California Assembly Bill AB1044 Introduced / Bill

 BILL NUMBER: AB 1044INTRODUCED BILL TEXT INTRODUCED BY Assembly Member Baker (Coauthors: Assembly Members Travis Allen, Bigelow, Chang, Beth Gaines, Grove, Hadley, Harper, Kim, Lackey, Mayes, Melendez, Obernolte, Olsen, Patterson, Steinorth, and Wilk) FEBRUARY 26, 2015 An act to amend and repeal Sections 44955, 44955.5, 44956, 44956.5, 44957, 44958, 44959, and 44959.5 of, and to add Section 45000 to, the Education Code, relating to school employees. LEGISLATIVE COUNSEL'S DIGEST AB 1044, as introduced, Baker. School employees: reduction in workforce. (1) Under existing law, when school employees are terminated pursuant to a reduction in workforce, a school district is required to terminate the employees in order of seniority. Existing law authorizes a school district to deviate from the order of seniority for those purposes for specified reasons. This bill would make these provisions inoperative on July 1, 2018, and would repeal them as of January 1, 2019. (2) Existing law authorizes the governing board of a school district to terminate the services of any permanent or probationary certificated employees of the school district during the time period between 5 days after the enactment of the Budget Act and August 15 of the fiscal year to which the Budget Act applies if the governing board of the school district determines that its total revenue limit per unit of average daily attendance for the fiscal year of that Budget Act has not increased by at least 2%, and if the governing board of the school district determines it is therefore necessary to decrease the number of permanent employees in the school district. This bill would make these provisions inoperative on July 1, 2018, and would repeal them as of January 1, 2019. (3) Existing law provides that, when the services of permanent or probationary employees are terminated pursuant to a reduction in workforce, those terminated employees have a preferred right to reappointment and an opportunity for substitute service in order of seniority, as specified. This bill would make these provisions inoperative on July 1, 2018, and would repeal them as of January 1, 2019. (4) Existing law prohibits, for purposes of complying with those procedures, a school district from including time spent employed in an administrative position by a certificated employee, who transfers to a teaching position and who was initially employed in an administrative position on or after July 1, 1983, in determining seniority, except in the case of a schoolsite administrator, as specified. This bill would make these provisions inoperative on July 1, 2018, and would repeal them as of January 1, 2019. (5) Existing law prohibits a school district from counting as a part of the service required as a condition precedent to the classification of the employee as a permanent employee of the school district the period of absence for certain terminated probationary employees. This bill would make these provisions inoperative on July 1, 2018, and would repeal them as of January 1, 2019. (6) Existing law extends the effective period of specified rights, and provides additional rights to certain permanent certificated employees, as specified. This bill would make these provisions inoperative on July 1, 2018, and would repeal them as of January 1, 2019. (7) Existing law provides that certain statutory layoff provisions are inapplicable to certain probationary certificated employees who are covered by a collective agreement which contains provisions for the layoff and reassignment of those employees. This bill would make these provisions inoperative on July 1, 2018, and would repeal them as of January 1, 2019. (8) This bill would require, by July 1, 2018, each governing board of a school district, in consultation with the exclusive representative of the certificated staff, if any, to adopt policies regarding the dismissal of permanent and probationary employees when a reduction in workforce is required due to declining enrollment or insufficient funding to be used commencing with the 2018-19 school year. The bill would require those adopted policies to include as a significant factor in determining the order of dismissal the evaluation rating of certificated employees, as specified. The bill would permit a school district to deviate from using the evaluation rating of certificated employees as a significant factor in determining the order of dismissal of certificated employees if the school district demonstrates specified conditions. By requiring school districts to perform additional duties, this bill would impose a state-mandated local program. The bill would provide that, to the extent these provisions conflict with any provision of a collective bargaining agreement entered into before January 1, 2016, by a public school employer and an exclusive bargaining representative, the provisions shall not apply to the school district until the expiration or renewal of that collective bargaining agreement. (9) 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 44955 of the Education Code is amended to read: 44955. (a)  No   A  permanent employee shall  not  be deprived of his or her position for causes other than those specified in Sections 44907 and 44923, and Sections 44932 to 44947, inclusive, and  no   a  probationary employee shall  not  be deprived of his or her position for cause other than as specified in Sections 44948 to 44949, inclusive. (b)  Whenever   (1)     If  in  any   a  school year the average daily attendance in all of the schools of a  school  district for the first six months  in which   that  school is in session shall have declined below the corresponding period of either of the previous two school years,  whenever   if  the governing board  of a school district  determines that attendance in a  school  district will decline in the following year as a result of the termination of an interdistrict tuition agreement as  defined   described  in Section 46304,  whenever   if  a particular kind of service is to be reduced or discontinued not later than the beginning of the following school year, or  whenever   if  the amendment of state law requires the modification of curriculum, and  when in the opinion of   if  the governing board of the  school  district  determines  it  shall have become  necessary by reason of any of these conditions to decrease the number of permanent employees in the  school  district, the governing board  of the school district  may terminate the services of not more than a corresponding percentage of the certificated employees of the  school  district, permanent as well as probationary, at the close of the school year. Except as otherwise provided by statute, the services of  no   a  permanent employee  may   shall not  be terminated under  the provisions of  this section while  any   a  probationary employee, or any other employee with less seniority, is retained to render a service  which said   that the  permanent employee is certificated and competent to render.  