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

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SB843:v97#DOCUMENT

Amended  IN  Senate  April 21, 2014
Amended  IN  Senate  February 25, 2014

CALIFORNIA LEGISLATURE— 2013–2014 REGULAR SESSION

Senate Bill
No. 843

Introduced by Senator Correa

January 07, 2014

An act to amend Sections 44030.5, 44242.5, 44930, 44932, 44934, 44936, 44937, 44938, 44939, 44940, 44943, 44944, 44945, and 44947 of, to repeal Section 44941 of, and to add Sections 44930.5, 44932.5, and 44944.5 44930.5 and 44944.2 to, the Education Code, relating to school employees.


LEGISLATIVE COUNSEL'S DIGEST


SB 843, as amended, Correa. School employees: discipline: dismissal and suspension.
(1) Existing law prohibits a permanent school employee from being dismissed except for one or more specified reasons. Existing law authorizes a governing board of a school district to 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, as provided. Existing law additionally authorizes the governing board of a school district to immediately suspend a permanent employee for specified reasons, as provided.
This bill would, among other things, add serious and egregious conduct, as defined, to the list of specified reasons for which a permanent employee may be dismissed. The bill would instead authorize the governing board of a school district to suspend without pay for more than 30 workdays those employees for any of the listed reasons authorizing dismissal or suspension and pursuant to certain procedures. The bill would also authorize the suspension of those employees for up to 30 workdays pursuant to separate procedures, as specified. The bill would also authorize revise the reasons for which the governing board of a school district is authorized to immediately suspend a permanent employee for specified charges employee.
(2) Existing law establishes a Commission on Professional Competence for each dismissal or suspension hearing requested by an employee, consisting of one member selected by the governing board, one member selected by the employee, and an administrative law judge as the 3rd member. Existing law requires the selected members to, among other things, have 5 years’ experience within the past 10 years in the discipline of the employee. Existing law requires in a dismissal or suspension proceeding against a permanent employee, if a hearing is requested by the employee, that the hearing be commenced within 60 days from the date of the employee’s demand for a hearing. Existing law prescribes various procedures for the hearing, including, among others, a prohibition against the use of evidence of any nature relating to matters occurring more than 4 years prior to the filing of a notice in a decision relating to the termination or suspension of any employee.
This bill would instead require each hearing to be heard by a hearing panel, consisting of, require, for specified charges, that a commission on professional competence to be comprised of only an administrative law judge, and for other specified charges, consisting of a Commission on Professional Competence. The bill would instead require the selected members of the commission to have only 3 years’ experience in the elementary or secondary grade level discipline of the employee, as defined. judge, and that the matter be submitted for decision within 12 months from the date of the employee’s demand for a hearing, as provided. For those same charges, the bill would authorize testimony to be given or evidence introduced relating to matters that occurred more than 4 years before the date of the filing of the notice unless it is not relevant, and would provide for the allocation of costs for the hearing and any appeals by requiring, among other things, that the employee pay for the costs of the hearing if the administrative law judge determines that the employee’s decision to demand a hearing was a frivolous tactic that wasted public resources.

(3)Existing law requires in a dismissal or suspension proceeding against a permanent employee, if a hearing is requested by the employee, that the hearing be commenced within 60 days from the date of the employee’s demand for a hearing. Existing law prescribes various procedures for the hearing, including, among others, a prohibition against discovery occurring later than 30 calendar days after the employee is served with a copy of the accusation, and a prohibition against the use of evidence of any nature relating to matters occurring more than 4 years prior to the filing of a notice in a decision relating to the termination or suspension of any employee.

This bill would instead require that any hearing be submitted for decision within 12 months from the date of the employee’s demand for a hearing, as provided. The bill would revise various procedures for the conduct of those hearings. The bill would, among other things, require the administrative law judge on the hearing panel to hold a final status conference at least 7 calendar days before the hearing is to commence, as provided. The bill would also delete the prohibitions identified above relating to discovery and instead require discovery to be completed at least 7 calendar days before the final status conference, and would authorize the use of evidence relating to matters that occurred more than 4 years ago in the resolution of a charge of serious and egregious conduct, or with respect to any charge, for purposes of rebuttal, impeachment, or showing that notice was given. The bill would require the employee to pay the expenses of the hearing, except as provided, if the hearing panel determines that the employee’s decision to demand a hearing was a frivolous tactic that wasted public resources.

