By Tami Abdollah, Pass / Fail | 89.3 KPCC http://bit.ly/LoHBTg
Bill Ferris/Flickr.com: California State Assembly floor
3/25 - 3:21pm - Only one of three bills recently introduced in the state Legislature that aim to make it easier to dismiss teachers is alive today, and may continue on to change state law.
AB2028, sponsored by Republican state Assemblymen Cameron Smyth of Santa Clarita and Steve Knight of the Antelope Valley, died in the Assembly Appropriations Committee today — the end of the fiscal deadline.
The bill, which was significantly amended last month, would eliminate the four-year limitation on introducing evidence to be used in proceedings and allow the dismissal process to begin during the summer.
AB2028 passed out of committee in its amended form last month, but was put "on suspense" in the Appropriations Committee because it cost more than $150,000; a hearing was held today to take bills off suspense, but AB2028 died without a vote, said Sabrina Lockhart, a spokeswoman for the Office of Assembly Republican Leader Connie Conway.
It would have cost the state $175,000 because of the expenses associated with mandating schools keep records for longer than four years, Lockhart said.
The California State Assembly Republican Caucus has pushed the bill, which in its initial form mirrored the L.A. Unified school board resolutions adopted on the dismissal issue after a recent spate of teacher arrests for lewd conduct with children. The California Teachers Assn. has vocally opposed the dismissal bills introduced at the Legislature and called them a retraction of due process protections for teachers.
"The committee approved hundreds of bills today, and I'm sure many of them cost more than $175,000," Lockhart said.
Lockhart said Mayor Antonio Villaraigosa's staff testified in support of AB2028 in April and told legislators that it costs $300,000 to dismiss one teacher.
Another bill, SB1059, sponsored by Republican state Sen. Bob Huff of Diamond Bar, never passed out of commitee in April.
Of the three bills, only SB1530 remains alive. It passed out of the state Senate Appropriations Committee on Thursday. It will go to the state Senate next week for a vote. Democratic state Sen. Alex Padilla of Pacoima worked with the CTA and committee members to amend the bill and narrow its scope.
SB 1530 (Padilla): School employees: dismissal, suspension, and leave of absence procedures.
(as amended)
Italicized text includes proposed additions to law or the previous version of the bill.
Struck textincludes proposed deletions to law or the previous version of the bill.AMENDED IN SENATE APRIL 26, 2012
AMENDED IN SENATE MARCH 27, 2012
INTRODUCED BY Senator Padilla
FEBRUARY 24, 2012
An act to amend Sections 44936,
44938,44939,44940, and 44944 of the Education Code, relating to school employees.
LEGISLATIVE COUNSEL'S DIGEST
SB 1530, as amended, Padilla. School employees: dismissal,
suspension, and leave of absence procedures.
(1) Under existing law, a permanent school employee is prohibited
from being dismissed, except for one or more of certain enumerated
causes, including for immoral or unprofessional conduct and
unsatisfactory performance. Upon a charging that there exists cause
for the dismissal or suspension of a permanent employee, existing law
authorizes the governing board of a school district to give notice
to the employee of its intention to dismiss or suspend the employee,
as specified. Existing law prohibits the governing board of a school
district from giving notice of dismissal or suspension of a permanent
employee between May 15 and September 15 of any year.
This bill would except from that prohibition of giving notice
between those dates, proceedings where the charges involve specified
offenses.
(2) Existing law prohibits the governing board of any school
district from acting upon charges of unprofessional conduct or
unsatisfactory performance against an employee unless the employee is
given written notice of the unprofessional conduct or unsatisfactory
performance, as provided.This bill would delete the provision that prohibits the governing
board from acting upon charges of unprofessional conduct, as
specified.
(3)(2) Existing law authorizes the governing board of a
school district to immediately suspend a permanent employee under
specified conditions, including immoral conduct, and give the
employee notice of the suspension, as specified.
This bill would include serious or egregious
unprofessional conduct within the conditions that a governing board
may immediately suspend a permanent employee.
(4)(3) 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 also provides that a certificated employee may be
charged with an optional leave of absence offense for certain
offenses, including controlled substance offenses, as specified, 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 remove marijuana, mescaline, peyote, and
tetrahydrocannabinols as exceptions to the controlled substance
offenses for which a certificated employee may be charged with a
mandatory leave of absence offense or an optional leave of absence
offense.
