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AB-2084 School employees: discipline: suspension and dismissal.(2013-2014)

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CALIFORNIA LEGISLATURE— 2013–2014 REGULAR SESSION

Assembly Bill
No. 2084

Introduced by Assembly Member Jones

February 20, 2014

An act to add Article 3.5 (commencing with Section 44990) to Chapter 4 of Part 25 of Division 3 of Title 2 of the Education Code, relating to school employees.


LEGISLATIVE COUNSEL'S DIGEST


AB 2084, as introduced, Jones. School employees: discipline: suspension and dismissal.
(1) Existing law prohibits a permanent school employee from being dismissed except for one or more specified reasons. Existing law establishes a Commission on Professional Competence for each dismissal or suspension hearing requested by an employee, consisting of specified members, and deems the decision of the Commission on Professional Competence to be the final decision of the governing board of the school district.
This bill would, notwithstanding those provisions, define, among other things, the egregious conduct of school employees, and would revise numerous procedures for hearings of employees dismissed or suspended for a charge of egregious misconduct. The bill would, among other things, provide that such hearings shall be conducted solely by an administrative law judge, whose decision would be final. The bill would provide that the Office of Administrative Hearings shall give priority to any proceeding involving egregious misconduct. The bill would provide, if the final decision of the administrative law judge or charter school governing board is appealed to a court of competent jurisdiction, that the prevailing party on the appeal shall be entitled to an award of reasonable attorney fees and costs for the appeal.
(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, notwithstanding that prohibition authorize the governing board of a school district to give notice of a dismissal or suspension in a proceeding initiated pursuant to charges of egregious misconduct at any time during the calendar year.
(3) Existing law prohibits testimony from being given or evidence being introduced at the hearing relating to matters that occurred more than 4 years prior to the date of the filing of the notice of dismissal or suspension.
This bill would, notwithstanding that prohibition, provide, among other things, that there shall be no limitation in producing evidence reasonably relating to acts of egregious misconduct by a school employee, and that evidence of egregious misconduct shall not be excluded based on the passage of time.
(4) Existing law provides that information of a derogatory nature shall not be entered into an employee’s personnel records unless the employee is given an opportunity to review and comment on that information.
This bill would, notwithstanding that provision, prohibit an agreement that is amended, renewed, or entered into by a school district or charter school, or agent thereof, from authorizing or requiring the removal from school employees’ records any evidence of credible complaints, reprimands, punishments, substantiated investigations, or discipline relating to a school employee’s commission, or alleged commission, of an act of egregious misconduct, as specified.
(5) Existing law provides that a school employee shall continue to be paid his or her regular salary during the period of his or her compulsory leave of absence if and during that time he or she furnishes to the school district a suitable bond, or other security acceptable to the governing board, as provided.
This bill would, beginning 30 days after the school district or its authorized representative has served the school employee with written notice of the intent to dismiss for egregious misconduct through the date of the final decision to terminate the employee for egregious misconduct, authorize a school district to recover the equivalent of all payments paid to and on behalf of the school employee. The bill would prohibit such time and compensation from being used for purposes of any public retirement system. The bill would also make various findings and declarations.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: NO  

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


SECTION 1.

 This act shall be known and may be cited as the Stop Child Molesters, Sexual Abusers and Drug Dealers from Working in California Schools Act.
Stop Child Molesters, Sexual Abusers and Drug Dealers from Working in California Schools Act

SEC. 2.

