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AB-506 School employees: leave of absence.(2007-2008)

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Amended  IN  Senate  July 02, 2008
Amended  IN  Senate  June 18, 2008
Amended  IN  Senate  June 05, 2008

CALIFORNIA LEGISLATURE— 2007–2008 REGULAR SESSION

Assembly Bill
No. 506

Introduced  by  Assembly Member Lieu

February 20, 2007

An act to amend Sections 44242.5 and Section 44940 of, and to add Section 44940.7 to, the Education Code, relating to school employees.


LEGISLATIVE COUNSEL'S DIGEST


AB 506, as amended, Lieu. School employees: transfer of certificated employees. leave of absence.
(1) Existing law specifies that various controlled substance and sex offenses are mandatory leave of absence offenses requiring that a certificated employee of a school district who is so charged be placed on compulsory leave of absence. Existing law requires the Commission on Teacher Credentialing to automatically suspend the teaching or service credential of an employee who is so charged until a time not more than 10 days after the date of entry of the judgment in the proceedings to which the charge is related.

This bill would require the governing board of a school district to transfer a certificated employee to nonclassroom duties that do not involve contact with pupils if there is reasonable suspicion that the employee is under investigation by a law enforcement agency for possible commission of a mandatory leave of absence offense. The bill would require that an employee who is transferred pursuant to this bill be paid his or her regular salary during the period he or she is performing nonclassroom duties. The bill would require the governing board to cause written notice of this transfer to be delivered to the Commission on Teacher Credentialing not more than 5 school days after the date that the transfer becomes effective. The bill would authorize the governing board to delegate specified duties under this bill to the superintendent of the school district or to another district officer.

The bill would require that, if and when a governing board of a school district determines that it is appropriate for an employee who has been transferred to nonclassroom duties pursuant to this bill placed on paid administrative leave to be returned to classroom duties, the governing board, meeting in a closed session, would make that determination, record the reason or reasons for that determination in a written notice, and cause that notice to be delivered to the employee and to the Commission on Teacher Credentialing no later than 5 school days after the date of the determination. The bill would prohibit the employee from being returned to classroom duties, placed on leave of absence, or suspended prior to his or her receipt of the notice required by the bill.

The bill would require the school district to notify the commission if a certificated employee who was the subject of an investigation of a mandatory leave of absence offense that is conducted by law enforcement or the governing board of a school district if the employee is transferred to another schoolsite. Upon being so notified, the commission would have jurisdiction to investigate the allegations of misconduct.

The bill also would authorize a law enforcement agency, if the agency has reason to believe reasonable suspicion that a certificated employee has committed an offense that would require the employing school district to place the employee on compulsory leave of absence, to report that information to the commission and the employing school district.
Because this bill would impose new duties on school districts, it would constitute a state-mandated local program.

(2)Existing law requires the Commission on Teacher Credentialing to appoint a Committee on Credentials and gives the committee jurisdiction to commence an initial review of an act or omission by the holder of a credential that may subject the holder to an adverse action. The committee may commence the initial review upon receipt 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, the holder of a credential has been dismissed, not reelected, or suspended for more than 10 days, has resigned, or has otherwise left employment.

This bill would give the committee jurisdiction to commence an initial review upon the receipt of a statement from an employer notifying the commission that the holder of a credential has been transferred following an investigation conducted because the holder has been charged with a mandatory leave of absence offense.

(3)

(2) 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   Local Program: YES  

The people of the State of California do enact as follows:


SECTION 1.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 another agency of this state or another state.

(B)For purposes of paragraph (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 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, the holder of a credential 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 or notifying the commission that the holder of a credential has been transferred following an investigation conducted pursuant to subdivision (f) of Section 44940 or Section 44940.7.

(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.

(4)A notice from an employer that a complaint was filed with the school district alleging sexual misconduct by the holder of a credential. 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.

(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.

(6)(A)An affirmative response on an application submitted to the commission as to a 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 holder of a credential 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 holder of a credential 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 a formal review conducted pursuant to Section 44244 to determine probable cause, shall permit the employer of the holder of a credential 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 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 holder of a credential pursuant to Section 44244.1, the commission shall initiate an adjudicatory hearing, as prescribed by Chapter 5 (commencing with Section 11500) 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 any state or federal court that reflect a conviction or plea, including a plea of nolo contendere, to any 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 the holder of a credential or applicant.

(B)Paragraph (A) does not 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 governmental licensing entity that reflect an administrative proceeding or investigation, otherwise authorized by law or regulation, which has become final.

(5)A notice described in paragraph (5) of subdivision (b).

(6)A response or failure to disclose, as described in paragraph (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, where adverse action is recommended by the committee and a request is made within one year from the date the committee makes a recommendation, to a school district providing verification that the holder of a credential has applied for employment in the 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. A 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 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. 2.SECTION 1.

 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” means charged by complaint, information, or indictment filed in a court of competent jurisdiction with the commission of a sex offense as defined in Section 44010, or with the commission of an 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 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” means a charge by complaint, information, or indictment filed in a court of competent jurisdiction with the commission of a controlled substance offense as defined in Section 44011 or 87011, or a violation or attempted violation of Section 187 of the Penal Code, or Sections 11357 to 11361, inclusive, Section 11363, 11364, or 11370.1 of the Health and Safety Code, insofar as these statutes relate to 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 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.
(2) Upon receiving a copy of a complaint, information, or indictment described in subdivision (a) and forwarded by a school district, the commission shall automatically suspend the teaching or service credential of the employee. 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 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 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.
(2) Upon receiving a copy of a complaint, information, or indictment described in subdivision (a) and forwarded by a school district, the commission shall automatically suspend the employee’s teaching or service credential of the employee . 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.
(f) If a law enforcement agency has reason to believe reasonable suspicion that a certificated employee has committed an offense that would require the employing school district to place the employee on compulsory leave of absence pursuant to this section, the law enforcement agency may report that information to the commission and the employing school district.

SEC. 3.SEC. 2.

 Section 44940.7 is added to the Education Code, to read:
44940.7.

(a)The governing board of a school district shall transfer a certificated employee to nonclassroom duties that do not involve contact with pupils if there is reasonable suspicion that the employee is under investigation by a law enforcement agency for possible commission of a mandatory leave of absence offense within the meaning of subdivision (a) of Section 44940. An employee who is transferred pursuant to this subdivision shall continue to be paid his or her regular salary during the period he or she is performing nonclassroom duties. The governing board of a school district shall cause written notice of a transfer made pursuant to this subdivision to be delivered to the commission not more than five school days after the date that the transfer becomes effective. The governing board may delegate its duties under this subdivision to the superintendent of the school district or to another district officer.

(b)

44940.7.
 If and when a governing board of a school district determines that it is appropriate for an employee who has been transferred to nonclassroom duties pursuant to this section placed on paid administrative leave to be returned to classroom duties, the governing board, meeting in a closed session pursuant to Section 54957 of the Government Code, shall make that determination, record the reason or reasons for that determination in a written notice, and cause that notice to be delivered to the employee and to the commission no later than five school days after the date of the determination. The employee shall not be returned to classroom duties, placed on leave of absence, or suspended prior to his or her receipt of the notice required by this subdivision.

(c)If a certificated employee who was the subject of an investigation of a mandatory leave of absence offense within the meaning of subdivision (a) of Section 44940 that is conducted by law enforcement or the governing board of a school district is transferred to another schoolsite because of the allegations of misconduct, the school district shall notify the commission, which shall have jurisdiction to investigate the allegations of misconduct pursuant to Section 44242.5.

SEC. 4.SEC. 3.

 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.