(4)Existing law declares any contract or agreement, express or implied, made by an employee to waive certain benefits is null and void, except or provided.

This bill would, notwithstanding that provision, authorize an employee to waive certain due process rights as part of a contract or agreement between the school district, the employee, and if applicable, the employee’s exclusive representative.

(5)

(3) Existing law authorizes a governing board of a school district to give notice to a permanent employee of its intention to dismiss or suspend him or her for specified causes at the expiration of 30 days from the date of service of the notice, unless the employee demands a hearing. Existing law prohibits that notice from being given between May 15 and September 15 in any year.
This bill would instead authorize the governing board of a school district to give the notice at any time of year. The bill would also require the governing board of a school district to provide a copy of the notice to the collective bargaining unit representing the employee within one week of serving notice to the employee. year, except as specified, provided that a notice of dismissal or suspension given outside of the instructional year of the schoolsite where the employee is physically employed is in writing served upon the employee personally. The bill would require provide that a notice of the governing board of the school district to an employee of its intention to dismiss or suspend the employee, together with written charges filed or formulated pursuant to those procedures, be is sufficient to initiate a hearing, as prescribed, and would prohibit the governing board of the school district from being required to file or serve a separate accusation. The bill would authorize the governing board of a school district to amend written charges, as provided, and The bill would, if an employee demands a hearing, authorize the governing board to either rescind its action or schedule a hearing on the matter. The bill also would, for specified charges, authorize the governing board to rescind the notice at any time before the matter is submitted for decision.

(6)Existing law prohibits the governing board of a school district from acting upon any charges of unprofessional conduct or unsatisfactory performance, unless at least 45 or 90 calendar days, respectively, prior to the date of the filing of the charges the governing board of the school district, or its authorized representative, has given the employee written notice, as specified.

This bill would delete those provisions and instead prohibit the governing board from acting upon certain charges unless at least 30 workdays before the date of the filing of the charges the governing board, or its authorized representative, has given the employee written notice.

(7)

(4) Existing law prohibits information of a derogatory nature to be entered into an employee’s personnel records unless the employee is given an opportunity to review and comment on that information.
This bill would, notwithstanding that provision, prohibit, among other things, the governing board of a school district or its authorized representative from amending, renewing, or entering into an agreement that requires the removal from a school employees’ employee’s records any evidence of credible complaints, substantiated investigations, or discipline relating to the school employee’s commission, or alleged commission, of serious and egregious conduct or other misconduct, as specified. The bill would specify that provisions in the bill authorizing an employee’s waiver of his or her due process employment rights, as provided, does not supersede these provisions.

(8)

(5) Existing law provides that a certificated employee may be charged with a mandatory leave of absence offense or an optional leave of absence offense for certain sex offenses or certain offenses involving controlled substance offenses with the exception of substances other than marijuana, mescaline, peyote, or tetrahydrocannabinols. Existing law requires the governing board of a school district to immediately place a certificated employee on compulsory leave of absence if the employee is charged with a mandatory leave of absence offense and authorizes the governing board to immediately place the employee on compulsory leave of absence if the employee is charged with an optional leave of absence offense.
This bill would additionally authorize a certificated employee to be charged with a mandatory leave of absence offense for the commission of a violent or serious felony, as specified. The bill would also add controlled substances offenses involving marijuana, mescaline, peyote, or tetrahydrocannabinols to the lists of mandatory and optional leave of absence offenses, as specified. Because this bill would increase the number of employees subject to immediate placement on compulsory leave of absence, thereby increasing the duties of school districts, the bill would impose a state-mandated local program.

(9)

(6) This bill would also make conforming changes and numerous nonsubstantive changes, and would delete obsolete references.

(10)

(7) 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 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 (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 (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) 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 governing board of the school district.
(b) Notwithstanding any other 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 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, serious and egregious conduct, as 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 serious and egregious conduct 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 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.
(2) Unprofessional conduct, including, but not limited to, excessive absences, excessive tardiness, and insubordination. conduct.
(3) Serious and egregious Egregious conduct as specified in subdivision (b).
(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.
(5) Dishonesty.
(6)  Unsatisfactory performance.
(7) Evident unfitness for service.
(8) Physical or mental condition unfitting him or her to instruct or associate with children.
(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.
(10) Conviction of a felony or of any crime involving moral turpitude.
(11) Alcoholism or other drug abuse which makes the employee unfit to instruct or associate with children.
(b) For purposes of this section, “serious and egregious “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.
(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, 44935, 44936, 44937, 44943, and 44944. This authorization 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. 6.Section 44932.5 is added to the Education Code, to read:
44932.5.

