BILL ANALYSIS �
SENATE COMMITTEE ON EDUCATION
Carol Liu, Chair
2013-14 Regular Session
BILL NO: SB 531
AUTHOR: Knight
AMENDED: April 18, 2013
FISCAL COMM: Yes HEARING DATE: April 24, 2013
URGENCY: No CONSULTANT:Lenin Del Castillo
SUBJECT : School employees: suspension and dismissal.
SUMMARY
This bill modifies suspension and dismissal procedures for
certificated employees who have attained permanent status.
BACKGROUND
Current law prohibits the dismissal of a certificated
employee who has achieved permanent status except for one
or more of the following causes:
(Education Code � 44932)
Immoral or unprofessional conduct.
Commission, aiding, or advocating the commission of
acts of criminal syndicalism.
Dishonesty.
Unsatisfactory performance.
Evident unfitness for service.
Physical or mental condition unfitting him or her to
instruct or associate with children.
Persistent violation of or refusal to obey state laws
or regulations pertaining to schools.
Conviction of a felony or of any crime involving moral
turpitude.
Violation of the prohibition against advocating or
teaching communism with the intent to indoctrinate or
inculcate in the mind of any pupil a preference for
communism.
Knowing membership in the Communist Party.
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Alcoholism or other drug abuse which makes the
employee unfit to instruct or associate with children.
Current law also requires a governing board to notify an
employee in writing of its intention to dismiss or suspend
him or her at the expiration of 30 days unless the employee
demands a hearing. Current law prohibits a 30-day Notice
of Intent to Dismiss or Suspend (30-day Notice) from being
issued between May 15 and September 15 in any year.
(Education Code � 44934 and 44936)
The Legislature has established additional notice
requirements school districts must follow when seeking to
suspend or dismiss an employee for unprofessional conduct
or unsatisfactory performance. Before a governing board
can take action to issue a 30-day Notice for either of
these causes, the following must occur:
1) Unprofessional Conduct : The employee must be given
advance notice of at least 45 days. A Notice of
Unprofessional Conduct must specify the nature of the
cause, list specific instances of behavior and furnish
the employee an opportunity to correct the faults and
overcome the grounds of the charge. The notice must
also include a copy of the employee's evaluation.
(Education Code � 44938)
2) Unsatisfactory Performance : The employee must be
given advance notice of at least 90 days. A Notice of
Unsatisfactory Performance must specify the nature of
the performance issues, with specific instances of
behavior with "such particularity" as to furnish the
employee an opportunity to correct his or her faults
and overcome the grounds for the charge. The notice
must also include a copy of the employee's evaluation.
(Education Code � 44938)
Current law authorizes the immediate suspension of a
permanent employee for specified conduct including:
immoral conduct, conviction of a felony or any crime
involving moral turpitude, incompetency due to mental
disability, willful refusal to perform regular assignments
without reasonable cause, advocating or teaching communism,
or knowing membership in the Communist Party.
(Education Code � 44939)
Existing law requires that a dismissal or suspension
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hearing requested by an employee must begin within 60 days
of an employee's request and further:
1) Requires that the hearing be conducted by a Commission
on Professional Competence (CPC) made up of three
members:
a) One member selected by the employee;
b) One member selected by the governing board;
and,
c) An Administrative Law Judge (ALJ) who serves
as the chair.
2) Provides that the decision made by the CPC is made by
majority vote and deems the decision of the CPC to be
the final decision of the governing board.
3) Specifies that members of the CPC may not be employees
of the district and must have at least five years of
experience (within the last ten) in the discipline of
the employee.
4) 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.
Specifies that evidence of records regularly kept by
the governing board may be introduced, but no decision
relating to the dismissal or suspension of any
employee can 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.
5) Specifies that members of a Commission on Professional
Competence (CPC) receive their regular salary, fringe
benefits, accumulated sick leave and other leaves and
benefits but shall receive no additional compensation.
6) Specifies that in the event the employee is dismissed
or suspended, the employee will share equally the
expenses of the hearing including the cost of the
administrative law judge (ALJ).
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7) Specifies that in the event that the employee will not
be dismissed or suspended, the governing board will
pay the expenses of the hearing, including the cost of
the ALJ, the cost of the educators serving on the CPC,
and reasonable attorney's fees incurred by the
employee. (Education Code � 44944)
ANALYSIS
This bill :
1) Prohibits a collective bargaining agreement from
requiring the removal from an employee's record
pertaining to discipline, complaints, reprimands, or
investigations relating to the employee's commission,
or potential commission of an offense listed in
Education Code � 44932.
2) Deletes the prohibition against sending a 30-day
notice between May 15 and September 15.
3) Deletes the statutory timelines associated with
preliminary notice requirements for unprofessional
conduct and unsatisfactory performance.
