BILL NUMBER: SB 1530 AMENDED
BILL TEXT
AMENDED IN SENATE MARCH 27, 2012
INTRODUCED BY Senator Padilla
FEBRUARY 24, 2012
An act to amend Section 435 Sections
44936, 44938, 44939, 44940, and 44944 of the Education Code,
relating to pupils. school employees.
LEGISLATIVE COUNSEL'S DIGEST
SB 1530, as amended, Padilla. Pupils: English learners.
School employees: dismissal, suspension, and leave of
absence procedures.
(1) Under existing law, a permanent school employee is prohibited
from being dismissed, except for one or more of certain enumerated
causes, including for immoral or unprofessional conduct and
unsatisfactory performance. Upon a charging that there exists cause
for the dismissal or suspension of a permanent employee, existing law
authorizes the governing board of a school district to give notice
to the employee of its intention to dismiss or suspend the employee,
as specified. Existing law prohibits the governing board of a school
district from giving notice of dismissal or suspension of a permanent
employee between May 15 and September 15 of any year.
This bill would except from that prohibition of giving notice
between those dates, proceedings where the charges involve specified
offenses.
(2) Existing law prohibits the governing board of any school
district from acting upon charges of unprofessional conduct or
unsatisfactory performance against an employee unless the employee is
given written notice of the unprofessional conduct or unsatisfactory
performance, as provided.
This bill would delete the provision that prohibits the governing
board from acting upon charges of unprofessional conduct, as
specified.
(3) Existing law authorizes the governing board of a school
district to immediately suspend a permanent employee under specified
conditions, including immoral conduct, and give the employee notice
of the suspension, as specified.
This bill would include unprofessional conduct within the
conditions that a governing board may immediately suspend a permanent
employee.
(4) Existing law provides that a certificated employee may be
charged with a mandatory leave of absence offense for certain
specified sex offenses or controlled substance offenses with the
exception of marijuana, mescaline, peyote, or tetrahydrocannabinols.
Existing law also provides that a certificated employee may be
charged with an optional leave of absence offense for certain
offenses, including controlled substance offenses, as specified, with
the exception of marijuana, mescaline, peyote, or
tetrahydrocannabinols. Existing law requires the governing board of a
school district to immediately place a certificated employee on
compulsory leave of absence if the employee is charged with a
mandatory leave of absence offense.
This bill would remove marijuana, mescaline, peyote, and
tetrahydrocannabinols as exceptions to the controlled substance
offenses for which a certificated employee may be charged with a
mandatory leave of absence offense or an optional leave of absence
offense.
Because this bill would increase the number of employees subject
to immediate placement on compulsory leave of absence, thereby
increasing the duties of school districts, the bill would impose a
state-mandated local program.
(5) Existing law requires that a requested hearing on the
dismissal or suspension of a permanent employee be conducted by a
Commission on Professional Competence, as specified, and provides
that the decision of the commission is deemed to be the final
decision of the governing board of a school district. Existing law
prohibits testimony from being given and evidence from being
introduced relating to matters that occurred more than 4 years prior
to the filing of the notice, and prohibits a decision relating to the
dismissal or suspension of an employee from being made based on
charges or evidence relating to matters that occurred more than 4
years before the filing of the notice of charges for the dismissal or
suspension of the employee.
This bill would require the Commission on Professional Competence,
for hearings on the dismissal or suspension of a permanent employee
that involve certain sex offenses, controlled substance offenses, or
child abuse offenses, as specified, to consist of an administrative
law judge of the Office of Administrative Hearings and would provide
that the decision of the commission related to these specified
offenses would be advisory in nature to the governing board. The bill
would exempt hearings that involve these specified offenses from the
prohibition on giving testimony and introducing evidence relating to
matters that occurred more than 4 years before the date of the
filing of the notice, and would, for hearings that involve the
specified offenses, permit a decision relating to the dismissal or
suspension of an employee to be made based on charges or evidence
related to matters occurring more than 4 years before the date of the
filing of the notice of charges for the dismissal or suspension of
the employee.
(6) This bill also would make nonsubstnative and conforming
changes to these provisions.
(7) 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.
The English Learner and Immigrant Pupil Federal Conformity Act
requires a local educational agency to provide instructional services
to limited-English-proficient pupils and immigrant pupils in
conformity with specified provisions of federal law. Existing law
defines the term "English learner" for purposes of these provisions.
This bill would additionally define the terms "long-term English
learner" and "reclassified English proficient" and would declare the
intent of the Legislature to enact legislation that would require the
State Department of Education to provide information regarding
long-term English learners and reclassified-English-proficient
pupils.
Vote: majority. Appropriation: no. Fiscal committee: no
yes . State-mandated local program: no
yes .
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 44936 of the
Education Code is amended to read:
44936. The notice of dismissal or suspension in a proceeding
initiated pursuant to Section 44934 shall not be given between May
15th 15 and September 15th in
any year 15, except in proceedings where the charges
involve any offense as defined in Sections 440 10 and
44011 of this code, and Sections 11165.2 to 11165.6, inclusive, of
the Penal Code . It The notice
shall be in writing and be served upon the employee personally or by
United States registered mail addressed to him or her at
his the employee's last known address.
