Bill Text: CA SB955 | 2009-2010 | Regular Session | Amended
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: School districts.
Spectrum: Slight Partisan Bill (Republican 2-1)
Status: (Introduced - Dead) 2010-07-01 - From committee with author's amendments. Read second time. Amended. Re-referred to Com. on RLS. [SB955 Detail]
Download: California-2009-SB955-Amended.html
Bill Title: School districts.
Spectrum: Slight Partisan Bill (Republican 2-1)
Status: (Introduced - Dead) 2010-07-01 - From committee with author's amendments. Read second time. Amended. Re-referred to Com. on RLS. [SB955 Detail]
Download: California-2009-SB955-Amended.html
BILL NUMBER: SB 955 AMENDED
BILL TEXT
AMENDED IN SENATE APRIL 13, 2010
INTRODUCED BY Senator Huff
FEBRUARY 4, 2010
An act to amend Section 17210 of Sections
44929.21, 44936, 44944, 44945, 44955, and 44956 of, to add Section
44955.1 to, and to repeal Section 44949 of, the Education Code,
relating to school facilities districts, and
declaring the urgency thereof, to take effect immediately .
LEGISLATIVE COUNSEL'S DIGEST
SB 955, as amended, Huff. School facilities: schoolsites
districts .
(1) Existing law provides that, after a certificated employee of a
school district with an average daily attendance of 250 or more
completes 2 consecutive years and is reelected for the next
succeeding school year to a position requiring certification, the
employee becomes and is classified as a permanent employee of the
school district. Existing law additionally requires the governing
board of a school district to notify the employee on or before March
15 of the employee's 2nd year of probation of the governing board's
decision whether to reelect or not reelect the employee for the next
succeeding school year to the position.
This bill would change the notification deadline from March 15 to
June 15 of the employee's 2nd year of probation.
(2) Existing law establishes certain procedures with which the
governing board of a school district is required to comply before
dismissing or suspending a permanent employee, including, at the
employee's option, a hearing. Existing law establishes a commission
of professional competence for each hearing, consisting of specified
members. Existing law deems the decision of the commission on
professional competence to be the final decision of the governing
board.
Existing law prohibits a notice of dismissal or suspension
initiated pursuant to these provisions from being given between May
15 and September 15, inclusive, in any year.
This bill would delete that prohibition. The bill would make
various changes to the provisions relating to the hearing, including
authorizing the commission of professional competence to consist
solely of an administrative law judge, as well as providing that the
decision of the commission would be advisory, and the final decision
regarding the discipline of the employee would be determined by
action of the governing board. The bill would provide that an
employee requesting a hearing would be deemed terminated but would be
entitled to reasonable back wages and benefits.
Existing law authorizes the decision of a commission on
professional competence to be reviewed by a court of competent
jurisdiction on petition of either the governing board or the
employee.
This bill would instead authorize the decision to be reviewed on
petition of the employee.
(3) 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.
This bill would eliminate this notice requirement and the
authority of an employee to request a hearing.
Existing law provides that when employees are terminated pursuant
to a reduction in workforce, that a school district is required to
terminate the employees in order of seniority. Existing law provides
certain exceptions to this rule.
This bill would provide additional exceptions, including
authorizing school districts to terminate employees on the basis of
performance evaluations, as specified, and on the basis that the
employee is assigned to a schoolsite that has been selected by the
governing board from certificated reductions in force, based upon the
needs of the educational program.
(4) Existing law generally requires school districts to adhere to
certain requirements with respect to teacher and administrator
employment. Existing law requires a charter school petition to set
forth specified information in its charter relating to employment,
including the qualifications to be met by individuals to be employed
at the school.
This bill would authorize school districts, county offices of
education, and charter schools to assign, reassign, and transfer
teachers and administrators based on effectiveness and subject matter
needs, and without regard to years of service.
(5) Existing law provides certain rights for permanent school
employees who have been terminated pursuant to specified provisions
of law, including the right to 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, as specified.
This bill, notwithstanding these provisions, would authorize a
school district to deviate from reappointing a certificated employee
in order of seniority for specified reasons.
(6) This bill would declare that it is to take effect immediately
as an urgency statute.
Existing law sets forth various definitions for purposes of
certain provisions of existing law dealing with the acquisition of
schoolsites.
This bill would make technical, nonsubstantive changes to those
definition provisions.
