Bill Text: CA AB375 | 2013-2014 | Regular Session | Enrolled
Bill Title: School employees: dismissal or suspension: hearing.
Spectrum: Partisan Bill (Democrat 3-0)
Status: (Vetoed) 2014-03-06 - Last day to consider Governor's veto pursuant to Joint Rule 58.5. [AB375 Detail]
Download: California-2013-AB375-Enrolled.html
BILL NUMBER: AB 375 ENROLLED
BILL TEXT
PASSED THE SENATE SEPTEMBER 12, 2013
PASSED THE ASSEMBLY MAY 29, 2013
AMENDED IN SENATE SEPTEMBER 6, 2013
AMENDED IN SENATE JUNE 25, 2013
AMENDED IN ASSEMBLY MAY 6, 2013
AMENDED IN ASSEMBLY APRIL 15, 2013
AMENDED IN ASSEMBLY MARCH 19, 2013
INTRODUCED BY Assembly Member Buchanan
(Principal coauthor: Senator Padilla)
(Coauthor: Assembly Member Muratsuchi)
FEBRUARY 14, 2013
An act to amend Sections 44932, 44934, 44936, 44939, 44940, 44941,
and 44944 of, and to add Section 44944.2 to, the Education Code,
relating to school employees.
LEGISLATIVE COUNSEL'S DIGEST
AB 375, Buchanan. School employees: dismissal or suspension:
hearing.
(1) Existing law prohibits a permanent employee from being
dismissed except for one or more of specified causes, including,
among other causes, immoral or unprofessional conduct. Existing law
requires the governing board of a school district to give notice to a
permanent employee of its intention to dismiss or suspend the
employee, together with a written statement of charges, for
unprofessional conduct or unsatisfactory performance, at the
expiration of 30 days from the date of service of the notice, unless
the employee demands a hearing.
This bill would require that a notice of the governing board of
the school district to an employee of its intention to dismiss or
suspend the employee, together with written charges filed or
formulated pursuant to those procedures, be sufficient to initiate a
hearing, as prescribed, and would prohibit the governing board of the
school district from being required to file or serve a separate
accusation. The bill would revise various procedures for providing
notice of dismissal or suspension and would authorize a notice of
dismissal or suspension to be given at any time of year, except a
notice for a proceeding involving only charges of unsatisfactory
performance, which would only be given during the instructional year
of the schoolsite where the employee is physically employed. The bill
would impose various requirements for the filing of a demand for a
hearing and the conduct of hearings by the Office of Administrative
Hearings. The bill would prohibit a motion for immediate reversal of
suspension from having a bearing on the authority of a governing
board of a school district to determine the physical placement and
assignment of an employee who is suspended or placed on
administrative leave during the review of the motion or while
dismissal charges are pending. The bill would delete obsolete
provisions relating to the suspension of a permanent employee based
on knowing membership by the employee in the Communist Party.
(2) Existing law provides that upon being charged, as specified,
with certain sex or controlled substance offenses, a certificated
employee be placed on either a compulsory leave of absence or an
optional leave of absence for certain enumerated violations.
This bill would revise the definitions of "charged with a
mandatory leave of absence offense" and "charged with an optional
leave of absence offense" for purposes of those provisions governing
when a certificated employee is required to be placed on either a
compulsory leave of absence or an optional leave of absence. Because
these revisions would increase the number of employees subject to
immediate placement on compulsory leave of absence, thereby
increasing the duties of school districts, the bill would impose a
state-mandated local program.
(3) Existing law requires in a dismissal or suspension proceeding
against a permanent employee for unprofessional conduct or
unsatisfactory performance, if a hearing is requested by the
employee, that the hearing be commenced within 60 days from the date
of the employee's demand for a hearing.
This bill would require that the hearing be commenced within 6
months from the date of the employee's demand for a hearing, and be
completed by a closing of the record within 7 months from the date of
the employee's demand for a hearing. The bill would revise various
procedures for the conduct of those hearings, as prescribed. The bill
would require that, in a dismissal or suspension proceeding carried
out under the above provisions, the parties make specified
disclosures in lieu of certain written discovery, as prescribed, and
would authorize the parties to obtain discovery by oral deposition.
