BILL ANALYSIS �
SENATE COMMITTEE ON EDUCATION
Carol Liu, Chair
2013-14 Regular Session
BILL NO: SB 843
AUTHOR: Correa
AMENDED: April 21, 2014
FISCAL COMM: Yes HEARING DATE: April 30, 2014
URGENCY: No CONSULTANT:Lenin Del Castillo
SUBJECT : School employees: dismissal or suspension.
SUMMARY
This bill modifies the dismissal process by establishing a
separate set of procedures for employees charged with certain
types of serious and egregious conduct.
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.
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Knowing membership in the Communist Party.
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 from being issued between May 15
and September 15 in any year. (Education Code � 44934 and �
44936)
The Legislature has established additional notice requirements
that 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)
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Existing law requires that a dismissal or suspension 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).
7) Specifies that in the event that the employee will not be
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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 school district from amending, renewing, or
entering into an agreement that either:
a) Requires the removal from a school employee's
records of any evidence of credible complaints,
substantiated investigations, or discipline relating
to the school employee's commission of, or alleged
commission of, immoral conduct, egregious conduct,
or conviction of a felony or crime involving moral
turpitude; or
b) Prevents an employee from complying with
specified reporting requirements to the Commission
on Teacher Credentialing.
2) Removes "knowing membership of the Communist Party" and
"advocating or teaching communism with the intent to
indoctrinate or to inculcate in the mind of a pupil" from
the list of reasons a permanent school employee can be
dismissed or suspended.
3) Defines "egregious conduct" as:
a) Sexual misconduct offenses specified in EC �
44010.
b) Controlled substances offenses specified in EC
� 44011.
c) Child abuse, neglect, willful harming, and
injury offenses specified in Penal Code � 187, �
206, or � 11165.2 to � 11165.6 inclusive.
d) Any offense under state or federal law that is
punishable by death or life imprisonment without the
possibility of parole.
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4) Removes the requirement that a written statement of
charges set forth the facts relevant to each occasion of
alleged unprofessional conduct or unsatisfactory
performance.
5) Provides that a notice of the governing board to dismiss
or suspend an employee, together with written charges
filed or formulated, shall be sufficient to initiate a
hearing, as specified, and the governing board shall not
be required to file or serve a separate accusation.
6) Removes the prohibition against issuing a 30-day notice
between May 15 and September 15 and allows it to be given
at any time of the year, except for a notice involving
charges of unsatisfactory performance which shall only be
given during the instructional year.
7) Requires an employee who demands a hearing to file a
single document containing his or her request for a
hearing and a notice of defense, as specified.
8) Modifies the list of written charges filed upon which a
school district may immediately suspend an employee, as
specified, including the addition of charges based on
egregious conduct.
9) Adds the commission of a violent or serious felony, as
specified, to the list of mandatory leave of absence
offenses.
10) Removes marijuana, mescaline, peyote, and
tetrahydrocannabinols as exceptions to the list of
controlled substance offenses for which a certificated
employee may be charged with a mandatory or optional
leave of absence offense.
11) Makes clarifying changes regarding the duration of
employee suspensions, as specified.
12) Allows a school district to, without prejudice, rescind a
notice of dismissal for a charge of egregious conduct at
any time before the matter is submitted for decision.
13) Establishes a separate dismissal process for proceedings
based solely with one or more charges of immoral conduct,
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egregious conduct, or conviction of a felony or any crime
involving moral turpitude as follows:
a) Specifies that the commission on professional
competence shall be comprised of an administrative
law judge only.
b) Requires the proceeding to be submitted for
decision within 12 months from the date of the
employee's demand for a hearing, unless the
administrative law judge (ALJ) grants an extension
for good cause and upon stipulation by all parties.
c) Requires the ALJ to act, as specified, to
initiate a hearing, amend charges, conduct
discovery, conduct a hearing, or render a decision.
d) Provides that the hearing date shall be
established after consultation with the employee and
school district, with powers provided to the ALJ, as
specified.
e) Provides that a witness shall not be permitted
to testify at the hearing except upon oath or
affirmation and allows testimony and evidence
relating to matters that occurred more than four
years prior to the issuance of the 30-day notice to
be introduced at a hearing.
