Bill Text: CA AB2028 | 2011-2012 | Regular Session | Amended
Bill Title: School employees: discipline: suspension and dismissal.
Spectrum: Partisan Bill (Republican 26-1)
Status: (Introduced - Dead) 2012-05-25 - In committee: Set, second hearing. Held under submission. [AB2028 Detail]
Download: California-2011-AB2028-Amended.html
BILL NUMBER: AB 2028 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY MAY 1, 2012
AMENDED IN ASSEMBLY MARCH 22, 2012
INTRODUCED BY Assembly Members Knight and Smyth
(Coauthors: Assembly Members Achadjian, Bill Berryhill, Conway,
Cook, Donnelly, Fletcher, Beth Gaines, Garrick, Grove, Hagman,
Halderman, Harkey, Jeffries, Jones, Logue, Mansoor, Miller, Morrell,
Nestande, Nielsen, Norby, Olsen, Silva, Valadao, and Wagner)
FEBRUARY 23, 2012
An act to amend Sections 44936 , 44938, 44944,
and 44945 of, and to add Sections 44932.5 and 44940.7 to,
44944 of the Education Code, relating to school
employees.
LEGISLATIVE COUNSEL'S DIGEST
AB 2028, 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 offenses.
This bill would prohibit a collective bargaining agreement entered
into or renewed on or after January 1, 2013, 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 offenses.
(2)
(1) 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.
(4) Existing law requires the governing board of a school district
to immediately place an employee on compulsory leave of absence if
the employee is charged with a mandatory leave of absence offense, as
defined.
This bill would require the governing board to transfer a
certificated employee to nonclassroom duties that do not involve
contact with pupils if the governing board has reasonable cause to
believe that the employee is under investigation by a law enforcement
agency for commission of a mandatory leave of absence offense. The
bill would require an employee transferred under these provisions to
continue to receive his or her regular salary during the period of
the transfer. If the governing board returns the employee to
classroom duties, the bill would require the governing board to
record the reason or reasons for the return in a resolution adopted
by the governing board. By placing additional duties on school
district governing boards regarding the transfer of employee duties,
this bill would impose a state-mandated local program.
(5)
(2) Existing law establishes a Commission on
Professional Competence for each dismissal or suspension hearing
requested by an employee, consisting of specified members. 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 make various changes to the provisions relating to
the hearing, including requiring the Commission on 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 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.
(6) 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 , and would
make nonsubstantive changes .
(7) This bill would make nonsubstantive and conforming changes.
(8) 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 no .
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, 2013, 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 an
offense listed in Section 44932.
SEC. 2. SECTION 1. 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 at the employee's last known address. A
copy of the charges filed, containing the information required by
Section 11503 of the Government Code, together with a copy of the
provisions of this article, shall be attached to the notice.
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 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 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 44940.7 is added to the
Education Code, to read:
44940.7. (a) The governing board shall transfer a certificated
employee to nonclassroom duties that do not involve contact with
pupils if the governing board has reasonable cause to believe that
the employee is under investigation by a law enforcement agency for
commission of a mandatory leave of absence offense within the meaning
of subdivision (a) of Section 44940.
(b) An employee transferred pursuant to this section shall
continue to receive his or her regular salary during the period of
the transfer.
(c) If the governing board returns the certificated employee to
classroom duties that involve contact with pupils, the governing
board shall record the reason or reasons for the return in a
resolution adopted by the governing board.
SEC. 5. SEC. 2. Section 44944 of the
Education Code is amended to read:
44944. (a) (1) In a dismissal or suspension proceeding initiated
pursuant to Section 44934, if a hearing is requested by the employee,
the hearing shall be commenced within 60 days from the date of the
employee's demand for a hearing. The hearing shall be initiated,
conducted, and a decision made in accordance with Chapter 5
(commencing with Section 11500) of Part 1 of Division 3 of Title 2 of
the Government Code. However, the hearing date shall be established
after consultation with the employee and the governing board, or
their representatives, and the Commission on Professional Competence
shall have all of the power granted to an agency in that chapter,
except that the right of discovery of the parties shall not be
limited to those matters set forth in Section 11507.6 of the
Government Code but shall include the rights and duties of any party
in a civil action brought in a superior court under Title 4
(commencing with Section 2016.010) of Part 4 of the Code of Civil
Procedure. Notwithstanding any provision to the contrary, and except
for the taking of oral depositions, no discovery shall occur later
than 30 calendar days after the employee is served with a copy of the
accusation pursuant to Section 11505 of the Government Code. In all
cases, discovery shall be completed prior to seven calendar days
before the date upon which the hearing commences. If any continuance
is granted pursuant to Section 11524 of the Government Code, the time
limitation for commencement of the hearing as provided in this
subdivision shall be extended for a period of time equal to the
continuance. However, the extension shall not include that period of
time attributable to an unlawful refusal by either party to allow the
discovery provided for in this section.