The bill would require the governing board of the school district and
the state to share equally the expenses of the hearing if the
Commission on Professional Competence determines that the employee
should be dismissed or suspended.
(4) 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.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. The Legislature finds and declares both of the
following:
(a) Pupils, educators, administrators, school boards, and school
district employees need a teacher dismissal process that is both fair
and efficient.
(b) This act is intended to revise existing statutes in a manner
that will update and streamline the procedures for teacher discipline
and dismissal, making it more cost effective and reducing the time
necessary to complete the teacher dismissal process.
SEC. 2. Section 44932 of the Education Code is amended to read:
44932. (a) A permanent employee shall not be dismissed except for
one or more of the following causes:
(1) Immoral conduct.
(2) Unprofessional conduct.
(3) Commission, aiding, or advocating the commission of acts of
criminal syndicalism, as prohibited by Chapter 188 of the Statutes of
1919, or in any amendment thereof.
(4) Dishonesty.
(5) Unsatisfactory performance.
(6) Evident unfitness for service.
(7) Physical or mental condition unfitting him or her to instruct
or associate with children.
(8) Persistent violation of or refusal to obey the school laws of
the state or reasonable regulations prescribed for the government of
the public schools by the state board or by the governing board of
the school district employing him or her.
(9) Conviction of a felony or of any crime involving moral
turpitude.
(10) Violation of Section 51530 or conduct specified in Section
1028 of the Government Code, added by Chapter 1418 of the Statutes of
1947.
(11) Alcoholism or other drug abuse that makes the employee unfit
to instruct or associate with children.
(b) The governing board of a school district may suspend without
pay for a specific period of time on grounds of unprofessional
conduct a permanent certificated employee or, in a school district
with an average daily attendance of less than 250 pupils, a
probationary employee, pursuant to the procedures specified in
Sections 44933, 44934, 44935, 44936, 44937, 44943, and 44944. This
authorization shall not apply to a school district that has adopted a
collective bargaining agreement pursuant to subdivision (b) of
Section 3543.2 of the Government Code.
SEC. 3. Section 44934 of the Education Code is amended to read:
44934. (a) Upon the filing of written charges, duly signed and
verified by the person filing them, with the governing board of the
school district, or upon a written statement of charges formulated by
the governing board of the school district, charging that there
exists cause, as specified in Section 44932 or 44933, for the
dismissal or suspension of a permanent employee of the school
district, the governing board of the school district may, upon
majority vote, except as provided in this article if it deems the
action necessary, give notice to the permanent employee of its
intention to dismiss or suspend him or her at the expiration of 30
days from the date of service of the notice, unless the employee
demands a hearing as provided in this article. Suspension proceedings
may be initiated pursuant to this section only if the governing
board of the school district has not adopted a collective bargaining
agreement pursuant to subdivision (b) of Section 3543.2 of the
Government Code.
(b) Any written statement of charges of unprofessional conduct or
unsatisfactory performance shall specify instances of behavior and
the acts or omissions constituting the charge so that the teacher
will be able to prepare his or her defense. It shall, where
applicable, state the statutes and rules that the teacher is alleged
to have violated, and it shall also set forth the facts relevant to
each occasion of alleged unprofessional conduct or unsatisfactory
performance.
(c) If the governing board of the school district has given notice
to a permanent employee of its intention to dismiss or suspend him
or her, based upon written charges filed or formulated pursuant to
this section, the charges may be amended only upon motion before an
administrative law judge of the Office of Administrative Hearings.
The amendment of charges shall not result in any prejudice to the
responding party. No motion to amend shall be granted less than 90
days before the hearing on the charges if it would extend the close
of the record beyond the seven-month deadline pursuant to paragraph
(1) of subdivision (a) of Section 44944.
(d) A notice of the governing board of the school district to an
employee of its intention to dismiss or suspend him or her, together
with written charges filed or formulated pursuant to this section,
shall be sufficient to initiate a hearing under Section 11503 of the
Government Code, and the governing board of the school district shall
not be required to file or serve a separate accusation.
