BILL ANALYSIS Ó SENATE COMMITTEE ON EDUCATION Carol Liu, Chair 2013-14 Regular Session BILL NO: AB 375 AUTHOR: Buchanan AMENDED: June 25, 2013 FISCAL COMM: Yes HEARING DATE: July 3, 2013 URGENCY: No CONSULTANT:Lenin Del Castillo SUBJECT : School employees: dismissal or suspension. SUMMARY This bill modifies the suspension and dismissal procedures for certificated employees who have attained permanent status. BACKGROUND Current law prohibits the dismissal of a certificated employee who has achieved permanent status except for one or more of the following causes: (Education Code § 44932) Immoral or unprofessional conduct. Commission, aiding, or advocating the commission of acts of criminal syndicalism. Dishonesty. Unsatisfactory performance. Evident unfitness for service. Physical or mental condition unfitting him or her to instruct or associate with children. Persistent violation of or refusal to obey state laws or regulations pertaining to schools. Conviction of a felony or of any crime involving moral turpitude. Violation of the prohibition against advocating or teaching communism with the intent to indoctrinate or inculcate in the mind of any pupil a preference for communism. AB 375 Page 2 Knowing membership in the Communist Party. Alcoholism or other drug abuse which makes the employee unfit to instruct or associate with children. Current law also requires a governing board to notify an employee in writing of its intention to dismiss or suspend him or her at the expiration of 30 days unless the employee demands a hearing. Current law prohibits a 30-day Notice of Intent to Dismiss or Suspend from being issued between May 15 and September 15 in any year. (Education Code § 44934 and § 44936) The Legislature has established additional notice requirements that school districts must follow when seeking to suspend or dismiss an employee for unprofessional conduct or unsatisfactory performance. Before a governing board can take action to issue a 30-day notice for either of these causes, the following must occur: 1) Unprofessional Conduct : The employee must be given advance notice of at least 45 days. A Notice of Unprofessional Conduct must specify the nature of the cause, list specific instances of behavior and furnish the employee an opportunity to correct the faults and overcome the grounds of the charge. The notice must also include a copy of the employee's evaluation. (Education Code § 44938) 2) Unsatisfactory Performance : The employee must be given advance notice of at least 90 days. A Notice of Unsatisfactory Performance must specify the nature of the performance issues, with specific instances of behavior with "such particularity" as to furnish the employee an opportunity to correct his or her faults and overcome the grounds for the charge. The notice must also include a copy of the employee's evaluation. (Education Code § 44938) Current law authorizes the immediate suspension of a permanent employee for specified conduct including: immoral conduct, conviction of a felony or any crime involving moral turpitude, incompetency due to mental disability, willful refusal to perform regular assignments without reasonable cause, advocating or teaching communism, or knowing membership in the Communist Party. (Education Code § 44939) AB 375 Page 3 Existing law requires that a dismissal or suspension hearing requested by an employee must begin within 60 days of an employee's request and further: 1) Requires that the hearing be conducted by a Commission on Professional Competence (CPC) made up of three members: a) One member selected by the employee; b) One member selected by the governing board; and, c) An administrative law judge (ALJ) who serves as the chair. 2) Provides that the decision made by the CPC is made by majority vote and deems the decision of the CPC to be the final decision of the governing board. 3) Specifies that members of the CPC may not be employees of the district and must have at least five years of experience (within the last ten) in the discipline of the employee. 4) Prohibits testimony or evidence relating to matters that occurred more than four years prior to the date of the filing of the notice, and prohibits a decision relating to the dismissal or suspension of any employee from being made based on charges or evidence of any nature relating to matters occurring more than four years prior to the filing of the notice. Specifies that evidence of records regularly kept by the governing board may be introduced, but no decision relating to the dismissal or suspension of any employee can 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. 5) Specifies that members of a Commission on Professional Competence (CPC) receive their regular salary, fringe benefits, accumulated sick leave and other leaves and benefits but shall receive no additional compensation. 6) Specifies that in the event the employee is dismissed or suspended, the employee will share equally the AB 375 Page 4 expenses of the hearing including the cost of the administrative law judge (ALJ). 