Amended in Senate April 29, 2013

Amended in Senate April 18, 2013

Senate Bill No. 531

Introduced by Senator Knight

(Coauthors: Senators Anderson, Berryhill, Emmerson, Fuller, Gaines, Huff, Nielsen, Walters, and Wyland)

(Coauthor: Assembly Member Wilk)

February 21, 2013

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

LEGISLATIVE COUNSEL’S DIGEST

SB 531, as amended, Knight. School employees: discipline: suspension and dismissal.

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

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 causes for dismissal.

(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 of written notice to the charged employee.

(4) 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 would delete the provisions providing for the establishment of a Commission on Professional Competence, and would instead require the proceedings to be conducted pursuant to the Administrative Procedure Act by an administrative law judge. begin insert The bill would require that the administrative law judge or, for a dismissal proceeding where the charges against the employee do not involve sex, drugs, or violence against children, a panel composed of the judge and 2 certificated employees, acting by a majority vote, end insert begin insert propose a decision. end insert The bill would provide that the decision of the administrative law judge begin insert or panel 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. By increasing the duties of a governing board in this regard, this bill would impose a state-mandated local program.

(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.

This bill would remove that 4-year limitation.

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

(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:

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 a cause 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’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 such 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 such 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.

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.

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)  begin insert (1) end insert begin insert   end insert 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.

begin insert

(2) In a dismissal or suspension proceeding conducted pursuant
to this section not involving allegations of sex, drugs, or violence
against children, two certificated employees, one selected by the
governing board and one selected by the employee, shall determine
the decision in a panel with the administrative law judge. The
panel shall act by a majority vote.

end insert

(c) (1) The administrative law judge begin insert , or the panel provided for
in paragraph (2) of subdivision (b), 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 administrative law judge begin insert , or the panel
provided for in paragraph (2) of subdivision (b), 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 administrative law judge begin insert , or the panel provided for in
paragraph (2) of subdivision (b), 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 administrative law judge begin insert , or the panel
provided for in paragraph (2) of subdivision (b), end insert shall be advisory,
and the final decision regarding the discipline of the employee
shall be determined by action 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 begin insert and any panel members end insert .
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 begin insert and any panel members end insert .

(3) If the employee petitions a court of competent jurisdiction
for review of the decision of the governing board, the payment of
expenses for the administrative law judge begin insert , and any panel members end insert begin insert , end insert
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 begin insert and any panel members end insert , 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 begin insert or, if
applicable, the panel provided for in paragraph (2) of subdivision
(b) end insert .

(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 begin insert , or the panel provided for in paragraph (2) of subdivision
(b), end insert 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.

SEC. 7.  

Section 45047 of the Education Code is repealed.

SEC. 8.  

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.