(e) This section shall also apply to the suspension of
probationary employees in a school district with an average daily
attendance of less than 250 pupils that has not adopted a collective
bargaining agreement pursuant to subdivision (b) of Section 3542.2 of
the Government Code.
SEC. 4. Section 44936 of the Education Code is amended to read:
44936. (a) The notice of dismissal or suspension in a proceeding
initiated pursuant to Section 44934 may be given at any time of year.
(b) Notwithstanding subdivision (a), the notice of dismissal or
suspension in a proceeding involving only charges of unsatisfactory
performance initiated pursuant to Section 44934 shall only be given
during the instructional year of the schoolsite where the employee is
physically employed.
(c) The notice of dismissal or suspension given during the
instructional year of the schoolsite where the employee is physically
employed shall be in writing and be served upon the employee
personally or by United States registered mail addressed to him or
her at his or her 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.
(d) A notice of dismissal or suspension given outside of the
instructional year of the schoolsite where the employee is physically
employed shall be in writing and shall be served upon the employee
personally. A copy of the charges filed, containing the information
required pursuant to Section 11503 of the Government Code, together
with a copy of the provisions of this article, shall be attached to
the notice.
SEC. 5. 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 of a school district, charging a permanent
employee of the school district with immoral conduct, conviction of a
felony or of any crime involving moral turpitude, with incompetency
due to mental disability, or with willful refusal to perform regular
assignments without reasonable cause, as prescribed by reasonable
rules and regulations of the employing school district, the governing
board may, if it deems that action necessary, immediately suspend
the employee from his or her duties and give notice to him or her 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) (1) An employee who has been placed on suspension pursuant to
this section may serve and file with the Office of Administrative
Hearings a motion for immediate reversal of suspension. Review of a
motion filed pursuant to this section shall be limited to a
determination as to whether the facts as alleged in the statement of
charges, if true, are sufficient to constitute a basis for immediate
suspension under this section. The motion shall include a memorandum
of points and authorities setting forth law and argument supporting
the employee's contention that the statement of charges does not set
forth a sufficient basis for immediate suspension.
(2) The motion shall be served upon the governing board of the
school district and filed within 30 days after service upon the
employee of the initial pleading in the matter. The governing board
of the school district shall have the right to serve and file a
written response to the motion before or at the time of hearing.
(3) The hearing on the motion for immediate reversal of suspension
shall be held no later than 30 days after the motion is filed with
the Office of Administrative Hearings.
(4) The administrative law judge shall, no later than 15 days
after the hearing, issue an order denying or granting the motion. The
order shall be in writing, and a copy of the order shall be served
by the Office of Administrative Hearings upon the parties. The grant
or denial of the motion shall be without prejudice to consideration
by the Commission on Professional Competence, based upon the full
evidentiary record before it, of the validity of the grounds for
dismissal. The ruling shall not be considered by the commission in
determining the validity of the grounds for dismissal, and shall not
have any bearing on the commission's determination regarding the
grounds for dismissal.
(5) An order granting a motion for immediate reversal of
suspension shall become effective within five days of service of the
order. The school district shall make the employee whole for any lost
wages, benefits, and compensation within 14 days of service of an
order granting the motion.
(6) A motion made pursuant to this section shall be the exclusive
means of obtaining interlocutory review of suspension pending
dismissal. The grant or denial of the motion shall not be subject to
interlocutory judicial review.
(c) A motion for immediate reversal of suspension pursuant to this
section shall have no bearing on the authority of a governing board
of a school district to determine the physical placement and
assignment of an employee who is suspended or placed on
administrative leave during the review of the motion or while
dismissal charges are pending.
SEC. 6. Section 44940 of the Education Code is amended to read:
44940. (a) For purposes of this section, "charged with a
mandatory leave of absence offense" is defined to mean charged by
complaint, information, or indictment filed in a court of competent
jurisdiction with the commission of any sex offense as defined in
Section 44010, with a violation or attempted violation of Section 187
of the Penal Code, or with the commission of any offense involving
aiding or abetting the unlawful sale, use, or exchange to minors of
controlled substances listed in Schedule I, II, or III, as contained
in Sections 11054, 11055, and 11056 of the Health and Safety Code.