7) Specifies that in the event that the employee will not be dismissed or suspended, the governing board will pay the expenses of the hearing, including the cost of the ALJ, the cost of the educators serving on the CPC, and reasonable attorney's fees incurred by the employee. (Education Code § 44944) ANALYSIS This bill : 1) Makes findings and declarations of the Legislature that: a) Pupils, educators, administrators, school boards, and school district employees, need a teacher dismissal process that is both fair and efficient. b) This act is intended to revise existing statutes in a manner that will update and streamline the procedures for teacher discipline and dismissal, making it more cost effective and reducing the time necessary to complete the teacher dismissal process. 2) Removes "knowing membership of the Communist Party" from the list of reasons a permanent school employee can be dismissed or suspended. 3) Provides that if the governing board of the school district has given notice to a permanent employee of its intention to dismiss or suspend him or her, based upon written charges filed or formulated, the charges may be amended only upon a motion before an ALJ of the Office of Administrative Hearings, specifies that the amendment of charges shall not result in any prejudice to the responding party; and requires that no motion shall be granted less than 90 days before the hearing on the charges if it would extend the close of the record beyond the seven-month deadline. 4) Provides that a notice of the governing board to AB 375 Page 5 dismiss or suspend an employee, together with written charges filed or formulated, shall be sufficient to initiate a hearing, as specified, and the governing board shall not be required to file or serve a separate accusation. 5) Deletes the prohibition against sending a 30-day notice between May 15 and September 15 and allows it to be given at any time of the year except for a notice in a proceeding involving charges of unsatisfactory performance, which shall be given during the instructional year at the school site where the employee is physically employed. 6) Provides that a 30-day Notice given outside of the instructional year of the school site where the employee is physically employed shall be in writing and shall be served upon the employee personally with a copy of the charges filed, as specified, attached to the notice. 7) Provides that an employee who has been placed on suspension may serve and file with the Office of Administrative Hearings a motion for immediate reversal of suspension. a) Requires that review of the motion 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. b) Requires the motion to 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. c) Requires the motion to be served upon the governing board of the school district and filed within 30 days after service upon the employee of the initial pleading in the matter; requires the hearing on the motion for immediate reversal of suspension to be held no later than 30 days after the motion is filed with the Office of Administrative Hearings. AB 375 Page 6 d) Requires the administrative law judge (ALJ) to issue an order denying or granting the motion no later than 15 days after the hearing; requires an order granting a motion for immediate reversal of suspension to become effective within five days of service of the order and the school district to make the employee whole for any lost wages, benefits, and compensation within 14 days of service of an order granting the motion. e) Provides that a motion shall be the exclusive means of obtaining interlocutory review of suspension pending dismissal and that the grant or denial of the motion shall not be subject to interlocutory judicial review. 8) Adds murder and attempted murder to the list of mandatory leave of absence offenses. 9) Removes marijuana, mescaline, peyote, and tetrahydrocannabinols as exceptions to the list of controlled substance offenses for which a certificated employee may be charged with a mandatory or optional leave of absence offense. 10) Requires an employee who demands a hearing to file a single document containing his or her request for a hearing and a notice of defense, as specified. 11) Specifies that a dismissal or dismissal hearing shall commence within six months from the date of the employee's request for a hearing; provides that a continuance shall not extend the date for 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 (ALJ). a) Provides that if extraordinary circumstances are found that extend the date for commencement, the deadline for concluding the hearing and closing the record shall be extended for a period of time equal to the continuance. b) Requires the hearing date to be established AB 375 Page 7 after consultation with the employee and the governing board, except that if the parties are not able to reach agreement on a date, the Office of Administrative Hearings shall unilaterally set a date in compliance with this section. c) Requires the hearing to be completed by a closing of the record within seven months of the date of the employee's demand for a hearing. d) Provides that 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 extraordinary circumstances or where 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 ALJ for a period not to exceed 30 days. 12) Provides that if the record cannot be closed within the timeframes, as specified, the charges shall be dismissed without prejudice to the governing board to refile within 30 days a notice of dismissal on the same charges. 