Amended in Senate April 2, 2014

Senate Bill No. 1164

Introduced by Senator Liu

February 20, 2014

An act to amend Sections 44932, begin insert 44934, end insert 44936, 44939, 44940, begin insert 44941, end insert and 44944 begin delete of end delete begin insert of, and to add Section 44944.2 to, end insert the Education Code, relating to school employees.

LEGISLATIVE COUNSEL’S DIGEST

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

(1) Existing law prohibits a permanent school employee from being dismissed except for one or more specified begin delete reasons, including, among others, knowing membership in the Communist Party. end delete begin insert causes, including, among other causes, immoral or unprofessional conduct. Existing law requires the governing board of a school district to give notice to a permanent employee of its intention to dismiss or suspend the employee, together with a written statement of charges, at the expiration of 30 days from the date of service of the notice, unless the employee demands a hearing. Existing law authorizes the governing board of a school district, upon the filing of written charges charging an employee with, among other things, immoral conduct, to immediately suspend an employee from his or her duties and give notice to the employee of his or her suspension, as provided. Existing law provides that 30 days after service of the notice, the employee will be dismissed, unless he or she demands a hearing. end insert

This bill would begin delete delete knowing membership in the Communist Party as a reason for which a permanent employee may be dismissed. end delete begin insert provide that the charges may be amended only upon a motion before an administrative law judge of the Office of Administrative Hearings, would require that a notice of the governing board end insert begin insert ’s intention to dismiss or suspend the employee, together with written charges filed or formulated, be sufficient to initiate a hearing, as prescribed, and would prohibit the governing board of the school district from being required to file or serve a separate accusation. The bill would revise various procedures for providing notice of dismissal or suspension and would authorize a notice of dismissal or suspension to be given at any time of year, except a notice for a proceeding involving only charges of unsatisfactory performance, which would only be given during the instructional year of the schoolsite where the employee is physically employed. The bill would impose various requirements for the filing of a demand for a hearing and the conduct of hearings by the Office of Administrative Hearings. The bill would additionally authorize the immediate suspension of an employee for unprofessional conduct reasonably related to specified sex offenses, substance abuse offenses, and child endangerment offenses. The bill would authorize an employee placed on immediate suspension to make a motion for immediate reversal of suspension, as provided, and would prohibit a motion for immediate reversal of suspension from having a bearing on the authority of a governing board of a school district to determine the physical placement and assignment of an employee who is suspended or placed on administrative leave during the review of the motion or while dismissal charges are pending. The bill would delete obsolete provisions relating to the dismissal or suspension of a permanent employee based on knowing membership by the employee in the Communist Party. end insert

(2) Existing law begin delete 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. end delete begin insert requires in a dismissal or suspension proceeding against a permanent employee, if a hearing is requested by the employee, that the hearing be commenced within 60 days from the date of the employee’s demand for a hearing. end insert

This bill would begin delete 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. end delete begin insert require that the hearing be commenced within 6 months from the date of the employee’s demand for a hearing, and be completed by a closing of the record within 7 months of the date of the employee’s demand for a hearing, except as authorized for good cause by the presiding administrative law judge. The bill would revise various procedures for the conduct of those hearings, including the authority to waive the hearing conducted by a Commission on Professional Competence and instead have the hearing conducted by a single administrative law judge. The bill also would provide that a Commission on Professional Competence shall consist solely of an administrative law judge for charges involving only specified sex offenses, substance end insert begin insert offenses, and child endangerment offenses. The bill would require that, in a dismissal or suspension proceeding carried out under the above provisions, except for a hearing involving only charges of specified sex offenses, substance abuse offenses, and child abuse offenses, the parties make specified disclosures in lieu of certain written discovery, as prescribed, and would authorize the parties to obtain discovery by oral deposition. The bill would require the governing board and the state to share equally the expenses of the hearing if the Commission on Professional Competence determines that the employee should be dismissed or suspended. end insert

(3) Existing law begin delete prescribes various procedures for the hearing, including, among others, a prohibition against end delete begin insert prohibits end insert 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 begin delete charges of unprofessional conduct involving end delete begin insert allegations of an act reasonably related to end insert 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. begin insert Existing law provides that a certificated employee may be charged with an optional leave of absence offense for, among other things, other specified substance offenses with the exception of marijuana, mescaline, peyote, or tetrahydrocannabinols. end insert 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. begin insert The bill also end insert begin insert would delete the exceptions for marijuana, mescaline, peyote, or tetrahydrocannabinols. end insert 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) A permanent employee shall not be dismissed
except for one or more of the following causes:

(1) Immoral begin delete or unprofessional end delete conduct.

begin insert

(2) Unprofessional conduct.

end insert begin delete

(2)

end delete

begin insert (3) end insert  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 to that chapter.

begin delete

(3)

end delete

begin insert (4) end insert  Dishonesty.

begin delete

(4)

end delete

begin insert (5) end insert  Unsatisfactory performance.

begin delete

(5)

end delete

begin insert (6) end insert  Evident unfitness for service.

begin delete

(6)

end delete

begin insert (7) end insert  Physical or mental condition unfitting him or her to instruct
or associate with children.

begin delete

(7)

end delete

begin insert (8) end insert  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 state board or by the governing board
of the school district employing him or her.

begin delete

(8)

end delete

begin insert (9) end insert  Conviction of a felony or of a crime involving moral
turpitude.

begin delete

(9)

end delete

begin insert (10) end insert  Violation of Section 51530 begin insert of this code end insert or conduct specified
in Section 1028 of the Government Code, added by Chapter 1418
of the Statutes of 1947.

begin delete

(10)

end delete

begin insert (11) end insert  Alcoholism or other drug abuse that 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 a school district
that has adopted a collective bargaining agreement pursuant to
subdivision (b) of Section 3543.2 of the Government Code.

begin insert

begin insert SEC. 2. end insert   

end insert

begin insert Section 44934 of the end insert begin insert Education Code end insert begin insert is amended to
read: end insert

44934.  

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 the
school district, or upon a written statement of charges formulated
by the governing begin delete board, end delete begin insert board of the school district, end insert charging that
there exists cause, as specified in Section 44932 or 44933, for the
dismissal or suspension of a permanent employee of the begin insert school end insert
district, the governing board begin insert of the school district end insert may, upon
majority vote, except as provided in this article if it deems the
action necessary, give notice to the permanent employee of its
intention to dismiss or suspend him or her at the expiration of 30
days from the date of service of the notice, unless the employee
demands a hearing as provided in this article. Suspension
proceedings may be initiated pursuant to this section only if the
governing board begin insert of the school district end insert has not adopted a collective
bargaining agreement pursuant to subdivision (b) of Section 3543.2
of the Government Code.

begin delete

Any

end delete

begin insert (b) end insert begin insert   end insert begin insert Any end insert written statement of charges of unprofessional conduct
or unsatisfactory performance shall specify instances of behavior
and the acts or omissions constituting the charge so that the teacher
will be able to prepare his or her defense. It shall, where applicable,
state the statutes and rules begin delete which end delete begin insert that end insert the teacher is alleged to have
violated, begin delete but end delete begin insert and end insert it shall also set forth the facts relevant to each
occasion of alleged unprofessional conduct or unsatisfactory
performance.

begin insert

(c) If the governing board of the school district has given notice
to a permanent employee of its intention to dismiss or suspend him
or her, based upon written charges filed or formulated pursuant
to this section, the charges may be amended only upon motion
before an administrative law judge of the Office of Administrative
Hearings. No motion to amend shall be granted less than 60 days
before the hearing on the charges if it would extend the close of
the record beyond the seven-month deadline pursuant to paragraph
(1) of subdivision (a) of Section 44944 unless the administrative
law judge determines that the amended charges are substantially
related to the initial charges that were filed. If a motion to amend
charges is granted by the administrative law judge, the employee
shall be given a meaningful opportunity to respond to the amended
charges.

end insert begin insert

(d) A notice of the governing board of the school district to an
employee of its intention to dismiss or suspend him or her, together
with written charges filed or formulated pursuant to this section,
shall be sufficient to initiate a hearing under Section 11503 of the
Government Code, and the governing board of the school district
shall not be required to file or serve a separate accusation.

end insert begin delete

This

end delete

begin insert end insert
begin insert (e) end insert begin insert   end insert begin insert This end insert section shall also apply to the suspension of
probationary employees in a school district with an average daily
attendance of less than 250 pupils begin delete which end delete begin insert that end insert has not adopted a
collective bargaining agreement pursuant to subdivision (b) of
Section 3542.2 of the Government Code.

begin delete SEC. 2. end delete
begin insert SEC. 3. end insert   

Section 44936 of the Education Code is amended to
read:

44936.  

