Amended in Assembly April 24, 2013

California Legislature—2013–14 Regular Session

Assembly Bill No. 1221

Introduced by Assembly Member Wilk

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(Coauthors: Assembly Members Conway, Beth Gaines, Gorell, Harkey, Jones, Morrell, and Nestande)

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February 22, 2013

An act to amend Sections 44936, 44938, begin insert 44939, end insert 44944, and 44945 of, begin delete and end delete to add begin delete Sections end delete begin insert Section end insert 44932.5 begin delete and 44940.7 end delete to, begin insert and to repeal Section 45047 of, end insert the Education Code, relating to school employees.

LEGISLATIVE COUNSEL’S DIGEST

AB 1221, as amended, Wilk. School employees: discipline: suspension and dismissal.

(1) Existing law prohibits a permanent school employee from being dismissed except for one or more specified offenses.

This bill would prohibit a collective bargaining agreement entered into or renewed on or after January 1, 2014, from requiring the removal, after a specified time period, from an employee’s record of records pertaining to discipline, complaints, reprimands, or investigations relating to the employee’s commission, or potential commission, of one of those specified offenses.

(2) Existing law authorizes a governing board of a school district to give notice to a permanent employee of its intention to dismiss or suspend him or her for specified causes at the expiration of 30 days from the date of service of the notice, unless the employee demands a hearing. Existing law prohibits that notice from being given between May 15th and September 15th in any year.

This bill would remove that prohibition.

(3) Existing law prohibits the governing board of a school district from acting upon any charges of unprofessional conduct, or unsatisfactory performance, unless at least 45, or 90, calendar days, respectively, prior to the date of the filing of the charges the governing board, or its authorized representative, has given the employee written notice, as specified.

This bill would remove those 45-day and 90-day requirements.

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(4) Existing law requires the governing board of a school district to immediately place an employee on compulsory leave of absence if the employee is charged with a mandatory leave of absence offense, as defined.

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This bill would require the governing board to transfer a certificated employee to nonclassroom duties that do not involve contact with pupils if the governing board has reasonable cause to believe that the employee is under investigation by a law enforcement agency for commission of a mandatory leave of absence offense. The bill would require an employee transferred under these provisions to continue to receive his or her regular salary during the period of the transfer. If the governing board returns the employee to classroom duties, the bill would require the governing board to record the reason or reasons for the return in a resolution adopted by the governing board. By placing additional duties on school district governing boards regarding the transfer of employee duties, this bill would impose a state-mandated local program.

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(5)

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begin insert (4) end insert  Existing law establishes a Commission on Professional Competence for each dismissal or suspension hearing requested by an employee, consisting of specified members begin insert , and requires the proceeding to be conducted in accordance with the Administrative Procedure Act end insert . Existing law deems the decision of the Commission on Professional Competence to be the final decision of the governing board of the school district.

This bill would begin delete make various changes to the provisions relating to the hearing, including requiring end delete begin insert delete end insert the begin insert provisions providing for the establishment of a end insert Commission on Professional Competence begin delete to consist solely of end delete begin insert , and would instead require the proceedings to be conducted pursuant to the Administrative Procedure Act by end insert an administrative law judge begin delete , as well as providing end delete begin insert . The bill would provide end insert that the decision of the begin delete commission end delete begin insert administrative law judge end insert would be advisory, and the final decision regarding the discipline of the employee would be determined by action of the governing board of the school district. The bill would provide that an employee requesting a hearing may be placed on administrative leave without pay, and that an employee who is placed on administrative leave would be required to be paid his or her regular salary if he or she furnishes to the school district acceptable security, as specified.

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(6)

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begin insert (5) end insert  Existing law prohibits testimony from being given or evidence being introduced at the hearing relating to matters that occurred more than 4 years prior to the date of the filing of the notice of dismissal or suspension.

This bill would remove that 4-year limitation.

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(7)

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begin insert (6) end insert  This bill would make nonsubstantive and conforming changes.

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(8)

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begin insert (7) end insert  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.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes.

The people of the State of California do enact as follows:

SECTION 1.  

Section 44932.5 is added to the Education Code,
to read:

44932.5.  

A collective bargaining agreement entered into or
renewed on or after January 1, 2014, shall not require the removal,
after a specified time period, from an employee’s record of records
pertaining to discipline, complaints, reprimands, or investigations
relating to the employee’s commission, or potential commission,
of an offense listed in Section 44932.

SEC. 2.  

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 be in writing and be served
upon the employee personally or by United States registered mail
addressed to the employee at 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. 3.  

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 the
governing board or its authorized representative has given the
employee against whom the charge is filed written notice of the
unprofessional conduct, specifying the nature of the unprofessional
conduct with specific instances of behavior and with 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) The governing board of any 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) 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 of the
unsatisfactory performance with specific instances of behavior
and with 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,
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 of the unsatisfactory performance with
specific instances of behavior and with 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) (1) “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.

(2) “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.

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SEC. 4.  

Section 44940.7 is added to the Education Code, to
read:

44940.7.  

(a) The governing board shall transfer a certificated
employee to nonclassroom duties that do not involve contact with
pupils if the governing board has reasonable cause to believe that
the employee is under investigation by a law enforcement agency
for commission of a mandatory leave of absence offense within
the meaning of subdivision (a) of Section 44940.

