44930-44988
EDUCATION CODE
SECTION 44930-44988
44930. (a) Governing boards of school districts 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 board.
(b) Notwithstanding any other provision of law, 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 board.
44931. Whenever any certificated employee of any school district
who, at the time of his or her resignation, was classified as
permanent, is reemployed within 39 months after his or her last day
of paid service, the governing board of the district shall,
disregarding the break in service, classify him or her as, and
restore to him or her all of the rights, benefits and burdens of, a
permanent employee, except as otherwise provided in this code.
However, time spent in active military service, as defined in Section
44800, subsequent to the last day of paid service shall not count as
part of the aforesaid 39-month period.
44932. (a) No permanent employee shall be dismissed except for one
or more of the following causes:
(1) Immoral or unprofessional conduct.
(2) 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 thereof.
(3) Dishonesty.
(4) Unsatisfactory performance.
(5) Evident unfitness for service.
(6) Physical or mental condition unfitting him or her to instruct
or associate with children.
(7) 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 of Education or by the
governing board of the school district employing him or her.
(8) Conviction of a felony or of any crime involving moral
turpitude.
(9) Violation of Section 51530 or conduct specified in Section
1028 of the Government Code, added by Chapter 1418 of the Statutes of
1947.
(10) Knowing membership by the employee in the Communist Party.
(11) Alcoholism or other drug abuse which makes the employee unfit
to instruct or associate with children.
(b) 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 any school district which has
adopted a collective bargaining agreement pursuant to subdivision (b)
of Section 3543.2 of the Government Code.
44933. A permanent employee may be dismissed or suspended on
grounds of unprofessional conduct consisting of acts or omissions
other than those specified in Section 44932, but any such charge
shall specify instances of behavior deemed to constitute
unprofessional conduct. This section shall also apply to the
suspension of probationary employees in a school district with an
average daily attendance of less than 250 pupils.
44934. Upon the filing of written charges, duly signed and verified
by the person filing them, with the governing board of the school
district, or upon a written statement of charges formulated by the
governing board, charging that there exists cause, as specified in
Section 44932 or 44933, for the dismissal or suspension of a
permanent employee of the district, the governing board 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 or suspend him or her 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. Suspension proceedings
may be initiated pursuant to this section only if the governing
board has not adopted a collective bargaining agreement pursuant to
subdivision (b) of Section 3543.2 of the Government Code.
Any written statement of charges of unprofessional conduct or
unsatisfactory performance 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 which the teacher is alleged
to have violated, but it shall also set forth the facts relevant to
each occasion of alleged unprofessional conduct or unsatisfactory
performance.
This section shall also apply to the suspension of probationary
employees in a school district with an average daily attendance of
less than 250 pupils which has not adopted a collective bargaining
agreement pursuant to subdivision (b) of Section 3542.2 of the
Government Code.
44935. No report on the fitness of a teacher in a dismissal or
suspension proceeding initiated pursuant to Section 44934 shall be
received from a statewide professional organization by a governing
board unless the teacher shall have been given, prior to the
preparation of the report in its final form, the opportunity to
submit in writing his or her comments on the report and unless a copy
of the report in final form is given to the teacher investigated at
least 10 days prior to its submission to the board.
Such a report shall not be distributed other than to the governing
board and those persons participating in its preparation, unless the
teacher does not demand a hearing as provided by Section 44937.
44936. The notice of dismissal or suspension in a proceeding
initiated pursuant to Section 44934 shall not be given between May
15th and September 15th in any year. It shall be in writing and be
served upon the employee personally or by United States registered
mail addressed to him at his last known address. 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.
44937. In a dismissal or suspension proceeding 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 suspended without pay for a specific period of
time at the expiration of the 30-day period.
44938. (a) The governing board of any school district shall not act
upon any charges of unprofessional conduct unless at least 45
calendar days prior to the date of the filing, the board or its
authorized representative has given the employee against whom the
charge is filed, written notice of the unprofessional conduct,
specifying the nature thereof with such specific instances of
behavior and with such 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) The governing board of any school district shall not act upon
any charges of unsatisfactory performance unless it acts in
accordance with the provisions of paragraph (1) or (2):
(1) At least 90 calendar days prior to the date of the filing, the
board or its authorized representative has given the employee
against whom the charge is filed, written notice of the
unsatisfactory performance, specifying the nature thereof with such
specific instances of behavior and with such 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.
