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SB-433 Classified school and community college employees: disciplinary hearings: appeals: impartial third-party hearing officers.(2023-2024)

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Date Published: 09/14/2023 09:00 PM
SB433:v94#DOCUMENT

Enrolled  September 14, 2023
Passed  IN  Senate  September 12, 2023
Passed  IN  Assembly  September 11, 2023
Amended  IN  Assembly  September 06, 2023
Amended  IN  Assembly  June 29, 2023
Amended  IN  Senate  May 18, 2023
Amended  IN  Senate  March 21, 2023

CALIFORNIA LEGISLATURE— 2023–2024 REGULAR SESSION

Senate Bill
No. 433

Introduced by Senator Cortese

February 13, 2023

An act to amend Sections 1311, 45113, and 88013 of the Education Code, relating to school and community college employees.


LEGISLATIVE COUNSEL'S DIGEST


SB 433, Cortese. Classified school and community college employees: disciplinary hearings: appeals: impartial third-party hearing officers.
Existing law requires the governing board of a school district to employ persons for positions not requiring certification qualifications and the governing board of a community college district to employ persons for positions that are not academic positions. Existing law requires the governing board of a school district or community college district to classify those employees and positions and requires that they be known as the classified service. Existing law requires the governing board of a school district or community college district to prescribe written rules and regulations governing the personnel management of the classified service whereby classified employees are designated as permanent employees after serving a prescribed period of probation. Existing law subjects a permanent classified employee to disciplinary action only for cause, as prescribed by rule or regulation of the governing board of the school district or community college district. Existing law requires the governing board of a school district or community college district to adopt rules of procedure for disciplinary proceedings that contain a provision for informing the employee by written notice of the specific charges against the employee, a statement of the employee’s right to a hearing on those charges, and the time within which the hearing may be requested that shall not be less than 5 days after service of notice to the employee, as provided.
This bill would instead require the governing board of a school district or community college district to adopt rules of procedure for disciplinary proceedings authorizing the employee to request a hearing within a minimum of 30 days after service of notice of the specific charges to the employee, as provided.
Existing law authorizes the governing board of a school district or community college district to enter into a collective bargaining agreement with an employee organization, as specified. Existing law authorizes the governing board of a school district or community college district to delegate its authority to determine whether sufficient cause exists for disciplinary action against a classified employee, excluding a peace officer, to an impartial third-party hearing officer, pursuant to the terms of the collective bargaining agreement, as provided.
Existing law establishes standards for arbitration, and requires a court to vacate an arbitration award if the court determines, among other things, that there was corruption in any of the arbitrators or the rights of a party were substantially prejudiced by misconduct of a neutral arbitrator.
This bill would authorize a permanent classified employee of a school district, excluding a peace officer, to appeal disciplinary action, as provided, to an impartial third-party hearing officer, paid by the school district and jointly selected by the district and the employee or their employee organization from a list of 7 arbitrators obtained by the parties from the California State Mediation and Conciliation Service, unless the employee organization and the school district enter into an agreement providing an alternative method of appealing disciplinary action or an alternative method of selecting a third-party hearing officer. If a permanent classified employee of a community college district requests a hearing on the charges lodged against the employee, the bill would require an impartial third-party hearing officer, paid for by the community college district and jointly selected by the district and the employee or their employee organization from a list of 7 arbitrators obtained by the parties from the California State Mediation and Conciliation Service, to determine whether sufficient cause exists for disciplinary action against the permanent classified employee of the community college district, excluding a peace officer, unless the employee organization and the community college district enter into an agreement providing an alternative method of determining cause or an alternative method of selecting a third-party hearing officer. The bill would make the impartial third-party hearing officer’s decision subject to judicial review pursuant to the above-described standards of review of arbitration awards, as provided. The bill would require the court, for judicial review of an impartial third-party hearing officer’s decision for disciplinary action by a community college district, to exercise independent judgment on the evidence and for the hearing to be set at the earliest possible date and take precedence over all other cases, except as specified.
The Joint Exercise of Powers Act authorizes 2 or more public agencies, by agreement, to form a joint powers authority to exercise any power common to the contracting parties, as specified. Existing law extends certain employment rules applicable to classified employees of school districts to classified employees of joint powers authorities consisting of 2 or more school districts, as provided, including the rule that a permanent classified employee may be subject to disciplinary action only for cause, as prescribed by rule or regulation of the governing board. Existing law also extends certain employment rules, including the rule related to disciplinary action, to classified employees employed by a county superintendent of schools.
This bill would extend to the classified employees of all joint powers authorities that include a school district, and explicitly extend to the classified employees employed by a county superintendent of schools, the above-described authorization for a permanent classified employee, excluding a peace officer, to appeal disciplinary action, as provided, to an impartial third-party hearing officer. The bill also would extend to the classified employees of all joint powers authorities that include a community college district the above-described requirement that an impartial third-party hearing officer determine whether sufficient cause exists for disciplinary action against a permanent classified employee that requests a hearing on the charges, as provided.
Existing law requires the governing board of a school district to delegate its authority to a judge, as defined, to determine whether sufficient cause exists for disciplinary action against a classified employee involving allegations of egregious misconduct and involving a minor, as provided.
This bill would additionally require an impartial third-party hearing officer to delegate its authority to a judge to determine whether sufficient cause exists for disciplinary action against a classified employee involving allegations of egregious misconduct and involving a minor, as provided.
To the extent the bill imposes additional obligations on school districts, community college districts, and county offices of education, the bill would impose a state-mandated local program.
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 the statutory provisions noted above.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: YES  

