Bill Text: CA SB531 | 2013-2014 | Regular Session | Amended
Bill Title: School employees: discipline: suspension and dismissal.
Spectrum: Partisan Bill (Republican 11-0)
Status: (Introduced - Dead) 2013-05-29 - Returned to Secretary of Senate pursuant to Joint Rule 62(a). [SB531 Detail]
Download: California-2013-SB531-Amended.html
BILL NUMBER: SB 531 AMENDED
BILL TEXT
AMENDED IN SENATE APRIL 29, 2013
AMENDED IN SENATE APRIL 18, 2013
INTRODUCED BY Senator Knight
(Coauthors: Senators Anderson, Berryhill, Emmerson, Fuller,
Gaines, Huff, Nielsen, Walters, and Wyland)
(Coauthor: Assembly Member Wilk)
FEBRUARY 21, 2013
An act to amend Sections 44936, 44938, 44939, 44944, and 44945 of,
to add Section 44932.5 to, and to repeal Section 45047 of, the
Education Code, relating to school employees.
LEGISLATIVE COUNSEL'S DIGEST
SB 531, as amended, Knight. School employees: discipline:
suspension and dismissal.
(1) Existing law prohibits a permanent school employee from being
dismissed except for one or more specified causes.
This bill would prohibit a collective bargaining agreement entered
into or renewed on or after January 1, 2014, from requiring the
removal, 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 causes for dismissal.
(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 of
written notice to the charged employee.
(4) 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 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 require that the administrative law judge or, for a
dismissal proceeding where the charges against the employee do not
involve sex, drugs, or violence against children, a panel composed of
the judge and 2 certificated employees, acting by a majority vote,
propose a decision. The bill would provide that the
decision of the administrative law judge or panel 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. By increasing the
duties of a governing board in this regard, this bill would impose a
state-mandated local program.
(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 additional changes that are
nonsubstantive and conforming.
(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 44932.5 is added to the Education Code, to
read:
44932.5. A collective bargaining agreement entered into or
renewed on or after January 1, 2014, shall not require the removal,
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 a
cause listed in Section 44932.
SEC. 2. 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'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. 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 such 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 such 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 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 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) (1) 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.
(2) In a dismissal or suspension proceeding conducted pursuant to
this section not involving allegations of sex, drugs, or violence
against children, two certificated employees, one selected by the
governing board and one selected by the employee, shall determine the
decision in a panel with the administrative law judge. The panel
shall act by a majority vote.
(c) (1) The administrative law judge , or the panel provided
for in paragraph (2) of subdivision (b), 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 , or the
panel provided for in 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 administrative law judge , or the panel provided for
in paragraph (2) of subdivision (b), 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 , or the
panel provided for in paragraph (2) 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.
(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 and any panel members .
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 and any panel members .
(3) If the employee petitions a court of competent jurisdiction
for review of the decision of the governing board, the payment of
expenses for the administrative law judge , and any panel
members , 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 and any panel members , 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 or, if
applicable, the panel provided for in paragraph (2) of subdivision
(b) .
(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 , or the panel pro vided for in paragraph
(2) of subdivision (b), 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 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. 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.
