Amended in Assembly January 6, 2014

Amended in Assembly April 24, 2013

California Legislature—2013–14 Regular Session

Assembly Bill No. 1221

Introduced by Assembly Member Wilk

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

February 22, 2013

An act to amend Sections begin insert 44932, end insert 44936, 44938, 44939, begin insert and end insert 44944 begin delete , and 44945 end delete of, begin insert and end insert to add Section 44932.5 to, begin delete and to repeal Section 45047 of, end delete 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 begin delete offenses end delete begin insert causes end insert .

This bill would begin insert include serious or egregious unprofessional conduct, as defined, as a ground for dismissal of a permanent school employee. The bill would also end insert prohibit a collective bargaining agreement entered into or renewed on or after January 1, begin delete 2014, end delete begin insert 2015, end insert from requiring the removal begin insert from an employee’s record end insert , after a specified time period, begin delete from an employee’s record end delete 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.

begin insert

(4) Existing law authorizes the governing board of a school district, upon the filing of written charges or upon a written staetment of charges for certain conduct, to immediately suspend the employee from his or her duties in accordance with specified procedures.

end insert begin insert

This bill would authorize the governing board to immediately suspend an employee for serious or egregious unprofessional conduct pursuant to those procedures.

end insert begin delete

(4)

end delete

begin insert (5) end insert  Existing law establishes a Commission on Professional Competence for each dismissal or suspension hearing requested by an employee, consisting of specified members, and requires the proceeding to be conducted in accordance with the Administrative Procedure Act. 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 begin insert , for a hearing that involves serious or egregious unprofessional conduct, end insert would begin delete delete the provisions providing for the establishment of a Commission on Professional Competence, and would instead end delete require the proceedings to be conducted pursuant to the Administrative Procedure Act by an administrative law judge. The bill would provide that the decision of the administrative law judge 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. begin delete 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. end delete

begin delete

(5) 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.

end delete begin delete

This bill would remove that 4-year limitation.

end delete begin delete

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

end delete begin insert

(6) By imposing additional requirements on governing boards of school districts, this bill would impose a state-mandated local program.

end insert

(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.

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

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

begin insert

begin insert SECTION 1. end insert   

end insert

begin insert Section 44932 of the end insert begin insert Education Code end insert begin insert is amended
to read: end insert

44932.  

(a)  begin delete No end delete begin insert A end insert permanent employee shall begin insert not end insert be dismissed
except for one or more of the following causes:

(1) Immoral begin insert conduct end insert or unprofessional conduct.

begin insert

(2) Serious or egregious unprofessional conduct as defined in
Section 44939.

end insert begin delete

(2)

end delete

begin insert (3) end insert  Commission, aiding, or advocating the commission of acts
of criminal syndicalism, as prohibited by Chapter 188 of the
Statutes of 1919, or in any amendment thereof.

begin delete

(3)

end delete

begin insert (4) end insert  Dishonesty.

begin delete

(4)

end delete

begin insert (5) end insert   Unsatisfactory performance.

begin delete

(5)

end delete

begin insert (6) end insert  Evident unfitness for service.

begin delete

(6)

end delete

begin insert (7) end insert  Physical or mental condition unfitting him or her to instruct
or associate with children.

begin delete

(7)

end delete

begin insert (8) end insert  Persistent violation of or refusal to obey the school laws of
the state or reasonable regulations prescribed for the government
of the public schools by the begin delete State Board of Education end delete begin insert state board end insert
or by the governing board of the school district employing him or
her.

begin delete

(8)

end delete

begin insert (9) end insert  Conviction of a felony or of begin delete any end delete begin insert a end insert crime involving moral
turpitude.

begin delete

(9)

end delete

begin insert (10) end insert  Violation of Section 51530 or conduct specified in Section
1028 of the Government Code, added by Chapter 1418 of the
Statutes of 1947.

begin delete

(10)

end delete

begin insert (11) end insert  Knowing membership by the employee in the Communist
Party.

begin delete

(11)

end delete

begin insert (12) end insert  Alcoholism or other drug abuse begin delete which end delete begin insert that end insert makes the
employee unfit to instruct or associate with children.

(b) The governing board of a school district may suspend
without pay for a specific period of time on grounds of
unprofessional conduct a permanent certificated employee or, in
a school district with an average daily attendance of less than 250
pupils, a probationary employee, pursuant to the procedures
specified in Sections 44933, 44934, 44935, 44936, 44937, 44943,
and 44944. This authorization shall not apply to begin delete any end delete begin insert a end insert school
district begin delete which end delete begin insert that end insert has adopted a collective bargaining agreement
pursuant to subdivision (b) of Section 3543.2 of the Government
Code.

begin delete SECTION 1. end delete
begin insert SEC. 2. end insert   

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, begin delete 2014, end delete begin insert 2015, end insert shall not require the
removal begin insert from an employee’s record end insert , after a specified time period,
begin delete from an employee’s record end delete of records pertaining to discipline,
complaints, reprimands, or investigations relating to the employee’s
commission, or potential commission, of begin delete an offense end delete begin insert any conduct end insert
listed in Section 44932.

begin delete SEC. 2. end delete
begin insert SEC. 3. end insert   

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.

begin delete SEC. 3. end delete
begin insert SEC. 4. end insert   

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 begin insert ,
other than serious or egregious unprofessional conduct, end insert 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.

begin delete

SEC. 4.  

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 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 the employee of his or her suspension,
and that 30 days after service of the notice, he or she will be
dismissed, unless he or she demands a hearing.

