BILL ANALYSIS �
AB 1221
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Date of Hearing: May 1, 2013
ASSEMBLY COMMITTEE ON EDUCATION
Joan Buchanan, Chair
AB 1221 (Wilk) - As Amended: April 24, 2013
SUBJECT : School employees: discipline: suspension and
dismissal.
SUMMARY : Requires significant modifications to the current
protocols used for the discipline of a certificated employee in
California; shortens the process for the dismissal or suspension
of a certificated employee for unprofessional conduct or
unsatisfactory performance; and, shifts 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. Specifically, this bill :
1)Specifies that a collective bargaining agreement entered into
or renewed on or after January 1, 2014 shall not require the
removal of an employee's records pertaining to discipline,
complaints, reprimands, or investigations of potential
offenses after any given time period.
2)Deletes three procedural timelines, including:
a) The prohibition on written notices of dismissal or
suspension being sent between May 15th and September 15th
of any year;
b) The prohibition on a governing board of a school
district from acting on charges of unprofessional conduct
until the employee has been provided with written notice
for at least 45 calendar days; and,
c) The prohibition on a governing board of a school
district from acting on charges of unsatisfactory
performance until the employee has been provided with
written notice for at least 90 calendar days.
3)Deletes the provision that no testimony shall be given or
evidence introduced relating to matters that occurred more
than four years prior to the date of the notice that charges
have been filed and that no decision relating to the dismissal
or suspension of an employee shall be based on such
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information.
4)Deletes the CPC and instead requires that a hearing provided
for teacher dismissal or suspension be conducted by an
administrative law judge (ALJ) and makes the following
conforming changes to delete:
a) The member selected by the certificated employee;
b) The member selected by the governing board of the school
district;
c) The selection procedures for these members;
d) The limitations indicating who may serve as these two
members;
e) The provision that the CPC record a vote on their
decision;
f) The provisions explaining the professional benefits and
conditions for serving on the CPC during the school year,
summer recess or vacation periods;
g) The provisions that the governing board pay the costs
incurred by the two members of the CPC who are not the ALJ;
and,
h) The provisions specifying that service on a CPC shall
not be considered time off the job.
5)Requires the decision of the ALJ to be advisory and that the
final decision regarding the discipline of an employee be
determined by the governing board of the school district.
6)Authorizes a governing board to place an employee on unpaid
administrative leave for the duration of the dismissal or
suspension hearing; and, authorizes an employee to receive his
or her regular salary if he or she furnishes a suitable bond
or other security to the governing board as a guarantee that
the school district will be repaid the amount of salary during
the employee's leave if a final decision is made to terminate
the employee.
7)Authorizes the ALJ to recommend and the local governing board
to adopt a suitable compensatory remedy such as reasonable
back wages and benefits for an employee who prevails at the
hearing; and, specifies that an employee who is reinstated is
entitled to reasonable back wages and benefits.
8)Authorizes the decision of the governing board to be reviewed
by a court of competent jurisdiction, on petition of the
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employee.
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,
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;
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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)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)
6)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)
7)Prohibits the governing board of a school district from acting
upon any charges of:
a) Unprofessional conduct unless it has given written
notice to the employee against whom the charge is filed at
least 45 calendar days prior to the date of the filing; or,
b) Unsatisfactory performance unless it has given written
notice to the employee against whom the charge is filed at
least 90 calendar days prior to the date of the filing. (EC
44938)
8)Authorizes the governing board of any school district to act
during the time period composed of the last one-fourth of
schooldays it has scheduled for purposes of computing
apportionments in any fiscal year if the governing board has
given the employee against whom the charge is filed written
notice of unsatisfactory performance prior to the beginning of
that time period. (EC 44938)
9)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
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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 CPC made up
of three members:
i) One member to be selected by the certificated
employee;
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.
d) Specifies that the members of the CPC will 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.
e) Specifies that in the event that the governing board
determines that the employee will be dismissed or
suspended, the employee will share equally the expenses of
the hearing including the cost of the ALJ.
f) Specifies that in the event that the governing board
determines that the employee will not be dismissed or
suspended, the governing board shall pay the expenses of
the hearing including the cost of the ALJ, the member
selected by the governing board and the member selected by
the employee as well as reasonable attorney's fees incurred
by the employee. (EC 44944)
FISCAL EFFECT : Unknown
COMMENTS : According to the author, existing state law requires
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arduous, expensive and time consuming mandates and processes to
dismiss a teacher for unprofessional conduct or unsatisfactory
performance. Current state law prohibits evidence that is older
than four years and allows charges, investigations and
reprimands to be removed from an employee's record after a given
period of time. In the city of Mira Monte, California, two
teachers were arrested for allegations of abuse. One teacher,
Mark Berndt had been investigated for two years prior to being
arrested for lewd act against his students but no action was
taken because the complaints were removed from his file. Los
Angeles Mayor Antonio Villaraigosa has called for a change is
state law regarding teacher dismissal after the Mira Monte
School scandal.
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.
While some may argue that dismissal over the summer is necessary
for the most obscene misconduct, others could argue that
dismissal notices for unsatisfactory performance should not take
place over the summer, since these types of dismissals take
months of preparation and coaching with the employee. The notice
of dismissal should not be delayed until the summer when the
administrator doesn't have to see the employee the next day.
Some argue it is unfair to the employee to give them a "summer
surprise."
Contract prohibitions . This bill prohibits collective
bargaining agreements entered into or renewed after January 1,
2014 from allowing the removal of records from a certificated
employee's record pertaining to discipline, complaints,
reprimands, or investigations related to offenses that could
result in dismissal. It prohibits local negotiating bodies from
bargaining to have this information removed from an individual's
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record after any given period of time. Opponents of the bill
state that under current law, this issue is not a required item
for negotiation by school districts. Making such a prohibition
in statute removes authority from local districts and collective
bargaining units. Allowing local bargaining units to have the
authority to address issues as they see fit is a fundamental
principal required in effective collective bargaining. While
this does not need to be a collectively bargained item, it is
unnecessary to tie the hands of parties involved in negotiating
collective bargaining agreements by disallowing it in statute.