(2) If the right of discovery granted under paragraph (1) is
denied by either the employee or the governing board, all of the
remedies in Chapter 7 (commencing with Section 2023.010) of Title 4
of Part 4 of the Code of Civil Procedure shall be available to the
party seeking discovery, and the court of proper jurisdiction to
entertain his or her motion shall be the superior court of the county
in which the hearing will be held.
(3) The time periods in this section and of Chapter 5 (commencing
with Section 11500) of Part 1 of Division 3 of Title 2 of the
Government Code and of Title 4 (commencing with Section 2016.010) of
Part 4 of the Code of Civil Procedure shall not be applied so as to
deny discovery in a hearing conducted pursuant to this section.
(4) The superior court of the county in which the hearing will be
held may, upon motion of the party seeking discovery, suspend the
hearing so as to comply with the requirement of 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 a Commission on Professional Competence
, which shall consist solely of . 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 responsible for ensuring
the chairperson and a voting member of the commission and sh
all be responsible for assuring that the legal
rights of the parties are protected at the hearing.
If either the governing board or the employee, for any
reason, fails to select a commi ssion member at least
seven calendar days before the date of the hearing, the failure shall
constitute a waiver of the right to selection, and the county board
of education or its specific designee shall immediately make the
selection. If the county board of education is also the governing
board of the school district or has by statute been granted the
powers of a governing board, the selection shall be made by the
Superintendent, who shall be reimbursed by the school district for
all costs incident to the selection.
(2) 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 school district initiating the
dismissal or suspension and shall hold a currently valid credential
and have at least five years' experience within the past 10 years in
the discipline of the employee.
(c) (1) The decision of the Commission on Professional
Competence 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 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 shall be advisory, and
deemed to be 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
member selected by the governing board or the member selected by the
employee is employed by a school district in this state, the member
shall, during any service on a Commission on Professional Competence,
continue to receive salary, fringe benefits, accumulated sick leave,
and other leaves and benefit s from the district in which
the member is employed, but shall receive no additional compensation
or honorariums for service on the commission.
(2) If service on a
commission occurs during summer recess or vacation periods, the
member shall receive compensation proportionate to that received
during the current or immediately preceding contract period from the
member's employing district, whichever amount is greater.
(e) (1) If the
Commission on Professional Competence determines that the
employee should be dismissed or suspended, the governing board and
the employee shall share equally the expenses of the hearing,
including the cost of the administrative law judge. The state
shall pay any costs incurred under paragraph (2) of subdivision (d),
the reasonable expenses, as determined by the administrative law
judge, of the member selected by the governing board and the member
selected by the employee, including, but not limited to, payments or
obligations incurred for travel, meals, and lodging, and the cost of
the substitute or substitutes, if any, for the member selected by the
governing board and the member selected by the employee. The
Controller shall pay all claims submitted pursuant to this paragraph
from the General Fund, and may prescribe reasonable rules,
regulations, and forms for the submission of the claims. The employee
and the governing board shall pay their own attorney's fees.
(2) If the governing board commission
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) If the 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 governing board,
commission, the payment of expenses to the
administrative law judge members of the commission
required by this subdivision shall not be stayed.
(4)
(5) (A) If the
decision of the governing board commission
is finally reversed or vacated by a court of competent
jurisdiction, the employee, either the state,
having paid the commission members' expenses, shall be entitled to
reimbursement from the governing board for those expenses, or the
governing board, having paid the expenses, shall be entitled to
reimbursement from the state.
(B) Additionally, either the employee,
having paid a portion of the expenses of the hearing, including
the cost of the administrative law judge, shall be entitled to
reimbursement from the governing board for the expenses, or the
governing board, having paid its portion and the employee's portion
of the expenses of the hearing, including the cost of the
administrative law judge, shall be entitled to reimbursement from the
employee for that portion of the expenses.
(e)
(f) The hearing provided for in this section shall be
conducted in a place selected by agreement among the members of
the commission . In the absence of agreement, the place shall
be selected by the administrative law judge.
(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 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. 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.
