Bill Text: CA SB1285 | 2009-2010 | Regular Session | Amended
Bill Title: Education employment.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Engrossed - Dead) 2010-08-30 - From committee with author's amendments. Read second time. Amended. Re-referred to Com. on RULES. [SB1285 Detail]
Download: California-2009-SB1285-Amended.html
BILL NUMBER: SB 1285 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY AUGUST 30, 2010
AMENDED IN ASSEMBLY AUGUST 18, 2010
AMENDED IN ASSEMBLY AUGUST 2, 2010
AMENDED IN ASSEMBLY JUNE 22, 2010
AMENDED IN ASSEMBLY JUNE 14, 2010
AMENDED IN SENATE APRIL 29, 2010
INTRODUCED BY Senator Steinberg
FEBRUARY 19, 2010
An act to amend Section 44955 Sections
44949, 44955, and 44956 of the Education Code, relating to
education employment.
LEGISLATIVE COUNSEL'S DIGEST
SB 1285, as amended, Steinberg. Education employment.
(1) Existing law requires that, when a reduction in the number of
certificated employees employed by a school district is authorized
for specified reasons, the layoffs occur in order of employee
seniority. Existing law provides certain exceptions to this
requirement, including an exception for purposes of maintaining or
achieving compliance with constitutional requirements related to
equal protection of the laws. Existing law requires, for 39 months
from the date of termination, that any employee who in the meantime
has not attained 65 years of age have the preferred right to
reappointment, in the order of original employment, as specified.
Existing law provides certain exceptions to this requirement,
including an exception for purposes of maintaining or achieving
compliance with constitutional requirements related to equal
protection of the laws.
This bill would provide that this exception relates to both pupils
and certificated employees. The bill would require that, when
classroom teachers, as defined, are subject to notice and layoffs
pursuant to these provisions, that the proportion of classroom
teachers terminated at schools in deciles 1 to 3, inclusive, of the
Academic Performance Index in any given year as part of a reduction
in the number of employees pursuant to these provisions be no greater
than the proportion of classroom teachers noticed and, when
applicable, terminated, respectively, in the school district as a
whole.
(2) Existing law requires, when a reduction in the number of
certificated employees employed by a school district is authorized
for specified reasons, the notice of the termination of the services
of an employee in the subsequent school year be given by the
governing board to the employee, in a prescribed manner, before May
15. Existing law requires the superintendent of the district, prior
to March 15 and before an employee is given the described notice, to
give written notice to the governing board and the employee that it
has been recommended that the notice be given to the employee, and
stating the reasons therefor. Existing law authorizes an employee who
is given this notice to request a hearing to determine if there is
cause for not reemploying him or her for the ensuing year. Existing
law requires that an administrative law judge conduct this hearing,
and issue a proposed decision to the governing board containing
certain findings of fact and a determination as to the sufficiency of
cause for the termination.
This bill would require that this determination also include a
determination as to whether the notices of termination issued at
schools in deciles 1 to 3, inclusive, of the Academic Performance
Index violate the aforementioned limit on terminations of classroom
teachers.
(1) Existing law requires that, when a reduction in the number of
certificated employees employed by a school district is authorized
for specified reasons, the layoffs occur in order of employee
seniority. Existing law provides certain exceptions to this
requirement, including an exception for purposes of maintaining or
achieving compliance with constitutional requirements related to
equal protection of the laws.
This bill would provide that this exception relates to both pupils
and certificated employees. The bill also would state the intent of
the Legislature to specify criteria and conditions for identifying
schools analogous to the schools identified in the Reed v. LAUSD
court order in which a school district may deviate from
seniority-based layoffs for the purposes of ensuring compliance with
constitutional requirements relating to equal protection of the laws.
The bill also would state the intent of the Legislature to require
that districts with schools that meet those criteria and conditions
ensure that the proportion of layoffs affecting certificated
employees in those schools is no greater than the district average.
Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. (a) The Legislature finds and declares
that every California child has a constitutional right, under the
equal protection clause of the California Constitution, to equal
educational opportunity.
(b) The Legislature finds that paragraph (2) of subdivision (d) of
Section 44955 of the Education Code provides that, for purposes of a
reduction in force, school districts may deviate from terminating a
certificated employee in order of seniority in order to maintain or
achieve compliance with the constitutional guarantee of equal
protection of the laws. It is therefore the intent of the Legislature
that school districts utilize this authority to prevent disparate
impacts of teacher layoffs on pupils' rights to education.
