BILL NUMBER: SB 10	INTRODUCED
	BILL TEXT


INTRODUCED BY   Senator Padilla

                        DECEMBER 3, 2012

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


	LEGISLATIVE COUNSEL'S DIGEST


   SB 10, as introduced, Padilla. School employees: dismissal,
suspension, and leave of absence procedures.
   (1) Under existing law, a permanent school employee is prohibited
from being dismissed, except for one or more of certain enumerated
causes, including for immoral or unprofessional conduct and
unsatisfactory performance. Upon a charging that there exists cause
for the dismissal or suspension of a permanent employee, existing law
authorizes the governing board of a school district to give notice
to the employee of its intention to dismiss or suspend the employee,
as specified. Existing law prohibits the governing board of a school
district from giving notice of dismissal or suspension of a permanent
employee between May 15 and September 15 of any year.
   This bill would include serious or egregious unprofessional
conduct, as specified, as a ground for dismissal of a permanent
school employee, and would except from the prohibition of giving
notice to the employee between May 15 and September 15 proceedings
where the charges involve specified offenses.
   (2) Existing law authorizes the governing board of a school
district to immediately suspend a permanent employee under specified
conditions, including immoral conduct, and give the employee notice
of the suspension, as specified.
   This bill would include serious or egregious unprofessional
conduct, as defined, within the conditions that a governing board may
immediately suspend a permanent employee.
   (3) Existing law provides that a certificated employee may be
charged with a mandatory leave of absence offense for certain
specified sex offenses or controlled substance offenses with the
exception of marijuana, mescaline, peyote, or tetrahydrocannabinols.
Existing law also provides that a certificated employee may be
charged with an optional leave of absence offense for certain
offenses, including controlled substance offenses, as specified, with
the exception of marijuana, mescaline, peyote, or
tetrahydrocannabinols. Existing law requires the governing board of a
school district to immediately place a certificated employee on
compulsory leave of absence if the employee is charged with a
mandatory leave of absence offense.
   This bill would remove marijuana, mescaline, peyote, and
tetrahydrocannabinols as exceptions to the controlled substance
offenses for which a certificated employee may be charged with a
mandatory leave of absence offense or an optional leave of absence
offense.
   Because this bill would increase the number of employees subject
to immediate placement on compulsory leave of absence, thereby
increasing the duties of school districts, the bill would impose a
state-mandated local program.
   (4) Existing law requires that a requested hearing on the
dismissal or suspension of a permanent employee be conducted by a
Commission on Professional Competence, as specified, and provides
that the decision of the commission is deemed to be the final
decision of the governing board of a school district. Existing law
prohibits testimony from being given and evidence from being
introduced relating to matters that occurred more than 4 years prior
to the filing of the notice, and prohibits a decision relating to the
dismissal or suspension of an employee from being made based on
charges or evidence relating to matters that occurred more than 4
years before the filing of the notice of charges for the dismissal or
suspension of the employee.
   This bill would, for hearings on the dismissal or suspension of a
permanent employee that involve certain sex offenses, controlled
substance offenses, or child abuse offenses, as specified, require
these hearings to be conducted solely by an administrative law judge
of the Office of Administrative Hearings and would provide that the
decision of the administrative law judge related to these specified
offenses would be advisory, and require the final decision regarding
the discipline of the employee to be determined by action of the
governing board of the school district, as specified. The bill would
require the governing board, before making its final determination,
to allow the employee to submit a written statement or response or,
at the election of the governing board, an oral statement concerning
the disciplinary action, and to only consider the record produced
during the hearing conducted by the administrative law judge, and
would require the governing board's final determination to be subject
to review and appeal, as specified. The bill also would exempt
hearings that involve these specified offenses from the prohibition
on giving testimony and introducing evidence relating to matters that
occurred more than 4 years before the date of the filing of the
notice, and would, for hearings that involve the specified offenses,
permit a decision relating to the dismissal or suspension of an
employee to be made based on charges or evidence related to matters
occurring more than 4 years before the date of the filing of the
notice of charges for the dismissal or suspension of the employee.
   (5) This bill also would make nonsubstantive and conforming
changes to these provisions.
   (6) The California Constitution requires the state to reimburse
local agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
   This bill would provide that, if the Commission on State Mandates
determines that the bill contains costs mandated by the state,
reimbursement for those costs shall be made pursuant to these
statutory provisions.
   Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

  SECTION 1.  Section 44932 of the Education Code is amended to read:

   44932.  (a)  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.
  SEC. 2.  Section 44936 of the Education Code is amended to read:
   44936.   (a)    The notice of dismissal or
suspension in a proceeding initiated pursuant to Section 44934 shall
not be given between May  15th   15  and
September  15th in any year. It   15. The notice
 shall be in writing and be served upon the employee personally
or by United States registered mail addressed to him  at his
  or her at the employee's  last known address. A
copy of the charges filed, containing the information required by
Section 11503 of the Government Code, together with a copy of the
provisions of this article, shall be attached to the notice. 
   (b) The notice of dismissal or suspension in a proceeding
initiated pursuant to charges described in Section 44939 may be given
at any time during the calendar year. This subdivision is intended
to codify the holding of Board of Education v. Commission on
Professional Competence (1976) 61 Cal.App.3d 664. 
  SEC. 3.  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  or
her  duties and give notice to  him   the
employee  of his  or her  suspension, and that 30 days
after service of the notice,  he   the employee
 will be dismissed, unless he  or she  demands a
hearing. 
    If 
    (b)     If  the permanent employee is
suspended upon charges of knowing membership by the employee in the
Communist Party or for  any   a  violation
of Section 7001, 7002, 7003, 7006, 7007, or 51530,  he
  the employee  may  ,  within 10 days
after service upon him  or her  of notice of  such
  the  suspension  ,  file with the
governing board a verified denial, in writing, of the charges. In
 such   that  event  ,  the
permanent employee who demands a hearing within the 30-day period
shall continue to be paid his  or her  regular salary during
the period of suspension and until the entry of the decision of the
Commission on Professional Competence, if and during  such
  the  time  as he   that the
employee  furnishes to the school district a suitable bond, or
other security acceptable to the governing board, as a guarantee that
the employee will repay to the school district the amount of salary
so paid to him  or her  during the period of suspension in
case the decision of the Commission on Professional Competence is
that  he   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. 
   (c) As used in this article, "serious or egregious unprofessional
conduct" means misconduct reasonably related to any offense described
in Sections 44010 and 44011 of this code, and Sections 11165.2 to
11165.6, inclusive, of the Penal Code. 
  SEC. 4.  Section 44940 of the Education Code is amended to read:
   44940.  (a) For purposes of this section, "charged with a
mandatory leave of absence offense" is defined to mean charged by
complaint, information, or indictment filed in a court of competent
jurisdiction with the commission of  any   a
 sex offense as defined in Section 44010, or with the commission
of  any   an  offense involving aiding or
abetting the unlawful sale, use, or exchange to minors of controlled
substances listed in Schedule I, II, or III, as contained in 
Section   Sections  11054, 11055, and 11056 of the
Health and Safety  Code, with the exception of marijuana,
mescaline, peyote, or tetrahydrocannabinols.   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   a 
controlled substance offense as defined in Section 44011 or 87011, or
a violation or attempted violation of Section 187 of the Penal Code,
 or  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   controlled substances  .
   (c) For purposes of this section and Section 44940.5, the term
"school district" includes county offices of education.
   (d) (1)  Whenever any   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
  the  school district, the Commission on Teacher
Credentialing shall automatically suspend the employee's teaching or
service credential. The duration of the suspension shall be until a
time not more than 10 days after the date of entry of the judgment in
the proceedings.
   (e) (1)  Whenever any   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   on 
compulsory leave in accordance with the procedure in this section and
Section 44940.5. If  any   a  certificated
employee is charged with an offense deemed to fall into both the
mandatory and the optional leave of absence categories, as defined in
subdivisions (a) and (b), that offense shall be treated as a
mandatory leave of absence offense for purposes of this section. No
later than 10 days after receipt of the complaint, information, or
indictment described by subdivision (a), the school district shall
forward a copy to the Commission on Teacher Credentialing.
   (2) Upon receiving a copy of a complaint, information, or
indictment described in subdivision (a) and forwarded by  a
  the  school district, the Commission on Teacher
Credentialing shall automatically suspend the employee's teaching or
service credential. The duration of the suspension shall be until a
time not more than 10 days after the date of entry of the judgment in
the proceedings.
  SEC. 5.  Section 44944 of the Education Code is amended to read:
   44944.  (a) (1) In a dismissal or suspension proceeding initiated
pursuant to Section 44934, if a hearing is requested by the employee,
the hearing shall be commenced within 60 days from the date of the
employee's demand for a hearing. The hearing shall be initiated,
conducted, and a decision made in accordance with Chapter 5
(commencing with Section 11500) of Part 1 of Division 3 of Title 2 of
the Government Code. However, the hearing date shall be established
after consultation with the employee and the governing board, or
their representatives, and the Commission on Professional Competence
