Today's Law As Amended


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SB-843 School employees: discipline: dismissal and suspension.(2013-2014)



As Amends the Law Today


SECTION 1.

 Section 44030.5 of the Education Code is amended to read:

44030.5.
 (a) The superintendent of a school district or county office of education, or the administrator of a charter school, employing a person with a credential shall report any change in the employment status of the credentialholder to the commission not later than 30 days after the change in employment status, if the credentialholder, while working in a position requiring a credential, and as a result of an allegation of misconduct or while an allegation of misconduct is pending, is dismissed, is nonreelected, resigns, is suspended or placed on unpaid administrative leave for more than 10 days as a final adverse action, retires, or is otherwise terminated by a decision not to employ or reemploy.
(b) For purposes of subdivision (a), a change of employment status due solely to unsatisfactory performance pursuant to paragraph (4) (6)  of subdivision (a) of Section 44932 or a reduction in force pursuant to Sections 44955 to 44958, inclusive, is not a result of an allegation of misconduct.
(c) The failure to make the report required by subdivision (a) is unprofessional conduct and may subject the superintendent of the school district or county office of education, or the administrator of a charter school, to adverse action by the commission.
(d) (1) Notwithstanding Section 44030, refusing or willfully neglecting to make the report required by subdivision (a) is a misdemeanor, punishable by a fine of not less than five hundred dollars ($500) or more than one thousand dollars ($1,000).
(2) All fines imposed pursuant to this subdivision are the personal responsibility of the superintendent of the school district or county office of education, or the administrator of a charter school, and may not be paid or reimbursed with public funds.

SEC. 2.

 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 any other agency of this state or another state.
(B) For purposes of subparagraph (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 a 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 an allegation of misconduct, or while an allegation of misconduct is pending, a credentialholder 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.
(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.
(C) For purposes of subparagraphs (A) and (B), a change in status due solely to unsatisfactory performance pursuant to paragraph (4) (6)  of subdivision (a) of Section 44932 or a reduction in force pursuant to Sections 44955 to 44958, inclusive, is not a result of an allegation of misconduct.
(4) A notice from an employer that a complaint was filed with the school district alleging sexual misconduct by a credentialholder. 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 any 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 credentialholder 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 credentialholder 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 any formal review conducted pursuant to Section 44244 to determine probable cause, shall permit the employer of the credentialholder 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 any 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 credentialholder pursuant to Section 44244.1, the commission shall initiate an adjudicatory hearing, as prescribed by Chapter 5 (commencing with Section 11500) of Part 1 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 a state or federal court that reflect a conviction or plea, including a plea of nolo contendere, to a 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 a credentialholder or applicant.
(B) Nothing in subparagraph (A) shall be construed to 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, if adverse action is recommended by the committee and the credentialholder has not filed a timely appeal of the recommendation of the committee pursuant to Section 44244.1, upon a request made within five years of the date of the committee’s recommendations to a school district providing verification that the credentialholder has applied for employment in the school 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. Any 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 any 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. 3.

 Section 44930 of the Education Code is amended to read:

44930.
 (a) Governing boards of school districts Subject to Section 44930.5, the governing board of a school district  shall accept the resignation of any employee and shall fix the time when the resignation takes effect, which, except as provided by subdivision (b), shall not be later than the close of the school year during which the resignation has been received by the board. governing board of the school district. 
(b) Notwithstanding any other provision of law,  law, but subject to Section 44930.5,  an employee and the governing board of a school district may agree that a resignation will be accepted at a mutually agreed upon date not later than two years beyond the close of the school year during which the resignation is received by the board. governing board of the school district. 

SEC. 4.

