Today's Law As Amended

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AB-1221 School employees: discipline: suspension and dismissal.(2013-2014)



SECTION 1.

 Section 44932 of the Education Code is amended to read:

44932.
 (a) A permanent employee shall not be dismissed except for one or more of the following causes:
(1) Immoral conduct, including, but not limited to, egregious misconduct. For purposes of this chapter, “egregious misconduct” is defined exclusively as immoral conduct that is the basis for an offense described in Section 44010 or 44011 of this code, or in Sections 11165.2 to 11165.6, inclusive, of the Penal Code. conduct or unprofessional conduct. 
(2) Unprofessional conduct. Serious or egregious unprofessional conduct as defined in Section 44939. 
(3) Commission, aiding, or advocating the commission of acts of criminal syndicalism, as prohibited by Chapter 188 of the Statutes of 1919, or in any amendment to that chapter. thereof. 
(4) Dishonesty.
(5)   Unsatisfactory performance.
(6) Evident unfitness for service.
(7) Physical or mental condition unfitting him or her to instruct or associate with children.
(8) Persistent violation of or refusal to obey the school laws of the state or reasonable regulations prescribed for the government of the public schools by the state board or by the governing board of the school district employing him or her.
(9) Conviction of a felony or of any a  crime involving moral turpitude.
(10) Violation of Section 51530 or conduct specified in Section 1028 of the Government Code, added by Chapter 1418 of the Statutes of 1947.
(11) Knowing membership by the employee in the Communist Party.
(11) (12)  Alcoholism or other drug abuse that makes the employee unfit to instruct or associate with children.
(b) The governing board of a school district may suspend without pay for a specific period of time on grounds of unprofessional conduct a permanent certificated employee or, in a school district with an average daily attendance of less than 250 pupils, a probationary employee, pursuant to the procedures specified in Sections 44933, 44934, 44934.1,  44935, 44936, 44937, 44943, and 44944. This authorization does shall  not apply to a school district that has adopted a collective bargaining agreement pursuant to subdivision (b) of Section 3543.2 of the Government Code.

SEC. 2.

 Section 44932.5 is added to the Education Code, to read:

44932.5.
 A collective bargaining agreement entered into or renewed on or after January 1, 2015, shall not require the removal from an employee’s record, after a specified time period, of records pertaining to discipline, complaints, reprimands, or investigations relating to the employee’s commission, or potential commission, of any conduct listed in Section 44932.

SEC. 2.SEC. 3.

 Section 44936 of the Education Code is amended to read:

44936.
 (a) The notice of dismissal or suspension in a proceeding initiated pursuant to Section 44934 or 44934.1 may be given at any time of year.
(b) Notwithstanding subdivision (a), the notice of dismissal or suspension in a proceeding involving only charges of unsatisfactory performance initiated pursuant to Section 44934 shall only be given during the instructional year of the schoolsite where the employee is physically employed. However, a notice of dismissal or suspension in a proceeding involving charges of unsatisfactory performance may be initiated pursuant to paragraph (2) of subdivision (b) of Section 44938.
(c)  The notice of dismissal or suspension given during the instructional year of the schoolsite where the employee is physically employed  in a proceeding initiated pursuant to Section 44934  shall be in writing and be served upon the employee personally or by United States registered mail addressed to him or her at his or her  the employee at the employee’s  last known address. A copy of the charges filed, containing the information required by Section 11503 of the Government Code, together with a copy of the provisions of this article, shall be attached to the notice.
(d) A notice of dismissal or suspension given outside of the instructional year of the schoolsite where the employee is physically employed shall be in writing and shall be served upon the employee personally. A copy of the charges filed, containing the information required pursuant to Section 11503 of the Government Code, together with a copy of the provisions of this article, shall be attached to the notice.

SEC. 3.SEC. 4.