Vote: majority 2/3 . Appropriation:
no. Fiscal committee: no. State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 44929.21 of the
Education Code is amended to read:
44929.21. (a) Every employee of a school district of any type or
class having an average daily attendance of 250 or more who, after
having been employed by the district for three complete consecutive
school years in a position or positions requiring certification
qualifications, is reelected for the next succeeding school year to a
position requiring certification qualifications shall, at the
commencement of the succeeding school year be classified as and
become a permanent employee of the district.
This subdivision shall apply only to probationary employees whose
probationary period commenced prior to the 1983-84 fiscal year.
(b) Every employee of a school district of any type or class
having an average daily attendance of 250 or more who, after having
been employed by the district for two complete consecutive school
years in a position or positions requiring certification
qualifications, is reelected for the next succeeding school year to a
position requiring certification qualifications shall, at the
commencement of the succeeding school year be classified as and
become a permanent employee of the district.
The governing board shall notify the employee, on or before
March 15 June 15 of the employee's
second complete consecutive school year of employment by the district
in a position or positions requiring certification qualifications,
of the decision to reelect or not reelect the employee for the next
succeeding school year to the position. In the event that the
governing board does not give notice pursuant to this section on or
before March 15 June 15 , the employee
shall be deemed reelected for the next succeeding school year.
This subdivision shall apply only to probationary employees whose
probationary period commenced during the 1983-84 fiscal year or any
fiscal year thereafter.
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 not be given
between May 15th and September 15th in any year. It shall
be in writing and be served upon the employee personally or by United
States registered mail addressed to him at his 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 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
a 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.
(5) No witness shall be permitted to testify at the hearing except
upon oath or affirmation. No testimony shall be given or
evidence introduced relating to matters that occurred more than four
years prior to the date of the filing of the notice. Evidence of
records regularly kept by the governing board concerning the employee
may be introduced, but no decision relating to the dismissal or
suspension of any employee shall be made based on charges or evidence
of any nature relating to matters occurring more than four years
prior to the filing of the notice.
(b) (1) The hearing provided
for in this section shall be conducted by a Commission on
Professional Competence. One The commission
shall be established through one of the following two methods, as
selected by the governing board:
(1) 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.
The member selected by the governing board and the member selected by
the employee shall not be related to the employee, 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'
teaching or administrative experience. If either the governing
board or the employee for any reason fails to select a commission
member at least seven calendar days prior to the date of the hearing,
the failure shall constitute a waiver of the right to selection, and
the county board of education or its specific designee shall
immediately make the selection. If the county board of education is
also the governing board of the school district or has by statute
been granted the powers of a governing board, the selection shall be
made by the Superintendent, who shall be reimbursed by the school
district for all costs incident to the selection.
(2) The member selected by the governing board and the member
selected by the employee shall not be related to the employee and
shall not be employees of the district initiating the dismissal or
suspension and shall hold a currently valid credential and have at
least five years' experience within the past 10 years in the
discipline of the employee.
(2) The commission shall consist solely of an administrative law
judge of the Office of Administrative Hearings who shall be
responsible for ensuring that the legal rights of the parties are
protected at the hearing.
(c) (1) The decision of the Commission on Professional
Competence commission 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 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) The decision of the Commission on Professional
Competence commission shall be deemed
to be the final decision of the governing board
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 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 commission has been
established pursuant to paragraph (1) of subdivision (b), and
the member selected by the governing board or the member selected by
the employee is employed by any school district in this state, the
member shall, during any service on a Commission on
Professional Competence the commission ,
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 the commission has been established pursuant to
paragraph (1) of subdivision (b), and service on a
Commission on Professional Competence the 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
governing board determines that the employee
should be dismissed or suspended, the governing board and the
employee shall share equally the expenses of the hearing, including
the cost of the administrative law judge. The
If the commission has been established pursuant to paragraph (1) of
subdivision (b), 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
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, 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 the administrative law judge required
by this subdivision shall not be stayed.
(5) (A) If the commission has been established pursuant to
paragraph (1) of subdivision (b), and the decision of the
commission governing board 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 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 shall be conducted in
a place selected by agreement among the members of the commission.
In If the commission has been established
pursuant to paragraph (1) of subdivision (b), in the absence of
agreement, the place shall be selected by the administrative law
judge.