A copy of the charges filed, containing the information required by
Section 11503 of the Government Code, together with a copy of the
provisions of this article, shall be attached to the notice.
SEC. 2. Section 44938 of the Education
Code is amended to read:
44938. (a) The governing board of any school district shall not
act upon any charges of unprofessional conduct unless at least 45
calendar days prior to the date of the filing, the board or its
authorized representative has given the employee against whom the
charge is filed, written notice of the unprofessional conduct,
specifying the nature thereof with such specific instances of
behavior and with such particularity as to furnish the employee an
opportunity to correct his or her faults and overcome the grounds for
the charge. The written notice shall include the evaluation made
pursuant to Article 11 (commencing with Section 44660) of Chapter 3,
if applicable to the employee.
(b)
44938. (a) The governing board of
any a school district shall not act upon any
charges of unsatisfactory performance unless it acts in accordance
with the provisions of paragraph (1) or (2):
(1) At least 90 calendar days prior to
before the date of the filing, the governing board
or its authorized representative has given the employee against whom
the charge is filed , written notice of the
unsatisfactory performance , specifying the nature
thereof with such specific instances of behavior and with such
particularity as to furnish the employee an opportunity to correct
his or her faults and overcome the grounds for the charge. The
written notice shall include the evaluation made pursuant to Article
11 (commencing with Section 44660) of Chapter 3, if applicable to the
employee.
(2) The governing board may act during the time period composed of
the last one-fourth of the schooldays it has scheduled for purposes
of computing apportionments in any fiscal year if, prior to
before the beginning of that time period, the
governing board or its authorized representative has given
the employee against whom the charge is filed ,
written notice of the unsatisfactory performance ,
specifying the nature thereof with such specific instances of
behavior and with such particularity as to furnish the employee an
opportunity to correct his or her faults and overcome the grounds for
the charge. The written notice shall include the evaluation made
pursuant to Article 11 (commencing with Section 44660) of Chapter 3,
if applicable to the employee.
(c)
(b) "Unsatisfactory performance" as used in this
section means, and refers only to, the unsatisfactory performance
particularly specified as a cause for dismissal in Section 44932 and
does not include any other cause for dismissal specified in Section
44932.
"Unprofessional conduct" as used in this section means, and refers
to, the unprofessional conduct particularly specified as a cause for
dismissal or suspension in Sections 44932 and 44933 and does not
include any other cause for dismissal specified in Section 44932.
SEC. 3. Section 44939 of the Education
Code is amended to read:
44939. (a) Upon the filing of written
charges, duly signed and verified by the person filing them with the
governing board of a school district, or upon a written statement of
charges formulated by the governing board, charging a permanent
employee of the district with immoral or unprofessional
conduct, conviction of a felony or of any crime involving moral
turpitude, with incompetency due to mental disability, with willful
refusal to perform regular assignments without reasonable cause, as
prescribed by reasonable rules and regulations of the employing
school district, with violation of Section 51530, with knowing
membership by the employee in the Communist Party or with violation
of any provision in Sections 7001 to 7007, inclusive, the governing
board may, if it deems such action necessary, immediately suspend the
employee from his or her duties and give notice to
him the employee of his or her
suspension, and that 30 days after service of the notice,
he the employee will be dismissed,
unless he or she demands a hearing.
If
(b) If the permanent employee is
suspended upon charges of knowing membership by the employee in the
Communist Party or for any violation of Section
7001, 7002, 7003, 7006, 7007, or 51530, he
the employee may within 10 days after service upon him or
her of notice of such suspension file with the governing board
a verified denial, in writing, of the charges. In such event the
permanent employee who demands a hearing within the 30-day period
shall continue to be paid his or her regular salary during
the period of suspension and until the entry of the decision of the
Commission on Professional Competence, if and during such time as
he the employee furnishes to the school
district a suitable bond, or other security acceptable to the
governing board, as a guarantee that the employee will repay to the
school district the amount of salary so paid to him or her
during the period of suspension in case the decision of the
Commission on Professional Competence is that he
the employee shall be dismissed. If it is determined that
the employee may not be dismissed, the school board shall reimburse
the employee for the cost of the bond.
SEC. 4. Section 44940 of the Education
Code is amended to read:
44940. (a) For purposes of this section, "charged with a
mandatory leave of absence offense" is defined to mean charged by
complaint, information, or indictment filed in a court of competent
jurisdiction with the commission of any a
sex offense as defined in Section 44010, or with the commission
of any an offense involving aiding or
abetting the unlawful sale, use, or exchange to minors of controlled
substances listed in Schedule I, II, or III, as contained in
Section Sections 11054, 11055, and 11056 of the
Health and Safety Code , with the exception of marijuana,
mescaline, peyote, or tetrahydrocannabinols .