 Section 44938 of the Education Code is amended to read:

44938.
 (a) The governing board of any school district shall not act upon any charges of unprofessional conduct unless at least 45 calendar days prior to the date of the filing, the  the governing  board or its authorized representative has given the employee against whom the charge is filed, filed  written notice of the unprofessional conduct, specifying the nature thereof with such  of the unprofessional conduct with  specific instances of behavior and with such  particularity as to furnish the employee an opportunity to correct his or her faults and overcome the grounds for the charge. The written notice shall include the evaluation made pursuant to Article 11 (commencing with Section 44660) of Chapter 3, if applicable to the employee.
(b) The governing board of any school district shall not act upon any charges of unsatisfactory performance unless it acts in accordance with the provisions of paragraph (1) or (2):
(1) At least 90 calendar days prior to the date of the filing, the  The governing  board or its authorized representative has given the employee against whom the charge is filed, written notice of the unsatisfactory performance, specifying the nature thereof with such  of the unsatisfactory performance with  specific instances of behavior and with such  particularity as to furnish the employee an opportunity to correct his or her faults and overcome the grounds for the charge. The written notice shall include the evaluation made pursuant to Article 11 (commencing with Section 44660) of Chapter 3, if applicable to the employee.
(2) The governing board may act during the time period composed of the last one-fourth of the schooldays it has scheduled for purposes of computing apportionments in any fiscal year if, prior to  before  the beginning of that time period, the governing  board or its authorized representative has given the employee against whom the charge is filed, filed  written notice of the unsatisfactory performance, specifying the nature thereof with such  of the unsatisfactory performance with  specific instances of behavior and with such  particularity as to furnish the employee an opportunity to correct his or her faults and overcome the grounds for the charge. The written notice shall include the evaluation made pursuant to Article 11 (commencing with Section 44660) of Chapter 3, if applicable to the employee.
(c) “Unsatisfactory (1)   performance” “Unprofessional conduct”  as used in this section means, and refers only  to, the unsatisfactory performance unprofessional conduct  particularly specified as a cause for dismissal or suspension  in Section 44932 and  Sections 44932 and 44933, other than serious or egregious unprofessional conduct, and  does not include any other cause for dismissal specified in Section 44932.
“Unprofessional (2)   conduct” “Unsatisfactory performance”  as used in this section means, and refers only  to, the unprofessional conduct unsatisfactory performance  particularly specified as a cause for dismissal or suspension  in Sections Section  44932 and 44933 and  does not include any other cause for dismissal specified in Section 44932.

SEC. 5.

 Section 44939 of the Education Code is amended to read:

44939.
 (a) This section applies only to dismissal or suspension proceedings initiated pursuant to Section 44934.
(b) (a)  Upon the filing of written charges, duly signed and verified by the person filing them with the governing board of a school district, or upon a written statement of charges formulated by the governing board of a school district,  board,  charging a permanent employee of the school  district with serious or egregious unprofessional conduct,  immoral conduct, conviction of a felony or of any crime involving moral turpitude, with incompetency due to mental disability, with willful refusal to perform regular assignments without reasonable cause, as prescribed by reasonable rules and regulations of the employing school district, or  with violation of Section 51530, the governing board of the school district  with knowing membership by the employee in the Communist Party or with violation of any provision in Sections 7001 to 7007, inclusive, the governing board  may, if it deems that such  action necessary, immediately suspend the employee from his or her  duties and give notice to him or her  of his or her  suspension, and that 30 days after service of the notice of dismissal, he or she  notice, he  will be dismissed, unless he or she  demands a hearing. If the permanent employee is suspended upon charges of knowing membership by the employee in the Communist Party or for any violation of Section 7001, 7002, 7003, 7006, 7007, or 51530, he may within 10 days after service upon him of notice of such suspension file with the governing board a verified denial, in writing, of the charges. In such event the permanent employee who demands a hearing within the 30-day period shall continue to be paid his regular salary during the period of suspension and until the entry of the decision of the Commission on Professional Competence, if and during such time as he furnishes to the school district a suitable bond, or other security acceptable to the governing board, as a guarantee that the employee will repay to the school district the amount of salary so paid to him during the period of suspension in case the decision of the Commission on Professional Competence is that he shall be dismissed. If it is determined that the employee may not be dismissed, the school board shall reimburse the employee for the cost of the bond. 
(c) (1) An employee who has been placed on suspension pursuant to this section may serve and file with the Office of Administrative Hearings a motion for immediate reversal of suspension. Review of a motion filed pursuant to this section shall be limited to a determination as to whether the facts as alleged in the statement of charges, if true, are sufficient to constitute a basis for immediate suspension under this section. The motion shall include a memorandum of points and authorities setting forth law and argument supporting the employee’s contention that the statement of charges does not set forth a sufficient basis for immediate suspension.
(2) The motion shall be served upon the governing board of the school district and filed with the Office of Administrative Hearings within 30 days after service upon the employee of the initial pleading in the matter. The governing board of the school district has the right to serve and file a written response to the motion before or at the time of hearing.
(3) The hearing on the motion for immediate reversal of suspension shall be held no later than 30 days after the motion is filed with the Office of Administrative Hearings.
(4) The administrative law judge shall, no later than 15 days after the hearing, issue an order denying or granting the motion. The order shall be in writing, and a copy of the order shall be served by the Office of Administrative Hearings upon the parties. The grant or denial of the motion shall be without prejudice to consideration by the Commission on Professional Competence, based upon the full evidentiary record before it, of the validity of the grounds for dismissal. The ruling shall not be considered by the commission in determining the validity of the grounds for dismissal, and shall not have any bearing on the commission’s determination regarding the grounds for dismissal.
(5) An order granting a motion for immediate reversal of suspension shall become effective within five days of service of the order. The school district shall make the employee whole for any lost wages, benefits, and compensation within 14 days after service of an order granting the motion.
(6) A motion made pursuant to this section shall be the exclusive means of obtaining interlocutory review of suspension pending dismissal. The grant or denial of the motion is not subject to interlocutory judicial review.
(d) (b)  A motion for immediate reversal of suspension pursuant to this section does not affect the authority of a governing board of a school district to determine the physical placement and assignment of an employee who is suspended or placed on administrative leave during the review of the motion or while dismissal charges are pending. As used in this article, “serious or egregious unprofessional conduct” means misconduct 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. 

SEC. 6.

 Section 44944 of the Education Code is amended to read:

44944.
 (a) This section applies only to dismissal or suspension proceedings initiated pursuant to Section 44934.
(b) (1) (A) In a dismissal or suspension proceeding initiated pursuant to Section 44934, if a hearing is requested by the employee, the hearing shall be commenced within six months from the date of the employee’s demand for a hearing. A continuance shall not extend the date for the commencement of the hearing more than six months from the date of the employee’s request for a hearing, except for extraordinary circumstances, as determined by the administrative law judge. If extraordinary circumstances are found that extend the date for the commencement of the hearing, the deadline for concluding the hearing and closing the record pursuant to this subdivision shall be extended for a period of time equal to the continuance. The hearing date shall be established after consultation with the employee and the governing board of the school district, or their representatives, except that if the parties are not able to reach an agreement on a date, the Office of Administrative Hearings shall unilaterally set a date in compliance with this section. The hearing shall be completed by a closing of the record within seven months of the date of the employee’s demand for a hearing. A continuance shall not extend the date for the close of the record more than seven months from the date of the employee’s request for a hearing, except for good cause, as determined by the administrative law judge.
(B) (a)  If (1)   substantial progress has been made in completing the previously scheduled days of the hearing within the seven-month period but the hearing cannot be completed, for good cause shown, within the seven-month period, the period for completing the hearing may be extended by the presiding administrative law judge. If the administrative law judge grants a continuance under this subparagraph, he or she shall establish a reasonable timetable for the completion of the hearing and the closing of the record.  In a dismissal or suspension proceeding initiated pursuant to Section 44934, if a hearing is requested by the employee, the hearing shall be commenced within 60 days from the date of the employee’s demand for a hearing.  The hearing shall be initiated and  initiated,  conducted, and a decision made, made  in accordance with Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of Title 2 of the Government Code, and the  Code. The hearing date shall be established after consultation with the employee and the governing board, or their representatives. Except as specified in subdivision (c), the  Commission on Professional Competence shall have all of the power granted to an agency pursuant to  in  that chapter, except as described in this article. that the right of discovery of the parties shall not be limited to those matters set forth in Section 11507.6 of the Government Code but shall include the rights and duties of any party in a civil action brought in a superior court under Title 4 (commencing with Section 2016.010) of Part 4 of the Code of Civil Procedure. Notwithstanding any provision to the contrary, and except for the taking of oral depositions, no discovery shall occur later than 30 calendar days after the employee is served with a copy of the accusation pursuant to Section 11505 of the Government Code. In all cases, discovery shall be completed prior to seven calendar days before the date upon which the hearing commences. If any continuance is granted pursuant to Section 11524 of the Government Code, the time limitation for commencement of the hearing as provided in this subdivision shall be extended for a period of time equal to the continuance. However, the extension shall not include that period of time attributable to an unlawful refusal by either party to allow the discovery provided for in this section. 
(2) (A) If  A witness shall not be permitted to testify at the hearing except upon oath or affirmation. Testimony shall not be given or evidence shall not be introduced relating to matters that occurred more than four years before the date of the filing of the notice, except in one of the following circumstances:  the right of discovery granted under paragraph (1) is denied by either the employee or the governing board, all of the remedies in Chapter 7 (commencing with Section 2023.010) of Title 4 of Part 4 of the Code of Civil Procedure shall be available to the party seeking discovery and the court of proper jurisdiction, to entertain his or her motion, shall be the superior court of the county in which the hearing will be held. 
(i) (3)  Testimony or evidence regarding allegations of behavior or communication of a sexual nature with a pupil that is beyond the scope or requirements of the educational program, which may constitute misconduct, or an act described in Section 212.5, but not amounting to conduct described in clause (ii), may be introduced in a disciplinary proceeding based on similar conduct, where such allegations have been substantiated through an investigation or proceeding, or for which the employee was subject to discipline or other form of penalty. The time periods in this section and of Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of Title 2 of the Government Code and of Title 4 (commencing with Section 2016.010) of Part 4 of the Code of Civil Procedure shall not be applied so as to deny discovery in a hearing conducted pursuant to this section. 
(ii) (4)  Testimony or evidence regarding allegations of an act described in Section 288 of the Penal Code with respect to a pupil of any age, Section 288.3 of the Penal Code, Section 44010 of this code, or Sections 11165.2 to 11165.6, inclusive, of the Penal Code may be introduced in any disciplinary proceeding. The superior court of the county in which the hearing will be held may, upon motion of the party seeking discovery, suspend the hearing so as to comply with the requirement of paragraph (3). 
(B) (5)  No witness shall be permitted to testify at the hearing except upon oath or affirmation. No testimony shall be given or evidence introduced relating to matters that occurred more than four years prior to the date of the filing of the notice.  Evidence of records regularly kept by the governing board of the school district  concerning the employee may be introduced, but no decision relating to the dismissal or suspension of an any  employee shall be made based on charges or evidence of any nature relating to matters occurring more than four years before  prior to  the filing of the notice, except as allowed pursuant to subparagraph (A). notice. 
