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AB-1044 School employees: reduction in workforce.(2015-2016)

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CALIFORNIA LEGISLATURE— 2015–2016 REGULAR SESSION

Assembly Bill
No. 1044


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   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.