(a)The governing board of a school district may suspend without pay for more than 30 workdays 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, 44935, 44936, 44937, 44943, and 44944, and on the grounds listed in Section 44932 or 44933. This authorization shall not apply to any school district that has adopted a collective bargaining agreement pursuant to subdivision (b) of Section 3543.2 of the Government Code.

(b)The governing board of a school district may suspend without pay for up to 30 workdays a permanent certificated employee, or in a school district with an average daily attendance of less than 250 pupils, a probationary employee, in accordance with the procedures specified in Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of Title 2 of the Government Code.

SEC. 7.SEC. 6.

 Section 44934 of the Education Code is amended to read:

44934.
 (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, charging that there exists cause, as specified in Section 44932 or 44933, for the dismissal or suspension for more than 30 workdays of a permanent employee of the 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 for more than 30 workdays 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. Proceedings for suspensions for more than 30 workdays 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.
(b) Any written statement of charges shall specify instances of behavior and the acts or omissions constituting the charge so that the teacher will be able to prepare his or her defense. It shall, where applicable, state the statutes and rules that the teacher is alleged to have violated.
(c) A notice by the governing board of a school district to an employee of its intention to dismiss him or her or suspend him or her for more than 30 workdays, her, together with written charges filed or formulated pursuant to this section, shall be sufficient to initiate a hearing 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.

(d)The governing board of a school district may amend written charges pursuant to Sections 11507 and 11516 of the Government Code.

(e)

(d) This section shall also apply to the suspension of probationary employees for more than 30 workdays 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 for more than 30 workdays in a proceeding initiated pursuant to Section 44934 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. 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 notice notify the employee. A copy of the notice shall also be sent to the collective bargaining unit that represents the employee within one week of serving the employee with the notice of dismissal or suspension for more than 30 workdays.
(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.

(b)

(c) An employee who demands a hearing within 30 days after service of the notice dismissal or suspension for more than 30 workdays shall file a notice of defense, as described in Sections 11505 and 11506 of the Government Code.

SEC. 9.Section 44937 of the Education Code is amended to read:
44937.

In a proceeding for a dismissal or suspension for more than 30 workdays initiated pursuant to Section 44934, if the employee does not demand a hearing by filing a written request for hearing with the governing board, he or she may be dismissed or he or she may be suspended without pay for a specific period of time for more than 30 workdays at the expiration of the 30-day period.

SEC. 10.Section 44938 of the Education Code is amended to read:
44938.

(a)The governing board of a school district shall not act upon any charges initiated pursuant to paragraph (2), (6), or (9) of subdivision (a) of Section 44932, or Section 44933 unless at least 30 workdays before the date of the filing, the governing board of the school district or its authorized representative has given the employee against whom the charge is filed, written notice of the conduct leading to the charges, specifying the nature of the conduct with specific instances of behavior and with 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)For purposes of this section, “workday” means any day that the employee is normally expected to work, regardless of whether he or she actually does work.

SEC. 11.SEC. 8.

 Section 44939 of the Education Code is amended to read:

44939.
 Upon the filing of written charges pursuant to paragraph (1), (3), (4), (5), (7), (8), (10), or (11) 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), (4), (5), (7), (8), (10), or (11) or (10) of subdivision (a) of Section 44932 formulated by the governing board of a school district, to dismiss a permanent employee of the school district, the governing board of the school district may, if it deems the action necessary, immediately suspend the employee from his or her duties and give notice to the permanent employee of his or her suspension, and that 30 days after service of the notice, the permanent employee will be dismissed, unless he or she demands a hearing.

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 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, with the exception of marijuana, mescaline, peyote, or tetrahydrocannabinols, 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, 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, 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 notice of the judgment in the 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 notice of the judgment in the 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 notice of the judgment in the proceedings has been received by the school district.

SEC. 13.Section 44941 of the Education Code is repealed.

SEC. 14.SEC. 10.

