BILL NUMBER: AB 349AMENDED BILL TEXT AMENDED IN SENATE JULY 10, 2013 AMENDED IN ASSEMBLY MAY 24, 2013 AMENDED IN ASSEMBLY APRIL 22, 2013 AMENDED IN ASSEMBLY APRIL 1, 2013 INTRODUCED BY Assembly Member Gatto FEBRUARY 13, 2013 An act to add Section 45118 to the Education Code, relating to school administration. LEGISLATIVE COUNSEL'S DIGEST AB 349, as amended, Gatto. Classified employees: allegations of misconduct: reports. Existing law authorizes the governing board of a school district to lay off and reemploy classified employees in accordance with specified procedures. Existing law requires classified employees subject to a layoff, to be effective at the end of the school year, to be given written notice on or before April 29 informing them of the layoff and of any displacement and reemployment rights. This bill would require the superintendent of the employing school district or a charter school administrator to report a change in employment status to the State Department of Education when a classified employee is dismissed, is suspended, resigns, retires, or is otherwise terminated by a decision not to employ or reemploy, as a result of allegations of misconduct, as defined. The bill would require the report to the department to contain all known information about each alleged act of misconduct, as specified, and would require the department to maintain the report by county and by the employee's name in a searchable format. The bill would require the department to establish due process procedures for purposes of removing a classified employee's name from the reports, as provided, and procedures for determining whether a decision to dismiss, suspend, or not to employ or reemploy a classified employee, or when an employee resigns or retires, as a result of an allegation of misconduct or while an allegation of misconduct is pending are proven unfounded or substantiated, as the bill would define those terms. The bill would limit the availability of the report to a school district or charter school for purposes of verifying previous employment action for a classified employee who is being considered for employment. By imposing a new duty on a school district or charter school, the bill would create a state-mandated local program. Existing constitutional provisions require that a statute that limits the right of access to public bodies or the writings of public officials and agencies be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest. This bill would make legislative findings to that effect. The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement. This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to these statutory provisions. Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: SECTION 1. It is the intent of the Legislature that the State Department of Education and the Commission on Teacher Credentialing enter into an interagency agreement for a minimum of three years, in order for the commission to provide assistance to the department in administering Section 45118 of the Education Code. SEC. 2. Section 45118 is added to the Education Code, to read: 45118. (a) (1) When a classified employee is dismissed, resigns, is suspended, retires, or is otherwise terminated by a decision not to employ or reemploy, as a result of an allegation of misconduct or while an allegation of misconduct is pending, the superintendent of the employing school district or a charter school administrator shall report the change in employment status to the department no later than 30 days after the employment action. (2) "Otherwise terminated by a decision not to employ or reemploy" as used in paragraph (1) shall not include or be interpreted to include a change of status that is solely for a layoff as described in Section 45308. (b) For purposes ofthethis section, "allegation of misconduct" means misconduct that involves any of the acts described in the following sections: (1) Sections 187, 188, 189, and 192, as this section relates to voluntary manslaughter, Sections 203, 205, 206, 207, 209 to 211, inclusive, 214, 215,217,1,217.1, 220, 222, 244, 245, 261, 261.5, 262, 265 to 266j, inclusive, 267, 273a, 273ab, 273d, 273f, 273g, 278, 285, 286, 286.5, 288, 288.2 to 288a, inclusive, 424, 425, 503, 504, and 11165.2 to 11165.6, inclusive, of the Penal Code. (2) Sections 484, 484.1, 484b, 484c, and 484e to 488, inclusive, of the Penal Code, as these sections relate to felony convictions. (3) Section 44010 of this code. (4) Any act that involves a controlled substance offense, as described in Section 44011 of this code, that involves a minor. (c) For purposes of this section, the term "school district" includes a county office of education. (d) The report shall contain all known information about each alleged act of misconduct and shall include all of the following: (1) The name of the classified employee. (2) The current address of the classified employee. (3) The name of the reporting school district or charter school. (4) The name of the last school of employment. (5) An explanation of the allegation of misconduct or pending allegation of misconduct. (6) Current contact information for all persons who may have information relating to the allegation of misconduct. (7) Any and all documentation related to the case. (e) The report shall be made to the department regardless of any proposed or actual agreement, settlement, or stipulation not to make such a report. The report shall also be made if allegations of misconduct served on the employee are withdrawn in consideration of the employee's resignation, retirement, or other failure to contest the truth of the allegations. The department shall maintain these reports by county and by the employee's name, in a searchable format. This information shall not be made available to the general public. (f) The superintendent of an employing school district or a charter school administrator shall, in writing, inform a classified employee of the content of this section if that employee is dismissed, resigns, is suspended, retires, or is otherwise terminated by a decision not to employ or reemploy, as a result of an allegation of misconduct or while an allegation of misconduct is pending. (g) The department shall establish due process procedures for the purpose of removing a classified employee's name from the reports maintained pursuant to subdivision (e). These procedures shall include, but not be limited to, a timeframe for how long a classified employee's name shall be included in the reports maintained pursuant to subdivision (e). (h) (1) The department shall establish procedures to determine whether a decision to dismiss, suspend, or not to employ or reemploy a classified employee, or when an employee resigns or retires, as a result of an allegation of misconduct or while an allegation of misconduct is pending, is proven unfounded or substantiated. If the department determines the allegation of misconduct is proved unfounded, the classified employee's name shall not be included in reports established pursuant to this section. (A) For purposes of this section, "unfounded" means a report that is determined by the department to be false, to involve an accidental injury, or to not constitute misconduct as defined in subdivision (b), based on the preponderance of the evidence. (B) For purposes of this section, "substantiated" means a report determined by the department to constitute misconduct, based upon a preponderance of the evidence. (2) If a school district or charter school initiates an investigation against a classified employee for allegations of misconduct as defined in this section, the school district or charter school shall provide the department with all relevant information pertinent to this investigation. (i) A report maintained by the department pursuant to this section shall only be made available upon request by a school district or charter school for the purpose of verifying previous employment action subject to this section for a classified employee who is being considered for employment by the requesting school district or charter school. SEC. 3. The Legislature finds and declares that this act imposes a limitation on the public's right of access to the meetings of public bodies or the writings of public officials and agencies within the meaning of Section 3 of Article I of the California Constitution. Pursuant to that constitutional provision, the Legislature makes the following finding to demonstrate the interest protected by this limitation and the need for protecting the interest: In order to protect sensitive employment matters, it is necessary that this act take effect with the limitation on public access to certain reports as specified in subdivision (e) of Section 45118 of the Education Code. SEC. 4. 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.