or district retirement system shall not be
affected by the termination, but the period of his or her absence
shall not count as a part of the service required for retirement.
(e) During the period of an employee's preferred right to
reappointment, the employee, in the order of original employment,
shall be offered prior opportunity for substitute service during the
absence of any other employee who has been granted a leave of absence
or who is temporarily absent from duty; provided, that his or her
services may be terminated upon the return to duty of the other
employee and that the substitute service shall not affect the
retention of his or her previous classification and rights.
(g)
(f) (1) During the period of the employee's preferred
right to reappointment, the governing board of the district, if it is
also the governing board of one or more other districts, may assign
the employee to service that he or she is certificated and competent
to render, in one of the other districts. The compensation the
employee receives, in the discretion of the governing board, may be
the same as the employee would have received had he or she been
serving in the district from which the employee's services were
terminated. The employee's service in the other district or districts
shall be counted toward the period required for both state and local
retirement as though rendered in the district from which the
employee's services were terminated. The employee shall not displace
any other permanent employee in the other district or districts.
(2) It is the intent of this subdivision that the employees of a
school district, the governing board of which is also the governing
board of one or more other school districts, shall not be at a
disadvantage as compared with employees of a unified school district.
(h)
(g) At any time prior to the completion of one year
after the employee's return to service, the employee may continue or
make up, with interest, his or her own contributions to any state or
district retirement system for the period of his or her absence, but
it shall not be obligatory on the state or district to match the
contributions.
(i)
(h) If the employee becomes disabled or reaches
retirement age at any time before his or her return to service, the
employee shall receive, in any state or district retirement system of
which the employee was a member, all benefits to which he or she
would have been entitled if the disability or retirement occurred at
the time of his or her termination of service, plus any benefits the
employee may have qualified for thereafter, as though still employed.
(i) This section shall become inoperative on July 1, 2015, and, as
of January 1, 2016, is repealed, unless a later enacted statute,
that becomes operative on or before January 1, 2016, deletes or
extends the dates on which it becomes inoperative and is repealed.
SEC. 3. Section 44956 is added to the
Education Code , to read:
44956. A permanent employee whose services have been terminated
as provided in Section 44955 shall have the following rights:
(a) For the period of 39 months from the date of the termination,
any employee who in the meantime has not attained 65 years of age
shall have the preferred right to reappointment, in the order of
original employment as determined by the governing board in
accordance with Sections 44831 to 44855, inclusive, if the number of
employees is increased or the discontinued service is reestablished,
with no requirements that were not imposed upon other employees who
continued in service; provided, that no probationary or other
employee with less seniority shall be employed to render a service
that the employee is certificated and competent to render. However,
prior to reappointing any employee to teach a subject that he or she
has not previously taught, and for which he or she does not have a
teaching credential or that is not within the employee's major area
of postsecondary study or the equivalent thereof, the governing board
shall require the employee to pass a subject matter competency test
in the appropriate subject.
(b) The right to reappointment described in subdivision (a) may be
waived by the employee, without prejudice, for not more than one
school year, unless the governing board extends this right, but the
waiver shall not deprive the employee of his or her right to
subsequent offers of reappointment.
(c) Notwithstanding subdivision (a), a school district may deviate
from reappointing a certificated employee in order of seniority for
either of the following reasons:
(1) The 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 the
employee has special training and experience necessary to teach that
course or course of study, or to provide those services, which others
with more seniority do not possess.
(2) For purposes of maintaining or achieving compliance with
constitutional requirements related to equal protection of the laws.
(d) For an employee who is reappointed, the period of his or her
absence shall be treated as a leave of absence and shall not be
considered as a break in the continuity of his or her service, he or
she shall retain the classification and order of employment he or she
had when his or her services were terminated, and credit for prior
service under any state or district retirement system shall not be
affected by the termination, but the period of his or her absence
shall not count as a part of the service required for retirement.
(e) During the period of an employee's preferred right to
reappointment, the employee, in the order of original employment,
shall be offered prior opportunity for substitute service during the
absence of any other employee who has been granted a leave of absence
or who is temporarily absent from duty; provided, that his or her
services may be terminated upon the return to duty of the other
employee and that the substitute service shall not affect the
retention of his or her previous classification and rights. If, in
any school year the employee serves as a substitute in any position
requiring certification for any 21 days or more within a period of 60
schooldays, the compensation the employee receives for substitute
service in that 60-day period, including his or her first 20 days of
substitute service, shall be not less than the amount the employee
would receive if he or she were being reappointed.
(f) (1) During the period of the employee's preferred right to
reappointment, the governing board of the district, if it is also the
governing board of one or more other districts, may assign the
employee to service that he or she is certificated and competent to
render, in one of the other districts. The compensation the employee
receives, in the discretion of the governing board, may be the same
as the employee would have received had he or she been serving in the
district from which the employee's services were terminated. The
employee's service in the other district or districts shall be
counted toward the period required for both state and local
retirement as though rendered in the district from which the employee'
s services were terminated. The employee shall not displace any other
permanent employee in the other district or districts.
(2) It is the intent of this subdivision that the employees of a
school district, the governing board of which is also the governing
board of one or more other school districts, shall not be at a
disadvantage as compared with employees of a unified school district.
(g) At any time prior to the completion of one year after the
employee's return to service, the employee may continue or make up,
with interest, his or her own contributions to any state or district
retirement system for the period of his or her absence, but it shall
not be obligatory on the state or district to match the
contributions.
(h) If the employee becomes disabled or reaches retirement age at
any time before his or her return to service, the employee shall
receive, in any state or district retirement system of which the
employee was a member, all benefits to which he or she would have
been entitled if the disability or retirement occurred at the time of
his or her termination of service, plus any benefits the employee
may have qualified for thereafter, as though still employed.
(i) This section shall become operative on July 1, 2015.
SEC. 4. Section 44956.1 is added to the
Education Code , to read:
44956.1. A local educational agency shall not create a vacant
position, as defined in Section 44920, and subsequently fill that
newly created vacant position with a substitute employee, as defined
in Section 44917.