BILL ANALYSIS �
SB 1530
Page 1
Date of Hearing: June 27, 2012
ASSEMBLY COMMITTEE ON EDUCATION
Julia Brownley, Chair
SB 1530 (Padilla) - As Amended: May 25, 2012
SENATE VOTE : 33-4
SUBJECT : School employees: dismissal, suspension, and leave of
absence procedures.
SUMMARY : Makes changes to the procedures used for dismissal
and suspension proceedings for permanent certificated employees
that are dismissed for serious or egregious unprofessional
conduct, as defined. Specifically, this bill :
1)Defines 'serious or egregious unprofessional conduct' as
misconduct reasonably related to any of the following
offenses: sex offenses; controlled substance offenses; and,
child abuse and neglect offenses, as specified.
2)Authorizes a governing board to immediately suspend a
permanent employee for serious or egregious unprofessional
conduct, as defined; adds serious or egregious unprofessional
conduct as a reason for dismissal of a permanent employee;
and, specifies the following procedural changes for dismissals
for serious or egregious unprofessional conduct only:
a) Authorizes testimony to be given and evidence to be
introduced relating to matters that occurred more than four
years in the past.
b) Specifies the dismissal hearing shall be conducted
solely by an administrative law judge (ALJ) of the Office
of Administrative Hearings (OAH); and, specifies that the
place of the hearing shall be selected by the ALJ.
c) Specifies the decision of the ALJ is advisory and that
the final decision regarding the discipline of the employee
shall be determined by action of the governing board;
requires the governing board, before making its final
determination, to allow the employee to submit a written
statement or response or, at the election of the governing
board, an oral statement concerning the disciplinary action
and shall only consider the record produced during the
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hearing conducted by the ALJ; and, specifies the governing
board's final determination shall be subject to review and
appeal, as specified.
3)Authorizes the notice of dismissal or suspension to be given
to a permanent employee at any time during the year for
serious or egregious unprofessional conduct, immoral 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, with violation of advocacy or teaching of
communism, or with knowing membership by the employee in the
Communist party; and, specifies that this permission is
intended to codify the holding of Board of Education v.
Commission on Professional Competence (1976) 61 Cal.App.3d664.
4)Removes marijuana, mescaline, peyote, and
tetrahydrocannabinols as exceptions to the controlled
substance offenses for which a certificated employee may be
charged with a mandatory or optional leave of absence offense.
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,
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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
year. (EC 44936)
4)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)
5)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
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 Commission
on Professional Competency (CPC) made up of three members:
i) One member to be selected by the certificated
employee;
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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. (EC 44944)
6)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)
7)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 : According to the Senate Appropriations
Committee, the hearing notice and procedures are unlikely to
result in new state costs. The expansion of offenses are a
potentially significant reimbursable state mandate, to the
extent that certificated employees are placed on mandatory
leaves of absence for the new offenses.
COMMENTS : This bill outlines a new procedure for dismissing
certificated employees for serious or egregious unprofessional
conduct. The bill defines serious or egregious unprofessional
conduct as misconduct reasonably related to any offense as
described in Education Code Sections 44010 (sex offenses) and
44011 (drug offenses), and Sections 11165.2 to 11165.6,
inclusive, of the Penal Code (child abuse and neglect offenses).
Under the provisions of this bill, an employee who is dismissed
for serious or egregious unprofessional conduct may be dismissed
at any time of year; may have evidence presented during the
hearing that is more than 4 years old; will have an ALJ oversee
the hearing instead of the three member panel; and, the decision
of the ALJ is only advisory to the school board. Further, this
bill requires specified drug offenses involving marijuana,
mescaline, peyote, and tetrahydrocannabinols to be mandatory
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leave of absence offenses for certificated employees. The bill
also allows employees who are dismissed for immoral 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, with violation of advocacy or teaching of
communism, or with knowing membership by the employee in the
Communist party to also be dismissed at any time of year.