SEC. 2. Section 44949 of the Education
Code is amended to read:
44949. (a) No later than March 15 and before an employee is given
notice by the governing board that his or her services will not be
required for the ensuing year for the reasons specified in Section
44955, the governing board and the employee shall be given written
notice by the superintendent of the district or his or her designee,
or in the case of a district which has no superintendent by the clerk
or secretary of the governing board, that it has been recommended
that the notice be given to the employee, and stating the reasons
therefor.
Until the employee has requested a hearing as provided in
subdivision (b) or has waived his or her right to a hearing, the
notice and the reasons therefor shall be confidential and shall not
be divulged by any person, except as may be necessary in the
performance of duties. However, the violation of this requirement of
confidentiality, in and of itself, shall not in any manner be
construed as affecting the validity of any hearing conducted pursuant
to this section.
(b) The employee may request a hearing to determine if there is
cause for not reemploying him or her for the ensuing year. A request
for a hearing shall be in writing and shall be delivered to the
person who sent the notice pursuant to subdivision (a), on or before
a date specified in that subdivision, which shall not be less than
seven days after the date on which the notice is served upon the
employee. If an employee fails to request a hearing on or before the
date specified, his or her failure to do so shall constitute his or
her waiver of his or her right to a hearing. The notice provided for
in subdivision (a) shall advise the employee of the provisions of
this subdivision.
(c) In the event a hearing is requested by the employee, the
proceeding shall be 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 governing board shall have all
the power granted to an agency therein, except that all of the
following shall apply:
(1) The respondent shall file his or her notice of defense, if
any, within five days after service upon him or her of the accusation
and he or she shall be notified of this five-day period for filing
in the accusation.
(2) The discovery authorized by Section 11507.6 of the Government
Code shall be available only if request is made therefor within 15
days after service of the accusation, and the notice required by
Section 11505 of the Government Code shall so indicate.
(3) The hearing shall be conducted by an administrative law judge
who shall prepare a proposed decision, containing findings of fact
and a determination as to whether the charges sustained by the
evidence are related to the welfare of the schools and the pupils
thereof. The proposed decision shall be prepared for the governing
board and shall contain a determination as to the sufficiency of the
cause , including a determination of whether the proportion of
classroom teachers noticed at the employee's schoolsite, for schools
in deciles 1 to 3, inclusive, of the most recently published rankings
of all public schools based on the Academic Performance Index,
pursuant to subdivision (a) of Section 52056, exceeds the proportion
of classroom teachers noticed in the school district as a whole in
violation of paragraph (1) of subdivision (d) of Section 44955
and a recommendation as to disposition. However, the governing board
shall make the final determination as to the sufficiency of the cause
and disposition. None of the findings, recommendations, or
determinations contained in the proposed decision prepared by the
administrative law judge shall be binding on the governing board.
Nonsubstantive procedural errors committed by the school district or
governing board of the school district shall not constitute cause for
dismissing the charges unless the errors are prejudicial errors.
Copies of the proposed decision shall be submitted to the governing
board and to the employee on or before May 7 of the year in which the
proceeding is commenced. All expenses of the hearing, including the
cost of the administrative law judge, shall be paid by the governing
board from the district funds.
The board may adopt from time to time such rules and procedures
not inconsistent with provisions of this section as may be necessary
to effectuate this section.
(d) Any notice or request shall be deemed sufficient when it is
delivered in person to the employee to whom it is directed, or when
it is deposited in the United States registered mail, postage prepaid
and addressed to the last known address of the employee.
(e) If after request for hearing pursuant to subdivision (b) any
continuance is granted pursuant to Section 11524 of the Government
Code, the dates prescribed in subdivision (c) which
that occur on or after the date of granting the
continuance and the date prescribed in subdivision (c) of Section
44955 which occurs after the date of granting the continuance shall
be extended for a period of time equal to the continuance.
SEC. 3. Section 44955 of the Education
Code is amended to read:
44955. (a) No A permanent employee
shall not be deprived of his or her position for causes
other than those specified in Sections 44907 and 44923, and Sections
44932 to 44947, inclusive, and no a
probationary employee shall not be deprived of his or her
position for cause other than as specified in Sections 44948 to
44949, inclusive.