(b) For purposes of this section, "charged with an optional leave
of absence offense" is defined to mean a charge by complaint,
information, or indictment filed in a court of competent jurisdiction
with the commission of any controlled substance offense as defined
in Section 44011 or 87011, Sections 11357 to 11361, inclusive, or
Section 11363, 11364, or 11370.1 of the Health and Safety Code,
insofar as these sections relate to any controlled substances.
(c) For purposes of this section and Section 44940.5, the term
"school district" includes county offices of education.
(d) (1) If a certificated employee of a school district is charged
with a mandatory leave of absence offense, as defined in subdivision
(a), upon being informed that a charge has been filed, the governing
board of the school district shall immediately place the employee on
compulsory leave of absence. The duration of the leave of absence
shall be until a time not more than 10 days after the date of entry
of the judgment in the proceedings. No later than 10 days after
receipt of the complaint, information, or indictment described by
subdivision (a), the school district shall forward a copy to the
Commission on Teacher Credentialing.
(2) Upon receiving a copy of a complaint, information, or
indictment described in subdivision (a) and forwarded by a school
district, the Commission on Teacher Credentialing shall automatically
suspend the employee's teaching or service credential. The duration
of the suspension shall be until a time not more than 10 days after
the date of entry of the judgment in the proceedings.
(e) (1) If a certificated employee of a school district is charged
with an optional leave of absence offense as defined in subdivision
(b), the governing board of the school district may immediately place
the employee upon compulsory leave in accordance with the procedure
in this section and Section 44940.5. If any certificated employee is
charged with an offense deemed to fall into both the mandatory and
the optional leave of absence categories, as defined in subdivisions
(a) and (b), that offense shall be treated as a mandatory leave of
absence offense for purposes of this section. No later than 10 days
after receipt of the complaint, information, or indictment described
by subdivision (a), the school district shall forward a copy to the
Commission on Teacher Credentialing.
(2) Upon receiving a copy of a complaint, information, or
indictment described in subdivision (a) and forwarded by a school
district, the Commission on Teacher Credentialing shall automatically
suspend the employee's teaching or service credential. The duration
of the suspension shall be until a time not more than 10 days after
the date of entry of the judgment in the proceedings.
SEC. 7. Section 44941 of the Education Code is amended to read:
44941. (a) The notice of suspension and intention to dismiss
shall be in writing and be served pursuant to Section 44936. 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. If the employee
does not demand a hearing within the 30-day period, he or she may be
dismissed upon the expiration of 30 days after service of the notice.
(b) An employee who demands a hearing shall file a single document
containing his or her request for a hearing pursuant to this section
and a notice of defense pursuant to Sections 11505 and 11506 of the
Government Code.
SEC. 8. Section 44944 of the Education Code is amended to read:
44944. (a) (1) (A) 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 six months from the
date of the employee's demand for a hearing. A continuance shall not
extend the date for the commencement of the hearing more than six
months from the date of the employee's request for a hearing, except
for extraordinary circumstances, as determined by the administrative
law judge. If extraordinary circumstances are found that extend the
date for the commencement of the hearing, the deadline for concluding
the hearing and closing the record pursuant to this subdivision
shall be extended for a period of time equal to the continuance. The
hearing date shall be established after consultation with the
employee and the governing board, or their representatives, except
that, if the parties are not able to reach agreement on a date, the
Office of Administrative Hearings shall unilaterally set a date in
compliance with this section. The hearing shall be completed by a
closing of the record within seven months of the date of the employee'
s demand for a hearing. A continuance shall not extend the date for
the close of the record more than seven months from the date of the
employee's request for a hearing, except for good cause, as
determined by the administrative law judge.
(B) Where substantial progress has been made in completing the
previously scheduled days of the hearing within the seven-month
period but the hearing cannot be completed, for good cause shown,
within the seven-month period, the period for completing the hearing
may be extended by the presiding administrative law judge. If the
administrative law judge grants a continuance under this
subparagraph, he or she shall establish a reasonable timetable for
the completion of the hearing and the closing of the record. The
hearing shall be initiated and 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 Commission
on Professional Competence shall have all of the power granted to an
agency pursuant to that chapter, except as described in this article.