f) Provides that if the ALJ determines the
employee should be dismissed or suspended, the state
shall pay the expenses of the hearing, including the
cost of the ALJ, and the employee and the school
district shall pay their own attorney's fees. If
the ALJ determines that the employee should not be
dismissed or suspended, the school district shall
pay the expenses of the hearing, including the cost
of the ALJ, and the school district and employee
shall pay their own attorney's fees.
g) Requires an employee to pay all the expenses of
the hearing, except for the school district's
attorney's fees, if the ALJ determines that the
employee's decision to demand a hearing was a
frivolous tactic that wasted public resources.
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h) Establishes various requirements regarding the
payment of costs for a court of competent
jurisdiction if it is petitioned by the school
district or employee.
i) Modifies the list of charges that a dismissal
is based upon for which a school district shall
transmit a copy of the reporter's transcript of a
dismissal hearing, as specified.
STAFF COMMENTS
1) Need for the bill : According to the author's office,
this bill streamlines the dismissal process for cases
involving teacher conduct that could jeopardize student
safety. Additionally, the bill makes the process more
efficient and less expensive, while maintaining fairness
and due process for teachers.
2) Due process . Many school districts complain the
dismissal process prescribed in current law is cumbersome
and makes it difficult to fire teachers who should not be
in the classroom. Further they argue that because
educators remain on pay status during the proceedings,
there is little incentive for timeliness.
Notwithstanding the benefits that would be derived by
establishing a less costly and more efficient dismissal
process, the courts have held that permanent employees
have "property rights" to their positions. In Gilbert v.
Homar (1997) 520 U.S. 924 (Gilbert), the Supreme Court
noted that "public employees who can be discharged only
for cause have a constitutionally protected property
interest in their tenure and cannot be fired without due
process." It is unclear how the changes proposed in this
bill would affect the due process rights of certificated
employees.
3) Serious and egregious conduct . This bill makes a number
of reforms that are intended to streamline the teacher
dismissal process for cases involving serious offenses
against students.
a) 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
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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 issues in a
timely manner. Additionally, the moratorium makes
little sense if misconduct occurs between May 15 and
September 15, during summer school, 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 for teacher misconduct issues
(the summer moratorium would still apply to
unsatisfactory performance).
b) 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 for cases involving serious and egregious
conduct, including sexual offenses and child abuse,
to be considered during 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.
c) Commission on professional competence (CPC).
Current law requires suspension and dismissal
hearings to be conducted by a CPC made up of three
members-one member selected by the employee; one
member selected by the governing board; and an
administrative law judge (ALJ) who serves as the
chair. 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. This bill authorizes the hearings
to be presided over by an ALJ alone for proceedings
involving serious and egregious conduct, instead of
the traditional three-member CPC. This change could
help reduce the delays that school districts may
otherwise encounter in selecting eligible CPC
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members under existing law.
d) Mandatory Leave of Absence Offenses. This bill
adds the commission of certain violent or serious
felonies to the list of mandatory leave of absence
offenses, therefore school districts would be
required to place an employee on leave should he or
she be criminally charged with any of these
offenses. This bill also removes the sale, use, or
exchange of marijuana, mescaline, peyote, and
tetrahydrocannabinols to minors as exceptions to the
list of controlled substance offenses for which a
certificated employee may be charged with a
mandatory leave of absence offense. These
provisions could help increase protections for
children in school.
4) Related and prior legislation .
SB 1164 (Liu) proposes to streamline the teacher
dismissal process and is pending before this Committee.
AB 215 (Buchanan) modifies the dismissal procedures for
certificated employees who have attained permanent status
and establishes a separate set of dismissal processes for
employees charged only with egregious misconduct. AB 215
is pending before this Committee.
SB 1530 (Padilla, 2012) proposed to modify procedures
relating to the suspension, dismissal, and leave of
absence of employees and failed passage in the Assembly
Education Committee.
SUPPORT
California Catholic Conference of Bishops
California School Boards Association (sponsor)
OPPOSITION
California Teachers Association
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