(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 or she may within 10 days after service of notice of
suspension, file with the governing board a verified denial, in
writing, of the charges. A 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
final decision of the governing board of the school district, if and
during such time as 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 paid during the period of suspension in case
the decision of the governing board is that 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.

end delete

begin insert

begin insert SEC. 5. end insert   

end insert

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 begin insert serious or egregious unprofessional conduct, end insert
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 duties and give notice
to him of his suspension, and that 30 days after service of the
notice, he will be dismissed, unless he demands a hearing. 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
may within 10 days after service upon him 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 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 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 during the
period of suspension in case the decision of the Commission on
Professional Competence is that he 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.

begin insert

(b) As used in this article, “serious or egregious unprofessional
conduct” means misconduct reasonably related to any offense as
described in Sections 44010 and 44011 of this code, and Sections
11165.2 to 11165.6, inclusive, of the Penal Code.

end insert

begin delete

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 governing board
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 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 administrative law judge 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 administrative law judge 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 administrative law judge 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 administrative law judge 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.

end delete

begin insert

begin insert SEC. 6. end insert   

end insert

begin insert Section 44944 of the end insert begin insert Education Code end insert begin insert is amended to
read: end insert

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. begin delete However, the end delete begin insert The end insert hearing
date shall be established after consultation with the employee and
the governing board, or their begin delete representatives, and the end delete
begin insert representatives. Except as specified in subdivision (c), the end insert
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 begin delete the preceding end delete
paragraph begin insert (3) end insert .

(5) No witness shall be permitted to testify at the hearing except
upon oath or affirmation. No testimony shall be given or evidence
introduced relating to matters that occurred more than four years
prior to the date of the filing of the notice. 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 employee shall be 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) (1)  begin delete The end delete begin insert Except as specified in subdivision (c), the end insert hearing
provided for in this section shall be conducted by a Commission
on Professional Competence. 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 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) 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.

begin delete

(c) (1)

end delete

begin insert (3) end insert begin insert   end insert 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.

begin delete

(2)

end delete

begin insert (4) end insert  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.

begin delete

(3)

end delete

begin insert (5) end insert  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 begin delete (1) end delete begin insert (3) end insert shall be available only in a suspension
proceeding authorized pursuant to subdivision (b) of Section 44932
or Section 44933.

begin delete

(4)

end delete

begin insert (6) end insert  The decision of the Commission on Professional Competence
shall be deemed to be the final decision of the governing board.

begin delete

(5) The board may adopt from time to time rules and procedures
not inconsistent with this section as may be necessary to effectuate
this section.

end delete begin delete

(6) The governing board and the employee shall have the right
to be represented by counsel.

end delete begin delete

(d) (1)

end delete

begin insert (7) end insert  If the member selected by the governing board or the
member selected by the employee is employed by any 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.

begin delete

(2)

end delete

begin insert (8) end insert  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.

begin delete

(e) (1)

end delete

begin insert (9) end insert  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 begin delete (2) of
subdivision (d), end delete begin insert (8); end insert 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 begin delete lodging, end delete begin insert lodging; end insert 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.

begin delete

(2)

end delete

begin insert (10) end insert  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 begin delete judge, end delete begin insert judge; end insert any costs incurred
under paragraph begin delete (2) of subdivision (d), end delete begin insert (8); end insert 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 begin delete lodging, end delete begin insert lodging; end insert the
cost of the substitute or substitutes, if any, for the member selected
by the governing board and the member selected by the begin delete employee, end delete
begin insert employee; end insert and reasonable attorney’s fees incurred by the employee.

begin delete

(3)

end delete

begin insert (11) end insert  As used in this begin delete section, end delete begin insert subdivision, end insert “reasonable expenses”
shall not be deemed “compensation” within the meaning of
begin delete subdivision (d). end delete begin insert paragraph (7) or (8). end insert

begin delete

(4)

end delete

begin insert (12) end insert  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.

begin delete

(5) (A)

end delete

begin insert (13) end insert  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 begin delete state. end delete

begin delete (B) end delete begin delete   end delete begin delete Additionally, end delete begin insert state. Additionally, end insert 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.

begin delete

(f)

end delete

begin insert (14) end insert  The hearing provided for in this begin delete section end delete begin insert subdivision end insert shall
be conducted in a place selected by agreement among the members
of the commission. In the absence of agreement, the place shall
be selected by the administrative law judge.

begin insert

(c) (1) A hearing provided for in this section that is requested
by an employee who is charge with serious or egregious
unprofessional conduct, as defined in subdivision (c) of Section
44939, shall be conducted solely by an administrative law judge
of the Office of Administrative Hearings.

end insert begin insert

(2) The decision of the administrative law judge shall be
advisory, and the final decision regarding the discipline of the
employee shall be made by action of the governing board of the
school district. The governing board shall, before making its final
decision, 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 hearing conducted by
the administrative law judge. The governing board’s final decision
shall be subject to review and appeal pursuant to Section 1094.5
of the Code of Civil Procedure.

end insert begin insert

(3) A hearing conducted pursuant to this subdivision shall be
conducted in a place selected by the administrative law judge.

end insert begin insert

(d) The governing board of a school district may adopt rules
and procedures consistent with this section as may be necessary
to effectuate this section.

end insert begin insert

(e) The governing board of a school district and the employee
shall have the right to be represented by counsel.

end insert

begin delete

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.

end delete

begin delete

SEC. 7.  

Section 45047 of the Education Code is repealed.

end delete

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