California Legislature Revamps Laws Governing Dismissals and Suspensions of Public School Educators
July 14, 2014 by Dale Brodsky and Maggie Geddes
So far this year, legal activity around public school teacher rights in California has been mixed with job rights advocates and lawyers seeing setbacks as well as increased protections. The close of the 2014 legislative session saw the enactment of AB 215, which revises the Education Code procedures for suspending and dismissing California certificated public school employees. Governor Jerry Brown signed the bill into law, after vetoing a similar bill last year. Its changes are expected to take effect January 1, 2015. The new law was authored by Assembly member Joan Buchanan (D-Alamo) and was supported by a coalition of organizations, including the California Teachers Association and EdVoice, a well-funded, generally conservative education advocacy group.
The new law has been trumpeted as a measure that will help public schools save money and “streamline” the dismissal process, while ensuring due process for public school educators where egregious misconduct is alleged. The review done by Beeson, Tayer and Bodine (BT&B) supports this law as balance of due process for teachers but we are still concerned that teachers’ rights laws and rulings may continue to erode these rights.
The new law applies to suspensions not covered by a collective bargaining agreement, as well as dismissals. Unless otherwise noted, the term dismissal is used here generically to cover both. As amended, primarily the law expedites the administrative process to determine the sufficiency of charges brought by school districts against teacher-employees, when an employee challenges his/her suspension or dismissal. For the newly added charge of “egregious misconduct,” the hearing process is further expedited.
Among the most significant changes from current law are the following:
- “Egregious misconduct” is added as a separate ground for dismissal. “Egregious misconduct” is defined as immoral conduct that is the basis of enumerated sex offenses and controlled substance offenses, as well as criminal child abuse.
- New deadlines govern the timelines for holding dismissal hearings, if demanded by the employee. If not, the employee is dismissed 30 days after notice. A hearing solely on an “egregious misconduct” charge must begin within 60 days of an employee’s request, and is to be given priority over other administrative proceedings involving school employees. A hearing on all other statutory grounds (e.g., unprofessional conduct or unsatisfactory performance) brought separately or in combination with an egregious misconduct charge, must begin within six months of an employee’s request and finish within seven months, absent extenuating circumstances.
- Districts are no longer prevented from issuing notice of charges between May 15 and September 15, as provided in the former law. Under the new law, districts may issue dismissal notices at any time of year, except for notices of “unsatisfactory performance,” which must be issued during the school year of the employee. If a dismissal notice is issued outside the instructional year, the employee must be personally served. During the instructional year, a dismissal notice may be served personally or by registered mail.
- An employee who faces charges, other than solely for “egregious misconduct,” and has been suspended without pay pending the outcome of a dismissal hearing may now challenge the suspension prior to the dismissal hearing by promptly filing a motion with the Office of Administrative Hearings for reversal of the suspension.
- Districts no longer are required to issue a second notice, called an “Accusation,” after an employee requests a hearing, and the employee who seeks a hearing is now required to submit a single notification constituting a request for hearing and Notice of Defense.
- Hearings on all charges, except those alleging only “egregious misconduct,” will continue to be conducted by a three-person panel called a “Commission on Professional Competence,” unless the parties agree to have the hearing conducted solely by an administrative law judge. A hearing solely on a charge of “egregious misconduct” must be conducted by an administrative law judge without a panel.
- Discovery rules have changed.
- The various kinds of written discovery permitted under the Code of Civil Procedure and the Administrative Procedures Act no longer apply, except in cases alleging only “egregious misconduct.” Instead, the parties must promptly make initial disclosures and then supplemental disclosures, including the names of all individuals who have discoverable information, all documents and tangible items, and other evidence as it becomes available, unless it is only to be used to impeach the credibility of a witness. The parties are limited to five depositions, and each deposition can be no longer than seven hours, except on a showing of good cause.
- In cases alleging “egregious misconduct,” the parties have all rights of discovery afforded by the APA and the Code of Civil Procedure for civil actions brought in superior court.
- The new law allows decisions related to dismissal solely on a charge of “egregious misconduct” to be based on charges or evidence of offenses that occurred more than four years before the current dismissal notice, while preserving the four-year limitations period for all other charges.
- Any school employer that has reported allegations of an employee’s “egregious misconduct” to the Commission on Teacher Credential must disclose that fact to a prospective employer who inquires. Districts and employees are prohibited from entering into agreements to expunge from personnel files “credible complaints of, substantiated investigations into, or discipline for egregious misconduct.”
- The new law provides that any school employee who makes a false allegation of egregious misconduct against another school employee, knowing it to be false, is subject to having their certificate revoked.
- Currently, if after a hearing it is determined that the employee should be dismissed, the district must pay all expenses of the hearing, with the state paying limited costs. Under the new law, if it is determined that the employee should be dismissed, the district and state will share equally the expenses and costs of the hearing. If the determination is that the employee should not be dismissed, the district must bear fully the expenses and costs of the hearing, including the employee’s attorney fees.
Beeson, Tayer & Bodine continues to advocate for legal protection of employees’ job rights and we encourage readers to keep up to date with labor and employment law rulings through our newsletter and blog. You can also follow us on Twitter @btblegal and contact one of our Sacramento or Oakland employment lawyers if you are interested in discussing a specific situation where you believe basic job or union rights activities have not been adequately respected.
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