California Senate Bill SB1164 Introduced / Bill

 BILL NUMBER: SB 1164INTRODUCED BILL TEXT INTRODUCED BY Senator Liu FEBRUARY 20, 2014 An act to amend Sections 44932, 44936, 44939, 44940, and 44944 of the Education Code, relating to school employees. LEGISLATIVE COUNSEL'S DIGEST SB 1164, as introduced, Liu. School employees: discipline: dismissal and suspension. (1) Existing law prohibits a permanent school employee from being dismissed except for one or more specified reasons, including, among others, knowing membership in the Communist Party. This bill would delete knowing membership in the Communist Party as a reason for which a permanent employee may be dismissed. (2) 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 15 and September 15 in any year. This bill would instead authorize the governing board of a school district to give the notice at any time of year, except for a notice in a proceeding involving only charges of unsatisfactory performance, which the bill would require to be given during the instructional year of the schoolsite at which the employee is physically employed. (3) Existing law prescribes various procedures for the hearing, including, among others, a prohibition against the giving of testimony or the introduction of evidence relating to matters occurring more than 4 years prior to the filing of a notice. Existing law further prohibits any decision relating to the dismissal or suspension of any employee from being made based on charges or evidence of any nature relating to matters occurring more than 4 years prior to the filing of a notice. This bill would exempt charges of unprofessional conduct involving specified sex offenses, substance abuse offenses, and child endangerment offenses from these prohibitions. (4) Existing law provides that a certificated employee may be charged with a mandatory leave of absence offense for certain specified sex offenses or controlled substance offenses with the exception of marijuana, mescaline, peyote, or tetrahydrocannabinols. Existing law requires the governing board of a school district to immediately place a certificated employee on compulsory leave of absence if the employee is charged with a mandatory leave of absence offense. This bill would additionally authorize a certificated employee to be charged with a mandatory leave of absence offense for murder and attempted murder. Because this 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. (5) This bill would also make conforming and nonsubstantive changes. (6) 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. Section 44932 of the Education Code is amended to read: 44932. (a)  No   A  permanent employee shall  not  be dismissed except for one or more of the following causes: (1) Immoral or unprofessional conduct. (2) 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.   to that chapter.  (3) Dishonesty. (4) Unsatisfactory performance. (5) Evident unfitness for service. (6) Physical or mental condition unfitting him or her to instruct or associate with children. (7) 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 of Education   state board  or by the governing board of the school district employing him or her. (8) Conviction of a felony or of  any   a  crime involving moral turpitude. (9) Violation of Section 51530 or conduct specified in Section 1028 of the Government Code, added by Chapter 1418 of the Statutes of 1947.  (10) Knowing membership by the employee in the Communist Party.   (11)   (10)  Alcoholism or other drug abuse  which   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  any   a  school district  which   that  has adopted a collective bargaining agreement pursuant to subdivision (b) of Section 3543.2 of the Government Code. SEC. 2. 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  shall not be given between May 15th and September 15th in any year. It   may be given at any time of year.   (b) Notwithstanding subdivision (a), in a proceeding initiated pursuant to Section 44934 involving only charges of unsatisfactory performance, the notice of dismissal or suspension shall only be given during the instructional year of the schoolsite where the employee is physically employed.   (c)     The notice of dismissal or suspension  shall be in writing and be served upon the employee personally or by United States registered mail addressed to  him   the employee  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. SEC. 3. 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,   board of a school district,  charging a permanent employee of the district with immoral conduct, conviction of a felony or of  any   a  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,  or  with violation of Section  51530, with knowing membership by the employee in the Communist Party or with violation of any provision in Sections 7001 to 7007, inclusive,   51530,  the governing board  of the school district  may, if it deems such action necessary, immediately suspend the employee from his  or her  duties and give notice to  him  the employee  of his  or her  suspension, and that 30 days after service of the notice,  he   the employee  will be dismissed, unless he  or she  demands a hearing.  If   (b)     If  the permanent employee is suspended upon charges  of knowing membership by the employee in the Communist Party or for any violation of Section 7001, 7002, 7003, 7006, 7007, or 51530, he   for a violation of Section 51530, the employee  may within 10 days after service upon him  or her  of notice of  such   the  suspension file with the governing board  of the school district  a verified denial, in writing, of the charges. In  such   that  event the permanent employee who demands a hearing within the 30-day period shall continue to be paid his  or her  regular salary during the period of suspension and until the entry of the decision of the Commission on Professional Competence, if and during  such time as he   the time that the employee  furnishes to the school district a suitable bond, or other security acceptable to the governing  board,   board of the school district,  as a guarantee that the employee will repay to the school district the amount of salary so paid to him  or her  during the period of suspension in case the decision of the Commission on Professional Competence is that  he   the employee  shall be dismissed. If it is determined that the employee may not be dismissed, the  school   governing  board  of the school district  shall reimburse the employee for the cost of the bond. SEC. 4. 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  Section   Sections  11054, 11055, and 11056 of the Health and Safety Code, with the exception of marijuana, mescaline, peyote, or tetrahydrocannabinols. (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  , or a violation or attempted violation of Section 187 of the Penal Code,   of this code,  or Sections 11357 to 11361, inclusive, Section 11363, 11364, or 11370.1 of the Health and Safety Code, insofar as these sections relate to any controlled substances except marijuana, mescaline, peyote, or tetrahydrocannabinols. (c) For purposes of this section and Section 44940.5, the term "school district" includes county offices of education. (d) (1)  Whenever any   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  certificated  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)  Whenever any   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  certificated  employee  upon   on  compulsory leave in accordance with the procedure in this section and Section 44940.5. If  any   a  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  certificated  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. 5. 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  the preceding paragraph.   paragraph (3).   (5) No witness   (5)    (A)     A witness  shall  not  be permitted to testify at the hearing except upon oath or affirmation.  No testimony   (B)     Testimony  shall  not  be given  or   and  evidence  shall not be  introduced relating to matters that occurred more than four years  prior to   before  the date of the filing of the  notice. Evidence   notice, except for in a hearing that involves an offense defined or described in Section 44010 or 44011 of this code, or Sections 11165.2 to 11165.6, inclusive,   of the Penal Code.   (C)     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   an  employee shall be made based on charges or evidence of any nature relating to matters occurring more than four years  prior to  before  the filing of the  notice.   notice, except for in a hearing that involves an offense defined or described in Section 44010 or 44011 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. 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. If either the governing board or the employee for any reason fails to select a commission member at least seven calendar days  prior to   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   the  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. (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   commis   sion  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. (5) The  board   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 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 on Professional Competence   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  Commission on Professional Competence   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) 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 required by this subdivision shall not be stayed. (5) (A) If the decision of the commission 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 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   Commission on Professional Competence  . In the absence of agreement, the place shall be selected by the administrative law judge. SEC. 6. 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.