(b) For purposes of this section, "charged with an optional leave
of absence offense" is defined to mean a charge by complaint,
information, or indictment filed in a court of competent jurisdiction
with the commission of any a
controlled substance offense as defined in Section 44011 or 87011, or
a violation or attempted violation of Section 187 of the Penal Code,
or Sections 11357 to 11361, inclusive, or
Section 11363, 11364, or 11370.1 of the Health and Safety Code,
insofar as these sections relate to any
controlled substances except marijuana, mescaline, peyote,
or tetrahydrocannabinols .
(c) For purposes of this section and Section 44940.5, the term
"school district" includes county offices of education.
(d) (1) Whenever any If a
certificated employee of a school district is charged with a
mandatory leave of absence offense, as defined in subdivision (a),
upon being informed that a charge has been filed, the governing board
of the school district shall immediately place the employee on
compulsory leave of absence. The duration of the leave of absence
shall be until a time not more than 10 days after the date of entry
of the judgment in the proceedings. No later than 10 days after
receipt of the complaint, information, or indictment described by
subdivision (a), the school district shall forward a copy to the
Commission on Teacher Credentialing.
(2) Upon receiving a copy of a complaint, information, or
indictment described in subdivision (a) and forwarded by a
the school district, the Commission on Teacher
Credentialing shall automatically suspend the employee's teaching or
service credential. The duration of the suspension shall be until a
time not more than 10 days after the date of entry of the judgment in
the proceedings.
(e) (1) Whenever any If a
certificated employee of a school district is charged with an
optional leave of absence offense , as defined in
subdivision (b), the governing board of the school district may
immediately place the employee upon on
compulsory leave in accordance with the procedure in this section and
Section 44940.5. If any a certificated
employee is charged with an offense deemed to fall into both the
mandatory and the optional leave of absence categories, as defined in
subdivisions (a) and (b), that offense shall be treated as a
mandatory leave of absence offense for purposes of this section. No
later than 10 days after receipt of the complaint, information, or
indictment described by subdivision (a), the school district shall
forward a copy to the Commission on Teacher Credentialing.
(2) Upon receiving a copy of a complaint, information, or
indictment described in subdivision (a) and forwarded by a
the school district, the Commission on Teacher
Credentialing shall automatically suspend the employee's teaching or
service credential. The duration of the suspension shall be until a
time not more than 10 days after the date of entry of the judgment in
the proceedings.
SEC. 5. 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 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 (A) A
witness shall not be permitted to testify at the hearing
except upon oath or affirmation. No testimony
(B) Except for hearings that involve
any offense as defined in Sections 44010 and 44011 of this code, and
Sections 11165.2 to 11165.6, inclusive, of the Penal Code:
(i) Testimony shall not
be given or evidence introduced relating to matters that
occurred more than four years prior to before
the date of the filing of the notice. Evidence
(ii) 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 an employee shall be made based
on charges or evidence of any nature relating to matters occurring
more than four years prior to before
the filing of the notice.
(b) (1) The hearing provided
for in this section shall be conducted by a Commission on
Professional Competence . One as follows:
(1) The Commission on Professional
Competence shall consist of an administrative law judge of the Office
of Administrative Hearings for a hearing that involves any offense
as defined in Sections 44010 and 44011 of this code, and
Sections 11165.2 to 11165.6, inclusive, of the Penal Code.
(2) The Commission on Professional Competence shall be comprised
as follows for hearings not specified in paragraph (1):
(A) 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 before 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)
(B) 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.
However, the decision of the Commission on Professional Competence
shall be deemed to be advisory in nature to the governing board with
respect to hearings that involve any offense as defined in Sections
44010 and 44011 of this code, and Sections 11165.2 to 11165.6,
inclusive, of the Penal Code.
(5) The governing 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
a 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, 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, and for hearings conducted pursuant
to paragraph (1) of subdivision (b), the place shall be
selected by the administrative law judge.
SEC. 6. 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.
SECTION 1. Section 435 of the Education Code is
amended to read:
435. For purposes of this chapter, the following terms have the
following meanings:
(a) "English learner" or "pupil of limited English proficiency"
means a pupil who was not born in the United States or whose native
language is a language other than English or who comes from an
environment where a language other than English is dominant; and
whose difficulties in speaking, reading, writing, or understanding
the English language may be sufficient to deny the individual the
ability to meet the state's proficient level of achievement on state
assessments, the ability to successfully achieve in classrooms where
the language of instruction is English, or the opportunity to
participate fully in society.
(b) "Federal No Child Left Behind Act of 2001" means Public Law
107-110 (20 U.S.C. Sec. 6801 et seq.).
(c) "Immigrant pupil" means a pupil who was born in a country
other than the United States and who has attended a kindergarten
class or any of grades 1 to 12, inclusive, in a school in the United
States for three or fewer years.
(d) "Long-term English learner" means a pupil in any of grades 7
to 12, inclusive, who has been an English learner for six years or
more.
(e) "Reclassified English proficient" means an English learner who
has been redesignated as English proficient pursuant to Section 313.
SEC. 2. It is the intent of the Legislature to
enact legislation that would require the State Department of
Education to provide information regarding long-term English learners
and reclassified-English-proficient pupils.