(c) (1) The hearing provided for in this section shall be conducted by a Commission on Professional Competence, unless the parties submit a statement in writing to the Office of Administrative Hearings, indicating that both parties waive the right to convene a Commission on Professional Competence and stipulate to having the hearing conducted by a single administrative law judge. If the parties elect to waive a hearing before the Commission on Professional Competence, the hearing shall be initiated and conducted, and a decision made, in accordance with Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of Title 2 of the Government Code, and the administrative law judge conducting the hearing shall have all the powers granted to a Commission on Professional Competence pursuant to that chapter, except as described in this article.
(2) If the parties elect not to waive a hearing before a Commission on Professional Competence, one member of the commission shall be selected by the employee, one member shall be selected by the governing board of the school district, and one member shall be an administrative law judge of the Office of Administrative Hearings who shall be chairperson and a voting member of the commission and shall be responsible for assuring that the legal rights of the parties are protected at the hearing.
(3) (b)  The (1)   governing board of the school district and the employee shall select  Except as specified in subdivision (c), the hearing provided for in this section shall be conducted by a  Commission on Professional Competence members no later than 45 days before the date set for hearing, and shall serve notice of their selection upon all other parties and upon  Competence. One member of the commission shall be selected by the employee, one member shall be selected by the governing board, and one member shall be an administrative law judge of  the Office of Administrative Hearings. Failure to meet this deadline  Hearings who shall be chairperson and a voting member of the commission and shall be responsible for assuring that the legal rights of the parties are protected at the hearing. If either the governing board or the employee for any reason fails to select a commission member at least seven calendar days prior to the date of the hearing, the failure  shall constitute a waiver of the right to selection, and the county board of education or its specific designee shall immediately make the selection. If the county board of education is also the governing board of the school district or has by statute been granted the powers of a governing board, the selection shall be made by the Superintendent, who shall be reimbursed by the school district for all costs incident to the selection.
(4) Any party who believes that a selected Commission on Professional Competence member is not qualified may file an objection, including a statement describing the basis for the objection, with the Office of Administrative Hearings and serve the objection and statement upon all other parties within 10 days of the date that the notice of selection is filed. Within seven days after the filing of any objection, the administrative law judge assigned to the matter shall rule on the objection or convene a teleconference with the parties for argument.
(5) (2)  (A)  The member selected by the governing board of the school district  and the member selected by the employee shall not be related to the employee and shall not be employees of the school  district initiating the dismissal or suspension. Each member  suspension and  shall hold a currently valid credential and have at least three five  years’ experience within the past 10 years in the discipline of the employee.
(B) For purposes of this paragraph, the following terms have the following meanings:
(i) For an employee subject to dismissal whose most recent teaching assignment is in kindergarten or any of the grades 1 to 6, inclusive, “discipline” means a teaching assignment in kindergarten or any of the grades 1 to 6, inclusive.
(ii) For an employee subject to dismissal whose most recent assignment requires an education specialist credential or a services credential, “discipline” means an assignment that requires an education specialist credential or a services credential, respectively.
(iii) For an employee subject to dismissal whose most recent teaching assignment is in any of the grades 7 to 12, inclusive, “discipline” means a teaching assignment in any of grades 7 to 12, inclusive, in the same area of study, as that term is used in Section 51220, as the most recent teaching assignment of the employee subject to dismissal.
(d) (3)  (1)  The decision of the Commission on Professional Competence shall be made by a majority vote, and the commission shall prepare a written decision containing findings of fact, determinations of issues, and a disposition that shall be, solely, one of the following:
(A) That the employee should be dismissed.
(B) That the employee should be suspended for a specific period of time without pay.
(C) That the employee should not be dismissed or suspended.
(2) (4)  The decision of the Commission on Professional Competence that the employee should not be dismissed or suspended shall not be based on nonsubstantive procedural errors committed by the school district or governing board of the school district  unless the errors are prejudicial errors.
(3) (5)  The Commission on Professional Competence  commission  shall not have the power to dispose of the charge of dismissal by imposing probation or other alternative sanctions. The imposition of suspension pursuant to subparagraph (B) of paragraph (1) (3)  shall be available only in a suspension proceeding authorized pursuant to subdivision (b) of Section 44932 or Section 44933.
(4) (6)  The decision of the Commission on Professional Competence shall be deemed to be the final decision of the governing board of the school district. board. 
(5) The governing board of the school district may adopt from time to time rules and procedures not inconsistent with this section as may be necessary to effectuate this section.
(6) The governing board of the school district and the employee shall have the right to be represented by counsel.