 Section 44943 of the Education Code is amended to read:

44943.
 The (a) If an employee who has been served pursuant to Section 44934 with a notice of the governing board’s intention to dismiss or suspend him or her demands a hearing, the governing board shall either rescind its action or 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. 15.Section 44944 of the Education Code is amended to read:
44944.

(a)(1)In a proceeding for dismissal or suspension for more than 30 workdays 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 on the hearing panel may grant extensions beyond 12 months for good cause, and shall grant extensions beyond 12 months upon a stipulation by all parties.

(2)The hearing shall be initiated, 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. However, the hearing date shall be established after consultation with the employee and the governing board, or their representatives, and the hearing panel shall have all of the power granted to an agency in that chapter, except 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 pursuant to Title 4 (commencing with Section 2016.010) of Part 4 of the Code of Civil Procedure. In all cases, discovery shall be completed at least seven calendar days before the final status conference required by subdivision (b).

(3)(A)If the right of discovery granted under paragraph (2) is denied by either the employee or the governing board, all of the remedies specified 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.

(B)The time periods specified 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.

(C)Delays incurred pursuant to this paragraph shall not count toward the deadline by which the matter must be submitted for decision required by paragraph (1).

(4)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.

(5)A witness shall not be permitted to testify at the hearing except upon oath or affirmation. Testimony shall not 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 relevant to the resolution of a charge pursuant to paragraph (3) of subdivision (a) of Section 44932 or, with respect to any charge, it is relevant for purposes of rebuttal, impeachment of a witness, or showing that notice was given.

(b)The administrative law judge on the hearing panel shall hold a final status conference at least seven calendar days before the hearing is to commence to rule on procedural matters, including, but not limited to, challenges to the qualifications of members of the Commission on Professional Competence, as specified in paragraph (2) of subdivision (c), if applicable, discovery disputes, and other procedural motions. The administrative law judge on the hearing panel may require other status or case management conferences as necessary.

(c)(1)If the employee is charged with a charge pursuant to paragraph (2), (6), or (9) of subdivision (a) of Section 44932, a Commission on Professional Competence shall conduct the hearing provided for in this section and shall comprise the hearing panel. One member of the Commission on Professional Competence shall be selected by the employee, one member shall be selected by the governing board, and the third member shall be an administrative law judge of the Office of Administrative Hearings who shall be chairperson of the Commission on Professional Competence, a voting member of the Commission on Professional Competence, and responsible for performing all duties required of an administrative law judge by this article, ruling on procedural motions, and ensuring 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 on Professional Competence member at least 30 calendar days before 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.

(2)(A)The member selected by the governing board and the member selected by the employee shall not be related to the employee and shall not be employees of the district initiating the dismissal or suspension and shall hold a currently valid credential and have at least three years’ experience within the past 10 years in the elementary or secondary grade level discipline of the employee.

(B)For purposes of subparagraph (A), “elementary grade level” means kindergarten and grades 1 to 6, inclusive, and “secondary grade level” means grades 7 to 12, inclusive.

(3)If an employee is charged with a charge pursuant to paragraph (1), (3), (4), (5), (7), (8), (10), or (11) of subdivision (a) of Section 44932, the hearing panel shall be comprised solely of an administrative law judge of the Office of Administrative Hearings.

(d)(1)For a charge pursuant to paragraph (2), (6), or (9) of subdivision (a) of Section 44932, or Section 44933, the decision of the Commission on Professional Competence shall be made by a majority vote. For all other charges, the decision shall be made solely by the administrative law judge.

(2)The hearing panel 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.

(3)The decision of the hearing panel that the employee should not be dismissed or suspended shall not be based on nonsubstantive procedural errors committed by the school district or the governing board unless the errors are prejudicial errors.

(4)The hearing panel shall not have the power to dispose of the charge of dismissal by imposing probation or other alternative sanctions.

(5)The decision of the hearing panel shall be deemed to be the final decision of the governing board.

(6)The governing board may adopt from time to time rules and procedures not inconsistent with this section as may be necessary to effectuate this section.

(7)The governing board and the employee shall have the right to be represented by counsel before the hearing panel.

(e)(1)If the Commission on Professional Competence member selected by the governing board 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 district in which the member is employed, but shall receive no additional compensation or honorariums for service on the Commission on Professional Competence.

(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 district, whichever amount is greater.