 The Legislature finds and declares all of the following:
(a) California statutes do not enable school districts to expeditiously and permanently protect innocent students and staff from school employees who perpetrate acts of child molestation, sexual abuse, drug dealing, and other egregious misconduct.
(b) Any number of press reports of egregious misconduct against children and staff in California schools carried out by school employees is abhorrent and indicative that California schools are not safe from such perpetrators:
(1) In Los Angeles a third grade school employee abusing dozens of students ages 6 to 10, inclusive, including spoon-feeding semen and semen-laced cookies to blindfolded children, over a period of at least five school years.
(2) In San Clemente a middle school employee committing lewd acts, repeated sexual assault and oral copulation with students under the age of 14.
(3) In the Bay Area a third grade school employee sexually penetrating a child, performing lewd acts on a child and molesting students over a period of at least three school years; and, another school employee engaging in unlawful sexual intercourse with a minor under the age of 16, oral copulation of a person under 16 and performing lewd acts on a child.
(4) In the Silicon Valley a school employee selling crystal methamphetamine and date-rape drug GHB to undercover police.
(5) In Sacramento a school employee alleged to have sexually molested students not being dismissed but transferred to another school and the next school year committing child molestation and sexual battery on students.
(6) In the Central Valley a school employee disciplined for one week by one school district returning to work as a school substitute in another district and committing child molestation and lewd and lascivious acts with elementary students.
(7) In Simi Valley a school employee committing lewd acts and oral copulation with a student under the age of 14.
(8) In the Inland Empire prosecution of a school employee committing countless sexual offenses and abuse against a student brought to light two more victims of sexual offenses by the same school employee; and, a middle school employee packaging crystal methamphetamine for sale.
(9) In the High Desert a school employee committing child molestation, oral copulation and unlawful intercourse with a minor in the classroom.
(10) In San Diego a middle school employee of the year receiving and possessing child pornography, including explicit images of a 10-year-old girl, and possessing a computer and disks containing images of minors - many of them prepubescent - engaged in sexually explicit conduct.
(c) Most school districts do everything within their power to protect innocent students and staff from school employees who perpetrate acts of child molestation, sexual abuse, drug dealing and other egregious misconduct despite inadequate state laws.
(d) Current law includes loopholes for school employees perpetrating egregious misconduct to remain on the public payroll and earn continuing retirement credit for excessive time after having been charged in writing with committing egregious misconduct and being notified of a decision to terminate employment thereby increasing the dismissal costs to school districts and draining resources from schools and the children they serve.
(e) School employees perpetrating egregious misconduct in California have exploited loopholes to delay and conceal dismissal proceedings manipulating school districts to pay-off, reassign, enter into agreements to expunge evidence of egregious misconduct from district personnel files, and approve secret settlement agreements enabling the school employee to continue to perpetrate offenses in other schools and school districts, thereby infringing on the inalienable right of students and staff to attend public primary, elementary, junior high, and senior high school campuses which are safe, secure and peaceful as guaranteed by the Constitution of the State of California.
(f) Accordingly, the Legislatures declares that to secure the constitutional guarantee of students and staff to be safe and secure in their persons at public primary, elementary, junior high and senior high school campuses, school districts must have the appropriate statutory authority to expeditiously remove and permanently dismiss perpetrators of egregious misconduct without facing lengthy and costly litigation or creating incentives to transfer the school employee to another assignment, school or school district.

SEC. 3.

 Article 3.5 (commencing with Section 44990) is added to Chapter 4 of Part 25 of Division 3 of Title 2 of the Education Code, to read:
Article  3.5. Stop Child Molesters, Sexual Abusers and Drug Dealers from Working in California Schools Act

44990.
 As used in this part, the following terms have the following meanings:
(a) “Egregious misconduct” means conduct for which a school employee is subject to discipline or dismissal and that conduct is also reasonably related to any offense as described in Sections 44010 and 44011 of this code, and Sections 11165.2 to 11165.6, inclusive of the Penal Code, including but not limited to child molestation, sexual abuse of minors, sexual assault on minors or adults, and unlawful distribution of illicit or specified controlled substances.
(b) “School district” includes school district governing boards, county superintendent of schools and county boards of education.
(c) “School employee” includes but is not limited to any certificated or classified person whether or not providing services through an agreement with a school district, or charter school as specified in this part, and without regard to whether the person is permanent, probationary, temporary, substitute, full-time or part-time or whether the person is an employee or independent contractor.