(2) The governing board may act during the time period composed of
the last one-fourth of the schooldays it has scheduled for purposes
of computing apportionments in any fiscal year if, prior to the
beginning of that time period, the board or its authorized
representative has given the employee against whom the charge is
filed, written notice of the unsatisfactory performance, specifying
the nature thereof with such specific instances of behavior and with
such 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.
(c) "Unsatisfactory performance" as used in this section means,
and refers only to, the unsatisfactory performance particularly
specified as a cause for dismissal in Section 44932 and does not
include any other cause for dismissal specified in Section 44932.
"Unprofessional conduct" as used in this section means, and refers
to, the unprofessional conduct particularly specified as a cause for
dismissal or suspension in Sections 44932 and 44933 and does not
include any other cause for dismissal specified in Section 44932.
44939. 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, charging a permanent employee of the district with
immoral conduct, conviction of a felony or of any crime involving
moral turpitude, with incompetency due to mental disability, with
willful refusal to perform regular assignments without reasonable
cause, as prescribed by reasonable rules and regulations of the
employing school district, with violation of Section 51530, with
knowing membership by the employee in the Communist Party or with
violation of any provision in Sections 7001 to 7007, inclusive, the
governing board may, if it deems such action necessary, immediately
suspend the employee from his duties and give notice to him of his
suspension, and that 30 days after service of the notice, he will be
dismissed, unless he demands a hearing.
If the permanent employee is suspended upon charges of knowing
membership by the employee in the Communist Party or for any
violation of Section 7001, 7002, 7003, 7006, 7007, or 51530, he may
within 10 days after service upon him of notice of such suspension
file with the governing board a verified denial, in writing, of the
charges. In such event the permanent employee who demands a hearing
within the 30-day period shall continue to be paid his regular salary
during the period of suspension and until the entry of the decision
of the Commission on Professional Competence, if and during such time
as he furnishes to the school district a suitable bond, or other
security acceptable to the governing board, as a guarantee that the
employee will repay to the school district the amount of salary so
paid to him during the period of suspension in case the decision of
the Commission on Professional Competence is that he shall be
dismissed. If it is determined that the employee may not be
dismissed, the school board shall reimburse the employee for the cost
of the bond.
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,
or 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 Section
11054, 11055, and 11056 of the Health and Safety Code, with the
exception of marijuana, mescaline, peyote, or tetrahydrocannabinols.
(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,
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.
(c) For purposes of this section and Section 44940.5, the term
"school district" includes county offices of education.
(d) (1) Whenever any 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 employee on compulsory leave of absence. The duration of the
leave of absence shall be until a time not more than 10 days after
the date of entry of the judgment in the proceedings. 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 date of entry of the judgment in the proceedings.
(e) (1) Whenever any 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 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 date of entry of the judgment in the proceedings.
44940.5. A certificated employee placed on compulsory leave of
absence pursuant to Section 44940, and a classified employee placed
on compulsory leave of absence pursuant to Section 45304 shall be
subject to the following procedures:
(a) The governing board of the school district may extend the
compulsory leave of absence of the employee beyond the initial period
specified in Section 44940 or 45304, whichever is applicable, by
giving notice to the employee within 10 days after the entry of
judgment in the proceedings that the employee will be dismissed 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.
(b) An employee placed upon compulsory leave of absence pursuant
to this section shall continue to be paid his or her regular salary
during the period of his or her compulsory leave of absence if and
during that time he or she furnishes to the school district a
suitable bond, or other security acceptable to the governing board,
as a guarantee that the employee will repay to the school district
the amount of salary so paid to him or her during the period of the
compulsory leave of absence in case the employee is convicted of the
charges, or fails or refuses to return to service following an
acquittal of the offense or dismissal of the charges. If the employee
is acquitted of the offense, or the charges against the employee are
dismissed, the school district shall reimburse the employee for the
cost of the bond upon his or her return to service in the school
district.
(c) If the employee does not elect to furnish bond, or other
security acceptable to the governing board of the district, and if
the employee is acquitted of the offense, or the charges against him
or her are dismissed without his or her guilt being established, the
school district shall pay to the employee his or her full
compensation for the period of the compulsory leave of absence upon
his or her return to service in the school district. If the charges
against the employee are dismissed as a result of the employee's
successful completion of a drug diversion program, upon the employee'
s return to service in the school district, the school district, at
the employee's election, shall pay to the employee any accrued leave,
and differential pay pursuant to Sections 44977, 45195, and 45196,
for up to the length of the employee's compulsory leave of absence.