 Section 44930.5 is added to the Education Code, to read:

44930.5.
 Notwithstanding any other law, on or after January 1, 2015, the governing board of a school district or its authorized representative shall not amend, renew, or enter into an agreement that does either of the following:
(a) Requires the removal from a school employee’s records of any evidence of credible complaints, substantiated investigations, or discipline relating to the school employee’s commission of, or alleged commission of, conduct described in paragraphs (1), (3), and (10) of Section 44932. This prohibition does not preclude the removal of documents containing unfounded, erroneous, or false allegations from a school employee’s permanent personnel file, as otherwise required by law.
(b) Prevents an employee of the school district from complying with the requirements of Section 44947 or prevents an employee of the school district from sending to the Commission on Teacher Credentialing a report, including, but not limited to, a report mandated by Section 44030.5, of any change in employment status of a school district employee alleged to have engaged in conduct described in paragraph (1), (3), or (10) of Section 44932. For purposes of this section, a 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 by a decision not to employ or reemploy.

SEC. 5.

 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. 
(2) Unprofessional conduct.
(3) Egregious conduct as specified in subdivision (b).
(3) (4)  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.
(4) (5)  Dishonesty.
(5) (6)    Unsatisfactory performance.
(6) (7)  Evident unfitness for service.
(7) (8)  Physical or mental condition unfitting him or her to instruct or associate with children.
(8) (9)  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) (10)  Conviction of a felony or of any 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) Alcoholism or other drug abuse that which  makes the employee unfit to instruct or associate with children.
(b) For purposes of this section, “egregious conduct” means any of the following:
(1) Any offense defined in Section 44010 or 44011.
(2) Any offense defined in Section 187 or 206 of, or Sections 11165.1 to 11165.6, inclusive, of, the Penal Code.
(3) Any offense under state or federal law that is punishable by death or life imprisonment without the possibility of parole.
(b) (c)  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. 7.SEC. 6.

 Section 44934 of the Education Code is amended to read:

44934.
 (a) This section shall apply to dismissal or suspension proceedings based on charges as specified in Section 44932 or 44933, including proceedings based on charges of egregious misconduct in combination with other charges. Section 44934.1 shall apply to dismissal or suspension proceedings based solely on charges of egregious misconduct described in paragraph (1) of subdivision (a) of Section 44932.
(b) (a)  Upon the filing of written charges, duly signed and verified by the person filing them, with the governing board of the a  school district, or upon a written statement of charges formulated by the governing board of the a  school district, charging that there exists cause, as specified in Section 44932 or 44933, for the dismissal or suspension of a permanent employee of the school  district, the governing board of the school district may, upon majority vote, except as provided in this article if it deems the action necessary, give notice to the permanent employee of its intention to dismiss him  or her or  suspend him or her at the expiration of 30 days from the date of service of the notice, unless the employee demands a hearing as provided in this article. Suspension proceedings  Proceedings for suspensions  may be initiated pursuant to this section only if the governing board of the school district has not adopted a collective bargaining agreement pursuant to subdivision (b) of Section 3543.2 of the Government Code.
(c) (b)  Any written statement of charges shall specify instances of behavior and the acts or omissions constituting the charge so that the employee teacher  will be able to prepare his or her defense. It shall, where applicable, state the statutes and rules that the employee teacher  is alleged to have violated, and it shall also set forth the facts relevant to each charge. violated. 
(d) If the governing board of the school district has given notice to a certificated employee of its intention to dismiss or suspend him or her, based upon written charges filed or formulated pursuant to this section, the charges may be amended less than 90 days before the hearing on the charges only upon a showing of good cause. If a motion to amend charges is granted by the administrative law judge, the employee shall be given a meaningful opportunity to respond to the amended charges.
(e) (c)  A notice of by  the governing board of the a  school district to an employee of its intention to dismiss him  or her or  suspend him or her, together with written charges filed or formulated pursuant to this section, shall be sufficient to initiate a hearing under  pursuant to  Section 11503 of the Government Code, and the governing board of the school district shall not be required to file or serve a separate accusation.
(f) (d)  This section shall also apply to the suspension of probationary employees in a school district with an average daily attendance of less than 250 pupils that has not adopted a collective bargaining agreement pursuant to subdivision (b) of Section 3542.2 of the Government Code.