shall have all of the power granted to an agency in that chapter,
except that the right of discovery of the parties shall not be
limited to those matters set forth in Section 11507.6 of the
Government Code but shall include the rights and duties of any party
in a civil action brought in a superior court under Title 4
(commencing with Section 2016.010) of Part 4 of the Code of Civil
Procedure. Notwithstanding any provision to the contrary, and except
for the taking of oral depositions, no discovery shall occur later
than 30 calendar days after the employee is served with a copy of the
accusation pursuant to Section 11505 of the Government Code. In all
cases, discovery shall be completed prior to seven calendar days
before the date upon which the hearing commences. If any continuance
is granted pursuant to Section 11524 of the Government Code, the time
limitation for commencement of the hearing as provided in this
subdivision shall be extended for a period of time equal to the
continuance. However, the extension shall not include that period of
time attributable to an unlawful refusal by either party to allow the
discovery provided for in this section.
   (2) If the right of discovery granted under paragraph (1) is
denied by either the employee or the governing board, all of the
remedies in Chapter 7 (commencing with Section 2023.010) of Title 4
of Part 4 of the Code of Civil Procedure shall be available to the
party seeking discovery and the court of proper jurisdiction, to
entertain his or her motion, shall be the superior court of the
county in which the hearing will be held.
   (3) The time periods in this section and of Chapter 5 (commencing
with Section 11500) of Part 1 of Division 3 of Title 2 of the
Government Code and of Title 4 (commencing with Section 2016.010) of
Part 4 of the Code of Civil Procedure shall not be applied so as to
deny discovery in a hearing conducted pursuant to this section.
   (4) The superior court of the county in which the hearing will be
held may, upon motion of the party seeking discovery, suspend the
hearing so as to comply with the requirement of  the
preceding paragraph.   paragraph (3).  
   (5) (A) A witness shall not be permitted to testify at the hearing
except upon oath or affirmation.  
   (B) Except for hearings that involve an offense defined in
Sections 44010 and 44011 of this code, and Sections 11165.2 to
11165.6, inclusive, of the Penal Code:  
   (i) Testimony shall not be given or evidence introduced relating
to matters that occurred more than four years before the date of the
filing of the notice.  
   (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 
    (ii)     Evidence  of records
regularly kept by the governing board concerning the employee may be
introduced, but no decision relating to the dismissal or suspension
of  any   an  employee shall be made based
on charges or evidence of any nature relating to matters occurring
more than four years  prior to   before 
the filing of the notice. 
   (b) The hearing provided for in this section shall be conducted as
follows:  
   (1) A hearing that involves any offense defined in Sections 44010
and 44011 of this code, and Sections 11165.2 to 11165.6, inclusive,
of the Penal Code, shall be conducted solely by an administrative law
judge of the Office of Administrative Hearings.  
   (2) Hearings not specified in paragraph (1) shall be conducted by
the Commission on Professional Competence, which shall be comprised
as follows:  
   (b) (1) The hearing provided for in this section shall be
conducted by a Commission on Professional Competence. One 
    (A)     One  member of the commission
shall be selected by the employee, one member shall be selected by
the governing board, and one member shall be an administrative law
judge of the Office of Administrative Hearings who shall be
chairperson and a voting member of the commission and shall be
responsible for  assuring   ensuring  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   before  the date of the hearing, the
failure shall constitute a waiver of the right to selection, and the
county board of education or its specific designee shall immediately
make the selection. If the county board of education is also the
governing board of the school district or has by statute been granted
the powers of a governing board, the selection shall be made by the
Superintendent, who shall be reimbursed by the school district for
all costs incident to the selection. 
   (2) 
    (B)  The member selected by the governing board and the
member selected by the employee shall not be related to the employee
and shall not be employees of the district initiating the dismissal
or suspension and shall hold a currently valid credential and have at
least five years' experience within the past 10 years in the
discipline of the employee.
   (c) (1) The decision of the Commission on Professional Competence
 , with regard to a hearing conducted pursuant to paragraph (2)
of subdivision (b),  shall be made by a majority vote, and the
commission shall prepare a written decision containing findings of
fact, determinations of issues, and a disposition that shall be,
solely, one of the following:
   (A) That the employee should be dismissed.
   (B) That the employee should be suspended for a specific period of
time without pay.
   (C) That the employee should not be dismissed or suspended.
   (2) The decision of the  Commission on Professional
Competence   commission, with regard to a hearing
conducted pursuant to paragraph (2) of subdivision (b),  that
the employee should not be dismissed or suspended shall not be based
on nonsubstantive procedural errors committed by the school district
or governing board unless the errors are prejudicial errors.
   (3) The commission shall not have the power to dispose of the
charge of dismissal by imposing probation or other alternative
