Bill Text: CA AB215 | 2013-2014 | Regular Session | Chaptered
Bill Title: School employees: dismissal or suspension: hearings.
Spectrum: Moderate Partisan Bill (Democrat 6-1)
Status: (Passed) 2014-06-25 - Chaptered by Secretary of State - Chapter 55, Statutes of 2014. [AB215 Detail]
Download: California-2013-AB215-Chaptered.html
BILL NUMBER: AB 215 CHAPTERED
BILL TEXT
CHAPTER 55
FILED WITH SECRETARY OF STATE JUNE 25, 2014
APPROVED BY GOVERNOR JUNE 25, 2014
PASSED THE SENATE JUNE 9, 2014
PASSED THE ASSEMBLY JUNE 12, 2014
AMENDED IN SENATE MAY 20, 2014
AMENDED IN SENATE MAY 12, 2014
AMENDED IN SENATE APRIL 3, 2014
INTRODUCED BY Assembly Member Buchanan
(Principal coauthor: Assembly Member Olsen)
(Principal coauthors: Senators Liu, Correa, and Padilla)
(Coauthors: Senators Block and Monning)
JANUARY 31, 2013
An act to amend Sections 44932, 44934, 44935, 44936, 44937, 44939,
44940, 44941, 44943, 44944, and 44945 of, to add Sections 44934.1,
44939.1, 44939.5, 44941.1, 44944.05, and 44944.3 to, and to repeal
and add Section 44944.1 of, the Education Code, relating to school
employees.
LEGISLATIVE COUNSEL'S DIGEST
AB 215, Buchanan. School employees: dismissal or suspension:
hearings.
Existing law prohibits a permanent school employee from being
dismissed, except for one or more of certain enumerated causes,
including immoral or unprofessional conduct.
This bill would also include egregious misconduct, as defined, as
a basis for dismissal.
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.
This bill would additionally apply the above to egregious
misconduct. The bill would authorize the governing board of a school
district, if the governing board has given the above notice, based on
written charges, to amend charges less than 90 days before the
hearing on the charges only upon a showing of good cause. The bill
would require that the employee be given a meaningful opportunity to
respond to the amended charges. The bill would authorize proceedings,
based solely on charges of egregious misconduct, to be initiated via
an alternative process, which this bill would establish, as
provided.
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 authorize any notice of dismissal or suspension to
be given at any time of year, as provided. The bill would require a
notice of dismissal or suspension given outside of the instructional
year of the schoolsite where the employee is physically employed to
be in writing and served personally upon the employee. The bill would
also revise various procedures for providing a notice of dismissal
or suspension, and would impose various requirements for the filing
of a demand for a hearing and the conduct of hearings by the Office
of Administrative Hearings.
Existing law authorizes the governing board of a school district
to immediately suspend an employee and give him or her notice of
dismissal upon the filing of written charges relating to immoral
conduct, conviction of a felony or any crime involving moral
turpitude, with incompetency due to mental disability, or with
willful refusal to perform regular assignments without reasonable
cause, as provided.
This bill would authorize an employee who has been placed on
suspension pursuant to the above provisions to serve and file with
the Office of Administrative Hearings a motion for immediate reversal
of suspension, as provided.
Existing law provides that upon being charged, as specified, with
certain sex or controlled substance offenses, a certificated employee
be placed on either a compulsory leave of absence or an optional
leave of absence for certain enumerated violations.
This bill would revise the definitions of "charged with a
mandatory leave of absence offense" and "charged with an optional
leave of absence offense" for purposes of those provisions governing
when a certificated employee is required to be placed on either a
compulsory leave of absence or an optional leave of absence. Because
these revisions 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.
Existing law 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.
This bill would, for dismissal or suspension proceedings that are
not based solely on charges of egregious misconduct, 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.
The bill would revise various procedures for the conduct of those
hearings, as prescribed, including the authority to waive the
conductibility of the hearing by a Commission on Professional
Competence and instead have the hearing conducted by a single
administrative law judge. The bill would require, in a dismissal or
suspension proceeding carried out under the above provisions, that
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 of the school district 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. This
bill would provide separate hearing procedures for dismissal or
suspension proceedings that are based solely on charges of egregious
misconduct, as provided.
The bill would also make conforming changes to these provisions.