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


SECTION 1.

 Section 1311 of the Education Code is amended to read:

1311.
 Each person employed by a county superintendent of schools in a position not requiring certification qualifications and whose salary is paid from the county school service fund shall be employed in accordance with the provisions of Chapter 1 (commencing with Section 44000) and Chapter 5 (commencing with Section 45100) of Part 25 of Division 3 of Title 2, including Section 45113, and Chapter 1 (commencing with Section 87000) and Chapter 4 (commencing with Section 88000) of Part 51 of Division 7 of Title 3, including Section 88013.

SEC. 2.

 Section 45113 of the Education Code is amended to read:

45113.
 (a) The governing board of a school district shall prescribe written rules and regulations governing the personnel management of the classified service. These written rules and regulations shall be printed and made available to employees in the classified service, the public, and those concerned with the administration of this section, whereby these employees are designated as permanent employees of the school district after serving a prescribed period of probation that shall not exceed six months or 130 days of paid service, whichever is longer. However, a full-time peace officer or public safety dispatcher employed by a school district operating a dispatch center certified by the Commission on Peace Officer Standards and Training, to be designated as a permanent employee of the school district, shall serve a probationary period of not less than one year of paid service from their date of appointment to that full-time position. A permanent employee who accepts a promotion and fails to complete the probationary period for that promotional position, shall be employed in the classification from which the employee was promoted.
(b) An employee designated as a permanent employee shall be subject to disciplinary action only for cause as prescribed by rule or regulation of the governing board of the school district, but the governing board’s determination of the sufficiency of the cause for disciplinary action shall be conclusive, except as set forth elsewhere in this section.
(c) The governing board of a school district shall adopt rules of procedure for disciplinary proceedings that shall contain a provision for informing the employee by written notice of the specific charges against the employee, a statement of the employee’s right to a hearing on those charges, and the time within which the hearing may be requested that shall be not less than 30 days after service of the notice to the employee, and a card or paper, the signing and filing of which shall constitute a demand for hearing, and a denial of all charges. The burden of proof shall remain with the governing board of the school district, and any rule or regulation to the contrary is void.
(d) Disciplinary action shall not be taken for any cause that arose before the employee’s becoming permanent, nor for any cause that arose more than two years preceding the date of the filing of the notice of cause unless the cause was concealed or not disclosed by the employee when it could be reasonably assumed that the employee should have disclosed the facts to the employing school district.
(e) This section shall not be construed to prohibit the governing board of a school district, pursuant to the terms of an agreement with an employee organization under Chapter 10.7 (commencing with Section 3540) of Division 4 of Title 1 of the Government Code, from delegating its authority to determine whether sufficient cause exists for disciplinary action, as described in subdivision (b), against classified employees, excluding peace officers as defined in Section 830.32 of the Penal Code, to an impartial third-party hearing officer. However, the governing board of the school district shall retain authority to review the determination under the standards set forth in Section 1286.2 of the Code of Civil Procedure.
