Senate Bill No. 1164

Introduced by Senator Liu

February 20, 2014

An act to amend Sections 44932, 44936, 44939, 44940, and 44944 of the Education Code, relating to school employees.

LEGISLATIVE COUNSEL’S DIGEST

SB 1164, as introduced, Liu. School employees: discipline: dismissal and suspension.

(1) Existing law prohibits a permanent school employee from being dismissed except for one or more specified reasons, including, among others, knowing membership in the Communist Party.

This bill would delete knowing membership in the Communist Party as a reason for which a permanent employee may be dismissed.

(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 15 and September 15 in any year.

This bill would instead authorize the governing board of a school district to give the notice at any time of year, except for a notice in a proceeding involving only charges of unsatisfactory performance, which the bill would require to be given during the instructional year of the schoolsite at which the employee is physically employed.

(3) Existing law prescribes various procedures for the hearing, including, among others, a prohibition against the giving of testimony or the introduction of evidence relating to matters occurring more than 4 years prior to the filing of a notice. Existing law further prohibits any 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 4 years prior to the filing of a notice.

This bill would exempt charges of unprofessional conduct involving specified sex offenses, substance abuse offenses, and child endangerment offenses from these prohibitions.

(4) Existing law provides that a certificated employee may be charged with a mandatory leave of absence offense for certain specified sex offenses or controlled substance offenses with the exception of marijuana, mescaline, peyote, or tetrahydrocannabinols. Existing law requires the governing board of a school district to immediately place a certificated employee on compulsory leave of absence if the employee is charged with a mandatory leave of absence offense.

This bill would additionally authorize a certificated employee to be charged with a mandatory leave of absence offense for murder and attempted murder. Because this would increase the number of employees subject to immediate placement on compulsory leave of absence, thereby increasing the duties of school districts, the bill would impose a state-mandated local program.

(5) This bill would also make conforming and nonsubstantive changes.

(6) 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 of the Education Code is amended
to read:

44932.  

(a)  begin delete No end delete begin insert A end insert permanent employee shall begin insert not end insert be dismissed
except for one or more of the following causes:

(1) Immoral or unprofessional conduct.

(2) Commission, aiding, or advocating the commission of acts
of criminal syndicalism, as prohibited by Chapter 188 of the
Statutes of 1919, or in any amendment begin delete thereof. end delete begin insert to that chapter. end insert

(3) Dishonesty.

(4) Unsatisfactory performance.

(5) Evident unfitness for service.

(6) Physical or mental condition unfitting him or her to instruct
or associate with children.

(7) Persistent violation of or refusal to obey the school laws of
the state or reasonable regulations prescribed for the government
of the public schools by the begin delete State Board of Education end delete begin insert state board end insert
or by the governing board of the school district employing him or
her.

(8) Conviction of a felony or of begin delete any end delete begin insert a end insert crime involving moral
turpitude.

(9) Violation of Section 51530 or conduct specified in Section
1028 of the Government Code, added by Chapter 1418 of the
Statutes of 1947.

begin delete

(10) Knowing membership by the employee in the Communist
Party.

(11)

end delete

begin insert (10) end insert  Alcoholism or other drug abuse begin delete which end delete begin insert that end insert makes the
employee unfit to instruct or associate with children.

(b) The governing board of a school district may suspend
without pay for a specific period of time on grounds of
unprofessional conduct a permanent certificated employee or, in
a school district with an average daily attendance of less than 250
pupils, a probationary employee, pursuant to the procedures
specified in Sections 44933, 44934, 44935, 44936, 44937, 44943,
and 44944. This authorization shall not apply to begin delete any end delete begin insert a end insert school
district begin delete which end delete begin insert that end insert has adopted a collective bargaining agreement
pursuant to subdivision (b) of Section 3543.2 of the Government
Code.

SEC. 2.  