13) Deletes the existing discovery process that includes the rights and duties of any party in a civil action brought in a Superior Court under Title 4 of Part 4 of the Code of Civil Procedure; creates a new discovery process where the school district and employee are required to make initial disclosures within 45 days of the date of the employee's demand for a hearing; and specifies that all disclosures must be made no later than 60 days before the start of the hearing, as specified. 14) Authorizes testimony or evidence and decisions to be made relating to matters that occurred more than four years prior to the date of the filing of the notice that involve sexual offences and child abuse offences, as specified. AB 375 Page 8 15) Authorizes a suspension and dismissal hearing to be conducted by a single administrative law judge (ALJ) instead of the full Commission on Professional Competence (CPC) if both parties agree in writing. 16) Reduces the number of years of experience that CPC members are required to have in the discipline of the employee being suspended or dismissed from five to three. 17) Requires members of the CPC to be selected no later than 45 days before the start of the hearing; and requires the governing board and the employee to serve notice of their selection upon all parties and the Office of Administrative Hearings. 18) Specifies that if a party believes that a selected CPC member is not qualified, that party may file an objection with the Office of Administrative Hearings within 10 days of the selection; and within seven days of that objection an ALJ shall rule on the objection. 19) Requires that if a CPC member 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. 20) Deletes the requirement that the employee pay the expenses incurred by the school district at the hearing if a court overturns the decision of a CPC; and deletes the requirement that the district pay the expenses incurred by the employee at the hearing if a court overturns the decision of a CPC. STAFF COMMENTS 1) Need for the bill : According to the author's office, the current teacher discipline and dismissal process is outdated and cumbersome. The law has not kept pace with today's school calendars or practice. In addition, there is no deadline for completion of the dismissal appeal process and continuances can allow costly litigation to drag on for 12-18 months or longer. According to the author's office, AB 375 updates and streamlines the teacher discipline and dismissal process, saving school districts time and AB 375 Page 9 money while at the same time ensuring due process. 2) Procedural reforms . This bill makes a number of procedural reforms that the author maintains would establish more efficient suspension and dismissal procedures. a) Removes the summer moratorium on issuing 30-day notices. The purpose of the prohibition against issuing a 30-day notice between May 15 and September 15 is to ensure a teacher on summer break does not inadvertently forfeit his or her right to a hearing by not receiving the notice promptly and not having adequate time to prepare a response. However, employers argue that the notice moratorium limits their ability to address misconduct issues in a timely manner. Additionally, the moratorium makes little sense if misconduct occurs between May 15 and September 15, during summer school, or at school operating on a year-round schedule. While an argument could be made that vacation schedules may make it more challenging to schedule hearings during the summer, it appears that lifting the moratorium would remove a burdensome restriction on the notification process for teacher misconduct issues (the summer moratorium would still apply to unsatisfactory performance). b) Allows the introduction of historical information. Current law prohibits testimony or evidence relating to matters more than four years old to be introduced at a hearing. This bill would make it easier to include relevant evidence by allowing information that is more than four years old involving sexual offenses and child abuse to be considered during a hearing. This change could enable employers to establish a pattern of behavior that could be relevant to their case by having access to all possible evidence. c) Commission on Professional Competence. Current law requires suspension and dismissal hearings to be conducted by a Commission on Professional Competence (CPC) made up of three AB 375 Page 10 members-one member selected by the employee; one member selected by the governing board; and an administrative law judge (ALJ) who serves as the chair. Members of the CPC may not be employees of the district and must have at least five years of experience (within the last ten) in the discipline of the employee. This bill authorizes the hearings to be presided over by an ALJ alone, instead of the full CPC, if both parties agree in writing. The bill also reduces the number of years of experience that members of the CPC shall have from five years to three years in the same discipline of the teacher being suspended or dismissed. This could increase the number of teachers eligible to serve on the Commission on Professional Competence (CPC). d) Mandatory Leave of Absence Offenses. This bill adds murder and attempted murder to the list of mandatory leave of absence offenses, therefore school districts would be required to place an employee on leave should he or she be criminally charged with murder or attempted murder. This bill also removes the sale, use, or exchange of marijuana, mescaline, peyote, and tetrahydrocannabinols to minors as exceptions to the list of controlled substance offenses for which a certificated employee may be charged with a mandatory leave of absence offense. These provisions could help increase protections for children in school. 