4) Removes the CPC and instead requires an ALJ to conduct
dismissal and suspension hearings.
5) Makes the decision of the ALJ advisory to the
governing board and specifies that the final decision
regarding the discipline of the employee shall be
determined by action of the governing board.
6) Deletes the provision that prohibits testimony or
evidence from being introduced relating to matters
that occurred more than four years prior to the date
of the filing of the notice. Deletes the prohibition
against making a decision relating to the dismissal or
suspension of any employee based on charges or
evidence of any nature relating to matters occurring
more than four years prior to the filing of the
notice.
7) Authorizes a school district to place an employee on
administrative leave without pay during the period of
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a dismissal or suspension hearing. Provides that the
employee shall continue to be paid his or her regular
salary during the leave if he or she furnishes to the
school district a suitable bond or other security as a
guarantee that the school district will be repaid the
amount of salary if the governing board makes a final
decision to terminate the employee or if the employee
fails or refuses to return to service following a
decision not to terminate the employee. Requires the
employee to be reimbursed for the cost of the bond if
the governing board determines the employee should not
be dismissed.
8) Authorizes the administrative law judge (ALJ) to
recommend a suitable compensatory remedy, including
back wages and benefits if the employee prevails at
the hearing; authorizes a governing board to adopt the
recommendation of the ALJ if the employee is
reinstated; specifies an employee who is reinstated
either by the governing board or a court of competent
jurisdiction, is entitled to reasonable back wages and
benefits.
9) Requires local agencies and school districts to be
reimbursed for costs if the Commission on State
Mandates determines that this act contains costs
mandated by the state.
STAFF COMMENTS
1) Need for the bill : According to the author, the
purpose of the bill is to streamline the process for
unprofessional conduct or unsatisfactory performance
by returning more control to school districts,
reducing mandated timelines, and restructuring the
suspension and dismissal hearing processes. This
would help ensure that a quality teacher is in every
classroom and also prevent occurrences of teacher
misconduct such as the Miramonte scandal.
2) Preliminary notice timelines . Of the 11 statutory
causes for dismissal, only unprofessional conduct and
unsatisfactory performance require a preliminary
notice before a governing board can issue a 30-day
Notice of Intent to Dismiss or Suspend: The
preliminary notice requirement for these two causes is
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based on the notion that an employee should be given
an opportunity to improve or correct his or her
behavior before a final disciplinary action.
Specifically, issues related to unsatisfactory
performance should be remediated within 90 days while
unprofessional conduct should be corrected within a
45-day period. This bill eliminates the prescribed
timelines for preliminary notices relating to
unprofessional conduct and unsatisfactory performance.
Unprofessional conduct. The difference between the
common meaning of the term 'unprofessional conduct'
and the meaning of the term for purposes of a cause
for dismissal can be confusing. Case law suggests the
concept of unprofessional conduct usually revolves
around duties and responsibilities relative to the
employment setting, such as the employee's duties and
how the employee relates to colleagues, parents, and
students, etc. The distinction between immoral
conduct and unprofessional conduct may be subtle.
Misconduct such as writing love notes to students may
be most appropriately categorized, for purposes of
discipline, as immoral conduct while using profane
language or swearing at students, may fit the category
of unprofessional conduct. Adding to the confusion is
the range and severity of conduct considered to be
unprofessional. Yet under existing law, an employer
would need to provide the same 45-day remediation
period to the employee who repeatedly shows up late to
work as it would to the employee who commits a more
serious act, such as directing a hateful comment at a
student. This bill could give school districts
greater flexibility to match the remediation period to
the offense.
Unsatisfactory performance. Unsatisfactory
performance is generally used relative to teaching
quality or how satisfactorily an educator performs his
or her assignments. According to the Association of
California School Administrators, by the time the
issue progresses to potential dismissal, a teacher has
typically gone through multiple evaluation cycles,
assistance plans, and participated in a Peer
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Assistance and Review program if one is available.
As with unprofessional conduct, there are definitional
issues associated with unsatisfactory performance. Is
the teacher struggling to master effective pedagogy or
is the teacher unwilling or too burned out to care?
Districts vary widely in their evaluation systems and
their evaluators and there is no agreed-upon statewide
definition of "good teaching." Is it a teacher who
adheres to the California Standards for the Teaching
Profession? Is it a teacher whose students make
significant gains on state assessments? How should
effectiveness be measured for teachers who teach
subjects like art or business? Given the current
policy focus on student achievement and the public
debates about how much weight student growth and
performance should have in a teacher's evaluation,
should reforming procedures for unsatisfactory
performance wait until the policy issues about teacher
evaluation systems have been settled? Due to
increasing pressure for schools to meet accountability
goals and continuing fiscal constraints and layoffs,
could this reform result in punitive personnel
practices with regard to defining what is and is not
satisfactory performance?
