Bill Text: CA AB1221 | 2013-2014 | Regular Session | Amended
Bill Title: School employees: discipline: suspension and dismissal.
Sponsorship: Partisan Bill (Republican 8)
Status: (Introduced - Dead) 2014-02-03 - From committee: Filed with the Chief Clerk pursuant to Joint Rule 56. [AB1221 Detail]
Download: California-2013-AB1221-Amended.html
BILL NUMBER: AB 1221 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY JANUARY 6, 2014
AMENDED IN ASSEMBLY APRIL 24, 2013
INTRODUCED BY Assembly Member Wilk
(Coauthors: Assembly Members Conway, Beth Gaines, Gorell, Harkey,
Jones, Morrell, and Nestande)
FEBRUARY 22, 2013
An act to amend Sections 44932, 44936, 44938, 44939,
and 44944 , and 44945 of, and
to add Section 44932.5 to, and to repeal Section 45047
of, the Education Code, relating to school employees.
LEGISLATIVE COUNSEL'S DIGEST
AB 1221, as amended, Wilk. School employees: discipline:
suspension and dismissal.
(1) Existing law prohibits a permanent school employee from being
dismissed except for one or more specified offenses
causes .
This bill would include serious or egregious unprofessional
conduct, as defined, as a ground for dismissal of a permanent school
employee. The bill would also prohibit a collective bargaining
agreement entered into or renewed on or after January 1,
2014, 2015, from requiring the removal from
an employee's record , after a specified time period,
from an employee's record of records pertaining to
discipline, complaints, reprimands, or investigations relating to the
employee's commission, or potential commission, of one of those
specified offenses.
(2) Existing law authorizes a governing board of a school district
to give notice to a permanent employee of its intention to dismiss
or suspend him or her for specified causes at the expiration of 30
days from the date of service of the notice, unless the employee
demands a hearing. Existing law prohibits that notice from being
given between May 15th and September 15th in any year.
This bill would remove that prohibition.
(3) Existing law prohibits the governing board of a school
district from acting upon any charges of unprofessional conduct, or
unsatisfactory performance, unless at least 45, or 90, calendar days,
respectively, prior to the date of the filing of the charges the
governing board, or its authorized representative, has given the
employee written notice, as specified.
This bill would remove those 45-day and 90-day requirements.
(4) Existing law authorizes the governing board of a school
district, upon the filing of written charges or upon a written
staetment of charges for certain conduct, to immediately suspend the
employee from his or her duties in accordance with specified
procedures.
This bill would authorize the governing board to immediately
suspend an employee for serious or egregious unprofessional conduct
pursuant to those procedures.
(4)
(5) Existing law establishes a Commission on
Professional Competence for each dismissal or suspension hearing
requested by an employee, consisting of specified members, and
requires the proceeding to be conducted in accordance with the
Administrative Procedure Act. Existing law deems the decision of the
Commission on Professional Competence to be the final decision of the
governing board of the school district.
This bill , for a hearing that involves serious or egregious
unprofessional conduct, would delete the provisions
providing for the establishment of a Commission on Professional
Competence, and would instead require the proceedings to be
conducted pursuant to the Administrative Procedure Act by an
administrative law judge. The bill would provide that the decision of
the administrative law judge would be advisory, and the final
decision regarding the discipline of the employee would be determined
by action of the governing board of the school district.
The bill would provide that an employee requesting a hearing may be
placed on administrative leave without pay, and that an employee who
is placed on administrative leave would be required to be paid his or
her regular salary if he or she furnishes to the school district
acceptable security, as specified.
(5) Existing law prohibits testimony from being given or evidence
being introduced at the hearing relating to matters that occurred
more than 4 years prior to the date of the filing of the notice of
dismissal or suspension.
This bill would remove that 4-year limitation.
(6) This bill would make nonsubstantive and conforming changes.
(6) By imposing additional requirements on governing boards of
school districts, this bill would impose a state-mandated local
program.
(7) 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) No A permanent employee
shall not be dismissed except for one or more of the
following causes:
(1) Immoral conduct or unprofessional conduct.
