BILL ANALYSIS                                                                                                                                                                                                    






                         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