(b) An employee transferred pursuant to this section shall
continue to receive his or her regular salary during the period of
the transfer.

(c) If the governing board returns the certificated employee to
classroom duties that involve contact with pupils, the governing
board shall record the reason or reasons for the return in a
resolution adopted by the governing board.

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begin insert SEC. 4. end insert   

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begin insert Section 44939 of the end insert begin insert Education Code end insert begin insert is amended to
read: end insert

44939.  

begin insert (a) end insert begin insert   end insert 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 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 begin insert or her end insert duties and give notice to begin delete him end delete begin insert the
employee end insert of his begin insert or her end insert suspension, and that 30 days after service
of the notice, he begin insert or she end insert will be dismissed, unless he begin insert or she end insert demands
a hearing.

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If

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begin insert (b) end insert begin insert   end insert begin insert If end insert 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 begin insert or she end insert may within 10 days after service begin delete upon him end delete of
notice of begin delete such end delete suspension begin insert , end insert file with the governing board a verified
denial, in writing, of the charges. begin delete In such event the end delete begin insert A end insert permanent
employee who demands a hearing within the 30-day period shall
continue to be paid his begin insert or her end insert regular salary during the period of
suspension and until the begin delete entry of the end delete begin insert final end insert decision of the
begin delete Commission on Professional Competence, end delete begin insert governing board of the
school district, end insert if and during such time as begin delete he end delete begin insert the employee end insert 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 begin delete so end delete paid begin delete to him end delete during
the period of suspension in case the decision of the begin delete Commission
on Professional Competence end delete begin insert governing board end insert is that begin delete he end delete begin insert the
employee end insert 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. 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 begin delete Commission on
Professional Competence end delete begin insert governing board end insert 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 paragraph (3).

(5) A witness shall not be permitted to testify at the hearing
except upon oath or affirmation.

(b) The hearing provided for in this section shall be conducted
by begin delete a Commission on Professional Competence which shall consist
solely of end delete an administrative law judge of the Office of
Administrative Hearings who shall be responsible for ensuring
that the legal rights of the parties are protected at the hearing.

(c) (1) The begin delete commission end delete begin insert administrative law judge end insert 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 begin delete commission end delete begin insert administrative law judge end insert
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 begin delete commission end delete begin insert administrative law judge end insert 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 begin delete commission end delete begin insert administrative law judge end insert
shall be advisory, and the final decision regarding the discipline
of the employee shall be determined by actions of the governing
board of the school district.

(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 governing board 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 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 governing board 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.

(3) If the employee petitions a court of competent jurisdiction
for review of the decision of the governing board, the payment of
expenses to the administrative law judge required by this
subdivision shall not be stayed.

(4) If the decision of the governing board is finally reversed or
vacated by a court of competent jurisdiction, 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.

(e) The hearing provided for in this section shall be conducted
in a place selected by agreement. In the absence of agreement, the
place shall be selected by the administrative law judge.

(f) (1) For the duration of the hearing conducted pursuant to
this section, the employee may be placed on administrative leave
without pay.

(2) If an employee is placed on administrative leave pursuant
to this section, the employee shall continue to be paid his or her
regular salary during the period of his or her administrative leave
of absence if during that time he or she furnishes to the school
district a suitable bond or other security acceptable to the governing
board, as a guarantee that the school district will be repaid the
amount of salary during the employee’s leave of absence if, by
action of the governing board, a final decision is made to terminate
the employee, or the employee fails or refuses to return to service
following a decision not to terminate the employee. If the
governing board determines that the employee should not be
dismissed, the governing board shall reimburse the employee for
the cost of the bond upon his or her return to service in the school
district.

(3) If the employee prevails at the hearing, the administrative
law judge may recommend a suitable compensatory remedy,
including back wages and benefits, which the governing board
may adopt if the employee is reinstated. An employee who is
reinstated pursuant to this section, either by the governing board
or by order of a court of competent jurisdiction, is entitled to
reasonable back wages and benefits.

SEC. 6.  

Section 44945 of the Education Code is amended to
read:

44945.  

The decision of the governing board may, on petition
of the employee, be reviewed by a court of competent jurisdiction
in the same manner as a decision made by a hearing officer under
Chapter 5 (commencing with Section 11500) of Part 1 of Division
3 of Title 2 of the Government Code. The court, on review, shall
exercise its independent judgment on the evidence. The proceeding
shall be set for hearing at the earliest possible date and shall take
precedence over all other cases, except older matters of the same
character and matters to which special precedence is given by law.

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begin insert SEC. 7. end insert   

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begin insert Section 45047 of the end insert begin insert Education Code end insert begin insert is repealed. end insert

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45047.  

Service on a commission on professional competence
pursuant to Section 44944, in the employing school district or in
some other district, by a person employed by a district in a position
requiring certification qualifications shall not be considered time
off job with respect to Section 45041. Neither the amount paid to
a substitute required to be hired to replace such a person serving
on a commission on professional competence pursuant to Section
44945 in the employing school district or in some other district
nor the amount which would have been paid to a substitute had a
substitute been employed, shall be deducted from the person’s
salary pursuant to Section 45042.

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begin delete SEC. 7. end delete
begin insert SEC. 8. end insert   

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.