(2) Serious or egregious unprofessional conduct as defined in
Section 44939.
(2)
(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 thereof.
(3)
(4) Dishonesty.
(4)
(5) Unsatisfactory performance.
(5)
(6) Evident unfitness for service.
(6)
(7) Physical or mental condition unfitting him or her
to instruct or associate with children.
(7)
(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 of
Education state board or by the governing board
of the school district employing him or her.
(8)
(9) Conviction of a felony or of any
a crime involving moral turpitude.
(9)
(10) Violation of Section 51530 or conduct specified in
Section 1028 of the Government Code, added by Chapter 1418 of the
Statutes of 1947.
(10)
(11) Knowing membership by the employee in the Communist
Party.
(11)
(12) Alcoholism or other drug abuse which
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 any a
school district which that has adopted
a collective bargaining agreement pursuant to subdivision (b) of
Section 3543.2 of the Government Code.
SECTION 1. SEC. 2. Section 44932.5
is added to the Education Code, to read:
44932.5. A collective bargaining agreement entered into or
renewed on or after January 1, 2014, 2015,
shall not require the removal from an employee's record
, after a specified time period, from an employee's
record of records pertaining to discipline, complaints,
reprimands, or investigations relating to the employee's commission,
or potential commission, of an offense any
conduct listed in Section 44932.
SEC. 2. SEC. 3. Section 44936 of the
Education Code is amended to read:
44936. The notice of dismissal or suspension in a proceeding
initiated pursuant to Section 44934 shall be in writing and be served
upon the employee personally or by United States registered mail
addressed to the employee 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.
SEC. 3. SEC. 4. Section 44938 of the
Education Code is amended to read:
44938. (a) The governing board of any school district shall not
act upon any charges of unprofessional conduct unless the governing
board or its authorized representative has given the employee against
whom the charge is filed written notice of the unprofessional
conduct, specifying the nature of the unprofessional conduct with
specific instances of behavior and with 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) The governing board of any 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) 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 of the
unsatisfactory performance with specific instances of behavior and
with 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 of the unsatisfactory performance with specific instances
of behavior and with 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.
(c) (1) "Unprofessional conduct" as used in this section means,
and refers to, the unprofessional conduct particularly specified as a
cause for dismissal or suspension in Sections 44932 and 44933 ,
other than serious or egregious unprofessional conduct, and
does not include any other cause for dismissal specified in Section
44932.
(2) "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. 4. 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, charging a permanent employee of the 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, 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, he or she 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 any
violation of Section 7001, 7002, 7003, 7006, 7007, or 51530, he or
she may within 10 days after service of notice of suspension, file
with the governing board a verified denial, in writing, of the
charges. A 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 final decision of the
governing board of the school district, 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
paid during the period of suspension in case the decision of the
governing board 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. 5. 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, charging a permanent
employee of the district with serious 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 duties
and give notice to him of his suspension, and that 30 days after
service of the notice, he will be dismissed, unless he demands a
hearing. If the permanent employee is suspended upon charges of
knowing membership by the employee in the Communist Party or for any
violation of Section 7001, 7002, 7003, 7006, 7007, or 51530, he may
within 10 days after service upon him 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 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 he 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 during the period of suspension in case the decision of
the Commission on Professional Competence is that he 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.
(b) As used in this article, "serious or egregious unprofessional
conduct" means misconduct reasonably related to any offense as
described in Sections 44010 and 44011 of this code, and Sections
11165.2 to 11165.6, inclusive, of the Penal Code.
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 governing board 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 witness shall not be permitted to testify at the hearing
except upon oath or affirmation.
(b) The hearing provided for in this section shall be conducted by
an administrative law judge of the Office of Administrative Hearings
who shall be responsible for ensuring that the legal rights of the
parties are protected at the hearing.
(c) (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
governing board 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
advisory, and the final decision regarding the discipline of the
employee shall be determined by actions of the governing board of the
school district.
(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 governing board 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 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 governing board 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.