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.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. The Legislature finds and declares both of the
following:
(a) Pupils, educators, school administrators, school boards, and
school district employees need a certificated employee dismissal
process that is both fair and efficient.
(b) This act is intended to revise existing statutes in a manner
that will update and streamline the procedures for certificated
employee discipline and dismissal, making it more cost effective and
reducing the time necessary to complete the dismissal process.
SEC. 2. 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 conduct including, but not limited to, egregious
misconduct. For the purposes of this chapter, "egregious misconduct"
is defined exclusively as immoral conduct that is the basis for an
offense described in Section 44010 or 44011 of this code, or in
Sections 11165.2 to 11165.6, inclusive, of the Penal Code.
(2) Unprofessional conduct.
(3) 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.
(4) Dishonesty.
(5) Unsatisfactory performance.
(6) Evident unfitness for service.
(7) Physical or mental condition unfitting him or her to instruct
or associate with children.
(8) 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.
(9) Conviction of a felony or of any crime involving moral
turpitude.
(10) Violation of Section 51530 or conduct specified in Section
1028 of the Government Code, added by Chapter 1418 of the Statutes of
1947.
(11) 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, 44934.1, 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.
SEC. 3. Section 44934 of the Education Code is amended to read:
44934. (a) This section shall apply to dismissal or suspension
proceedings based on charges as specified in Section 44932 or 44933,
including proceedings based on charges of egregious misconduct in
combination with other charges. Section 44934.1 shall apply to
dismissal or suspension proceedings based solely on charges of
egregious misconduct described in paragraph (1) of subdivision (a) of
Section 44932.
(b) 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 board of the school district, charging that there exists
cause, as specified in Section 44932 or 44933, for the dismissal or
suspension of a permanent employee of the school district, the
governing board of the school district 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 of the school
district has not adopted a collective bargaining agreement pursuant
to subdivision (b) of Section 3543.2 of the Government Code.
(c) Any written statement of charges shall specify instances of
behavior and the acts or omissions constituting the charge so that
the employee will be able to prepare his or her defense. It shall,
where applicable, state the statutes and rules that the employee is
alleged to have violated, and it shall also set forth the facts
relevant to each charge.
(d) If the governing board of the school district has given notice
to a certificated 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 less than 90 days before
the hearing on the charges only upon a showing of good cause. 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.
(e) 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.
(f) This section shall also apply to the suspension of
probationary employees in a school district with an average daily
attendance of less than 250 pupils that has not adopted a collective
bargaining agreement pursuant to subdivision (b) of Section 3542.2 of
the Government Code.
SEC. 4. Section 44934.1 is added to the Education Code, to read:
44934.1. (a) This section shall apply only to dismissal or
suspension proceedings based solely on charges of egregious
misconduct, as described in paragraph (1) of subdivision (a) of
Section 44932.
(b) 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 that there exists
cause, as specified in paragraph (1) of subdivision (a) of Section
44932, for the dismissal or suspension of a permanent employee of the
school district, the governing board of the school district 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.
(c) Any written statement of charges of egregious misconduct shall
specify instances of behavior and the acts or omissions constituting
the charge so that the employee will be able to prepare his or her
defense. It shall, where applicable, state the statutes and rules
that the employee is alleged to have violated, and it shall also set
forth the facts relevant to each occasion of alleged egregious
misconduct.
(d) This section shall also apply to the suspension of
probationary employees in a school district with an average daily
attendance of less than 250 pupils that has not adopted a collective
bargaining agreement pursuant to subdivision (b) of Section 3542.2 of
the Government Code.
SEC. 5. Section 44935 of the Education Code is amended to read:
44935. (a) A report on the fitness of a certificated employee in
a dismissal or suspension proceeding initiated pursuant to Section
44934 or 44934.1 shall not be received from a statewide professional
organization by a governing board unless the certificated employee
shall have been given, prior to the preparation of the report in its
final form, the opportunity to submit in writing his or her comments
on the report and unless a copy of the report in final form is given
to the certificated employee investigated at least 10 days prior to
its submission to the governing board.
(b) A report shall not be distributed other than to the governing
board and those persons participating in its preparation, unless the
certificated employee does not demand a hearing as provided by
Section 44937.
SEC. 6. 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 or 44934.1 may be given at any
time of year.