(b) Whenever in any school year the average daily attendance in
all of the schools of a district for the first six months in which
school is in session shall have declined below the corresponding
period of either of the previous two school years, whenever the
governing board determines that attendance in a district will decline
in the following year as a result of the termination of an
interdistrict tuition agreement as defined in Section 46304, whenever
a particular kind of service is to be reduced or discontinued not
later than the beginning of the following school year, or whenever
the amendment of state law requires the modification of curriculum,
and when if in the opinion of the
governing board of the district it shall have become necessary by
reason of any of these conditions to decrease the number of permanent
employees in the district, the governing board may terminate the
services of not more than a corresponding percentage of the
certificated employees of the district, permanent as well as
probationary, at the close of the school year. Except as otherwise
provided by statute, the services of no a
permanent employee may shall not
be terminated under the provisions of this section while any
probationary employee, or any other employee with less seniority, is
retained to render a service which said that
the permanent employee is certificated and competent to render.
In computing a decline in average daily attendance for purposes of
this section for a newly formed or reorganized school district, each
school of the district shall be deemed to have been a school of the
newly formed or reorganized district for both of the two previous
school years.
As between employees who first rendered paid service to the
district on the same date, the governing board shall determine the
order of termination solely on the basis of needs of the district and
the students thereof pupils of the district
. Upon the request of any employee whose order of termination
is so determined, the governing board shall furnish in writing no
later than five days prior to the commencement of the hearing held in
accordance with Section 44949, a statement of the specific criteria
used in determining the order of termination and the application of
the criteria in ranking each employee relative to the other employees
in the group. For employees assigned to schools ranked in
deciles 1 to 3, inclusive, of the most recently published rankings of
all public schools based on the Academic Performance Index, pursuant
to subdivision (a) of Section 52056, the statement of specific
criteria shall include data supporting the determination of whether
the notices issued satisfy paragraph (1) of subdivision (d) of this
section. This requirement that the governing board provide, on
request, a written statement of reasons for determining the order of
termination shall not be interpreted to give affected employees any
legal right or interest that would not exist without such a
requirement.
(c) Notice of such the termination
of services shall be given before the 15th of May in the manner
prescribed in Section 44949, and services of such
these employees shall be terminated in the inverse of the
order in which they were employed, as determined by the board in
accordance with the provisions of Sections 44844 and 44845. In the
event that a permanent or probationary employee is not given the
notices and a right to a hearing as provided for in Section 44949, he
or she shall be deemed reemployed for the ensuing school year.
The governing board shall make assignments and reassignments in
such a manner that employees shall be retained to render any service
which that their seniority and
qualifications entitle them to render. However, prior to assigning or
reassigning any certificated employee to teach a subject
which that he or she has not previously taught,
and for which he or she does not have a teaching credential or
which that is not within the employee's
major area of postsecondary study or the equivalent thereof, the
governing board shall require the employee to pass a subject matter
competency test in the appropriate subject.
(d) (1) Notwithstanding subdivision (b),
for purposes of maintaining stability of classroom teachers at
schools in deciles 1 to 3, inclusive, of the most recently published
rankings of all public schools based on the Academic Performance
Index, pursuant to subdivision (a) of Section 52056, the proportion
of classroom teachers noticed and, when applicable, terminated at
those schools in any given year as part of a reduction in the number
of employees pursuant to this section shall be no greater than the
proportion, rounded to the nearest whole number of
classroom teachers, of classroom teachers noticed and, when
applicable, terminated, respectively, in the school district as a
whole.
(2) For purposes of paragraph (1), the term "classroom teacher"
means both certificated employees whose primary responsibility is to
provide classroom instruction and certificated employees who provide
instructional support to those employees. Certificated employees who
provide instructional support to certificated employees providing
classroom instruction include, but are not necessarily limited to,
all of the following:
(A) Resource teachers.
(B) Mentor teachers.
(C) Content specialists.
(D) Instructional coaches.
(E) Special education teachers and related special education
specialists.
(3) In addition to the requirements
prescribed in paragraph (1), a school district may deviate from
terminating a certificated employee in order of seniority for either
of the following reasons:
(1)
(A) The district demonstrates a specific need for
personnel to teach a specific course or course of study, or to
provide services authorized by a services credential with a
specialization in either pupil personnel services or health for a
school nurse, and that the certificated employee has special training
and experience necessary to teach that course or course of study or
to provide those services, which others with more seniority do not
possess.
(2)
(B) For purposes of maintaining or achieving compliance
with constitutional requirements related to equal protection of the
laws as it applies to pupils and to certificated employees
.