(a) The notice of dismissal or suspension in a
proceeding initiated pursuant to Section 44934 may be given at
any time of year.

(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.

(c) The notice of dismissal or suspension shall be in writing and
be served upon the employee personally or by United States
registered mail addressed to the employee at his or her 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.

begin delete SEC. 3. end delete
begin insert SEC. 4. end insert   

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 of a school district, charging a permanent
employee of the district with begin insert unprofessional conduct reasonably
related to an offense described in Section 44010 or 44011 of this
code or Sections 11165.2 to 11165.6, inclusive, of the Penal Code, end insert
immoral conduct, conviction of a felony or of a crime involving
moral turpitude, begin delete with end delete incompetency due to mental disability, or
begin delete with end delete willful refusal to perform regular assignments without
reasonable cause, as prescribed by reasonable rules and regulations
of the employing school begin delete district, or with violation of Section 51530, end delete
begin insert district, end insert the governing board of the school district may, if it deems
begin delete such end delete begin insert that end insert 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, the
employee will be dismissed, unless he or she demands a hearing.

begin delete

(b) If the permanent employee is suspended upon charges for
a violation of Section 51530, the employee may within 10

end delete begin insert

(b) (1) An employee who has been placed on suspension
pursuant to this section may serve and file with the Office of
Administrative Hearings a motion for immediate reversal of
suspension. Review of a motion filed pursuant to this section shall
be limited to a determination as to whether the facts as alleged in
the statement of charges, if true, are sufficient to constitute a basis
for immediate suspension under this section. The motion shall
include a memorandum of points and authorities setting forth law
and argument supporting the employee’s contention that the
statement of charges does not set forth a sufficient basis for
immediate suspension.

end insert begin insert

(2) The motion shall be served upon the governing board of the
school district and filed with the Office of Administrative Hearings
within 30 days after service upon the employee of the initial
pleading in the matter. The governing board of the school district
shall have the right to serve and file a written response to the
motion before or at the time of hearing.

end insert begin insert

(3) The hearing on the motion for immediate reversal of
suspension shall be held no later than 15 days after the motion is
filed with the Office of Administrative Hearings.

end insert

begin insert (4) end insert begin insert   end insert begin insert The administrative law judge shall, no later than 15 end insert days
after begin delete service upon him or her of notice of the suspension file with
the governing board of the school district a verified denial, end delete begin insert the
hearing, end insert begin insert issue an order denying or granting the motion. The order
shall be end insert in writing, begin insert and a copy end insert of the begin delete charges. In that event the
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 entry of the decision of end delete begin insert order
shall be served by the Office of Administrative Hearings upon the
parties. The grant or denial of the motion shall be without prejudice
to consideration by end insert the Commission on Professional Competence, begin delete if and during the time that the employee furnishes to the school
district a suitable bond, or other security acceptable to the
governing board of the school district, as a guarantee that the
employee will repay to the school district the amount of salary so
paid to him or her during the period of suspension in case the
decision of the Commission on Professional Competence is that
the employee shall be dismissed. If it is determined that the
employee may not be dismissed, the governing board of the school
district shall reimburse the employee for the cost of the bond. end delete begin insert based
upon the full evidentiary record before it, of the validity of the
grounds for dismissal. The ruling shall not be considered by the
commission in determining the validity of the grounds for dismissal,
and shall not have any bearing on the commission’s determination
regarding the grounds for dismissal. end insert

begin insert

(5) An order granting a motion for immediate reversal of
suspension shall become effective within five days after service of
the order. The school district shall make the employee whole for
any lost wages, benefits, and compensation within 14 days after
service of an order granting the motion.

end insert begin insert

(6) A motion made pursuant to this section shall be the exclusive
means of obtaining interlocutory review of suspension pending
dismissal. The grant or denial of the motion shall not be subject
to interlocutory judicial review.

end insert begin insert

(c) A motion for immediate reversal of suspension pursuant to
this section shall have no bearing on the authority of a governing
board of a school district to determine the physical placement and
assignment of an employee who is suspended or placed on
administrative leave during the review of the motion or while
dismissal charges are pending.

end insert

begin delete SEC. 4. end delete
begin insert SEC. 5. end insert   

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, with a violation or attempted violation
of Section 187 of the Penal Code, 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 Sections 11054, 11055, and 11056 of the
Health and Safety begin delete Code, with the exception of marijuana,
mescaline, peyote, or tetrahydrocannabinols. end delete begin insert Code. end insert