(b) Notwithstanding subdivision (a), the notice of dismissal or
suspension in a proceeding involving only charges of unsatisfactory
performance initiated pursuant to Section 44934 shall only be given
during the instructional year of the schoolsite where the employee is
physically employed. However, a notice of dismissal or suspension in
a proceeding involving charges of unsatisfactory performance may be
initiated pursuant to paragraph (2) of subdivision (b) of Section
44938.
(c) The notice of dismissal or suspension given during the
instructional year of the schoolsite where the employee is physically
employed shall be in writing and be served upon the employee
personally or by United States registered mail addressed to him or
her 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.
(d) A notice of dismissal or suspension given outside of the
instructional year of the schoolsite where the employee is physically
employed shall be in writing and shall be served upon the employee
personally. A copy of the charges filed, containing the information
required pursuant to Section 11503 of the Government Code, together
with a copy of the provisions of this article, shall be attached to
the notice.
SEC. 7. Section 44937 of the Education Code is amended to read:
44937. In a dismissal or suspension proceeding initiated pursuant
to Section 44934 or 44934.1, if the employee does not demand a
hearing by filing a written request for hearing with the governing
board, he or she may be dismissed or suspended without pay for a
specific period of time at the expiration of the 30-day period.
SEC. 8. Section 44939 of the Education Code is amended to read:
44939. (a) This section shall apply only to dismissal or
suspension proceedings initiated pursuant to Section 44934.
(b) 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 school district with 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, or with
violation of Section 51530, the governing board of the school
district may, if it deems that action necessary, immediately suspend
the employee from his or her duties and give notice to him or her of
his or her suspension, and that 30 days after service of the notice
of dismissal, he or she will be dismissed, unless he or she demands a
hearing.
(c) (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.
(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.
(3) The hearing on the motion for immediate reversal of suspension
shall be held no later than 30 days after the motion is filed with
the Office of Administrative Hearings.
(4) The administrative law judge shall, no later than 15 days
after the hearing, issue an order denying or granting the motion. The
order shall be in writing, and a copy of the 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 the Commission on Professional Competence 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.
(5) An order granting a motion for immediate reversal of
suspension shall become effective within five days of 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.
(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.
(d) 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.
SEC. 9. Section 44939.1 is added to the Education Code, to read:
44939.1. (a) This section shall apply only to dismissal or
suspension proceedings initiated pursuant to Section 44934.1.
(b) 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 school district with egregious misconduct, as defined in
paragraph (1) of subdivision (a) of Section 44932, the governing
board of the school district may, if it deems such action necessary,
immediately suspend the employee from his or her duties and give
notice to him or her of his or her suspension, and that 30 days after
service of the notice of dismissal, he or she will be dismissed,
unless he or she demands a hearing.
SEC. 10. Section 44939.5 is added to the Education Code, to read:
44939.5. (a) School districts, county offices of education, and
charter schools are prohibited from entering into an agreement that
would prevent a mandatory report of egregious misconduct, as defined
in paragraph (1) of subdivision (a) of Section 44932, to the
Commission on Teacher Credentialing or any other state or federal
agency.
(b) School districts, county offices of education, and charter
schools are prohibited from entering into an agreement that would
authorize expunging from a school employee's personnel file credible
complaints of, substantiated investigations into, or discipline for,
egregious misconduct. This prohibition does not preclude any
agreement to remove documents containing allegations that have been
the subject of a hearing before an arbitrator, school board,
personnel commission, Commission on Professional Competence, or
administrative law judge, in which the employee prevailed, the
allegations were determined to be false, not credible, or
unsubstantiated, or a determination was made that the discipline was
not warranted.
(c) A school district, county office of education, or charter
school that has made a report of an employee's egregious misconduct
to the Commission on Teacher Credentialing shall disclose this fact
to a school district, county office of education, or charter school
considering an application for employment from the employee, upon
inquiry.
(d) Any school employee who alleges that another school employee
has engaged in egregious misconduct, as defined in paragraph (1) of
subdivision (a) of Section 44932, knowing at the time of making the
allegation that the allegation was false, shall be subject to
certificate revocation, if applicable.
SEC. 11. 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 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 any controlled substance offense as defined
in Section 44011 or 87011, Sections 11357 to 11361, inclusive, or
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) 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 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 employee upon compulsory leave in accordance with the procedure
in this section and Section 44940.5. If any 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 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. 12. Section 44941 of the Education Code is amended to read:
44941. (a) The notice of suspension and intention to dismiss
shall be in writing and served pursuant to Section 44936. 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 or she may be
dismissed upon the expiration of 30 days after service of the notice.