Section 44936 of the Education Code is amended to
read:

44936.  

begin insert (a) end insert begin insert   end insert The notice of dismissal or suspension in a
proceeding initiated pursuant to Section 44934 begin delete shall not be given
between May 15th and September 15th in any year. It end delete begin insert may be given
at any time of year. end insert

begin insert

(b) Notwithstanding subdivision (a), in a proceeding initiated
pursuant to Section 44934 involving only charges of unsatisfactory
performance, the notice of dismissal or suspension shall only be
given during the instructional year of the schoolsite where the
employee is physically employed.

end insert

begin insert (c) end insert begin insert   end insert begin insert The notice of dismissal or suspension end insert shall be in writing and
be served upon the employee personally or by United States
registered mail addressed to begin delete him end delete begin insert the employee end insert at his begin insert or her end insert 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 44939 of the Education Code is amended to
read:

44939.  

begin insert (a) end insert begin insert   end insert 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 begin delete board, end delete begin insert board of a school district, end insert
charging a permanent employee of the district with immoral
conduct, conviction of a felony or of begin delete any end delete begin insert a end insert crime involving moral
turpitude, with incompetency due to mental disability, begin insert or end insert with
willful refusal to perform regular assignments without reasonable
cause, as prescribed by reasonable rules and regulations of the
employing school district, begin insert or end insert with violation of Section begin delete 51530, with
knowing membership by the employee in the Communist Party or
with violation of any provision in Sections 7001 to 7007, inclusive, end delete
begin insert 51530, end insert the governing board begin insert of the school district end insert may, if it deems
such action necessary, immediately suspend the employee from
his begin insert or her end insert duties and give notice to begin delete him end delete begin insert the employee end insert of his begin insert or her end insert
suspension, and that 30 days after service of the notice, begin delete he end delete begin insert the
employee end insert will be dismissed, unless he begin insert or she end insert demands a hearing.

begin delete

If

end delete

begin insert (b) end insert begin insert   end insert begin insert If end insert the permanent employee is suspended upon charges begin delete of
knowing membership by the employee in the Communist Party or
for any violation of Section 7001, 7002, 7003, 7006, 7007, or
51530, he end delete begin insert for a violation of Section 51530, the employee end insert may
within 10 days after service upon him begin insert or her end insert of notice of begin delete such end delete begin insert the end insert
suspension file with the governing board begin insert of the school district end insert a
verified denial, in writing, of the charges. In begin delete such end delete begin insert that end insert event the
permanent employee who demands a hearing within the 30-day
period shall continue to be paid his begin insert or her end insert regular salary during
the period of suspension and until the entry of the decision of the
Commission on Professional Competence, if and during begin delete such time
as he end delete begin insert the time that the employee end insert furnishes to the school district a
suitable bond, or other security acceptable to the governing begin delete board, end delete
begin insert board of the school district, end insert as a guarantee that the employee will
repay to the school district the amount of salary so paid to him begin insert or
her end insert during the period of suspension in case the decision of the
Commission on Professional Competence is that begin delete he end delete begin insert the employee end insert
shall be dismissed. If it is determined that the employee may not
be dismissed, the begin delete school end delete begin insert governing end insert board begin insert of the school district end insert
shall reimburse the employee for the cost of the bond.

SEC. 4.  

Section 44940 of the Education Code is amended to
read:

44940.  

(a) For purposes of this section, “charged with a
mandatory leave of absence offense” is defined to mean charged
by complaint, information, or indictment filed in a court of
competent jurisdiction with the commission of any sex offense as
defined in Section 44010, begin insert with a violation or attempted violation
of Section 187 of the Penal Code, end insert or with the commission of any
offense involving aiding or abetting the unlawful sale, use, or
exchange to minors of controlled substances listed in Schedule I,
II, or III, as contained in begin delete Section end delete begin insert Sections end insert 11054, 11055, and 11056
of the Health and Safety Code, with the exception of marijuana,
mescaline, peyote, or tetrahydrocannabinols.