SEC . 4. Section 44956 of the
Education Code is amended to read:
44956. (a) Any permanent
employee whose services have been terminated as provided in Section
44955 shall have the following rights:
(1)
(a) For the period of 39 months from the date of such
termination, any employee who in the meantime has not attained the
age of 65 years shall have the preferred right to reappointment, in
the order of original employment as determined by the board in
accordance with the provisions of Sections 44831 to 44855, inclusive,
if the number of employees is increased or the discontinued service
is reestablished, with no requirements that were not imposed upon
other employees who continued in service; provided, that no
probationary or other employee with less seniority shall be employed
to render a service which said that the
employee is certificated and competent to render. However, prior to
reappointing any employee to teach a subject which
that he or she has not previously taught, and for which
he or she does not have a teaching credential or which
that is not within the employee's major area of
postsecondary study or the equivalent thereof, the governing board
shall require the employee to pass a subject matter competency test
in the appropriate subject.
(2)
(b) The aforesaid right to reappointment may be waived
by the employee, without prejudice, for not more than one school
year, unless the board extends this right, but such waiver shall not
deprive the employee of his or her right to subsequent
offers of reappointment.
(3)
(c) Notwithstanding paragraph (1)
subdivision (a) , a school district may deviate from
reappointing a certificated employee in order of seniority for either
of the following reasons:
(A)
(1) The district demonstrates a specific need for
personnel to teach a specific course or course of study, or to
provide services authorized by a services credential with a
specialization in either pupil personnel services or health for a
school nurse, and that the employee has special training and
experience necessary to teach that course or course of study, or to
provide those services, which others with more seniority do not
possess.
(B)
(2) For purposes of maintaining or achieving compliance
with constitutional requirements related to equal protection of the
laws , as it applies to pupils and to certificated employees
.
(4)
(d) As to any such employee who is reappointed, the
period of his or her absence shall be treated as a leave
of absence and shall not be considered as a break in the continuity
of his or her service, he or she shall retain
the classification and order of employment he or she had
when his or her services were terminated, and credit for
prior service under any state or district retirement system shall not
be affected by such termination, but the period of his or her
absence shall not count as a part of the service required for
retirement.
(5)
(e) During the period of his or her
preferred right to reappointment, any such employee shall, in the
order of original employment, be offered prior opportunity for
substitute service during the absence of any other employee who has
been granted a leave of absence or who is temporarily absent from
duty; provided, that his or her services may be terminated
upon the return to duty of said the
other employee and that said the
substitute service shall not affect the retention of his or her
previous classification and rights. If, in any school year the
employee serves as a substitute in any position requiring
certification for any 21 days or more within a period of 60
schooldays, the compensation the employee receives for substitute
service in that 60-day period, including his or her first 20 days of
substitute service, shall be not less than the amount the employee
would receive if he or she were being reappointed.
(6)
(f) During the period of the employee's preferred right
to reappointment, the governing board of the district, if it is also
the governing board of one or more other districts, may assign him
or her to service, which he or she is
certificated and competent to render, in said
the other district or districts; provided, that the
compensation he or she receives therefor may in the
discretion of the governing board be the same as he or she
would have received had he or she been serving in the
district from which his or her services were terminated,
that his or her service in the said
other district or districts shall be counted toward the period
required for both state and local retirement, as defined by Section
22102, as though rendered in the district from which his or her
services were terminated, and that no a
permanent employee in said the
other district or districts shall not be displaced by him
or her .
It is the intent of this subsection
section that the employees of a school district, the governing
board of which is also the governing board of one or more other
school districts, shall not be at a disadvantage as compared with
employees of a unified school district.
(7)
(g) At any time prior to the completion of one year
after his or her return to service, he or she
may continue or make up, with interest, his or her own
contributions to any state or district retirement system, for the
period of his or her absence, but it shall not be
obligatory on the state or district to match such
contributions.
(8)
(h) Should he or she become disabled or
reach retirement age at any time before his or her return
to service, he or she shall receive, in any state or
district retirement system of which he or she was a
member, all benefits to which he or she would have been
entitled had such event occurred at the time of his or her
termination of service, plus any benefits he or she may
have qualified for thereafter, as though still employed.
SECTION 1. (a) The Legislature finds and
declares that every California child has a constitutional right,
under the equal protection clause of the California Constitution, to
equal educational opportunity.