(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.
SEC. 13. Section 44941.1 is added to the Education Code, to read:
44941.1. Notwithstanding Section 44941, the notice of suspension
and intention to dismiss that is based exclusively on charges of
egregious misconduct as described in paragraph (1) of subdivision (a)
of Section 44932, shall be in writing and served pursuant to Section
44936. 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 or she may be dismissed upon the expiration of 30 days
after service of the notice.
SEC. 14. Section 44943 of the Education Code is amended to read:
44943. When any employee who has been served with notice pursuant
to Section 44934 or 44934.1 of the governing board's intention to
dismiss or suspend him or her demands a hearing, the governing board
shall have the option either (a) to rescind its action, or (b)
schedule a hearing on the matter.
SEC. 15. Section 44944 of the Education Code is amended to read:
44944. (a) This section shall apply only to dismissal or
suspension proceedings initiated pursuant to Section 44934.
(b) (1) (A) 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 six months from the date of
the employee's demand for a hearing. 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
extraordinary circumstances, as determined by the administrative law
judge. If extraordinary circumstances are found that extend the date
for the commencement of the hearing, the deadline for concluding the
hearing and closing the record pursuant to this subdivision shall be
extended for a period of time equal to the continuance. The hearing
date shall be established after consultation with the employee and
the governing board of the school district, or their representatives,
except that if the parties are not able to reach an 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. A continuance shall not extend the
date for the close of the record more than seven months from the date
of the employee's request for a hearing, except for good cause, as
determined by the administrative law judge.
(B) Where substantial 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, the period for completing the hearing
may be extended by the presiding administrative law judge. 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. 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 Commission
on Professional Competence shall have all of the power granted to an
agency pursuant to that chapter, except as described in this article.
(2) (A) A witness shall not 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 before the date of the filing of the notice, except allegations
of an act described in Section 44010 of this code or Sections
11165.2 to 11165.6, inclusive, of the Penal Code.
(B) Evidence of records regularly kept by the governing board of
the school district 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 allegations of an act described in Section 44010 of
this code or Sections 11165.2 to 11165.6, inclusive, of the Penal
Code.
(c) (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 the 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 that chapter, except as described
in this article.
(2) 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 of the school district, 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.
(3) The governing board of the school district and the employee
shall select Commission on Professional Competence members no
later than 45 days before the
date set for hearing, and shall serve notice of their selection upon
all other parties and upon the Office of Administrative Hearings.
Failure to meet this deadline 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.
(4) Any party who believes that a selected Commission on
Professional Competence member is not qualified may file an
objection, including a statement describing the basis for the
objection, with the Office of Administrative Hearings and serve the
objection and statement upon all other parties within 10 days of the
date that the notice of selection is filed. Within seven days after
the filing of any objection, the administrative law judge assigned to
the matter shall rule on the objection or convene a teleconference
with the parties for argument.
(5) (A) The member selected by the governing board of the school
district and the member selected by the employee shall not be related
to the employee and shall not be employees of the school district
initiating the dismissal or suspension. Each member shall hold a
currently valid credential and have at least three years' experience
within the past 10 years in the discipline of the employee.
(B) For purposes of this paragraph, the following terms have the
following meanings:
(i) For an employee subject to dismissal whose most recent
teaching assignment is in kindergarten or any of the grades 1 to 6,
inclusive, "discipline" means a teaching assignment in kindergarten
or any of the grades 1 to 6, inclusive.
(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.
(iii) For an employee subject to dismissal whose most recent
teaching assignment is in any of the 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.
(d) (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 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 of the school district unless the errors are
prejudicial errors.
(3) The Commission on Professional Competence 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 of
the school district.
(5) The governing board of the school district 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 of the school district and the employee
shall have the right to be represented by counsel.
(e) (1) If the member selected by the governing board of the
school district 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 school district in which the member is
employed, but shall receive no additional compensation or honorariums
for service on the commission.
(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.
(3) 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
school district, whichever amount is greater.