Because this bill 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)(4) Existing law requires that a requested hearing on
the dismissal or suspension of a permanent employee be conducted by a
Commission on Professional Competence, as specified, and provides
that the decision of the commission is deemed to be the final
decision of the governing board of a school district. Existing law
prohibits testimony from being given and evidence from being
introduced relating to matters that occurred more than 4 years prior
to the filing of the notice, and prohibits a decision relating to the
dismissal or suspension of an employee from being made based on
charges or evidence relating to matters that occurred more than 4
years before the filing of the notice of charges for the dismissal or
suspension of the employee.
This bill would
require the Commission on Professional
Competence, for hearings on the dismissal or suspension ofa permanent employee that involve certain sex offenses, controlled
substance offenses, or child abuse offenses, as specified,
to consist ofrequire these hearings to be conductedsolely by an administrative law judge of the Office of
Administrative Hearings and would provide that the decision of the
commissionadministrative law judgerelated to these specified offenses would be advisory
in
nature to the governing board, and require the finaldecision reg arding the discipline of the employee to be
determined by action of the governing board of the school district,
as specified . The bill would require the governing board,
before making its final determination, to allow the
employee to submit a written statement or response or, at the
election of the governing board, an oral statement concerning the
disciplinary action, and would require the governing board's final
determination to be subject to review and appeal, as specified. The
bill also would exempt hearings that involve these specified
offenses from the prohibition on giving testimony and introducing
evidence relating to matters that occurred more than 4 years before
the date of the filing of the notice, and would, for hearings that
involve the specified offenses, permit a decision relating to the
dismissal or suspension of an employee to be made based on charges or
evidence related to matters occurring more than 4 years before the
date of the filing of the notice of charges for the dismissal or
suspension of the employee.
(6)(5) This bill also would make
nonsubstnative
nonsubstantive and conforming changes to theseprovisions.
(7)(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 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 shall
not be given between May 15 and September 15
, except inproceedings where the charges involve any offense as defined in
Sections 44010 and 44011 of this code, and Sections 11165.2 to
11165.6, inclusive, of the Penal Code. The notice shall bein writing and be served upon the employee personally or by United
States registered mail addressed to him or her at the employee's last
known address. A copy of the charges filed, containing the
information required by Section 11503 of the Government Code,
together with a copy of the provisions of this article, shall be
attached to the notice.
(b) The notice of dismissal or suspension in a proceeding
initiated pursuant to charges described in Section 44939 may be given
at any time during the calendar year. This subdivision is intended
to codify the holding of Board of Education v. Commission on
Professional Competence (1976) 61 Cal.App.3d 664.
SEC. 2.Section 44938 of the Education Code isamended to read:
44938. (a) The governing board of a school district shall not act
upon any charges of unsatisfactory
performance unless it acts in accordance with the provisions of
paragraph (1) or (2):
(1) At least 90 calendar days before the date of the filing, the
governing board or its authorized representative has given the
employee against whom the charge is filed written notice of the
unsatisfactory performance specifying the nature thereof with such
specific instances of behavior and with such particularity as to
furnish the employee an opportunity to correct his or her faults and
overcome the grounds for the charge. The written notice shall include
the evaluation made pursuant to Article 11 (commencing with Section
44660) of Chapter 3, if applicable to the employee.
(2) The governing board may act during the time period composed of
the last one-fourth of the schooldays it has scheduled for purposes
of computing apportionments in any fiscal year if, before the
beginning of that time period, the governing board or its authorized
representative has given the employee against whom the charge is
filed written notice of the unsatisfactory performance specifying the
nature thereof with such specific instances of behavior and with
such particularity as to furnish the employee an opportunity to
correct his or her faults and overcome the grounds for the charge.
The written notice shall include the evaluation made pursuant to
Article 11 (commencing with Section 44660) of Chapter 3, if
applicable to the employee.
(b) "Unsatisfactory performance" as used in this section means,
and refers only to, the unsatisfactory performance particularly
specified as a cause for dismissal in Section 44932 and does not
include any other cause for dismissal specified in Section 44932.
SEC. 3.SEC. 2. Section 44939 of theEducation Code is amended to read:
44939. (a) Upon the filing of written charges, duly signed and
verified by the person filing them with the governing board of a
school district, or upon a written statement of charges formulated by
the governing board, charging a permanent employee of the district
with
immoral or unprofessional conductserious or egregious unprofessional conduct, immoral conduct ,
conviction of a felony or of any crime involving moral turpitude,
with incompetency due to mental disability, with willful refusal to
perform regular assignments without reasonable cause, as prescribed
by reasonable rules and regulations of the employing school district,
with violation of Section 51530, with knowing membership by the
employee in the Communist Party or with violation of any provision in
Sections 7001 to 7007, inclusive, the governing board may, if it
deems such action necessary, immediately suspend the employee from
his or her duties and give notice to the employee of his or her
suspension, and that 30 days after service of the notice, the
employee will be dismissed, unless he or she demands a hearing.