(b) The Legislature finds that paragraph (2) of subdivision (d) of
Section 44955 of the Education Code provides that, for purposes of a
reduction in force, school districts may deviate from terminating a
certificated employee in order of seniority in order to maintain or
achieve compliance with the constitutional guarantee of equal
protection of the laws. It is therefore the intent of the Legislature
that school districts utilize this authority to prevent disparate
impacts of teacher layoffs on pupils' rights to education.
SEC. 2. Section 44955 of the Education Code is
amended to read:
44955. (a) A permanent employee shall not be deprived of his or
her position for causes other than those specified in Sections 44907
and 44923, and Sections 44932 to 44947, inclusive, and a probationary
employee shall not be deprived of his or her position for cause
other than as specified in Sections 44948 to 44949, inclusive.
(b) Whenever in any school year the average daily attendance in
all of the schools of a district for the first six months in which
school is in session shall have declined below the corresponding
period of either of the previous two school years, whenever the
governing board determines that attendance in a district will decline
in the following year as a result of the termination of an
interdistrict tuition agreement as defined in Section 46304, whenever
a particular kind of service is to be reduced or discontinued not
later than the beginning of the following school year, or whenever
the amendment of state law requires the modification of curriculum,
and if in the opinion of the governing board of the district it shall
have become necessary by reason of any of these conditions to
decrease the number of permanent employees in the district, the
governing board may terminate the services of not more than a
corresponding percentage of the certificated employees of the
district, permanent as well as probationary, at the close of the
school year. Except as otherwise provided by statute, the services of
a permanent employee shall not be terminated under the provisions of
this section while any probationary employee, or any other employee
with less seniority, is retained to render a service that the
permanent employee is certificated and competent to render.
In computing a decline in average daily attendance for purposes of
this section for a newly formed or reorganized school district, each
school of the district shall be deemed to have been a school of the
newly formed or reorganized district for both of the two previous
school years.
As between employees who first rendered paid service to the
district on the same date, the governing board shall determine the
order of termination solely on the basis of needs of the district and
the pupils of the district. Upon the request of any employee whose
order of termination is so determined, the governing board shall
furnish in writing no later than five days prior to the commencement
of the hearing held in accordance with Section 44949, a statement of
the specific criteria used in determining the order of termination
and the application of the criteria in ranking each employee relative
to the other employees in the group. This requirement that the
governing board provide, on request, a written statement of reasons
for determining the order of termination shall not be interpreted to
give affected employees any legal right or interest that would not
exist without such a requirement.
(c) Notice of the termination of services shall be given before
the 15th of May in the manner prescribed in Section 44949, and
services of these employees shall be terminated in the inverse of the
order in which they were employed, as determined by the board in
accordance with the provisions of Sections 44844 and 44845. In the
event that a permanent or probationary employee is not given the
notices and a right to a hearing as provided for in Section 44949, he
or she shall be deemed reemployed for the ensuing school year.
The governing board shall make assignments and reassignments in
such a manner that employees shall be retained to render any service
that their seniority and qualifications entitle them to render.
However, prior to assigning or reassigning any certificated employee
to teach a subject that he or she has not previously taught, and for
which he or she does not have a teaching credential or that is not
within the employee's major area of postsecondary study or the
equivalent thereof, the governing board shall require the employee to
pass a subject matter competency test in the appropriate subject.
(d) (1) Notwithstanding subdivision (b), a school district may
deviate from terminating a certificated employee in order of
seniority for either of the following reasons:
(A) The district demonstrates a specific need for personnel to
teach a specific course or course of study, or to provide services
authorized by a services credential with a specialization in either
pupil personnel services or health for a school nurse, and that the
certificated employee has special training and experience necessary
to teach that course or course of study or to provide those services,
which others with more seniority do not possess.
(B) For purposes of maintaining or achieving compliance with
constitutional requirements related to equal protection of the laws
as it applies to pupils and to certificated employees.
(2) It is the intent of the Legislature to specify criteria and
conditions for identifying schools analogous to the schools
identified in the Reed v. LAUSD (Los Angeles County Superior Court
Case BC432420) court order in which a school district may deviate
from seniority-based layoffs for the purposes of ensuring compliance
with constitutional requirements relating to equal protection of the
laws. It is further the intent of the Legislature to require that
districts with schools that meet those criteria and conditions ensure
that the proportion of layoffs affecting certificated employees in
those schools is no greater than the district average.