SEC. 8.SEC. 7.

 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. It shall be in writing and be served upon the employee personally or by United States registered mail addressed to the employee at his or her last known address, provided that 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 by Section 11503 of the Government Code, together with a copy of the provisions of this article, shall be attached to the notice. No additional documentation shall be required to notify the employee. 
(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 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 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) (c)  A notice of  An employee who demands a hearing within 30 days after service of the notice  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. shall file a notice of defense, as described in Sections 11505 and 11506 of the Government Code. 

SEC. 11.SEC. 8.

 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)  Upon the filing of written charges,  charges pursuant to paragraph (1), (3), or (10) of subdivision (a) of Section 44932,  duly signed and verified by the person filing them with the governing board of a school district, or upon a written statement of charges pursuant to paragraph (1), (3), or (10) of subdivision (a) of Section 44932  formulated by the governing board of a school district, charging  to dismiss  a permanent employee of the school district with 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,  district,  the governing board of the school district may, if it deems that the  action necessary, immediately suspend the employee from his or her duties and give notice to him or her the permanent employee  of his or her suspension, and that 30 days after service of the notice of dismissal, he or she  notice, the permanent employee  will be dismissed, unless he or she demands a hearing.
(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) 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.

SEC. 12.SEC. 9.

 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” is defined to mean charged by complaint, information, or indictment filed in a court of competent jurisdiction with the commission of any sex offense as defined in Section 44010, with a violation or attempted violation of Section 187 of the Penal Code, or with the  the  commission of any 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 Sections 11054, 11055, and 11056 of the Health and Safety Code or with the commission of a violent or serious felony, as listed in subdivision (c) of Section 667.5 of, or subdivision (c) of Section 1192.7 of, the Penal  Code.
(b) For purposes of this section, “charged with an optional leave of absence offense” is defined to mean a charge by complaint, information, or indictment filed in a court of competent jurisdiction with the commission of any controlled substance offense as defined in Section 44011 or 87011 of this code,  87011, or a violation or attempted violation of Section 187 of the Penal Code,  or Sections 11357 to 11361, inclusive, of,  or Section 11363, 11364, or 11370.1 of of,  the Health and Safety Code, insofar as these sections relate to any controlled substances except marijuana, mescaline, peyote, or tetrahydrocannabinols. substances. 
(c) For purposes of this section and Section 44940.5, the term “school district” includes county offices of education.
(d) (1) If 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 certificated  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  notice of  the judgment in the proceedings.  proceedings has been received by the school district.  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 on Teacher Credentialing.
(2) Upon receiving a copy of a complaint, information, or indictment described in subdivision (a) and forwarded by a school district, the Commission on Teacher Credentialing shall automatically suspend the employee’s teaching or service credential. The duration of the suspension shall be until a time not more than 10 days after the date of entry of  notice of  the judgment in the proceedings. proceedings has been received by the Commission on Teacher Credentialing. 
(e) (1) If 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 certificated  employee upon compulsory leave in accordance with the procedure in this section and Section 44940.5. If any 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 on Teacher Credentialing.
(2) Upon receiving a copy of a complaint, information, or indictment described in subdivision (a) and forwarded by a school district, the Commission on Teacher Credentialing shall automatically suspend the employee’s teaching or service credential. The duration of the suspension shall be until a time not more than 10 days after the date notice  of entry of  the judgment in the proceedings. proceedings has been received by the school district. 

SEC. 14.SEC. 10.

 Section 44943 of the Education Code is amended to read:

44943.
 When (a)   any If an  employee who has been served with notice  pursuant to Section 44934 or 44934.1  with a notice  of the governing board’s intention to dismiss or suspend him or her demands a hearing, the governing board shall have the option either (a) to  either  rescind its action, action  or (b)  schedule a hearing on the matter.
(b) The governing board may, without prejudice, rescind a notice served pursuant to Section 44934 for a charge pursuant to paragraph (1), (3), or (10) of subdivision (a) of Section 44932 at any time before the matter is submitted for decision.