(g) An employee requesting a hearing pursuant to this section
shall be deemed terminated by the initiating district as of the time
the governing board votes to approve an agenda item to dismiss the
employee. However, if the employee prevails at the hearing, the
administrative law judge may recommend a suitable compensatory
remedy, including back wages and benefits, which the governing board
may adopt if the employee is reinstated. Any 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. 4. Section 44945 of the Education
Code is amended to read:
44945. The decision of the Commission on Professional
Competence governing board may, on petition of
either the governing board or 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. 5. Section 44949 of the Education
Code is repealed.
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 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 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. 6. Section 44955 of the Education
Code is amended to read:
44955. (a) No permanent employee shall 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 probationary
employee shall be deprived of his or her position for cause other
than as specified in Sections Section
44948 to 44949, inclusive .
(b) (1) 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
has 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 in the
opinion of the governing board of the district it shall have
has 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 the permanent employee is certificated and
competent to render.
In
(2) 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
(3) 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
pupils thereof , including distinctions
based upon performance evaluations . 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 within 30 days of the request , 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 such termination of services
shall be given before the 15th of May in the manner
prescribed in Section 44949 , and services of such
those 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 their seniority and qualifications entitle them to render.
However, prior to assigning or reassigning any certificated employee
to teach a subject which he or she has not previously taught, and for
which he or she does not have a teaching credential or which 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) Notwithstanding subdivision (b), a school district may deviate
from terminating a certificated employee in order of seniority for
either 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
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) For
purposes of maintaining or achieving compliance with constitutional
requirements related to equal protection of the laws.
(3) On the basis of performance evaluations, if pursuant to a
process whereby employees with superior evaluations are retained over
those with inferior evaluations. The governing board may exercise
its discretion in developing such a process, which shall be applied
uniformly to the entire class that is subject to the reduction in
force.
(4) On the basis that the employee is assigned to a schoolsite
that has been selected by the governing board for exemption from
certificated reductions in force, based upon the needs of the
educational program.
SEC. 7. Section 44955.1 is added to the
Education Code , to read:
44955.1. Notwithstanding any other law, a school district, county
office of education, or charter school may assign, reassign, and
transfer teachers and administrators based on effectiveness and
subject matter needs without regard to years of service.
SEC. 8. Section 44956 of the Education
Code is amended to read:
44956. (a) Any
A 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 the termination, any
an 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
a probationary or other employee with less
seniority shall not be employed to render a service which
said employee is certificated and competent to render. However,
prior to before reappointing
any an employee to teach a subject which he or
she has not previously taught, and for which he or she does not have
a teaching credential or which 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) The aforesaid
(b) This 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 the 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
the order of seniority in 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.
(4) As to any such
(d) For an 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
the 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 an
employee shall , in the order of original
employment, shall 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 . However, 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.
(f) Notwithstanding subdivision (e), a school district may deviate
from the order of seniority in reappointing a certificated employee
for either 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 the
employee has special training and experience, and has demonstrated
the competency necessary to teach in a specified grade level or
course of study, or to provide those services, which others with more
seniority do not possess or are not able to provide.
(2) For purposes of maintaining or achieving compliance with
constitutional requirements related to equal protection of the laws.
(6)
(g) 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 . However, the compensation
the employee 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 and 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 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)
(h) 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 a 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 the
contributions.
(8) Should he or she become
(i) If the employee becomes
disabled or reach reaches 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 if the disability or reti rement
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.
SEC. 9. This act is an urgency statute necessary
for the immediate preservation of the public peace, health, or safety
within the meaning of Article IV of the Constitution and shall go
into immediate effect. The facts constituting the necessity are:
In order to make the necessary statutory changes to implement the
Budget Act of 2010 at the earliest time possible, it is necessary
that this act take effect immediately.
SECTION 1. Section 17210 of the Education Code
is amended to read:
17210. As used in this article, the following terms have the
following meanings:
(a) "Administering agency" means any agency designated pursuant to
Section 25502 of the Health and Safety Code.