(f) (1) Except as specified in paragraph (2), a permanent employee who timely requests a hearing on charges against the employee shall not be suspended without pay, suspended with a reduction in pay, demoted with a reduction in pay, or dismissed before a decision is rendered after the hearing, unless the governing board, or an impartial third-party hearing officer provided pursuant to the terms of an agreement with an employee organization under Chapter 10.7 (commencing with Section 3540) of Division 4 of Title 1 of the Government Code, finds that at the time discipline was imposed at the conclusion of the review process specified in Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194, the employer demonstrated by a preponderance of the evidence that the employee engaged in criminal misconduct, misconduct that presents a risk of harm to pupils, staff, or property, or committed habitual violations of the district’s policies or regulations.
(2) The school district may stop paying a permanent employee before a decision is rendered after 30 calendar days from the date the hearing is requested.
(3) To the extent that this subdivision conflicts with a provision of a collective bargaining agreement entered into by a public school employer and an exclusive bargaining representative before January 1, 2023, pursuant to Chapter 10.7 (commencing with Section 3540) of Division 4 of Title 1 of the Government Code, this subdivision shall not apply to the school district until the expiration or renewal of that collective bargaining agreement.
(g) (1) An employee, excluding a peace officer as defined in Section 830.32 of the Penal Code, disciplined pursuant to the process described in subdivision (b) may appeal that disciplinary action to an impartial third-party hearing officer paid by the school district and jointly selected by the district and the employee or their employee organization, as that term is defined in subdivision (d) of Section 3540.1 of the Government Code, unless the employee organization and the district have entered into an agreement pursuant to Chapter 10.7 (commencing with Section 3540) of Division 4 of Title 1 of the Government Code providing an alternative method of appealing disciplinary action. An employee exercising this appeal right shall notify the governing board, in writing, within 30 days of receiving the initial disciplinary decision described in subdivision (b).
(2) The impartial third-party hearing officer’s determination shall be subject to judicial review pursuant to the standards of subdivision (a) of Section 1286.2 of the Code of Civil Procedure.
(3) This subdivision shall also apply to those classified employees that are employed by any entity, including a regional occupational center or program, created or established by one or more school districts pursuant to statute, exercising any joint power pursuant to Article 1 (commencing with Section 6500) of Chapter 5 of Division 7 of Title 1 of the Government Code, or as otherwise conferred by law upon school districts.
(4) For purposes of this subdivision, the following definitions apply:
(A) “Disciplinary action” means dismissals and suspensions of classified employees and demotions of nonsupervisory classified employees, and does not include reprimands or warnings whether verbal or written.
(B) “Hearing officer” means an arbitrator selected by striking from a list of seven arbitrators to be obtained by the parties from the California State Mediation and Conciliation Service, unless the parties agree upon another method of selecting a hearing officer.
(h) (1) A governing board of a school district or an impartial third-party hearing officer, as applicable, shall delegate its authority to a judge, as defined in Section 44990, to determine whether sufficient cause exists for disciplinary action against a classified employee involving allegations of egregious misconduct, as defined in Section 44932, and involving a minor, as defined in Section 44990. The judge’s ruling shall be binding upon all parties.
(2) A judge authorized under this subdivision to conduct a hearing involving allegations as described in Section 44010 or 44011, or as described in Sections 11165.2 to 11165.6, inclusive, of the Penal Code, shall conduct that hearing in accordance with Article 3.3 (commencing with Section 44990) of Chapter 4 and Section 49077.
(3) The term “representative of the respondent,” within the meaning of Article 3.3 (commencing with Section 44990) of Chapter 4, shall include, but not necessarily be limited to, an exclusive labor representative.
(i) This section applies only to school districts not incorporating the merit system as outlined in Article 6 (commencing with Section 45240).

SEC. 3.