According to the author, existing law states that a school
district may remove a teacher from the classroom as deemed
necessary. Because removal does not constitute dismissal, a
teacher who is removed from the classroom is entitled to pay and
must still report to work during the investigation. These
teachers are usually "housed" at a district office away from the
classroom environment. It can take anywhere from a few months
to more than a year for staff to collect evidence and recommend
dismissal to the board of education. This bill would expedite
the dismissal process for certificated employees in cases
involving sex abuse, drugs, or violence against children.
Dismissal Notices between May 15th and September 15th : Under
current law, districts are not allowed to issue a notice of
intent to start the dismissal process between May 15th and
September 15th of any given year. It is believed that concerns
about summer break notification issues and the availability of
witnesses led to the original adoption of this prohibition.
Additionally, it could be argued that most employees are not
interacting with students during the summer months so there is
no urgent need to dismiss employees over the summer. There are
a few exceptions to these theories however, which do allow some
employees access to students during the summer. First, some
schools operate on a year round basis. Second, summer school is
in session. Incidents leading a district to intend to dismiss
or suspend a certificated employee may occur in these settings.
This bill authorizes districts to initiate dismissal proceedings
at any time of year when a district dismisses a teacher for
serous or egregious unprofessional conduct, immoral 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, with violation of advocacy or teaching of
communism, or with knowing membership by the employee in the
Communist party. The author argues that these types of conduct
are so troubling that districts should be able to dismiss a
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teacher at any time of year, and not have to wait until after
the summer months pass.
Past Evidence in Dismissal Hearing . This bill authorizes
testimony and evidence relating to matters that occurred in the
past to be used for a dismissal decision when an employee is
dismissed for serious or egregious unprofessional conduct.
Current law does not allow testimony about or evidence relating
to matters more than four years old during a 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. 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 was not available to the Commission on Professional
Competence (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.
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 for serious or egregious unprofessional
conduct. It seems that having all possible evidence to help
illuminate patterns of behavior is reasonable during a dismissal
hearing for serious or egregious unprofessional conduct.
Commission on Professional Competence (CPC) reconfiguration .
This bill reconfigures the CPC by reducing the membership on the
commission down to a single ALJ for hearings of employees being
dismissed for serious or egregious unprofessional conduct.
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.
One could argue that removing the two individuals with
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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. On the other hand, it could also be
argued that employees with professional experience are not
needed on the CPC to decide cases involving sex offences, drug
offences and child abuse. One could argue that these types of
cases do not require a person with professional experience
working in a school to make a ruling.
At least one particular type of child abuse case, however, may
benefit from employees with professional experience as members
of the CPC. For example, if an employee exhibits physical
control over a student while breaking up a fight, and is later
accused of child abuse, perhaps it is true that the perspective
of other employees who have also broken up fights might be
valuable. The committee may wish to consider amending the bill
so that cases involving corporal punishment acts described in
Section 11165.4 of the Penal Code be removed from the ALJ only
hearing process, and instead be heard by a full CPC.
Child Abuse & Neglect : Below are the child abuse and neglect
code sections included in the definition of serious or egregious
unprofessional conduct. The committee may wish to consider
having cases involving the third section relating to unlawful
corporal punishment be heard by a full CPC.
1)Neglect, which is defined as the negligent treatment or
maltreatment of a child by a person responsible for the
child's welfare under circumstances indicating harm or
threatened harm to the child's health or welfare;
2)Willful harming or injuring of a child or the endangering the
health of a child;
3)Unlawful corporal punishment or injury, which is defined as a
situation where any person willfully inflicts upon any child
any cruel or inhuman corporal punishment or injury resulting
in a traumatic condition;
4)Abuse or neglect in out-of-home care, which includes physical
injury or death inflicted upon a child by another person by
other than accidental means; sexual abuse; neglect; unlawful
corporal punishment or injury; or willful harming or injuring
of a child or the endangering the health of a child where the
person responsible for the child's welfare is a licensee,
administrator, or employee of any facility licensed to care
for children, or an administrator or employee of a public or
private school or other institution or agency; and,
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5)Child abuse or neglect, which includes physical injury or
death inflicted by other than accidental means upon a child by
another person, sexual abuse, neglect, the willful harming or
injuring of a child or the endangering the health of a child,
and unlawful corporal punishment or injury.