sanctions. The imposition of suspension pursuant to subparagraph (B)
of paragraph (1) shall be available only in a suspension proceeding
authorized pursuant to subdivision (b) of Section 44932 or Section
44933.
   (4)  (A)    The decision of the 
Commission on Professional Competence   commission with
regard to a hearing conducted pursuant to paragraph (2) of
subdivision (b)  shall be deemed to be the final decision of the
governing board. 
   (B) The decision of the administrative law judge with regard to a
hearing conducted pursuant to paragraph (1) of subdivision (b) shall
be advisory, and the final decision regarding the discipline of the
employee shall be determined by action of the governing board of the
school district. The governing board shall, before making its final
determination, allow the employee to submit a written statement or
response or, at the election of the governing board, an oral
statement concerning the disciplinary action and shall only consider
the record produced during the hearing conducted by the
administrative law judge. The governing board's final determination
shall be subject to review and appeal pursuant to Section 1094.5 of
the Code of Civil Procedure. 
   (5) The  governing  board may adopt from time to time
rules and procedures not inconsistent with this section as may be
necessary to effectuate this section.
   (6) The governing board and the employee shall have the right to
be represented by counsel.
   (d) (1) If the member selected by the governing board or the
member selected by the employee is employed by  any 
 a  school district in this state, the member shall, during
 any  service on a Commission on Professional
Competence, continue to receive salary, fringe benefits, accumulated
sick leave, and other leaves and benefits from the district in which
the member is employed, but shall receive no additional compensation
or honorariums for service on the commission.
   (2) If service on a  Commission on Professional Competence
  commission  occurs during summer recess or
vacation periods, the member shall receive compensation proportionate
to that received during the current or immediately preceding
contract period from the member's employing district, whichever
amount is greater.
   (e) (1) If the Commission on Professional Competence determines
 in a hearing conducted pursuant to paragraph (2)   of
subdivision (b)  that the employee should be dismissed or
suspended, the governing board and the employee shall share equally
the expenses of the hearing, including the cost of the administrative
law judge. The state shall pay any costs incurred under paragraph
(2) of subdivision (d), the reasonable expenses, as determined by the
administrative law judge, of the member selected by the governing
board and the member selected by the employee, including, but not
limited to, payments or obligations incurred for travel, meals, and
lodging, and the cost of the substitute or substitutes, if any, for
the member selected by the governing board and the member selected by
the employee. The Controller shall pay all claims submitted pursuant
to this paragraph from the General Fund, and may prescribe
reasonable rules, regulations, and forms for the submission of the
claims. The employee and the governing board shall pay their own
attorney's fees.
   (2) If the  Commission on Professional Competence
determines   commission determines in a hearing
conducted pursuant to paragraph (2) of subdivision (b)  that the
employee should not be dismissed or suspended, the governing board
shall pay the expenses of the hearing, including the cost of the
administrative law judge, any costs incurred under paragraph (2) of
subdivision (d), the reasonable expenses, as determined by the
administrative law judge, of the member selected by the governing
board and the member selected by the employee, including, but not
limited to, payments or obligations incurred for travel, meals, and
lodging, the cost of the substitute or substitutes, if any, for the
member selected by the governing board and the member selected by the
employee, and reasonable attorney's fees incurred by the employee.
   (3) As used in this section, "reasonable expenses" shall not be
deemed "compensation" within the meaning of subdivision (d).
   (4) If either the governing board or the employee petitions a
court of competent jurisdiction for review of the decision of the
commission, the payment of expenses to members of the commission
required by this subdivision shall not be stayed.
   (5) (A) If the decision of the commission  in a hearing
conducted pursuant to paragraph (2) of subdivision (b)  is
finally reversed or vacated by a court of competent jurisdiction,
either the state, having paid the commission members' expenses, shall
be entitled to reimbursement from the governing board for those
expenses, or the governing board, having paid the expenses, shall be
entitled to reimbursement from the state.
   (B) Additionally, either the employee, having paid a portion of
the expenses of the hearing, including the cost of the administrative
law judge, shall be entitled to reimbursement from the governing
board for the expenses, or the governing board, having paid its
portion and the employee's portion of the expenses of the hearing,
including the cost of the administrative law judge, shall be entitled
to reimbursement from the employee for that portion of the expenses.

   (f) The hearing provided for in  this section 
 paragraph (2) of subdivision (b)  shall be conducted in a
place selected by agreement among the members of the commission. In
the absence of agreement,  and for hearings conducted pursuant to
paragraph (1) of subdivision (b),  the place shall be selected
by the administrative law judge.
  SEC. 6.  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.