In   (2)     In  computing a decline in average daily attendance for purposes of this  section   subdivision  for a newly formed or reorganized school district, each school of the  school  district shall be deemed to have been a school of the newly formed or reorganized  school  district for both of the two previous school years.  As   (3)     As  between employees who first rendered paid service to the  school  district on the same date, the governing board  of the school district  shall determine the order of termination solely on the basis of needs of the  school  district and the  students thereof.   pupils of the school district.  Upon the request of  any   an  employee whose order of termination is so determined, the governing board  of the school district  shall furnish in  writing   writing,  no later than five days  prior to   before  the commencement of the hearing held in accordance with Section 44949, a statement of the specific criteria used in determining the order of termination and the application of the criteria in ranking each employee relative to the other employees in the group.  This   The  requirement that the governing board  of the school district  provide, on request, a written statement of reasons for determining the order of termination shall not be interpreted to give affected employees any legal right or interest that would not exist without  such a   the  requirement. (c)  (1)    Notice of  such   the  termination of services shall be given before  the 15th of May in the manner prescribed in   May 15 pursuant to  Section 44949, and services of  such   those  employees shall be terminated in the inverse of the order in which they were employed, as determined by the  governing  board  of the school district  in accordance with the provisions of Sections 44844 and 44845. In the event that   If  a permanent or probationary employee is not given the notices and a right to a hearing as provided for in Section 44949, he or she shall be deemed reemployed for the ensuing school year.  The   (2)     The  governing board  of the school district  shall make assignments and reassignments in  such  a manner that employees shall be retained to render any service  which  their seniority and qualifications entitle them to render. However,  prior to   before  assigning or reassigning  any   a  certificated employee to teach a subject  which   that  he or she has not previously taught, and for which he or she does not have a teaching credential or  which   that  is not within the employee's major area of postsecondary study or the equivalent thereof, the governing board  of the school district  shall require the employee to pass a subject matter competency test in the appropriate subject. (d) Notwithstanding subdivision (b), a school district may deviate from terminating a certificated employee in order of seniority for either of the following reasons: (1) The  school  district demonstrates a specific need for personnel to teach a specific course or course of study, or to provide services authorized by a services credential with a specialization in either pupil personnel services or health for a school nurse, and that the certificated employee has special training and experience necessary to teach that course or course of study or to provide those services,  which   that  others with more seniority do not possess. (2) For purposes of maintaining or achieving compliance with constitutional requirements related to equal protection of the laws.  (e) This section shall become inoperative on July 1, 2018, and, as of January 1, 2019, is repealed, unless a later enacted statute, that becomes operative on or before January 1, 2019, deletes or extends the dates on which it becomes inoperative and is repealed.  SEC. 2. Section 44955.5 of the Education Code is amended to read: 44955.5. (a) During the time period between five days after the enactment of the Budget Act and August 15 of the fiscal year to which that Budget Act applies, if the governing board of a school district determines that its total revenue limit per unit of average daily attendance for the fiscal year of that Budget Act has not increased by at least 2 percent, and if  in the opinion of  the governing board  of the school district determines  it is therefore necessary to decrease the number of permanent employees in the  school  district, the governing board  of the school district  may terminate the services of any permanent or probationary certificated employees of the  school  district, including employees holding a position that requires an administrative or supervisory credential. The termination shall be pursuant to Sections 44951 and 44955 but, notwithstanding anything to the contrary in Sections 44951 and 44955, in accordance with a schedule of notice and hearing adopted by the governing  board.   board of the school district.   (b) This section is inoperative from July 1, 2002, to July 1, 2003, inclusive, and from July 1, 2011, to July 1, 2012, inclusive.   (b) This section shall become inoperative on July 1, 2018, and, as of January 1, 2019, is repealed, unless a later enacted statute, that becomes operative on or before January 1, 2019, deletes or extends the dates on which it becomes inoperative and is repealed.  SEC. 3. Section 44956 of the Education Code is amended to read: 44956.  