Timeline changes. This bill eliminates the required number of
days that an employee must have between the notification of any
charges of unprofessional conduct and the governing board taking
action to dismiss. Current law requires the governing board to
wait at least 45 calendar days prior to taking action. This bill
eliminates this waiting period and authorizes districts to take
action at their discretion. While supporters of the bill say
that the current protocol is too restrictive for districts,
eliminating such a window would remove many employee
protections.
The definition of unprofessional conduct varies based on
individual circumstances. However, case law usually supports the
notion that unprofessional conduct revolves around an employee's
duties and responsibilities relative to the employment setting,
such as the employee's job specific duties and how the employee
relates to his or her colleagues. In general, unprofessional
conduct is not something that would necessitate immediate
removal of the employee from children. Actions by employees,
such as writing love notes to students, that many individuals
may feel necessitate immediate removal of the employee from
children; generally do not fall under the category of
unprofessional conduct. Instead, this example would fall under
one of the other categories listed as grounds for dismissal,
such as immoral conduct, which does not require a preliminary
notice. Current law already authorizes an employer to
immediately suspend an employee for immoral conduct and give a
30 day notice. Reducing the notice timeline for unprofessional
conduct, therefore, does not impact a district's ability to
remove a certificated employee who is acting immorally, from
interacting with children.
The bill also eliminates the required number of days that an
employee must have between the notification of any charges of
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unsatisfactory performance and the governing board taking
action. Current law requires the governing board to wait at
least 90 calendar days prior to taking action. This bill
eliminates this waiting period and authorizes districts to take
action at their discretion.
In general, unsatisfactory performance includes situations when
a certificated employee has difficulty with classroom
management, delivery of content, etc. While this is certainly
problematic, the current 90 day time window allows at least a
minimum amount of time for the teacher to improve their practice
before the governing board can act on those charges. For this
type of dismissal, the current 90 calendar day timeline seems
reasonable in order to allow certificated employees a final
opportunity to improve.
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. Current law does not
allow testimony about or evidence relating to matters more than
four years prior to the filing of a notice of charges during a
certificated employee's 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. There have been cases of
immoral conduct by teachers where evidence older than four
years, if it had been presented during the hearing, could have
demonstrated a pattern of behavior and could have potentially
given the school district and the CPC a clearer picture of the
ongoing nature of the behavior. While it seems that having all
possible evidence to help illuminate patterns of behavior is
reasonable during a dismissal hearing related to sexual abuse or
child abuse, it is not clear why 4 year old evidence of
unprofessional conduct or unsatisfactory performance would be
relevant to present-day dismissal charges. As an example, the
committee should consider whether it is appropriate to introduce
evidence related to an employee's tardiness 5 years ago.
Commission on Professional Competence (CPC) reconfiguration .
This bill deletes the CPC and instead specifies these decisions
be made solely by an ALJ. 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
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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
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. These teacher members could be helpful
to the ALJ during deliberations.
Shifting power to the governing board . This bill shifts the
power to make a final dismissal or suspension decision to the
governing board and away from the CPC. The ALJ's decision 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 CPC 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.
Placing a certificated employee on leave without pay . This bill
authorizes districts to place a certificated employee on
administrative leave without pay for the duration of dismissal
hearing procedures after the district takes action against the
employee. In most cases, current law authorizes certificated
employees who are charged with dismissal or suspension to
continue receiving their scheduled salary. For a narrow range of
offenses, generally including the mandatory leave of absence
offenses, current law authorizes districts to place a
certificated employee on leave without pay. This bill proposes a
significant departure from current protocol. It makes it far
more likely that an accused teacher, who may still be entirely
innocent, be placed on leave without pay.
Leave without pay would place a significant burden on a teacher
who would have to cover the cost of living expenses for the time
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when they are going through the dismissal proceedings. Opponents
to this change argue that since there is a reasonable likelihood
that some certificated employees who are charged with
unprofessional conduct or unsatisfactory performance will be
reinstated after the investigation, it is not the employee who
should be penalized. Adding this provision would codify the
assumption that the certificated employee is guilty until proven
innocent. Such a protocol is unnecessarily harsh and does not
protect the certificated employee.
Suitable compensatory remedy for prevailing employee . This bill
authorizes the ALJ to recommend a suitable compensatory remedy,
including back wages and benefits, for a prevailing employee who
was placed on administrative leave without pay.
Review of governing board's final decision by a court of
competent jurisdiction . This bill authorizes the final decision
made by the governing board to be reviewed by a court of
competent jurisdiction. Current law already allows the final
decision of the CPC to be reviewed by a court of competent
jurisdiction upon petition of the employee or the governing
board.
Related legislation . AB 375 (Buchanan), which is pending hearing
in the Assembly Judiciary Committee, makes changes to the
suspension and dismissal hearing process for school employees,
as specified.
SB 531 (Knight), which is pending in the Senate Education
Committee, modifies suspension and dismissal procedures for
certificated employees who have attained permanent status.
Previous legislation . SB 1059 (Huff) of 2012, 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) of 2012, which was held in the Assembly
Appropriations Committee, would have repealed the requirement
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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 suspension hearing relating to matters that
occurred more than four years before to the date of the filing
notice, as specified.
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
Riverside County Superintendent of Schools
Opposition
California Federation of Teachers
California Teachers Association
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Analysis Prepared by : Chelsea Kelley / ED. / (916) 319-2087