(b) If the permanent employee is suspended upon charges of knowing
membership by the employee in the Communist Party or for violation
of Section 7001, 7002, 7003, 7006, 7007, or 51530, the employee may
within 10 days after service upon him or her of notice of such
suspension file with the governing board a verified denial, in
writing, of the charges. In such 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 the Commission on Professional
Competence, if and during such time as the employee furnishes to the
school district a suitable bond, or other security acceptable to the
governing board, as a guarantee that the employee will repay to the
school district the amount of salary 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 school
board shall reimburse the employee for the cost of the bond.
SEC. 4.SEC. 3. Section 44940 of theEducation 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 a sex offense as defined in
Section 44010, or with the commission of an 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 Code.
(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 a controlled substance offense as defined in
Section 44011 or 87011, or a violation or attempted violation of
Section 187 of the Penal Code, Sections 11357 to 11361, inclusive, or
Section 11363, 11364, or 11370.1 of the Health and Safety Code,
insofar as these sections relate to controlled substances.
(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 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 the 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 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 the 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.
SEC. 5.SEC. 4. Section 44944 of theEducation 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
the
precedingparagraph (3) .(5) (A) A witness shall not be permitted to testify at the hearing
except upon oath or affirmation.
(B) Except for hearings that involve any offense as defined in
Sections 44010 and 44011 of this code, and Sections 11165.2 to
11165.6, inclusive, of the Penal Code:
(i) Testimony shall not be given or evidence introduced relating
to matters that occurred more than four years before the date of the
filing of the notice.
(ii) 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.
(b) The hearing provided for in this section shall be conducted
by a Commission on Professional Competenceasfollows:
(1)
The Commission on Professional Competence shallconsist of an administrative law judge of the Office of
Administrative Hearings for aA hearing thatinvolves any offense as defined in Sections 44010 and 44011 of this
code, and Sections 11165.2 to 11165.6, inclusive, of the Penal Code
shall be conducted solely by an administrative law judge of the
Office of Administrative Hearings .
(2)
The Commission on Professional Competence shall be
comprised as follows for hearingsHearings notspecified in paragraph (1) shall be conducted by the Commission
on Professional Competence, which shall be comprised as follows
:
(A) 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 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.
(B) 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
with regard to a hearing conducted pursuant to paragraph (2) of
subdivision (b) 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 on Professional
Competencecommission with regard to a hearingconducted pursuant to paragraph (2) of subdivision (b) 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) (A) The decision of the
Commission on Professional Competencecommission withregard to a hearing conducted pursuant to paragraph (2) of
subdivision (b) shall be deemed to be the final decision of the
governing board.
However, the(B) The decision of the
Commission on Professional Competenceadministrativelaw judge with regard to a hearing conducted pursuant to paragraph
(1) of subdivision (b) shall be
deemed to be advisory
in nature toadvisory, and the final decisionregarding the discipline of the employee shall be determined by
action of the governing board
with respect to hearingsthat involve any offense as defined in Sections 44010 and 44011 of
this code, and Sections 11165.2 to 11165.6, inclusive, of the Penal
Codeof the school district. None of the findings,recommendations, or determinations contained in the proposed decision
of the administrative law judge shall be binding on the
governing board. The governing board shall, before making its final
determination, allow the employee to submit a written statement or
response or, at the election of the governing board, an oral
statement concerning the disciplinary action. The governing board's
final determination shall be subject to review and appeal pursuant to
Section 1094.5 of the Code of Civil Procedure .
(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 a school district in
this state, the member shall, during 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 on Professional Competence
commission occurs during summer recess orvacation 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
in a hearing conducted pursuant to paragraph (2) of subdivision
(b) 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 on Professional Competence
commission determines in a hearingconducted pursuant to paragraph (2) of subdivision (b) 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 in a hearing
conducted pursuant to paragraph (2) of subdivision (b) 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 sectionparagraph (2) of subdivision (b) shall be conducted in a
place selected by agreement among the members of the commission. In
the absence of agreement, and for hearings conducted pursuant to
paragraph (1) of subdivision (b), the place shall be selected by the
administrative law judge.
SEC. 6.SEC. 5. If the Commission onState 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.
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