SEC. 11.

 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. However, the hearing date shall be established after consultation with the employee and the governing board, or their representatives, and 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 the preceding paragraph. 
(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)  (1)  The governing board of the school district and the employee shall select 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) (c)  (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) 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) 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) shall be available only in a suspension proceeding authorized pursuant to subdivision (b) (c)  of Section 44932 or Section 44933.
(4) 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  board  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) (d)  (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) (2)  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) (e)  (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 paragraph  (2) and (3)  of subdivision (e), (d),  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, 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) 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, any costs incurred under paragraphs paragraph  (2) and (3)  of subdivision (e), (d),  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, 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, and reasonable attorney’s fees incurred by the employee.
(3) As used in this section, “reasonable expenses” shall not be deemed “compensation” within the meaning of subdivision (e). (d). 
(4) 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) (A)  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. 
(B) 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) (f)  The hearing provided for in this section 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.

SEC. 12.

 Section 44944.2 is added to the Education Code, to read:

44944.2.
 Notwithstanding Section 44944, if an employee is charged only with one or more charges pursuant to paragraph (1), (3), or (10) of subdivision (a) of Section 44932, all of the following shall apply:
(a) The Commission on Professional Competence shall be comprised of only an administrative law judge.
(b) (1) In a proceeding for dismissal or suspension initiated pursuant to Section 44934, if a hearing is requested by the employee, the matter shall be submitted for decision within 12 months from the date of the employee’s demand for a hearing. The administrative law judge may grant extensions beyond 12 months for good cause, and shall grant extensions beyond 12 months upon a stipulation by all parties.
(2) To initiate a hearing, amend charges, conduct discovery, conduct a hearing, or render a decision, the administrative law judge shall act in accordance with Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of Title 2 of the Government Code. However, the hearing date shall be established after consultation with the employee and the governing board, or their representatives, and the administrative law judge shall have all of the power granted to an agency in that chapter.
(3) A witness shall not be permitted to testify at the hearing except upon oath or affirmation. Testimony may be given or evidence introduced relating to matters that occurred more than four years before the date of the filing of the notice unless it is not relevant.
(c) (1) If the administrative law judge determines that the employee should be dismissed or suspended, the state shall pay the expenses of the hearing, including the cost of the administrative law judge. The Controller shall pay all claims submitted to the state 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 shall pay their own attorney’s fees.
(2) If the administrative law judge determines that the employee should not be dismissed or suspended, the governing board shall pay the expenses of the hearing, including the cost of the administrative law judge. The governing board and the employee shall pay their own attorney’s fees.
(3) Notwithstanding paragraph (1), the employee shall pay all the expenses identified in paragraph (1), except the governing board’s attorney fees, if the administrative law judge determines that the employee’s decision to demand a hearing was a frivolous tactic that wasted public resources.
(4) If either the governing board or the employee petitions a court of competent jurisdiction for review of the decision of the administrative law judge, the payment of expenses to the administrative law judge required by this subdivision shall not be stayed.
(5) If the decision of the administrative law judge is reversed or vacated by a court of competent jurisdiction, either the state, having paid the administrative law judge’s expenses, shall be entitled to reimbursement from the governing board for those expenses, or the governing board, having paid the expenses, shall be entitled to reimbursement from the state.

SEC. 18.SEC. 13.

 Section 44947 of the Education Code is amended to read:

44947.
 If an employee is dismissed for immoral conduct or conviction of a felony or crime involving moral turpitude,  based on a charge pursuant to paragraph (1), (3), or (10) of subdivision (a) of Section 44932,  the governing board shall transmit to the Commission on Teacher Credentialing and to the county board of education which that  issued the certificate under which the employee was serving at the time of his or her  dismissal, a copy of the reporter’s transcript of the hearing accompanied by a request that any certificate issued by the county board of education to the employee be revoked if the employee is not reinstated upon appeal.
SEC. 14.
 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.