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 ALJ for cases involving serious or
egregious unprofessional conduct. The author contends that
school districts are given the power to hire employees but they
are currently not authorized to fire employees. The decision by
the 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
ALJ's decision 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 and to provide
full due process. The committee may wish to consider amending
the bill to restore due process and make the ALJ's ruling
binding.
The committee may wish to consider the following amendments:
1. To clarify section 44932, separate immoral conduct and
unprofessional conduct and renumber the code section.
2. To avoid confusion by using the term unprofessional
twice, change "serious or egregious unprofessional conduct"
to "serious or egregious conduct" in all sections of the
bill.
3. To restore full due process, make the decision of the
administrative law judge final in cases of "serious or
egregious conduct."
4. To provide professional expertise in cases of alleged
child abuse of a student, restore the full CPC for cases
involving corporal punishment acts described in Section
11165.4 of the Penal Code.
5. To bring consistency to the definition, make the
language in the definition of "serious or egregious
conduct" consistent with the references to these types of
offenses throughout section 44944.
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6. To avoid confusion with regard to legislative intent,
delete the reference to the holding of Board of Education
v. Commission on Professional Competence.
Arguments in Support : Los Angeles Mayor Antonio R. Villaraigosa
supports the bill and argues, "This bill would modify the
dismissal procedures for certificated employees in cases
involving sex, violence or drug offenses against children.
Recent events that have surfaced related to allegations of
sexual misconduct by employees of the Los Angeles Unified School
District have highlighted the need to strengthen existing
Education Code regarding dismissals. As written, current laws
create an overly onerous process that often ends in payoffs to
teachers to resign, thereby making it difficult to dismiss
teachers who violate the trust of our students and families."
Arguments in Opposition : The California Teachers Association
opposes the bill and argues, "This bill makes significant
changes to existing due process protections for education
employees by creating new mandates for teacher dismissal. SB
1530 eliminates employer obligations for due process and erodes
the integrity of the teacher dismissal process?.SB 1530 changes
the decision of �the] single person CPC from binding to
advisory; the governing board of the school district would make
the final determination about the disposition of the misconduct
charges. Although the intent is to restore local control in a
cumbersome and expensive process, this proposal is a serious and
egregious step backwards from providing due process in these
proceedings."
Related legislation . SB 1059 (Huff), which failed passage in the
Senate Education Committee, would have required significant
modifications to the current protocols used for the discipline
of a certificated employee in California; shortened the process
for the dismissal or suspension of a certificated employee for
unprofessional conduct or unsatisfactory performance; and,
shifted 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.
AB 2028 (Knight), which was held in the Assembly Appropriations
Committee, would have repealed the requirement that dismissal or
suspension notices not be given between May 15 and September 15
in any year; and, repealed the requirement that no testimony be
given or introduced at a certificated employee's dismissal or
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suspension hearing relating to matters that occurred more than
four years before to the date of the filing notice, as
specified.
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
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
Alliance for a Better Community
Association of California School Administrators
California Association of Suburban School Districts
California Catholic Conference
California County Superintendents Educational Services
Association
California School Boards Association
Children Now
City of Los Angeles Mayor Antonio Villaraigosa
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City of Santa Ana Police Department
InnerCity Struggle
Legacy L.A.
Los Angeles Unified School District
Mexican American Legal Defense and Educational Fund
Partnership for Los Angeles Schools
Riverside County Superintendent of Schools
Riverside County School Superintendents' Association
San Francisco Unified School District
The Education Trust West
Visalia Unified School District
Youth Policy Institute
Opposition
California Labor Federation
California Federation of Teachers
California Professional Firefighters
California School Employees Association
California Teachers Association
Peace Officers Research Association
United Teachers Los Angeles
Analysis Prepared by : Chelsea Kelley / ED. / (916) 319-2087