Any   A  permanent employee whose services have been terminated as provided in Section 44955 shall have the following rights: (a) For the period of 39 months from the date of the termination,  any   an  employee who in the meantime has not attained the age of 65 years shall have the preferred right to reappointment, in the order of original employment as determined by the  governing  board  of the school district  in accordance with Sections 44831 to 44855, inclusive, if the number of employees is increased or the discontinued service is reestablished, with no requirements that were not imposed upon other employees who continued in service; provided, that no probationary or other employee with less seniority shall be employed to render a service that the employee is certificated and competent to render. However,  prior to   before  reappointing  any   an  employee to teach a subject that he or she has not previously taught, and for which he or she does not have a teaching credential or that is not within the employee's major area of postsecondary study or the equivalent thereof, the governing board  of the school district  shall require the employee to pass a subject matter competency test in the appropriate subject. (b) The right to reappointment described in subdivision (a) may be waived by the employee, without prejudice, for not more than one school year, unless the  governing  board  of the school district  extends this right, but the waiver shall not deprive the employee of his or her right to subsequent offers of reappointment. (c) Notwithstanding subdivision (a), a school district may deviate from reappointing a certificated employee in order of seniority for either of the following reasons: (1) The  school  district demonstrates a specific need for personnel to teach a specific course or course of study, or to provide services authorized by a services credential with a specialization in either pupil personnel services or health for a school nurse, and that the employee has special training and experience necessary to teach that course or course of study, or to provide those services, that others with more seniority do not possess. (2) For purposes of maintaining or achieving compliance with constitutional requirements related to equal protection of the laws. (d) As to  any   an  employee who is reappointed, the period of his or her absence shall be treated as a leave of absence and shall not be considered as a break in the continuity of his or her service, he or she shall retain the classification and order of employment he or she had when his or her services were terminated, and credit for prior service under any state or  school  district retirement system shall not be affected by  such   the termination, but the period of his or her absence shall not count as a part of the service required for retirement. (e) During the period of his or her preferred right to reappointment, an employee shall, in the order of original employment, be offered prior opportunity for substitute service during the absence of any other employee who has been granted a leave of absence or who is temporarily absent from duty; provided, that his or her services may be terminated upon the return to duty of the other employee and that substitute service shall not affect the retention of his or her previous classification and rights. If, in any school year the employee serves as a substitute in any position requiring certification for 21 days or more within a period of 60 schooldays, the compensation the employee receives for substitute service in that 60-day period, including his or her first 20 days of substitute service, shall  be  not  be  less than the amount the employee would receive if he or she were being reappointed. (f) (1) During the period of the employee's preferred right to reappointment, the governing board of the  school  district, if it is also the governing board of one or more other  school  districts, may assign him or her to service, which he or she is certificated and competent to render, in another  school  district or districts; provided, that the compensation he or she receives  therefor   for the service  may, in the discretion of the governing  board,   board of the school district,  be the same as he or she would have received had he or she been serving in the  school  district from which his or her services were terminated, that his or her service in the other  school  district or districts shall be counted toward the period required for both state and local retirement as though rendered in the  school  district from which his or her services were terminated, and that no permanent employee in the other  school  district or districts shall be displaced by him or her. (2) It is the intent of this subdivision that the employees of a school district, the governing board of which is also the governing board of one or more other school districts, shall not be at a disadvantage as compared with employees of a unified school district. (g) At any time  prior to   before  the completion of one year after his or her return to service, he or she may continue or make up, with interest, his or her own contributions to any state or  school  district retirement  system,   system  for the period of his or her absence, but it shall not be obligatory on  the  state or  school  district to match those contributions. (h) Should he or she become disabled or reach retirement age at any time before his or her return to service, he or she shall receive, in any state or  school  district retirement system of which he or she was a member, all benefits to which he or she would have been entitled had such event occurred at the time of his or her termination of service, plus any benefits he or she may have qualified for  thereafter,   after his or her termination of service,  as though still employed.  (i) This section shall become inoperative on July 1, 2018, and, as of January 1, 2019, is repealed, unless a later enacted statute, that becomes operative on or before January 1, 2019, deletes or extends the dates on which it becomes inoperative and is repealed.  SEC. 4. Section 44956.5 of the Education Code is amended to read: 44956.5.  (a)    For a certificated employee initially employed in an administrative position on or after July 1, 1983, who transfers to a teaching position, the period of employment in the administrative position shall not be included in determining seniority for purposes of Sections 44955 and 44956, except for  school site   schoolsite  administrators who shall earn up to a maximum of three years seniority while serving as site administrators.  (b) This section shall become inoperative on July 1, 2018, and, as of January 1, 2019, is repealed, unless a later enacted statute, that becomes operative on or before January 1, 2019, deletes or extends the dates on which it becomes inoperative and is repealed.  SEC. 5. Section 44957 of the Education Code is amended to read: 44957.  Any   A  probationary employee whose services have been terminated as provided in Section 44955 shall have the following rights: (a) For the period of 24 months from the date of  such   the  termination,  any   an  employee who in the meantime has not attained the age of 65 years shall have the preferred right to reappointment, subject to the prior rights to reappointment by all permanent employees as set forth in Section 44956, in the order of original employment as determined by the governing board  of the school district  in accordance with  the provisions of  Sections 44831 to 44855, inclusive, if the number of employees is increased or the discontinued service is reestablished, with no requirements that were not imposed upon other employees who continued in service. Except as otherwise provided,  no   a  probationary or temporary employee with less seniority shall  not  be employed to render a service  which such   that the  employee is certificated and competent to render and provided that  such an   the  employee shall be given a priority over employees whose right to a position is derived pursuant to Section 44918. However,  prior to   before  reappointing  any   an  employee to teach a subject  which   that  he or she has not previously taught, and for which he or she does not have a teaching credential or  which   that  is not within the employee's major area of postsecondary study or the equivalent thereof, the governing board  of the school district  shall require the employee to pass a subject matter competency test in the appropriate subject. (b) Notwithstanding subdivision (a), a school district may deviate from reappointing a probationary employee in order of seniority for either of the following reasons: (1) The  school  district demonstrates a specific need for personnel to teach a specific course or course of study, or to provide services authorized by a services credential with a specialization in either pupil personnel services or health for a school nurse, and that the employee has special training and experience necessary to teach that course or course of study, or to provide those services,  which   that  others with more seniority do not possess. (2) For purposes of maintaining or achieving compliance with constitutional requirements related to equal protection of the laws. (c) As to  any such   an  employee who is reappointed, the period of his  or her  absence shall be treated as a leave of absence and shall not be considered as a break in the continuity of his  or her  service, he  or she  shall retain the classification and order of employment he  or she  had when his  or her  services were terminated, and credit for prior service under any state or  school  district retirement system shall not be affected by  such   the  termination; provided, however, that the period of his  or her  absence shall not be counted as a part of the service required for attaining permanent status in the  school  district or, except as provided in subdivision (e), for retirement purposes. (d) During the period of his  or her  preferred right to reappointment,  any such   the  employee shall, in the order of original employment, and subject to the rights of permanent employees as set forth in Section 44956, be offered prior opportunity for substitute service during the absence of any other employee who has been granted leave of absence or who is temporarily absent from duty; provided, that his  or her services may be terminated upon a return to duty of  such   the  other employee, that such substitute service shall not affect the retention of his  or her  previous classification and rights, and that such an employee shall be given a priority over employees whose right to a substitute position is derived pursuant to Section 44918. (e) At any time  prior to   before  the completion of one year after his  or her  return to service, an employee reappointed under  the provisions of  this section may elect to continue or to reinstate his  or her  membership and interest in any state or  school  district retirement system and to receive retirement benefits as if no absence from service had occurred. In the event of  such   that  election the employee shall pay into the retirement system the amount of his  or her  share of contribution and the  school  district's share of contribution attributable to the period of absence and the amount of any contributions withdrawn, plus interest.  (f) This section shall become inoperative on July 1, 2018, and, as of January 1, 2019, is repealed, unless a later enacted statute, that becomes operative on or before January 1, 2019, deletes or extends the dates on which it becomes inoperative and is repealed.  SEC. 6. Section 44958 of the Education Code is amended to read: 44958.  (a)     (1)    If the services of  any   a  probationary employee are terminated, or if such employee is dismissed, because of a reduction in the attendance of pupils or the discontinuance of a particular kind of service, and  such  the employee is reemployed within a period of 39 months from the last day of the school year within which his  or her  service was so terminated, or within 39 months after the cessation of hostilities, if such reduction in attendance or discontinuance of service was due to war conditions, the period of his  or her  absence shall not count as a part of the service required as a condition precedent to the classification of such   the  employee as a permanent employee of the  school  district, but such absence shall not be construed as a break in the continuity of the service of  such   the  employee.  