(f)(1)If the hearing panel determines that the employee should be dismissed or suspended, the governing board shall pay the expenses of the hearing, including the cost of the administrative law judge. The state shall pay any costs incurred under paragraph (2) of subdivision (e), and, if the Commission on Professional Competence comprises the hearing panel, the reasonable expenses, as determined by the administrative law judge on the hearing panel, or another administrative law judge assigned by the Office of Administrative Hearings, of the member selected by the governing board 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 and the member selected by the employee. 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 hearing panel 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, any costs incurred under paragraph (2) of subdivision (e), and, if the Commission on Professional Competence comprises the hearing panel, the reasonable expenses, as determined by the administrative law judge on the hearing panel, of the member selected by the governing board 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 and the member selected by the employee. 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 hearing panel determines that the employee’s decision to demand a hearing was a frivolous tactic that wasted public resources.

(4)As used in this section, “reasonable expenses” shall not be deemed “compensation” within the meaning of subdivision (e).

(5)If either the governing board or the employee petitions a court of competent jurisdiction for review of the decision of the Commission on Professional Competence, the payment of expenses to members of the Commission on Professional Competence required by this subdivision shall not be stayed.

(6)If the decision of the Commission on Professional Competence is finally reversed or vacated by a court of competent jurisdiction, either the state, having paid the Commission on Professional Competence members’ 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.

(g)If the employee is charged with a charge pursuant to paragraph (2), (6), or (9) of subdivision (a) of Section 44932, or Section 44933, the hearing provided for in this section shall be conducted in a place selected by agreement among the members of the hearing panel. For all other hearings, the place shall be selected by the administrative law judge on the hearing panel.

SEC. 11.

 Section 44944 of the Education Code is amended to read:

44944.
 (a) (1) 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, 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. 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 in that chapter, except 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) If 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.
(3) 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.
(4) 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.
(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 concerning the employee may be introduced, but no decision relating to the dismissal or suspension of any employee shall be made based on charges or evidence of any nature relating to matters occurring more than four years prior to the filing of the notice.
(b) (1) The hearing provided for in this section shall be conducted by 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, 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. 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.
(2) The member selected by the governing board and the member selected by the employee shall not be related to the employee and shall not be employees of the district initiating the dismissal or suspension and shall hold a currently valid credential and have at least five years’ experience within the past 10 years in the discipline of the employee.
(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 unless the errors are prejudicial errors.
(3) The 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.
(5) The 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 and the employee shall have the right to be represented by counsel.
(d) (1) If the member selected by the governing board 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 district in which the member is employed, but shall receive no additional compensation or honorariums for service on the commission.
(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 district, whichever amount is greater.
(e) (1) If the Commission on Professional Competence determines that the employee should be dismissed or suspended, the governing board and the 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 paragraph (2) of subdivision (d), the reasonable expenses, as determined by the administrative law judge, of the member selected by the governing board 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 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 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 shall pay the expenses of the hearing, including the cost of the administrative law judge, any costs incurred under paragraph (2) of subdivision (d), the reasonable expenses, as determined by the administrative law judge, of the member selected by the governing board 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 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 (d).
(4) If either the governing board or the employee petitions a court of competent jurisdiction for review of the decision of the 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 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 for those expenses, or the governing board, having paid the expenses, shall be entitled to reimbursement from the state.
(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.
(f) The hearing provided for in this section shall be conducted in a place selected by agreement among the members of the 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. 16.Section 44944.5 is added to the Education Code, to read:
44944.5.

Notwithstanding Section 44924, an employee may waive his or her due process rights afforded pursuant to this article as part of a contract or agreement between the school district, the employee, and if applicable, the employee’s exclusive representative. Nothing in this section shall supersede the requirements of Section 44930.5.

SEC. 17.Section 44945 of the Education Code is amended to read:
44945.

The decision of the hearing panel may, on petition of either the governing board or the employee, be reviewed by a court of competent jurisdiction in the same manner as a decision made by a hearing officer under Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of Title 2 of the Government Code. The court, on review, shall exercise its independent judgment on the evidence. The proceeding shall be set for hearing at the earliest possible date and shall take precedence over all other cases, except older matters of the same character and matters to which special precedence is given by law.

SEC. 18.SEC. 13.

 Section 44947 of the Education Code is amended to read:

44947.
 If an employee is dismissed based on a charge pursuant to paragraph (1), (3), (4), (5), (7), (8), (10), or (11) 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 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. 19.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.