(b) For purposes of this section, “charged with an optional leave
of absence offense” is defined to mean a charge by complaint,
information, or indictment filed in a court of competent jurisdiction
with the commission of any controlled substance offense as defined
in Section 44011 or 87011 begin delete , or a violation or attempted violation
of Section 187 of the Penal Code, end delete begin insert of this code, end insert or Sections 11357
to 11361, inclusive, Section 11363, 11364, or 11370.1 of the Health
and Safety Code, insofar as these sections relate to any controlled
substances except marijuana, mescaline, peyote, or
tetrahydrocannabinols.

(c) For purposes of this section and Section 44940.5, the term
“school district” includes county offices of education.

(d) (1)  begin delete Whenever any end delete begin insert If a end insert certificated employee of a school
district is charged with a mandatory leave of absence offense, as
defined in subdivision (a), upon being informed that a charge has
been filed, the governing board of the school district shall
immediately place the begin insert certificated end insert employee on compulsory leave
of absence. The duration of the leave of absence shall be until a
time not more than 10 days after the date of entry of the judgment
in the proceedings. No later than 10 days after receipt of the
complaint, information, or indictment described by subdivision
(a), the school district shall forward a copy to the Commission on
Teacher Credentialing.

(2) Upon receiving a copy of a complaint, information, or
indictment described in subdivision (a) and forwarded by a school
district, the Commission on Teacher Credentialing shall
automatically suspend the employee’s teaching or service
credential. The duration of the suspension shall be until a time not
more than 10 days after the date of entry of the judgment in the
proceedings.

(e) (1)  begin delete Whenever any end delete begin insert If a end insert certificated employee of a school
district is charged with an optional leave of absence offense as
defined in subdivision (b), the governing board of the school
district may immediately place the begin insert certificated end insert employee begin delete upon end delete begin insert on end insert
compulsory leave in accordance with the procedure in this section
and Section 44940.5. If begin delete any end delete begin insert a end insert certificated employee is charged
with an offense deemed to fall into both the mandatory and the
optional leave of absence categories, as defined in subdivisions
(a) and (b), that offense shall be treated as a mandatory leave of
absence offense for purposes of this section. No later than 10 days
after receipt of the complaint, information, or indictment described
by subdivision (a), the school district shall forward a copy to the
Commission on Teacher Credentialing.

(2) Upon receiving a copy of a complaint, information, or
indictment described in subdivision (a) and forwarded by a school
district, the Commission on Teacher Credentialing shall
automatically suspend the begin insert certificated end insert employee’s teaching or
service credential. The duration of the suspension shall be until a
time not more than 10 days after the date of entry of the judgment
in the proceedings.

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 Commission on
Professional Competence 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 begin insert , end insert 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 begin delete the preceding
paragraph. end delete begin insert paragraph (3). end insert

begin delete

(5) No witness

end delete

begin insert (5) end insert begin insert   end insert begin insert (A) end insert begin insert   end insert begin insert A witness end insert shall begin insert not end insert be permitted to testify at the hearing
except upon oath or affirmation. begin delete No testimony end delete

begin insert (B) end insert begin insert   end insert begin insert Testimony end insert shall begin insert not end insert be given begin delete or end delete begin insert and end insert evidence begin insert shall not be end insert
introduced relating to matters that occurred more than four years
begin delete prior to end delete begin insert before end insert the date of the filing of the begin delete notice. Evidence end delete begin insert notice,
except for in a hearing that involves an offense defined or described
in Section 44010 or 44011 of this code, or Sections 11165.2 to
11165.6, inclusive, of the Penal Code. end insert

begin insert (C) end insert begin insert   end insert begin insert Evidence end insert of records regularly kept by the governing board
concerning the employee may be introduced, but no decision
relating to the dismissal or suspension of begin delete any end delete begin insert an end insert employee shall
be made based on charges or evidence of any nature relating to
matters occurring more than four years begin delete prior to end delete begin insert before end insert the filing
of the begin delete notice. end delete begin insert notice, except for in a hearing that involves an offense
defined or described in Section 44010 or 44011 of this code, or
Sections 11165.2 to 11165.6, inclusive, of the Penal Code. end insert