3) Will the bill streamline the dismissal process ? The stated objective of AB 375 is to streamline the dismissal process and reduce the timeframe associated with suspension and dismissal proceedings in order to save school districts time and money and protect students, while at the same time, ensuring due process for certificated employees. However, there are several issues worth consideration in assessing whether the bill would accomplish that objective. a) Timeline to complete a hearing. The bill requires dismissal and suspension proceedings to conclude within no more than seven months from AB 375 Page 11 the date an employee demands a hearing. If this deadline is not met, the administrative law judge (ALJ) has the authority to extend the deadline for up to 30 days if he or she believes good cause exists when substantial progress on the case has been made. If the extension is granted and the record is not closed, the charges shall be dismissed without prejudice. A school board would have the option to re-file the same charges which presumably would take more time and cost more money. At this point, would a school district attempt to reach a settlement with the employee rather than start the process all over again? Another option would be for the school district to retain the employee and possibly allow him or her to return to the classroom, perhaps a less than ideal scenario for an employee recently suspended or dismissed for misconduct. Other timeline issues to consider : i) Could the timeline to complete a hearing lead to a situation in which a teacher simply delays the hearing or seeks a continuance in order to go past the deadline in an attempt to evade discipline altogether or force the district to refile the charges, and in the meantime, get compensated? ii) What if a governing board of a school district operating a traditional school calendar issues a 30-day notice in April or May and the summer constitutes nearly half of the seven-month timeline? Could there be unintended procedural issues and delays due to the availability of an administrative law judge (ALJ) as well as difficulties in finding Commission on Professional Competence (CPC) members during the summer? iii) Does the Office of Administrative Hearings have the capacity and resources to conduct and complete hearings within the prescribed timeline? AB 375 Page 12 iv) The bill will only allow a continuance to extend the date for the commencement of a hearing if the ALJ determines that "extraordinary circumstances" exist. Opponents of the bill indicate that this is too high of a standard to meet and is not defined in case law. b) Challenges of CPC members. The bill creates a new mechanism to challenge the selection of CPC members. If a party believes that a selected CPC member is not qualified, that party may file an objection with the Office of Administrative Hearings within 10 days of the selection. Some argue that it is difficult enough to find panel members with five years of experience in the same discipline that are located outside the employee's school district, especially for the larger school districts in the state. Providing the ability to challenge panel members could potentially exacerbate the difficulties with the CPC selection process, and thus make it more challenging for school districts and certificated employees to complete the dismissal process within the prescribed timeline. 4) Related and prior legislation . SB 531 (Knight) would have modified procedures relating to the evaluation, suspension, and dismissal of certificated employees. SB 531 failed passage in this Committee. SB 453 would have modified procedures relating to the suspension, dismissal and leave of absence of employees. SB 453 failed passage in this Committee. SB 1530 (Padilla, 2012) modified procedures relating to the suspension, dismissal, and leave of absence of employees. SB 1530 failed passage in the Assembly Education Committee. SUPPORT California Catholic Conference, Inc. California Federation of Teachers AB 375 Page 13 California Teachers Association Superintendent of Public Instruction OPPOSITION Association of California School Administrators California Association of Suburban School Districts California Association of School Business Officials California Right to Life Committee, Inc. California School Boards Association Drug Policy Alliance EdVoice Humboldt County Office of Education Inyo County Office of Education Lake County Office of Education Orange County Department of Education Riverside County Superintendent of Schools San Bernardino County District Advocates for Better Schools San Diego Unified School District San Francisco Unified School District Sonoma County Office of Education StudentsFirst