California Assembly Bill AB449 Amended / Bill

 BILL NUMBER: AB 449AMENDED BILL TEXT AMENDED IN ASSEMBLY APRIL 25, 2013 AMENDED IN ASSEMBLY MARCH 19, 2013 INTRODUCED BY Assembly Member Muratsuchi FEBRUARY 19, 2013 An act to amend Section 44242.5 of, and to repeal and add Section 44030 of, the Education Code, relating to elementary and secondary education. LEGISLATIVE COUNSEL'S DIGEST AB 449, as amended, Muratsuchi. Elementary and secondary education: certificated school employees:  school district superintendent:   allegation of misconduct:  reports to Commission on Teacher Credentialing. Existing law provides that any principal, teacher, employee, or school officer of any elementary or secondary school who refuses or willfully neglects to make such reports as are required by law is guilty of a misdemeanor and is punishable by a fine of not more than $100. This bill would delete that provision. Existing law provides for the employment of certificated school employees by school districts. Existing law provides for the credentialing of certificated employees of a school district by the Commission on Teacher Credentialing. This bill would require the superintendent of a school district  or county office of education, or the administrator of a charter school,  with certificated employees to report to the commission any change in the employment status of a credentialholder, not later than 30 days after the change in employment status, if the credentialholder, while working in a position requiring a credential, and as a result of an allegation of misconduct or while an allegation of misconduct is pending, is dismissed, is nonreelected, resigns, is suspended or placed on unpaid administrative leave for more than 10 days as a final adverse action, retires, or is otherwise terminated by a decision not to employ or reemploy. The bill would make  the  failure to make the report unprofessional conduct and  subject   would authorize  the superintendent of the school district  or county office of education, or the administrator of a charter school, to be subject  to adverse action by the commission, and would make the refusal or willful neglect to make the report a misdemeanor. By creating a new crime, this bill would impose a state-mandated local program. Under existing law, each allegation of an act or omission by an applicant for, or holder of, a credential, for which he or she may be subject to an adverse action, is required to be presented to the Committee of Credentials. Existing law provides that the committee has jurisdiction to commence an initial review and a formal review upon receipt  of any of specified records, declarations, statements, notices, or responses   of, among other things, a statement from an employer notifying the commission   that, as a result of, or while an allegation of misconduct is pending, a credentialholder has been dismissed, nonreelected, suspended for more than 10 days, or placed pursuant to a final adverse employment action on unpaid administrative leave for more than 10 days, or has resigned or otherwise left employment  . This bill would provide that  the committee has jurisdiction to commence an initial review also upon receipt of a writing, as defined, notifying the Commission on Teacher Credentialing that a superintendent of a school district employing a person with a credential has failed to make the report described above regarding the change in employment status of a credentialholder. The bill would provide that the committee has jurisdiction to commence a formal review also upon receipt of official records of a school district or of the commission that confirm that the report described above was not made by a superintendent of a school district   for purposes of the statement received from an employer, as described above, a change in status due solely to unsatisfactory performance or a reduction in force, as specified, is not an allegation of misconduct . 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 no reimbursement is required by this act for a specified reason. Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: SECTION 1. Section 44030 of the Education Code is repealed. SEC. 2. Section 44030 is added to the Education Code, to read: 44030. (a) The superintendent of a school district  or county office of education, or the administrator of a charter school,  employing a person with a credential shall report any change in the employment status of the credentialholder to the commission not later than 30 days after the change in employment status, if the credentialholder, while working in a position requiring a credential, and as a result of an allegation of misconduct or while an allegation of misconduct is pending, is dismissed, is nonreelected, resigns, is suspended or placed on unpaid administrative leave for more than 10 days as a final adverse action, retires, or is otherwise terminated by a decision not to employ or reemploy. (b) For purposes of subdivision (a), a change of employment status due solely to unsatisfactory performance pursuant to paragraph (4) of subdivision (a) of Section 44932 or a reduction in force pursuant to Sections 44955 to 44958, inclusive, is not an allegation of misconduct. (c) The failure to make the report required by subdivision (a) is unprofessional conduct and  shall   may  subject the superintendent of the school district  or county office of education, or the administrator of a charter school,  to adverse action by the commission. (d) (1) The refusal or willful neglect to make the report required by subdivision (a) is a misdemeanor, punishable  as follows:   by a fine of not less than five hundred dollars ($500) or more than one thousand dollars ($1,000).   (A) Upon a first conviction, by a fine of not less than five hundred dollars ($500) or more than one thousand dollars ($1,000).   (B) Upon a second or subsequent conviction, by a fine of not less than one thousand dollars ($1,000) or more than five thousand dollars ($5,000).  (2) All fines imposed pursuant to this subdivision are the personal responsibility of the superintendent of the school district  or county office of education, or the administrator of a charter school,  and may not be paid or reimbursed  by any other person, source, or entity   with public funds  . SEC. 3. Section 44242.5 of the Education Code is amended to read: 44242.5. (a) Each allegation of an act or omission by an applicant for, or holder of, a credential for which he or she may be subject to an adverse action shall be presented to the Committee of Credentials. (b) The committee has jurisdiction to commence an initial review upon receipt of any of the following: (1) (A) Official records of the Department of Justice, of a law enforcement agency, of a state or federal court, and of any other agency of this state or another state. (B) For purposes of subparagraph (A), "agency of this state" has the same meaning as that of "state agency" as set forth in Section 11000 of the Government Code. (2) An affidavit or declaration signed by  a  person or persons with personal knowledge of the acts alleged to constitute misconduct. (3) (A) A statement from an employer notifying the commission that, as a result of, or while an allegation of misconduct is pending, a  credential holder   credentialholder  has been dismissed, nonreelected, suspended for more than 10 days, or placed pursuant to a final adverse employment action on unpaid administrative leave for more than 10 days, or has resigned or otherwise left employment. (B) The employer shall provide the notice described in subparagraph (A) to the commission not later than 30 days after the dismissal, nonreelection, suspension, placement on unpaid administrative leave, resignation, or departure from employment of the employee. (C) For purposes of subparagraphs (A) and (B), a change in status due solely to unsatisfactory performance pursuant to paragraph (4) of subdivision (a) of Section 44932 or a reduction in force pursuant to Sections 44955 to 44958, inclusive, is not an allegation of misconduct.  (4) A writing, as defined by Section 250 of the Evidence Code, notifying the commission that a superintendent of a school district employing a person with a credential has failed to make the report required by subdivision (a) of Section 44030.   (5)   (4)  A notice from an employer that a complaint was filed with the school district alleging sexual misconduct by a  credential holder   credentialholder  . Results of an investigation by the committee based on this paragraph shall not be considered for action by the committee unless there is evidence presented to the committee in the form of a written or oral declaration under penalty of perjury that confirms the personal knowledge of the declarant regarding the acts alleged to constitute misconduct.  (6)   (5)  A notice from a school district, employer, public agency, or testing administrator of a violation of Section 44420, 44421.1, 44421.5, or 44439.  (7)   (6)  (A) An affirmative response on an application submitted to the commission as to any conviction, adverse action on, or denial of, a license, or pending investigation into a criminal allegation or pending investigation of a noncriminal allegation of misconduct by a governmental licensing entity. (B) Failure to disclose any matter set forth in subparagraph (A). (c) An initial review commences on the date that the written notice is mailed to the applicant or  credential holder   credentialholder  that his or her fitness to hold a credential is under review. Upon commencement of a formal review pursuant to Section 44244, the committee shall investigate all alleged misconduct and the circumstances in mitigation and aggravation. The investigation shall include, but not be limited to, all of the following: (1) Investigation of the fitness and competence of the applicant or  credential holder   credentialholder  to perform the duties authorized by the credential for which he or she has applied or that he or she presently holds. (2) Preparation of a summary of the applicable law, a summary of the facts, contested and uncontested, and a summary of any circumstances in aggravation or mitigation of the allegation. (3) Determination of probable cause for an adverse action on the credential. If the allegation is for unprofessional or immoral conduct, the committee, in any formal review conducted pursuant to Section 44244 to determine probable cause, shall permit the employer of the  credential holder   credentialholder  to be present while testimony is taken. If the allegation of unprofessional or immoral conduct involves sexual abuse, the employer shall be examined in the meeting for any relevant evidence relating to the sexual abuse. (A) If the committee determines that probable cause for an adverse action does not exist, the committee shall terminate the investigation. (B) If the committee determines that probable cause for an adverse action on the credential exists, upon receipt of a request from an applicant or a  credential holder   credentialholder  pursuant to Section 44244.1, the commission shall initiate an adjudicatory hearing, as prescribed by Chapter 5 (commencing with Section 11500)  of Part 1  of Division 3 of Title 2 of the Government Code, by filing an accusation or statement of issues. (d) The committee has jurisdiction to commence a formal review pursuant to Section 44244 upon receipt of any of the following: (1) (A) Official records of a state or federal court that reflect a conviction or plea, including a plea of nolo contendere, to a criminal offense or official records of a state court that adjudge a juvenile to be a dependent of the court pursuant to Section 300 of the Welfare and Institutions Code due to allegations of sexual misconduct or physical abuse by a  credential holder   credentialholder  or applicant. (B) Nothing in subparagraph (A) shall be construed to relieve the commission from the confidentiality provisions, notice, and due process requirements set forth in Section 827 of the Welfare and Institutions Code. (2) An affidavit or declaration signed by a person or persons with personal knowledge of the acts alleged to constitute misconduct. (3) A statement described in paragraph (3) of subdivision (b).  (4) Official records of a school district or of the commission that confirm that the report required by subdivision (a) of Section 44030 was not made as required by that section.   (5)   (4)  Official records of a governmental licensing entity that reflect an administrative proceeding or investigation, otherwise authorized by law or regulation, which has become final.  (6)   (5)  A notice described in paragraph  (6)   (5)  of subdivision (b).  (7)   (6)  A response or failure to disclose, as described in paragraph  (7)   (6)  of subdivision (b). (e) (1) Upon completion of its investigation, the committee shall report its actions and recommendations to the commission, including its findings as to probable cause, and if probable cause exists, its recommendations as to the appropriate adverse action. (2) The findings shall be available, upon its request, to the employing or last known employing school district, or, if adverse action is recommended by the committee and the  credential holder   credentialholder  has not filed a timely appeal of the recommendation of the committee pursuant to Section 44244.1, upon a request made within five years of the date of the committee's recommendations to a school district providing verification that the  credential holder   credentialholder  has applied for employment in the school district. The findings, for all purposes, shall remain confidential and limited to school district personnel in a direct supervisory capacity in relation to the person investigated. Any person who otherwise releases findings received from the committee or the commission, absent a verified release signed by the person who is the subject of the investigation, shall be guilty of a misdemeanor. (3) The findings shall not contain any information that reveals the identity of persons other than the person who is the subject of the investigation. (f) (1) Except as provided in paragraph (2) and, notwithstanding subdivision (b), for purposes of determining whether jurisdiction exists under subdivision (b), the commission, in accordance with Section 44341, may make inquiries and requests for production of information and records only from the Department of Justice, a law enforcement agency, a state or federal court, and a licensing agency of this state or a licensing agency of another state. (2) For purposes of determining whether jurisdiction exists, paragraph (1) does not apply to release of personnel records. SEC. 4. No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California Constitution.