44991.
 (a) Notwithstanding any other provision of law, a notice of dismissal or suspension in a proceeding initiated pursuant to charges of egregious misconduct of a school employee may be served at any time during the calendar year.
(b) Notwithstanding any other provision of law with respect to any required hearing on the suspension or dismissal of a school employee pursuant to charges of egregious misconduct:
(1) There shall be no limitation in producing evidence, including but not limited to declarations, testimony or depositions from victims or witnesses, reasonably relating to acts of egregious misconduct by a school employee.
(2) Evidence of egregious misconduct shall not be excluded based on the passage of time.
(3) There shall be no limitation on the amendment of written charges for suspension or dismissal of a school employee when the substance of the amendment is an allegation of egregious misconduct. To the extent that written charges are amended, the school employee shall be given a reasonable opportunity to respond to the amended charges.
(c) Notwithstanding any other provision of law, on or after the effective date of this part:
(1) No agreement that is amended, renewed, or entered into by a school district or charter school, or agent thereof, shall authorize or require the removal from school employees’ records any evidence of credible complaints, reprimands, punishments, substantiated investigations, or discipline relating to a school employees’ commission, or alleged commission, of an act of egregious misconduct, including but not limited to child molestation, sexual assault or abuse of a minor or adult, or the distribution of illicit drugs and other unlawful distribution of specified controlled substances. This prohibition does not preclude a provision in any agreement for the removal of documents containing unfounded, erroneous or false allegations from a school employees’ permanent personnel file upon a finding by the governing board by majority vote that the information was unfounded, erroneous or false, upon the order of an administrative law judge in a final decision of an adverse action or order of a court of competent jurisdiction as otherwise provided by law.
(2) No school district or charter school, or agent thereof, shall enter into an agreement that would prevent a report of any change in the employment status of a school employee alleged to have engaged in egregious misconduct, including but not limited to reporting to any local, state or federal law enforcement agency, or reports as mandated by Section 44030.5. Change in employment status includes, but is not limited to, dismissal, nonreelection, resignation, suspension or placement on administrative leave for more than 10 days as a final adverse action, retirement, or termination, a decision not to employ or reemploy.
(3) Mandatory reports of change of employment status of a school employee pursuant to Section 44030.5, when the misconduct included egregious misconduct, shall be subject to disclosure by the commission under the procedures of the California Public Records Act (Ch. 3.5 (commencing with Section 6250) of the Government Code). This paragraph does not authorize the release of personal directory information such as the address, telephone number, or email of the school employee nor does it alter the public disclosure requirements otherwise applicable to the commission
(d) Notwithstanding any other provision of law:
(1) Any required hearing that involves egregious misconduct by a school employee holding a certificate shall be conducted solely by an administrative law judge.
(2) The decision of the administrative law judge with regard to any required hearing conducted pursuant to paragraph (1) shall be the final decision regarding the discipline of the school employee.
(3) There shall be no restriction on a school district governing board in the physical placement or duties of a school employee during the pendency of a proceeding pursuant to paragraph (1).
(4) The final decision by the administrative law judge pursuant to paragraph (1) may, on petition of either the governing board of the school district or the school employee, be reviewed by a court of competent jurisdiction. The court, on review, shall exercise its independent judgment on the evidence. The proceeding shall be set for hearing at the earliest possible date and shall take precedence over other cases, except older matters of the same character and matters to which special precedence is given by law.
(e) Nothing in this section shall require a charter school governing board to follow state laws that do not otherwise apply to them, or infringe upon the authority of a charter school to utilize an expedited disciplinary procedure, including an alternative administrative procedure, for suspending or dismissing a certificated school employee for egregious misconduct.

44992.
 (a) The Office of Administrative Hearings shall give priority to any proceedings involving egregious misconduct by school employees.
(b) An administrative law judge shall only grant a continuance in a proceeding involving allegations of egregious misconduct by a school employee for good cause, and upon granting the continuance, if any, the administrative law judge shall establish a final timetable for the proceedings ensuring a reasonable time for the completion of the hearing.
(c) The Chief Administrative Law Judge of the Office of Administrative Hearings may prospectively prohibit an administrative law judge from hearing a proceeding involving egregious misconduct by a school employee if the chief believes there has been undue delay or excessive granting of continuances caused by the administrative law judge previously hearing such proceedings.

44993.
 (a) If the final decision is that employment of a school employee is terminated for reason of egregious misconduct, the school district may recover the equivalent of all payments paid to and on behalf of the school employee beginning 30 days after the school district or its authorized representative has served the school employee with written notice of the intent to dismiss for egregious misconduct through the date of the final decision in the disciplinary proceedings.
(b) Subdivision (a) shall only be operative in a school district if that school district governing board adopts a resolution at a duly noticed public hearing that it intends to exercise the authority pursuant to subdivision (a) with respect to termination of specified school employees and notifies all classes of affected school employees in writing, and a written copy of the resolution is incorporated into the school district’s written notice to a school employee of its intent to dismiss for the reason of egregious misconduct.
(c) A school district may notify the Franchise Tax Board for purposes of taking appropriate action to recover the equivalent of the payments specified in subdivision (a) when a final decision is termination for the reason of egregious misconduct. The Franchise Tax Board may seek reimbursement for costs from the school district for any costs incurred in assisting the district recover payments pursuant to this subdivision.
(d) The time period beginning 30 days after service of a written notice of the intent to dismiss for the reason of egregious misconduct through the date of the final decision of disciplinary proceedings ultimately dismissing a school employee for the reason of egregious misconduct shall not constitute creditable service for purposes of any public retirement system.
(e) Payments made to a school employee during the time period beginning 30 days after service of a written notice of the intent to dismiss for the reason of egregious misconduct through the date of the final decision of disciplinary proceedings ultimately dismissing a school employee for the reason of egregious misconduct shall not constitute creditable compensation for purposes of any public retirement system.

44994.
 If the final decision of the administrative law judge or charter school governing board in any proceeding addressing allegations of egregious misconduct by a school employee is appealed to a court of competent jurisdiction, the prevailing party on the appeal shall be entitled to an award of reasonable attorney fees and costs for the appeal. The court in rendering its decision on the appeal shall determine the award of attorney fees and costs to the prevailing party.

44995.
 In addition to any other discipline or punishment provided by law, any school employee who alleges that another school employee has engaged in egregious misconduct knowing at the time of making the allegation that the allegation was false shall be subject to certificate revocation, if applicable.