(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 of this code, or Sections 11357 to 11361,
inclusive, Section 11363, 11364, or 11370.1 of the Health and
Safety begin delete Code, insofar as these sections relate to any controlled
substances except marijuana, mescaline, peyote, or
tetrahydrocannabinols. end delete begin insert Code. end insert

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

(d) (1) If a 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 certificated 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) If a 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 certificated employee on compulsory leave in accordance
with the procedure in this section and Section 44940.5. If a
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 certificated 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.

begin insert

begin insert SEC. 6. end insert   

end insert

begin insert Section 44941 of the end insert begin insert Education Code end insert begin insert is amended to
read: end insert

44941.  

begin insert (a) end insert begin insert   end insert The notice of suspension and intention to begin delete dismiss, end delete
begin insert dismiss end insert shall be in writing and begin delete be end delete served begin delete upon the employee
personally or by United States registered mail addressed end delete begin insert pursuant end insert
to begin delete the employee at his last known address. end delete begin insert Section 44936. end insert 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. If the
employee does not demand a hearing within the 30-day period, he
begin insert or she end insert may be dismissed upon the expiration of 30 days after
service of the notice.

begin insert

(b) An employee who demands a hearing shall file a single
document containing his or her request for a hearing pursuant to
this section and a notice of defense pursuant to Sections 11505
and 11506 of the Government Code.

end insert

begin delete

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, 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) A witness shall not be permitted to testify at the hearing
except upon oath or affirmation.

(B) Testimony shall not be given and evidence shall not be
introduced relating to matters that occurred more than four years
before the date of the filing of the 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.

(C) Evidence of records regularly kept by the governing board
concerning the employee may be introduced, but no decision
relating to the dismissal or suspension of an employee shall be
made based on charges or evidence of any nature relating to matters
occurring more than four years before the filing of the 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.

(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 before 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 the 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 commission 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 commission shall be deemed to be the
final decision of the governing board.

(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 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 commission 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 commission 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
Commission on Professional Competence. In the absence of
agreement, the place shall be selected by the administrative law
judge.

end delete

begin insert

begin insert SEC. 7. end insert   

end insert

begin insert Section 44944 of the end insert begin insert Education Code end insert begin insert is amended to
read: end insert

44944.  

(a) (1)  begin insert (A) end insert begin insert   end insert 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 begin delete 60 days end delete begin insert six
months end insert from the date of the employee’s demand for a hearing. begin delete 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. end delete begin insert A continuance shall not
extend the date for the commencement of the hearing more than
six months from the date of the employee’s request for a hearing,
except for good cause, as determined by the administrative law
judge. The hearing date shall be established after consultation
with the employee and the governing board, or their
representatives, except that, if the parties are not able to reach
agreement on a date, the Office of Administrative Hearings shall
unilaterally set a date in compliance with this section. The hearing
shall be completed by a closing of the record within seven months
of the date of the employee’s demand for a hearing, except where
reasonable progress has been made in completing the previously
scheduled days of the hearing within the seven-month period, but
the hearing cannot be completed, for good cause shown, within
the seven-month period, as determined by the presiding
administrative law judge, or if a continuance has been granted to
extend the date for the commencement of the hearing. If the
administrative law judge grants a continuance under this
subparagraph, he or she shall establish a reasonable timetable
for the completion of the hearing and the closing of the record. end insert

begin delete

(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.

end delete begin delete

(3) The time periods 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.

end delete begin delete

(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 the preceding
paragraph.

end delete begin delete

(5) No witness shall be permitted to testify at the hearing except
upon oath or affirmation. No testimony shall be given or evidence
introduced relating to matters that occurred more than four years
prior to the date of the filing of the notice. Evidence

end delete begin insert

(B) The hearing shall be initiated and 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,
and a Commission on Professional Competence shall have all of
the power granted to an agency pursuant to that chapter, except
as described in this article

end insert begin insert

(2) (A) A witness shall not testify at the hearing except upon
oath or affirmation. No testimony shall be given or evidence
introduced relating to matters that occurred more than four years
before the date of the filing of the notice, except for allegations of
an act reasonably related to an offense described in Section 44010
of this code, or Sections 11165.2 to 11165.6, inclusive, of the Penal
Code.

