Bill Text: CA SB1285 | 2009-2010 | Regular Session | Amended

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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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

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BILL NUMBER: SB 1285	AMENDED
	BILL TEXT

	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  Sections 44949, 44955, and 44956
  Section 44955  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 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 o   rder 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.   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 who provide instruction in a classroom terminated
at schools in deciles 1 to 3, inclusive, of the Academic Performance
Index 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) 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. 
   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 notices 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, exceed the district average 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) 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.  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.  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 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), 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 the 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),

    (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.  
  SEC. 4.    Section 44956 of the Education Code is
amended to read:
   44956.  Any permanent employee whose services have been terminated
as provided in Section 44955 shall have the following rights:
   (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 that the employee is certificated and competent to render.
However, prior to reappointing any 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.
   (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.
   (c) Notwithstanding subdivision (a), a school district may deviate
from reappointing a certificated employee in order of seniority for
any of the following reasons:
   (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.
   (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.
   (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.
   (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
other employee and that said 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.
   (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 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 permanent employee in said other district or
districts shall be displaced by him or her.
   It is the intent of this 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.
   (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.
   (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.