(f) (1) If the Commission on Professional Competence determines
that the employee should be dismissed or suspended, the governing
board of the school district and the state shall share equally the
expenses of the hearing, including the cost of the administrative law
judge. The state shall pay any costs incurred under paragraphs (2)
and (3) of subdivision (e), the reasonable expenses, as determined by
the administrative law judge, of the member selected by the
governing board of the school district 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 of the school district 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 of the school district 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 of the school district shall pay the expenses of the hearing,
including the cost of the administrative law judge, any costs
incurred under paragraphs (2) and (3) of subdivision (e), the
reasonable expenses, as determined by the administrative law judge,
of the member selected by the governing board of the school district
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 of the school district 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 (e).
(4) If either the governing board of the school district or the
employee petitions a court of competent jurisdiction for review of
the decision of the Commission on Professional Competence the payment
of expenses to members of the commission required by this
subdivision shall not be stayed.
(5) If the decision of the Commission on Professional Competence
is 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 of the school
district for those expenses, or the governing board of the school
district, having paid the expenses, shall be entitled to
reimbursement from the state. If either the governing board of the
school district or the employee petitions a court of competent
jurisdiction for review of the decision to overturn the
administrative law judge's decision, the payment of the expenses of
the hearing, including the cost of the administrative law judge
required by this paragraph, shall be stayed until no further appeal
is sought, or all appeals are exhausted.
(g) 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.
SEC. 16. Section 44944.05 is added to the Education Code, to read:
44944.05. (a) In a dismissal or suspension proceeding initiated
pursuant to Section 44934, 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. This section shall
not apply to dismissal or suspension proceedings initiated pursuant
to Section 44934.1.
(b) (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 information relating to the allegations made in the
charges and the parties' claims and 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 relating to the allegations made in the charges
and the parties' 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 witnesses or evidence not disclosed at the hearing,
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 witnesses or
evidence not disclosed at the hearing, 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 witnesses whose testimony it may use at the
hearing.
(B) The disclosure specified in subparagraph (A) shall be
accompanied by a summary of the witness' expected testimony,
including a description of the facts and data considered by the
witness; a description of the witness' 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' 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.
(c) In addition to the disclosures required by subdivision (a),
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. An administrative law judge may allow the parties to
conduct additional depositions only upon a showing of good cause. If
a motion to conduct additional depositions is granted by the
administrative law judge, the employee shall be given a meaningful
opportunity to respond to new evidence introduced as a result of the
additional depositions. An order granting a motion for additional
depositions shall not constitute an extraordinary circumstance or
good cause for purposes of extending the deadlines set forth in
paragraph (1) of subdivision (b) of Section 44944.
(d) If the right to disclosures or oral depositions is denied by
either the employee or the governing board, 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.
SEC. 17. Section 44944.1 of the Education Code is repealed.
SEC. 18. Section 44944.1 is added to the Education Code, to read:
44944.1. (a) This section shall apply only to dismissal or
suspension proceedings initiated pursuant to Section 44934.1.
(b) Once the governing board of the school district has initiated
dismissal or suspension proceedings pursuant to Section 44934.1, the
process described in this section shall be the exclusive means of
pursuing a dismissal or suspension for the acts or events
constituting the charge of egregious misconduct, and these specific
acts or events shall not be used to support any additional or
subsequent notice of suspension or dismissal pursuant to Section
44934. Once the governing board of the school district has initiated
dismissal or suspension proceedings pursuant to Section 44934.1, the
process described in this section shall be the exclusive means of
pursuing a dismissal or suspension against the certificated employee
until a written decision has been reached by the administrative law
judge pursuant to paragraph (1) of subdivision (e), the charges have
been dismissed, or the dismissal or suspension proceeding has been
settled or otherwise resolved. If a suspension initiated against an
employee pursuant to Section 44934.1 is upheld, and a dismissal was
not pursued on the same charges, the entry of judgment of the
suspension under Section 44934.1 may be considered as evidence to
support a subsequent notice of dismissal based on other charges. If a
suspension initiated against an employee pursuant to Section 44934.1
is upheld, but the employee prevailed on the dismissal proceeding
based on the same charges, the entry of judgment of the suspension
under Section 44934.1 shall not be considered as evidence to support
a subsequent notice of dismissal based on other charges.
(c) The hearing provided for in this section 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, by an administrative law judge. The
administrative law judge conducting the hearing shall have all the
powers granted to an agency pursuant to that chapter.