end insert

begin insert (B) 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 allegations of an act reasonably
related to an offense described in Section 44010 of this code, or
Sections 11165.2 to 11165.6, inclusive, of the Penal Code. end insert

begin delete

(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 prior to the date
of the hearing, the failure

end delete begin insert

(b) (1) The hearing provided for in this section shall be
conducted by a Commission on Professional Competence, unless
the parties submit a statement in writing to the Office of
Administrative Hearings, indicating that both parties waive the
right to convene a Commission on Professional Competence and
stipulate to having the hearing conducted by a single administrative
law judge. If the parties elect to waive a hearing before a
Commission on Professional Competence, the hearing shall be
initiated and 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 and the administrative law
judge conducting the hearing shall have all the powers granted to
a Commission on Professional Competence pursuant to this article.

end insert begin insert

(2) Except as provided in paragraph (5), if the parties elect not
to waive a hearing before 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 ensuring that the legal rights of the parties are protected at
the hearing.

end insert

begin insert (3) end insert begin insert   end insert begin insert The governing board and the employee shall select the
Commission on Professional Competence members no later than
45 days before the date set for the hearing, and shall serve notice
of their selection upon all other parties and upon the Office of
Administrative Hearings. Failure to meet this deadline end insert 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 a 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.

begin delete

(2)

end delete

begin insert (4) end insert begin insert   end insert begin insert (A) end insert  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 begin delete suspension and end delete begin insert suspension. Each member end insert shall hold
a currently valid credential and have at least begin delete five end delete begin insert three end insert years’
experience within the past 10 years in the discipline of the
employee.

begin insert

(B) For purposes of this paragraph, the following terms have
the following meanings:

end insert begin insert

(i) For an employee subject to dismissal whose most recent
teaching assignment is in kindergarten or any of grades 1 to 6,
inclusive, “discipline” means a teaching assignment in
kindergarten or any of grades 1 to 6, inclusive.

end insert begin insert

(ii) For an employee subject to dismissal whose most recent
assignment requires an education specialist credential or a services
credential, “discipline” means an assignment that requires an
education specialist credential or a services credential,
respectively.

end insert begin insert

(iii) For an employee subject to dismissal whose most recent
teaching assignment is in any of grades 7 to 12, inclusive,
“discipline” means a teaching assignment in any of grades 7 to
12, inclusive, in the same area of study, as that term is used in
Section 51220, as the most recent teaching assignment of the
employee subject to dismissal.

end insert begin insert

(5) For a hearing that involves only an offense or offenses
described in Section 44010 or 44011 of this code, or Sections
11165.2 to 11165.6, inclusive, of the Penal Code, the Commission
on Professional Competence shall consist solely of an
administrative law judge.

end insert

(c) (1) The decision of the Commission on Professional
Competence shall be made by a majority vote, begin insert unless it consists
solely of an administrative law judge, end insert 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 Commission on Professional Competence
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 begin delete commission end delete begin insert Commission on Professional Competence 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 Commission on Professional Competence
shall be deemed to be the final decision of the governing board.

(5) The begin insert governing end insert 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 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 begin insert not end insert receive begin delete no end delete additional compensation or honorariums
for service on the commission.

begin insert

(2) If the member selected is a retired employee, the member
shall receive pay at the daily substitute teacher rate in the school
district that is a party to the hearing. Service on a Commission on
Professional Competence shall not be credited toward retirement
benefits.

end insert begin delete

(2)

end delete

begin insert (3) end insert  If service on a Commission on Professional Competence
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 begin insert end insert and the begin delete employee end delete begin insert state end insert shall share equally
the expenses of the hearing, including the cost of the administrative
law judge. The state shall pay any costs incurred under begin delete paragraph end delete
begin insert paragraphs end insert (2) begin insert and (3) end insert 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 Commission on Professional Competence 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
begin delete paragraph end delete begin insert paragraphs end insert (2) begin insert and (3) end insert 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
begin delete commission, end delete begin insert Commission on Professional Competence, end insert the
payment of expenses to members of the commission required by
this subdivision shall not be stayed.

(5)  begin delete (A) end delete begin delete   end delete If the decision of the begin delete commission end delete begin insert Commission on
Professional Competence end insert 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.

begin delete end delete begin delete

(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.

end delete begin delete end delete

(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.

begin insert

begin insert SEC. 8. end insert   

end insert

begin insert Section 44944.2 is added to the end insert begin insert Education Code end insert begin insert , to
read: end insert

begin insert

begin insert 44944.2. end insert   

(a) In a dismissal or suspension proceeding under
Section 44944, except for a hearing involving only charges of
unprofessional conduct reasonably related to an offense described
in Section 44010 or 44011 of this code, or Sections 11165.2 to
11165.6, inclusive, of the Penal Code, and in lieu of written
discovery required pursuant to Section 11507.6 of the Government
Code, the parties shall make disclosures as described in this
section.

