BILL ANALYSIS �
AB 1221
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Date of Hearing: January 15, 2014
ASSEMBLY COMMITTEE ON EDUCATION
Joan Buchanan, Chair
AB 1221 (Wilk) - As Amended: January 6, 2014
SUBJECT : School employees: discipline: suspension and
dismissal.
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, among other changes. Specifically, this bill :
1)Specifies that a collective bargaining agreement entered into
or renewed on or after January 1, 2015 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)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.
4)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;
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and, specifies the following procedural changes for dismissals
for serious or egregious unprofessional conduct only:
a) 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.
b) 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
hearing conducted by the ALJ; and, specifies the governing
board's final determination shall be subject to review and
appeal, as specified.
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)
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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)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)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)
7)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:
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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 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)
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FISCAL EFFECT : Unknown
COMMENTS : This bill prohibits records from being removed from
a teacher's personnel file; eliminates the prohibition on filing
dismissal papers during the summer for all types of dismissals;
and, deletes the 45 day notice and the 90 day notices for
dismissal. Further, the bill specifies that for "serious or
egregious unprofessional conduct," which is defined as sex
offenses, drug offenses and child abuse offenses, an ALJ alone
shall hear those cases and the decision shall be advisory to the
school board.
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; 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.
According to the author, there is a serious need in the state of
California to reform the teacher dismissal process. California
law should be about the safety of students, not about the
protection of adults who are charged with the most egregious
offenses against children. This bill outlines a new procedure
for dismissing certificated employees for serious or egregious
unprofessional conduct. Existing state law requires arduous,
expensive and time consuming mandates and processes to dismiss a
teacher for unprofessional conduct or unsatisfactory
performance. Current state law 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. This bill would expedite the dismissal
process for certificated employees in cases involving sex abuse,
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drugs, or violence against children.
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
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.
Child Abuse & Neglect : Below are the child abuse and neglect
code sections included in the definition of serious or egregious
unprofessional conduct.
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;
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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,
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.
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,
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2015 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
record after any given period of time. Opponents of the bill
could argue 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 could
argue 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. Removing the notice timeline for unprofessional
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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
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.
Shifting power to the governing board. This bill shifts the
power to make a final dismissal decision to the governing board
and away from the CPC for serious and egregious unprofessional
conduct. 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.
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.
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Previous legislation . AB 375 (Buchanan) of 2013, which was
vetoed by the Governor, would have made changes to the
suspension and dismissal hearing process for school employees,
as specified. The Governor vetoed the bill with the following
message:
The goal of this bill is to simplify the process for
hearing and deciding teacher dismissal cases. I have
listened at great length to arguments both for and
against this measure. While I agree that it makes
worthwhile adjustments to the dismissal process, such
as lifting the summer moratorium on the filing of
charges and eliminating some opportunities for delay,
other changes make the process too rigid and could
create new problems. I am particularly concerned that
limiting the number of depositions to five per side,
regardless of the circumstances, and restricting a
district's ability to amend charges even if new
evidence comes to light, may do more harm than good.
I share the authors' desire to streamline the teacher
discipline process, but this bill is an imperfect
solution. I encourage the Legislature to continue
working with stakeholders to identify changes that are
balanced and reduce procedural complexities.
SB 531 (Knight) of 2013, which failed passage in the Senate
Education Committee, would have modified suspension and
dismissal procedures for certificated employees who have
attained permanent status.
SB 1530 (Padilla) of 2012, which failed passage in the Assembly
Education Committee, would have made 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.
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.
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AB 2028 (Knight) of 2012, 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 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
Los Angeles Unified School District
Riverside County Superintendent of Schools
Opposition
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California Federation of Teachers
Analysis Prepared by : Chelsea Kelley / ED. / (916) 319-2087