(2) (A) A witness shall not 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 before the date of the filing of the notice, except allegations
of an act described in Section 44010 of this code or Sections
11165.2 to 11165.6, inclusive, of the Penal Code.
(B) 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 an employee shall be made based on
charges or evidence of any nature relating to matters occurring more
than four years before the filing of the notice, except allegations
of an act described in Section 44010 of this code or Sections 11165.2
to 11165.6, inclusive, of the Penal Code.
(b) (1) The hearing provided for in this section shall be
conducted by a Commission on Professional Competence, unless the
parties submit a statement in writing to the Office of Administrative
Hearings, indicating that both parties waive the right to convene a
Commission on Professional Competence and stipulate to having the
hearing conducted by a single administrative law judge. If the
parties elect to waive a hearing before the Commission on
Professional Competence, the hearing shall be initiated and
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 administrative law judge conducting the
hearing shall have all the powers granted to a Commission on
Professional Competence pursuant to that chapter, except as described
in this article.
(2) If the parties elect not to waive a hearing before a
Commission on Professional Competence, 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 that the legal rights of the parties are
protected at the hearing.
(3) The governing board and the employee shall select Commission
on Professional Competence members no later than 45 days before the
date set for hearing, and shall serve notice of their selection upon
all other parties and upon the Office of Administrative Hearings.
Failure to meet this deadline 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.
(4) Any party who believes that a selected Commission on
Professional Competence member is not qualified may file an
objection, including a statement describing the basis for the
objection, with the Office of Administrative Hearings and serve the
objection and statement upon all other parties within 10 days of the
date that the notice of selection is filed. Within seven days after
the filing of any objection, the administrative law judge assigned to
the matter shall rule on the objection or convene a teleconference
with the parties for argument.
(5) (A) 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. Each member shall hold a currently valid
credential and have at least three years' experience within the past
10 years in the discipline of the employee.
(B) For purposes of this paragraph, the following terms have the
following meanings:
(i) For an employee subject to dismissal whose most recent
teaching assignment is in kindergarten or any of the grades 1 to 6,
inclusive, "discipline" means a teaching assignment in kindergarten
or any of the grades 1 to 6, inclusive.
(ii) For an employee subject to dismissal whose most recent
assignment requires an education specialist credential or a services
credential, "discipline" means an assignment that requires an
education specialist credential or a services credential,
respectively.
(iii) For an employee subject to dismissal whose most recent
teaching assignment is in any of the grades 7 to 12, inclusive,
"discipline" means a teaching assignment in any of grades 7 to 12,
inclusive, in the same area of study, as that term is used in Section
51220, as the most recent teaching assignment of the employee
subject to dismissal.
(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 on Professional Competence 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 on Professional Competence 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
shall be deemed to be the final decision of the governing board.
(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 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, continue to receive salary, fringe benefits,
accumulated sick leave, and other leaves and benefits from the
school district in which the member is employed, but shall receive no
additional compensation or honorariums for service on the
commission.
(2) If the member selected is a retired employee, the member shall
receive pay at the daily substitute teacher rate in the school
district that is a party to the hearing. Service on a Commission on
Professional Competence shall not be credited toward retirement
benefits.
(3) If service on a Commission on Professional Competence 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
school 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 state shall share equally the expenses of the hearing,
including the cost of the administrative law judge. The state shall
pay any costs incurred under paragraphs (2) and (3) 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 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 paragraphs (2)
and (3) 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 on Professional Competence, the payment of expenses to
members of the commission required by this subdivision shall not be
stayed.
(5) If the decision of the Commission on Professional Competence
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.
(f) The hearing provided for in this section shall be conducted in
a place selected by agreement among the members of the Commission on
Professional Competence. In the absence of agreement, the place
shall be selected by the administrative law judge.
SEC. 9.