(b) "Environmental assessor" means a class II environmental
assessor registered by the Office of Environmental Health Hazard
Assessment pursuant to Chapter 6.98 (commencing with Section 25570)
of Division 20 of the Health and Safety Code, a professional engineer
registered in this state, a geologist registered in this state, a
certified engineering geologist registered in this state, or a
licensed hazardous substance contractor certified pursuant to Chapter
9 (commencing with Section 7000) of Division 3 of the Business and
Professions Code. A licensed hazardous substance contractor shall
hold the equivalent of a degree from an accredited public or private
college or university or from a private postsecondary educational
institution approved by the Bureau for Private Postsecondary and
Vocational Education with at least 60 units in environmental,
biological, chemical, physical, or soil science; engineering;
geology; environmental or public health; or a directly related
science field. In addition, a person who conducts phase I
environmental assessments shall have at least two years' experience
in the preparation of those assessments and a person who conducts a
preliminary endangerment assessment shall have at least three years'
experience in conducting those assessments.
(c) "Handle" has the meaning the term is given in Article 1
(commencing with Section 25500) of Chapter 6.95 of Division 20 of the
Health and Safety Code.
(d) "Hazardous air emissions" means emissions into the ambient air
of air contaminants that have been identified as a toxic air
contaminant by the State Air Resources Board or by the air pollution
control officer for the jurisdiction in which the project is located.
As determined by the air pollution control officer, hazardous air
emissions also means emissions into the ambient air from any
substance identified in subdivisions (a) to (f), inclusive, of
Section 44321 of the Health and Safety Code.
(e) "Hazardous material" has the meaning the term is given in
subdivision (d) of Section 25260 of the Health and Safety Code.
(f) "Operation and maintenance," "removal action work plan,"
"respond," "response," "response action," and "site" have the
meanings those terms are given in Article 2 (commencing with Section
25310) of Chapter 6.8 of Division 20 of the Health and Safety Code.
(g) "Phase I environmental assessment" means a preliminary
assessment of a property to determine whether there has been or may
have been a release of a hazardous material, or whether a naturally
occurring hazardous material is present, based on reasonably
available information about the property and the area in its
vicinity. A phase I environmental assessment may include, but is not
limited to, a review of public and private records of current and
historical land uses, prior releases of a hazardous material, data
base searches, review of relevant files of federal, state, and local
agencies, visual and other surveys of the property, review of
historical aerial photographs of the property and the area in its
vicinity, interviews with current and previous owners and operators,
and review of regulatory correspondence and environmental reports.
Sampling or testing is not required as part of the phase I
environmental assessment. A phase I environmental assessment
conducted pursuant to the requirements adopted by the American
Society for Testing and Materials for due diligence for commercial
real estate transactions and that includes a review of all reasonably
available records and data bases regarding current and prior gas or
oil wells and naturally occurring hazardous materials located on the
site or located where they could potentially effect the site,
satisfies the requirements of this article for conducting a phase I
environmental assessment unless and until the Department of Toxic
Substances Control adopts final regulations that establish guidelines
for a phase I environmental assessment for purposes of schoolsites
that impose different requirements from those imposed by the American
Society for Testing and Materials.
(h) "Preliminary endangerment assessment" means an activity that
is performed to determine whether current or past hazardous material
management practices or waste management practices have resulted in a
release or threatened release of hazardous materials, or whether
naturally occurring hazardous materials are present, which pose a
threat to the health of children, the learning abilities of children,
public health, or the environment. A preliminary endangerment
assessment requires sampling and analysis of a site, a preliminary
determination of the type and extent of hazardous material
contamination of the site, and a preliminary evaluation of the risks
that the hazardous material contamination of a site may pose to the
health of children, public health, or the environment, and shall be
conducted in a manner that complies with the guidelines published by
the Department of Toxic Substances Control entitled "Preliminary
Endangerment Assessment: Guidance Manual," including any amendments
that are determined by the Department of Toxic Substances Control to
be appropriate to address issues that are unique to schoolsites.
(i) "Proposed schoolsite" means real property acquired or to be
acquired or proposed for use as a schoolsite, prior to its occupancy
as a school.
(j) "Regulated substance" means any material defined in
subdivision (g) of Section 25532 of the Health and Safety Code.
(k) "Release" has the same meaning the term is given in Article 2
(commencing with Section 25310) of Chapter 6.8 of Division 20 of the
Health and Safety Code, and includes a release described in
subdivision (d) of Section 25321 of the Health and Safety Code.
(l) "Remedial action plan" means a plan approved by the Department
of Toxic Substances Control pursuant to Section 25356.1 of the
Health and Safety Code.
(m) "State act" means the Carpenter-Presley-Tanner Hazardous
Substance Account Act (Chapter 6.8 (commencing with Section 25300) of
Division 20 of the Health and Safety Code).