Every   (2)     Every  such probationary employee who has been reemployed as indicated in this section shall have all of the rights enumerated in Sections 44955 to 44961, inclusive, for permanent employees, except the right of reappointment, subject only to the prior rights of permanent employees.  The   (3)     The  provisions of this section shall apply to  any   a  probationary employee who shall be or who shall have been dismissed or terminated after January 1, 1949, because of reduction in attendance or discontinuance of a particular kind of service.  (b) This section shall become inoperative on July 1, 2018, and, as of January 1, 2019, is repealed, unless a later enacted statute, that becomes operative on or before January 1, 2019, deletes or extends the dates on which it becomes inoperative and is repealed.  SEC. 7. Section 44959 of the Education Code is amended to read: 44959.  As to any   (a)     A  permanent certificated employee whose services have been terminated because of the effect of wars in which the United States is engaged upon the attendance of pupils or upon the maintenance of a particular kind of service, the effective period covered by all rights enumerated in Section 44956 is extended until two years after the cessation of hostilities, and  in addition thereto for a like   for the same  period these employees shall have the following  additional  rights:  (a)   (1)  He or she may voluntarily accept termination of service in other than the order of original employment and retain all of the other rights  herein provided.   provided by this section.   (b)   (2)  If he or she is engaged in any form of civilian or military war service, any credential or certificate he or she holds is continued in full force and effect until 90 days after the termination of his or her  employment therein.   civilian or military war service.   (c)   (3)  If, either before or after such termination, he or she engages in any form of war service for which provision is made in Section 44800 or elsewhere in the laws of this state, he or she shall retain all rights granted by that war service legislation as though still employed. However, the right to reappointment shall be in the order of original employment, as determined in accordance with  the provisions of  Sections 44844 and 44845.  (b) This section shall become inoperative on July 1, 2018, and, as of January 1, 2019, is repealed, unless a later enacted statute, that becomes operative on or before January 1, 2019, deletes or extends the dates on which it becomes inoperative and is repealed.  SEC. 8. Section 44959.5 of the Education Code is amended to read: 44959.5. (a) The layoff provisions of Sections 44955, 44956, 44957,  44958   44958,  and 44959 shall not be applicable to probationary certificated employees who are covered by a collective agreement  which   that  contains provisions for the layoff and reassignment of  such   those  employees. (b) If layoff proceedings are commenced under procedures prescribed by any of the sections referred to in subdivision (a),  such   those  proceedings shall continue in accordance with the statutory procedures, notwithstanding the subsequent adoption of a collective agreement or the inclusion in the coverage thereof of employees not so covered at the time  such   those  proceedings commenced. (c) If layoff proceedings are commenced under a collective agreement  which   that  contains provisions for the layoff of probationary certificated employees,  such   those  proceedings shall continue in accordance with the agreement, notwithstanding the subsequent termination of the agreement. (d) This section shall only apply to a school district in which the average daily attendance is 400,000  pupils  or more and shall not be interpreted to apply to the termination of  any  a  probationary certificated employee pursuant to Section 44948 or Section 44949.  (e) This section shall become inoperative on July 1, 2018, and, as of January 1, 2019, is repealed, unless a later enacted statute, that becomes operative on or before January 1, 2019, deletes or extends the dates on which it becomes inoperative and is repealed.  SEC. 9. Section 45000 is added to the Education Code, to read: 45000. (a) By July 1, 2018, each governing board of a school district, in consultation with the exclusive representative of the certificated staff, if any, shall adopt policies regarding the dismissal of permanent and probationary employees when a reduction in workforce is required due to declining enrollment or insufficient funding to be used commencing with the 2018-19 school year. (b) Policies adopted pursuant to subdivision (a) shall include as a significant factor in determining the order of dismissal the evaluation rating of certificated employees pursuant to Section 44664. (c) A school district may deviate from using the evaluation rating of certificated employees as a significant factor in determining the order of dismissal of certificated employees if the school district demonstrates a specific need for personnel to teach a specific course or course of study, or to provide services authorized by a services credential with a specialization in either pupil personnel services or health for a school nurse, and that the certificated employee has special training and experience necessary to teach that course or course of study or to provide those services that others with higher evaluation ratings do not possess. (d) To the extent that the provisions of this section conflict with a provision of a collective bargaining agreement entered into by a public school employer and an exclusive bargaining representative before January 1, 2016, pursuant to Chapter 10.7 (commencing with Section 3540) of Division 4 of Title 1 of the Government Code, the provisions of this section shall not apply to the school district until expiration or renewal of that collective bargaining agreement. 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.