(e) (7)  (1)  If the member selected by the governing board of the school district  or the member selected by the employee is employed by any school district in this state, the member shall, during any service on a Commission on Professional Competence, continue to receive salary, fringe benefits, accumulated sick leave, and other leaves and benefits from the school  district in which the member is employed, but shall not  receive no  additional compensation or honorariums for service on the commission.
(2) If the member selected is a retired employee, the member shall receive pay at the daily substitute teacher rate in the school district that is a party to the hearing. Service on a Commission on Professional Competence shall not be credited toward retirement benefits.
(3) (8)  If service on a Commission on Professional Competence occurs during summer recess or vacation periods, the member shall receive compensation proportionate to that received during the current or immediately preceding contract period from the member’s employing school  district, whichever amount is greater.
(f) (9)  (1)  If the Commission on Professional Competence determines that the employee should be dismissed or suspended, the governing board of the school district  and the state employee  shall share equally the expenses of the hearing, including the cost of the administrative law judge. The state shall pay any costs incurred under paragraphs (2) and (3) of subdivision (e),  paragraph (8);  the reasonable expenses, as determined by the administrative law judge, of the member selected by the governing board of the school district  and the member selected by the employee, including, but not limited to, payments or obligations incurred for travel, meals, and lodging, lodging;  and the cost of the substitute or substitutes, if any, for the member selected by the governing board of the school district  and the member selected by the employee. The Controller shall pay all claims submitted pursuant to this paragraph from the General Fund, and may prescribe reasonable rules, regulations, and forms for the submission of the claims. The employee and the governing board of the school district  shall pay their own attorney’s fees.
(2) (10)  If the Commission on Professional Competence determines that the employee should not be dismissed or suspended, the governing board of the school district  shall pay the expenses of the hearing, including the cost of the administrative law judge, judge;  any costs incurred under paragraphs (2) and (3) of subdivision (e),  paragraph (8);  the reasonable expenses, as determined by the administrative law judge, of the member selected by the governing board of the school district  and the member selected by the employee, including, but not limited to, payments or obligations incurred for travel, meals, and lodging, lodging;  the cost of the substitute or substitutes, if any, for the member selected by the governing board of the school district  and the member selected by the employee, employee;  and reasonable attorney’s fees incurred by the employee.
(3) (11)  As used in this section, subdivision,  “reasonable expenses” shall not be deemed “compensation” within the meaning of subdivision (e). paragraph (7) or (8). 
(4) (12)  If either the governing board of the school district  or the employee petitions a court of competent jurisdiction for review of the decision of the Commission on Professional Competence,  commission,  the payment of expenses to members of the commission required by this subdivision shall not be stayed.
(5) (13)  If the decision of the Commission on Professional Competence is  commission is finally  reversed or vacated by a court of competent jurisdiction, either the state, having paid the commission members’ expenses, shall be entitled to reimbursement from the governing board of the school district  for those expenses, or the governing board of the school district,  board,  having paid the expenses, shall be entitled to reimbursement from the state. If either the governing board of the school district or the employee petitions a court of competent jurisdiction for review of the decision to overturn the administrative law judge’s decision, the payment of the expenses of the hearing, including the cost of the administrative law judge required by this paragraph, shall be stayed until no further appeal is sought, or all appeals are exhausted. 
state. Additionally, either the employee, having paid a portion of the expenses of the hearing, including the cost of the administrative law judge, shall be entitled to reimbursement from the governing board for the expenses, or the governing board, having paid its portion and the employee’s portion of the expenses of the hearing, including the cost of the administrative law judge, shall be entitled to reimbursement from the employee for that portion of the expenses.
(g) (14)  The hearing provided for in this section subdivision  shall be conducted in a place selected by agreement among the members of the Commission on Professional Competence.  commission.  In the absence of agreement, the place shall be selected by the administrative law judge.
(c) (1) A hearing provided for in this section that is requested by an employee who is charge with serious or egregious unprofessional conduct, as defined in subdivision (c) of Section 44939, shall be conducted solely by an administrative law judge of the Office of Administrative Hearings.
(2) The decision of the administrative law judge shall be advisory, and the final decision regarding the discipline of the employee shall be made by action of the governing board of the school district. The governing board shall, before making its final decision, allow the employee to submit a written statement or response or, at the election of the governing board, an oral statement concerning the disciplinary action, and shall only consider the record produced during the hearing conducted by the administrative law judge. The governing board’s final decision shall be subject to review and appeal pursuant to Section 1094.5 of the Code of Civil Procedure.
(3) A hearing conducted pursuant to this subdivision shall be conducted in a place selected by the administrative law judge.
(d) The governing board of a school district may adopt rules and procedures consistent with this section as may be necessary to effectuate this section.
(e) The governing board of a school district and the employee shall have the right to be represented by counsel.
SEC. 7.
 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.