(d) (1) (A) In a dismissal or suspension proceeding initiated
pursuant to Section 44934.1, 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 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 Office of Administrative Hearings shall prioritize the
scheduling of dismissal or suspension proceedings initiated pursuant
to Section 44934.1 over other proceedings related to certificated
school employees.
(B) 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. The
continuance or continuances granted pursuant to Section 11524 of the
Government Code, if any, shall not extend by more than a total of 30
days the deadline set forth in paragraph (1) of subdivision (d). 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, 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.
(3) A witness shall not 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 before the date of the filing of the notice, except evidence of
egregious misconduct, as described in paragraph (1) of subdivision
(a) of Section 44932, which shall not be excluded based on the
passage of time.
(4) Evidence of records regularly kept by the governing board of
the school district 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 evidence of egregious misconduct, as described in
paragraph (1) of subdivision (a) of Section 44932, which shall not be
excluded based on the passage of time.
(e) (1) The administrative law judge 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 administrative law judge that the employee
should not be dismissed or suspended shall not be based on
nonsubstantive procedural errors committed by the school district or
the governing board of the school district unless the errors are
prejudicial errors.
(3) The administrative law judge 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 administrative law judge shall be deemed
to be the final decision of the governing board of the school
district.
(5) The state 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 of the school district and the employee
shall have the right to be represented by counsel.
(f) (1) If the administrative law judge determines that the
employee should be dismissed or suspended, the governing board of the
school district and the state shall share equally the expenses of
the hearing, including the cost of the administrative law judge. 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 of the school district shall pay their own
attorney's fees.
(2) If the administrative law judge determines that the employee
should not be dismissed or suspended, the governing board of the
school district shall pay the expenses of the hearing, including the
cost of the administrative law judge, and reasonable attorney's fees
incurred by the employee.
(3) If either the governing board of the school district or the
employee petitions a court of competent jurisdiction for review of
the decision of the administrative law judge, the payment of the
expenses of the hearing, including the cost of the administrative law
judge required by this subdivision, shall not be stayed.
(4) If either the governing board of the school district or the
employee petitions a court of competent jurisdiction for review of
the decision of the administrative law judge and the decision is
upheld, the appellee shall be entitled to an award of reasonable
attorney's fees and costs expended on the appeal.
(5) If the decision of the administrative law judge is reversed or
vacated by a court of competent jurisdiction, either the state,
having paid one-half of the expenses of the hearing, including the
cost of the administrative law judge, shall be entitled to
reimbursement from the governing board of the school district for
those expenses, or the governing board of the school district, having
paid one-half of the expenses, shall be entitled to reimbursement
from the state. If either the governing board of the school district
or the employee petitions a court of competent jurisdiction for
review of the decision to overturn the administrative law judge's
decision, the payment of the expenses of the hearing, including the
cost of the administrative law judge required by this paragraph,
shall be stayed until no further appeal is sought, or all appeals are
exhausted.
(g) The hearing provided for in this section shall be conducted in
a place selected in accordance with Section 11508 of the Government
Code.
SEC. 19. Section 44944.3 is added to the Education Code, to read:
44944.3. At a hearing conducted pursuant to Section 44944 or
44944.1, the administrative law judge, before admitting any testimony
or evidence concerning an individual pupil, shall determine whether
the introduction of the testimony or evidence at an open hearing
would violate any provision of Article 5 (commencing with Section
49073) of Chapter 6.5 of Part 27 of Division 4, relating to privacy
of pupil records. If the administrative law judge, in his or her
discretion, determines that any of those provisions would be
violated, he or she shall order that the hearing, or any portion
thereof at which the testimony or evidence would be produced, be
conducted in executive session.
SEC. 20. Section 44945 of the Education Code is amended to read:
44945. The decision reached in a dismissal or suspension
proceeding initiated pursuant to Section 44934 or 44934.1 may, on
petition of either the governing board or the employee, be reviewed
by a court of competent jurisdiction in the same manner as a decision
made by a hearing officer under Chapter 5 (commencing with Section
11500) of Part 1 of Division 3 of Title 2 of the Government Code. The
court, on review, shall exercise its independent judgment on the
evidence. The proceeding shall be set for hearing at the earliest
possible date and shall take precedence over all other cases, except
older matters of the same character and matters to which special
precedence is given by law.
SEC. 21. 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.