(3) If the employee petitions a court of competent jurisdiction
for review of the decision of the governing board, the payment of
expenses to the administrative law judge required by this subdivision
shall not be stayed.
(4) If the decision of the governing board is finally reversed or
vacated by a court of competent jurisdiction, 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.
(e) The hearing provided for in this section shall be conducted in
a place selected by agreement. In the absence of agreement, the
place shall be selected by the administrative law judge.
(f) (1) For the duration of the hearing conducted pursuant to this
section, the employee may be placed on administrative leave without
pay.
(2) If an employee is placed on administrative leave pursuant to
this section, the employee shall continue to be paid his or her
regular salary during the period of his or her administrative leave
of absence if during that time he or she furnishes to the school
district a suitable bond or other security acceptable to the
governing board, as a guarantee that the school district will be
repaid the amount of salary during the employee's leave of absence
if, by action of the governing board, a final decision is made to
terminate the employee, or the employee fails or refuses to return to
service following a decision not to terminate the employee. If the
governing board determines that the employee should not be dismissed,
the governing board shall reimburse the employee for the cost of the
bond upon his or her return to service in the school district.
(3) If the employee prevails at the hearing, the administrative
law judge may recommend a suitable compensatory remedy, including
back wages and benefits, which the governing board may adopt if the
employee is reinstated. An employee who is reinstated pursuant to
this section, either by the governing board or by order of a court of
competent jurisdiction, is entitled to reasonable back wages and
benefits.
SEC. 6. 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 The
hearing date shall be established after consultation with the
employee and the governing board, or their representatives,
and the representatives. Except as specified in
subdivision (c), 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
preceding paragraph (3) .
(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 of records
regularly kept by the governing board concerning the employee may be
introduced, but no decision relating to the dismissal or suspension
of any employee shall be made based on charges or evidence of any
nature relating to matters occurring more than four years prior to
the filing of the notice.
(b) (1) The Except as specified in
subdivision (c), 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
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.
(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)
(3) 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)
(4) 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)
(5) 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) (3) shall be
available only in a suspension proceeding authorized pursuant to
subdivision (b) of Section 44932 or Section 44933.
(4)
(6) The decision of the Commission on Professional
Competence shall be deemed to be the final decision of the governing
board.
(5) The 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)
(7) 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)
(8) 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)
(9) 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), (8); 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, 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)
(10) 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,
judge; any costs incurred under paragraph (2) of
subdivision (d), (8); 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, 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, employee; and reasonable
attorney's fees incurred by the employee.
(3)
(11) As used in this section,
subdivision, "reasonable expenses" shall not be deemed
"compensation" within the meaning of subdivision (d).
paragraph (7) or (8).
(4)
(12) 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)
(13) 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,
state. 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)
(14) The hearing provided for in this section
subdivision shall be conducted in a place
selected by agreement among the members of the commission. In the
absence of agreement, the place shall be selected by the
administrative law judge.
(c) (1) A hearing provided for in this section that is requested
by an employee who is charge with serious or egregious unprofessional
conduct, as defined in subdivision (c) of Section 44939, shall be
conducted solely by an administrative law judge of the Office of
Administrative Hearings.
(2) The decision of the administrative law judge shall be
advisory, and the final decision regarding the discipline of the
employee shall be made by action of the governing board of the school
district. The governing board shall, before making its final
decision, 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 shall only consider
the record produced during the hearing conducted by the
administrative law judge. The governing board's final decision shall
be subject to review and appeal pursuant to Section 1094.5 of the
Code of Civil Procedure.
(3) A hearing conducted pursuant to this subdivision shall be
conducted in a place selected by the administrative law judge.
(d) The governing board of a school district may adopt rules and
procedures consistent with this section as may be necessary to
effectuate this section.
(e) The governing board of a school district and the employee
shall have the right to be represented by counsel.
SEC. 6. Section 44945 of the Education Code is
amended to read:
44945. The decision of the governing board may, on petition of
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. 7. Section 45047 of the Education Code is
repealed.
SEC. 8. SEC. 7. 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.