 Section 88013 of the Education Code is amended to read:

88013.
 (a) The governing board of a community college district shall prescribe written rules and regulations governing the personnel management of the classified service. These written rules and regulations shall be printed and made available to employees in the classified service, the public, and those concerned with the administration of this section, whereby these employees are, except as provided in Section 72411, designated as permanent employees of the district after serving a prescribed period of probation that shall not exceed six months or 130 days of paid service, whichever is longer. However, for a full-time peace officer or public safety dispatcher employed by a district operating a dispatch center certified by the Commission on Peace Officer Standards and Training to be designated as a permanent employee of the district, they shall serve a probationary period of not less than one year of paid service from their date of appointment to that full-time position. A permanent employee who accepts a promotion and fails to complete the probationary period for that promotional classification, shall be employed in the position from which the employee was promoted.
(b) An employee designated as a permanent employee shall be subject to disciplinary action only for cause as prescribed by rule or regulation of the governing board.
(c) The governing board shall adopt rules of procedure for disciplinary proceedings that shall contain a provision for informing the employee by written notice of the specific charges against the employee, a statement of the employee’s right to a hearing on those charges, and the 30 days within which the hearing may be requested after service of the notice to the employee, and a card or paper, the signing and filing of which shall constitute a demand for hearing, and a denial of all charges. The burden of proof shall remain with the governing board, and any rule or regulation to the contrary shall be void.
(d) Disciplinary action shall not be taken for any cause that arose before the employee became permanent, or for any cause that arose more than two years preceding the date of the filing of the notice of cause, unless the cause was concealed or not disclosed by the employee when it could be reasonably assumed that the employee should have disclosed the facts to the employing district.
(e) (1) If an employee, excluding a peace officer as defined in Section 830.32 of the Penal Code, requests a hearing pursuant to subdivision (c), an impartial third-party hearing officer paid by the community college district and jointly selected by the district and the employee or their employee organization, as defined in subdivision (d) of Section 3540.1 of the Government Code, shall preside over the hearing and provide a determination as to the outcome of the disciplinary action.
(2) The impartial third-party hearing officer’s determination shall be subject to judicial review, on petition of either the governing board or the employee, pursuant to the standards of subdivision (a) of Section 1286.2 of the Code of Civil Procedure and in the same manner as a decision made by an administrative law judge 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.
(3) This subdivision shall also apply to those classified employees that are employed by any entity created or established by one or more community college districts pursuant to statute, exercising any joint power pursuant to Article 1 (commencing with Section 6500) of Chapter 5 of Division 7 of Title 1 of the Government Code, or as otherwise conferred by law upon community college districts.
(4) To the extent that this subdivision conflicts with a provision of a collective bargaining agreement entered into by a public school employer and an exclusive bargaining representative before January 1, 2024, pursuant to Chapter 10.7 (commencing with Section 3540) of Division 4 of Title 1 of the Government Code, this subdivision shall not apply to the community college district until the expiration or renewal of that collective bargaining agreement.
(5) For purposes of this subdivision, the following definitions apply:
(A) “Disciplinary action” does not include verbal or written reprimands or verbal or written warnings.
(B) “Hearing officer” means an arbitrator selected by striking from a list of seven arbitrators to be obtained by the parties from the California State Mediation and Conciliation Service, unless the parties agree upon another method of selecting a hearing officer.
(f) (1) Except as specified in paragraph (2), a permanent employee who timely requests a hearing on charges against the employee shall not be suspended without pay, suspended with a reduction in pay, demoted with a reduction in pay, or dismissed before a decision is rendered after the hearing unless the governing board finds that at the time discipline was imposed at the conclusion of the review process specified in Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194, the employer demonstrated by a preponderance of the evidence that the employee engaged in criminal misconduct, misconduct that presents a risk of harm to students, staff, or property, or committed habitual violations of the district’s policies or regulations.
(2) The community college district may stop paying a permanent employee before a decision is rendered after 30 calendar days from the date the hearing is requested.
(3) To the extent that this subdivision conflicts with a provision of a collective bargaining agreement entered into by a public school employer and an exclusive bargaining representative before January 1, 2023, pursuant to Chapter 10.7 (commencing with Section 3540) of Division 4 of Title 1 of the Government Code, this subdivision shall not apply to the community college district until the expiration or renewal of that collective bargaining agreement.
(g) This section shall apply only to districts not incorporating the merit system as outlined in Article 3 (commencing with Section 88060).
(h) To the extent that this section, as amended by Assembly Bill 275 of the 2021–22 Regular Session, conflicts with a provision of a collective bargaining agreement entered into by a public school employer and an exclusive bargaining representative before January 1, 2022, pursuant to Chapter 10.7 (commencing with Section 3540) of Division 4 of Title 1 of the Government Code, the changes made to this section by Assembly Bill 275 of the 2021–22 Regular Session shall not apply to the community college district until expiration or renewal of that collective bargaining agreement.

SEC. 4.

 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.