(1) An initial disclosure shall comply with the following
requirements:

(A) A party shall, without awaiting a discovery request, provide
to the other parties both of the following:

(i) The name and, if known, the address and telephone number
of each individual likely to have discoverable information, along
with the subjects of that information, that the disclosing party may
use to support its claims or defenses, unless the use would be solely
for impeachment purposes.

(ii) A copy of all documents, electronically stored information,
and tangible items that the disclosing party has in its possession,
custody, or control and may use to support its claims or defenses,
unless the use would be solely for impeachment.

(B) The school district and the employee shall make their initial
disclosures within 45 days of the date of the employee’s demand
for a hearing.

(C) A party shall make its initial disclosures based on the
information then reasonably available to it. A party is not excused
from making its disclosures because it has not fully investigated
the case or because it challenges the sufficiency of another party’s
disclosures. A party’s failure to make initial disclosures within
the deadlines set forth in this section shall preclude the party from
introducing at the hearing any witnesses or evidence not disclosed,
unless the party shows good cause for its failure to timely disclose.

(D) A party has an obligation to promptly supplement its initial
disclosures as new information or evidence becomes known or
available. Supplemental disclosures shall be made as soon as
possible, and no later than 60 days before the date of
commencement of the hearing. A party’s failure to make
supplemental disclosures promptly upon discovery or availability
of new information or evidence shall preclude the party from
introducing at the hearing any witnesses or evidence not disclosed,
unless the party shows good cause for its failure to timely disclose.

(2) The disclosure of expert testimony shall comply with the
following requirements:

(A) A party shall also disclose to the other parties the identities
of any expert witness whose testimony it may use at the hearing.

(B) The disclosure specified in subparagraph (A) shall be
accompanied by a summary of the witness’s expected testimony,
including a description of the facts and data considered by the
witness; a description of the witness’s qualifications, including a
list of all publications authored in the previous 10 years; a list of
all other cases in which, during the previous four years, the witness
testified as an expert at a hearing or by deposition; and a statement
of the compensation to be paid to the expert witness.

(C) Expert witness disclosures shall be made no later than 60
days before the date of commencement of the hearing. A party’s
failure to make full and timely expert witness disclosures shall
preclude the party’s use of the expert witness’s testimony or
evidence at the hearing.

(3) Prehearing disclosures shall comply with the following
requirements:

(A) In addition to the disclosures required in paragraphs (1)
and (2), a party shall provide to the other parties the following
information about the evidence that it may present at the hearing:

(i) The name, and if not previously provided, the address and
telephone number of each witness, separately identifying those the
party expects to present and those it may call if the need arises.

(ii) An identification of each exhibit, separately identifying those
items the party expects to offer and those it may offer if the need
arises.

(B) Prehearing disclosures shall be made at least 30 days before
the hearing.

(i) Within 14 days after prehearing disclosures are made, a
party shall file and serve any objections, along with the grounds
for each objection, to the admissibility of evidence.

(ii) These objections shall be decided on the first day of hearing,
or at a prehearing conference conducted pursuant to Section
11511.5 of the Government Code. Documents and individuals not
timely disclosed without good cause shall be precluded from
admission at the hearing.

(b) In addition to the disclosures required by subdivision (a),
except for a hearing involving only charges of unprofessional
conduct reasonably related to an offense described in Section
44010 or 44011 of this code, or Sections 11165.2 to 11165.6,
inclusive, of the Penal Code, the parties may obtain discovery by
oral deposition in California, in accordance with Sections 2025.010
to 2025.620, inclusive, of the Code of Civil Procedure, except as
described in this article. The school district may take the
depositions of the employee and no more than four other witnesses,
and the employee may take depositions of no more than five
witnesses. Each witness deposition is limited to seven hours.

(c) If the right to disclosures or oral depositions is denied by
either the employee or the governing board of the school district,
the exclusive right of a party seeking an order compelling
production of discovery shall be pursuant to Section 11507.7 of
the Government Code. If a party seeks protection from
unreasonable or oppressive discovery demands, the exclusive right
of a party seeking an order for protection shall be pursuant to
Section 11450.30 of the Government Code.

end insert

begin delete SEC. 6. end delete
begin insert SEC. 9. end insert   

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.