3) Procedural reforms . This bill makes a number of
procedural reforms that the author maintains would
establish more efficient suspension and dismissal
procedures.
Removes the summer moratorium on issuing 30-day Notices.
The purpose of the prohibition against issuing a
30-day Notice between May 15 and September 15 is to
ensure a teacher on summer break does not
inadvertently forfeit his or her right to a hearing by
not receiving the notice promptly and not having
adequate time to prepare a response. However,
employers argue that the notice moratorium limits
their ability to address misconduct and unsatisfactory
performance issues in a timely manner. Additionally,
the moratorium makes little sense if misconduct occurs
between May 15 and September 15, during summer school,
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or at school operating on a year-round schedule.
While an argument could be made that vacation
schedules may make it more challenging to schedule
hearings during the summer, it appears that lifting
the moratorium would remove a burdensome restriction
on the notification process.
Allows the introduction of historical information. Current
law prohibits testimony or evidence relating to
matters more than four years old to be introduced at a
hearing. This bill would make it easier to include
relevant evidence by allowing information that is more
than four years old to be considered during a hearing
and by prohibiting collective bargaining contracts
from requiring the removal of information pertaining
to discipline, complaints, reprimands, or
investigations, relating to causes specified in
Section 44932 from an employee's record and by
allowing information that is more than four years old
to be considered in a hearing. This change could
enable employers to establish a pattern of behavior
that could be relevant to their case by having access
to all possible evidence.
Changes to the composition of the Commission on
Professional Competence (CPC). The state's employment
and credential discipline process for educators is
based on a "jury of peers" model. Teachers constitute
a majority of a CPC and they also serve on the
Committee of Credentials of the Commission on Teacher
Credentialing. These discipline models allow the
legal issues pertaining to the removal of a teacher's
job or credential to be considered in the context of
an educator's practice and help maintain the integrity
of the profession. Educator specialists may be
particularly valuable in cases involving
unsatisfactory performance because they can add
insight into what the employee should know and be able
to do. While the benefit of having educator
specialists on a CPC could arguably be achieved
through expert witnesses, eliminating the role of
peers from the discipline process represents a
significant departure from historical practice and
could create a greater defense burden for employees.
Shifts decision-making authority. This bill shifts
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the final decision-making authority from a CPC that is
designed to be balanced and impartial, to the
governing board that first issued the 30-day Notice.
By giving governing boards the final say, could this
bill discourage employees from requesting a hearing if
they perceive the board will not change its mind? To
mitigate the potential for a chilling effect and
maintain an employee's right to due process, would it
make sense to require governing boards to follow
specified procedures that would provide employees the
right to present an argument before the board?
Leave without pay during a hearing. For a narrow
range of offenses, generally including criminal
offenses, current law authorizes and sometimes
requires districts to place an employee on leave
without pay. This bill essentially extends that
authority to other causes for dismissal including
unprofessional conduct and unsatisfactory performance.
While the bill permits an employee who is placed on
leave to be paid if he or she furnishes a bond,
opponents argue that a leave without pay and securing
a bond could place a significant burden on the
employee.
4) Things to consider . Should this bill move forward,
the following issues may need to be addressed:
a) Ensure employees are given a reasonable
opportunity for remediation when issued a
preliminary notice for unprofessional conduct or
unsatisfactory performance.
b) Ensure that suspension and dismissal
hearings, particularly for unsatisfactory
performance provide an appropriate means of
including the insight and knowledge of other
educators.
c) Ensure there is a fair and reasonable due
process that governs the final decision regarding
the discipline of the employee such as that
specified in Government Code � 11517 to � 11519,
whereby a board would, in rejecting the
Administrative Law Judge's recommendation, be
required to decide the case upon the record,
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including the hearing transcript, and afford the
employee to opportunity to present either oral or
written argument before the board.
5) Related and prior legislation .
AB 375 (Buchanan) modifies procedures relating to the
suspension, dismissal, and leave of absence of
employees. Legislative Counsel has issued a conflict
notification for these bills to alert the authors that
chaptering out issues may occur. AB 375 is pending
before the Assembly Judiciary Committee.
SB 1059 (Huff, 2012), similar to this bill, modified
procedures relating to the suspension, dismissal and
leave of absence of employees. This bill failed
passage in this Committee.
AB 2028 (Knight, 2012) was nearly identical to SB 1059
(Huff, 2012) and modified procedures relating to the
suspension, dismissal and leave of absence of
employees. This bill failed passage in the Assembly
Appropriations Committee.
SB 1530 (Padilla, 2012) modified procedures relating
to the suspension, dismissal, and leave of absence of
employees. SB 1530 failed passage in the Assembly
Education Committee.
SUPPORT
California School Boards Association
Riverside County Superintendent of Schools
OPPOSITION
California Federation of Teachers
California Teachers Association