(b) (1) The hearing provided for in this section shall be
conducted by a Commission on Professional Competence. One
member of the commission shall be selected by the employee, one
member shall be selected by the governing board and one member
shall be an administrative law judge of the Office of Administrative
Hearings who shall be chairperson and a voting member of the
commission and shall be responsible for assuring that the legal
rights of the parties are protected at the hearing. If either the
governing board or the employee for any reason fails to select a
commission member at least seven calendar days begin delete prior to end delete begin insert before end insert
the date of the hearing, the failure shall constitute a waiver of the
right to selection, and the county board of education or its specific
designee shall immediately make the selection. If the county board
of education is also the governing board of the school district or
has by statute been granted the powers of begin delete a end delete begin insert the end insert governing board,
the selection shall be made by the Superintendent, who shall be
reimbursed by the school district for all costs incident to the
selection.

(2) The member selected by the governing board and the
member selected by the employee shall not be related to the
employee and shall not be employees of the district initiating the
dismissal or suspension and shall hold a currently valid credential
and have at least five years’ experience within the past 10 years
in the discipline of the employee.

(c) (1) The decision of the Commission on Professional
Competence shall be made by a majority vote, and the commission
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 begin delete Commission on Professional Competence end delete
begin insert commission 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 commission 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 begin delete Commission on Professional Competence end delete
begin insert commission end insert shall be deemed to be the final decision of the
governing board.

(5) The begin delete board end delete begin insert governing board end insert 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 member selected by the governing board or the
member selected by the employee is employed by any school
district in this state, the member shall, during any service on a
Commission on Professional Competence, 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 or honorariums for
service on the commission.

(2) If service on a begin delete Commission on Professional Competence end delete
begin insert commission end insert occurs during summer recess or vacation periods, the
member shall receive compensation proportionate to that received
during the current or immediately preceding contract period from
the member’s employing district, whichever amount is greater.

(e) (1) If the Commission on Professional Competence
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. The state shall pay any costs incurred under paragraph
(2) of subdivision (d), the reasonable expenses, as determined by
the administrative law judge, of the member selected by the
governing board and the member selected by the employee,
including, but not limited to, payments or obligations incurred for
travel, meals, and lodging, and the cost of the substitute or
substitutes, if any, for the member selected by the governing board
and the member selected by the employee. 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 begin delete Commission on Professional Competence end delete begin insert commission end insert
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, any
costs incurred under paragraph (2) of subdivision (d), the
reasonable expenses, as determined by the administrative law
judge, of the member selected by the governing board and the
member selected by the employee, including, but not limited to,
payments or obligations incurred for travel, meals, and lodging,
the cost of the substitute or substitutes, if any, for the member
selected by the governing board and the member selected by the
employee, and reasonable attorney’s fees incurred by the employee.

(3) As used in this section, “reasonable expenses” shall not be
deemed “compensation” within the meaning of subdivision (d).

(4) If either the governing board or the employee petitions a
court of competent jurisdiction for review of the decision of the
commission, the payment of expenses to members of the
commission required by this subdivision shall not be stayed.

(5) (A) If the decision of the commission is finally reversed or
vacated by a court of competent jurisdiction, either the state, having
paid the commission members’ expenses, shall be entitled to
reimbursement from the governing board for those expenses, or
the governing board, having paid the expenses, shall be entitled
to reimbursement from the state.

(B) Additionally, either the employee, having paid a portion of
the expenses of the hearing, including the cost of the administrative
law judge, shall be entitled to reimbursement from the governing
board for the expenses, or the governing board having paid its
portion and the employee’s portion of the expenses of the hearing,
including the cost of the administrative law judge, shall be entitled
to reimbursement from the employee for that portion of the
expenses.

(f) The hearing provided for in this section shall be conducted
in a place selected by agreement among the members of the
begin delete commission end delete begin insert Commission on Professional Competence end insert . In the
absence of agreement, the place shall be selected by the
administrative law judge.

SEC. 6.  

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.