Section 44944.2 is added to the Education Code, to read:
44944.2. (a) In a dismissal or suspension proceeding under
Section 44944, in lieu of written discovery required pursuant to
Section 11507.6 of the Government Code, the parties shall make
disclosures as described in this section.
(1) An initial disclosure shall comply with the following
requirements:
(A) A party shall, without awaiting a discovery request, provide
to the other parties both of the following:
(i) The name and, if known, the address and telephone number of
each individual likely to have discoverable information, along with
the subjects of that information, that the disclosing party may use
to support its claims or defenses, unless the use would be solely for
impeachment purposes.
(ii) A copy of all documents, electronically stored information,
and tangible items that the disclosing party has in its possession,
custody, or control and may use to support its claims or defenses,
unless the use would be solely for impeachment.
(B) The school district and the employee shall make their initial
disclosures within 45 days of the date of the employee's demand for a
hearing.
(C) A party shall make its initial disclosures based on the
information then reasonably available to it. A party is not excused
from making its disclosures because it has not fully investigated the
case or because it challenges the sufficiency of another party's
disclosures. A party's failure to make initial disclosures within the
deadlines set forth in this section shall preclude the party from
introducing witnesses or evidence not disclosed at the hearing,
unless the party shows good cause for its failure to timely disclose.
(D) A party has an obligation to promptly supplement its initial
disclosures as new information or evidence becomes known or
available. Supplemental disclosures shall be made as soon as
possible, and no later than 60 days before the date of commencement
of the hearing. A party's failure to make supplemental disclosures
promptly upon discovery or availability of new information or
evidence shall preclude the party from introducing witnesses or
evidence not disclosed at the hearing, unless the party shows good
cause for its failure to timely disclose.
(2) The disclosure of expert testimony shall comply with the
following requirements:
(A) A party shall also disclose to the other parties the
identities of any expert witnesses whose testimony it may use at the
hearing.
(B) The disclosure specified in subparagraph (A) shall be
accompanied by a summary of the witness' expected testimony,
including a description of the facts and data considered by the
witness; a description of the witness' qualifications, including a
list of all publications authored in the previous 10 years; a list of
all other cases in which, during the previous four years, the
witness testified as an expert at a hearing or by deposition; and a
statement of the compensation to be paid to the expert witness.
(C) Expert witness disclosures shall be made no later than 60 days
before the date of commencement of the hearing. A party's failure to
make full and timely expert witness disclosures shall preclude the
party's use of the expert witness' testimony or evidence at the
hearing.
(3) Prehearing disclosures shall comply with the following
requirements:
(A) In addition to the disclosures required in paragraphs (1) and
(2), a party shall provide to the other parties the following
information about the evidence that it may present at the hearing:
(i) The name, and if not previously provided, the address and
telephone number of each witness, separately identifying those the
party expects to present and those it may call if the need arises.
(ii) An identification of each exhibit, separately identifying
those items the party expects to offer and those it may offer if the
need arises.
(B) Prehearing disclosures shall be made at least 30 days before
the hearing.
(i) Within 14 days after prehearing disclosures are made, a party
shall file and serve any objections, along with the grounds for each
objection, to the admissibility of evidence.
(ii) These objections shall be decided on the first day of
hearing, or at a prehearing conference conducted pursuant to Section
11511.5 of the Government Code. Documents and individuals not timely
disclosed without good cause shall be precluded from admission at the
hearing.
(b) In addition to the disclosures required by subdivision (a),
the parties may obtain discovery by oral deposition in California, in
accordance with Sections 2025.010 to 2025.620, inclusive, of the
Code of Civil Procedure, except as described in this article. The
school district may take the depositions of the employee and no more
than four other witnesses, and the employee may take depositions of
no more than five witnesses. Each witness deposition is limited to
seven hours.
(c) If the right to disclosures or oral depositions is denied by
either the employee or the governing board, the exclusive right of a
party seeking an order compelling production of discovery shall be
pursuant to Section 11507.7 of the Government Code. If a party seeks
protection from unreasonable or oppressive discovery demands, the
exclusive right of a party seeking an order for protection shall be
pursuant to Section 11450.30 of the Government Code.
SEC. 10. 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.