(d) An action taken pursuant to this section by a governing board
shall be reported immediately to the Commission on Teacher
Credentialing. The commission shall give priority to the
investigation and resolution of these cases.
44941. The notice of suspension and intention to dismiss, shall be
in writing and be served upon the employee personally or by United
States registered mail addressed to the employee at his last known
address. 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. If the employee does not demand a hearing within the 30-day
period, he may be dismissed upon the expiration of 30 days after
service of the notice.
44942. (a) Any certificated employee may be suspended or
transferred to other duties by the governing board if the board has
reasonable cause to believe that the employee is suffering from
mental illness of such a degree as to render him or her incompetent
to perform his or her duties.
(b) The governing board shall immediately, upon any suspension or
transfer under this section, give to the employee a written statement
of the facts giving rise to the board's belief, and an opportunity
to appear before the board within 10 days to explain or refute the
charges.
(c) If, after the employee's appearance before the board, the
board decides to continue the suspension or transfer, or if the
employee chooses not to appear before the board, the employee shall
then be offered, in writing, the opportunity of being examined by a
panel consisting of three persons who are either psychiatrists or
psychologists, at least one of whom shall be a psychiatrist, selected
by him or her from a list of psychiatrists and psychologists to be
provided by the board. To assist the panel in making its
determination, the governing board shall supply to the panel, prior
to the date scheduled for the examination, a list of the duties of
the position from which the employee was suspended or transferred.
The employee shall continue to receive his or her regular salary and
all other benefits of employment during the period dating from his or
her suspension to the filing of the report of the panel with the
governing board.
(d) The examination shall be conducted at school district expense
within 15 days of any suspension or transfer ordered under this
section. The employee shall submit to the examination, but shall be
entitled to be represented by a psychiatrist, psychologist licensed
under Chapter 6.6 (commencing with Section 2900) of Division 2 of the
Business and Professions Code, or physician of his or her own
choice, and any report of the psychiatrist, psychologist, or
physician selected by him or her shall be filed with the panel at the
request of the employee.
A written report of the panel on the examination of the suspended
or transferred employee shall be submitted to the governing board no
later than 10 days after completion of the examination. A copy shall
be supplied to the employee upon request. The report shall contain a
finding on whether the employee is suffering from mental illness of
such a degree as to render him or her incompetent to perform his or
her duties.
(e) If a majority of the panel conclude that the employee should
be permitted to return to his or her duties, no written record of the
suspension or of the determination of the panel shall be retained,
and in all respects any written record concerning the employee shall
appear as it did before the suspension was made.
(f) If a majority of the panel find in the panel's report that the
employee is suffering from mental illness of such a degree as to
render him or her incompetent to perform his or her duties, the
governing board may, upon receipt of the report, place the employee
on mandatory sick leave of absence. Any mandatory sick leave of
absence imposed under this section shall not exceed two years, during
which period the employee shall be entitled to sick leave and
hospital and medical benefits that he or she accrued during his or
her employment by the governing board but only to the extent of that
accrual.
(g) Any employee placed on mandatory sick leave of absence
pursuant to this section may, in writing, immediately demand a
hearing. Upon receipt of that written demand, the governing board
shall file a complaint in the superior court of the county in which
the school district, or the major part thereof, is located, setting
forth the charges against the employee and asking that the court
inquire into the charges and determine whether or not the charges are
true, and, if true, whether they constitute sufficient grounds for
placing the employee on mandatory sick leave of absence, and for a
judgment pursuant to its findings.
(h) If the court finds that the employee was not, at the time of
the suspension, incompetent to perform his or her assigned duties and
should not have been placed on mandatory sick leave of absence, the
employee shall be immediately reinstated to the same or a
substantially similar position with full back salary, and any written
record of the suspension or transfer or any report of the panel
shall be destroyed.
(i) If the court confirms the placing of the employee on mandatory
sick leave, or if the employee does not seek a hearing, then, upon
written request of the employee made not earlier than six months nor
later than two years after the date he or she was placed on mandatory
sick leave of absence, a new panel consisting of three persons who
are either psychiatrists or psychologists, at least one of whom shall
be a psychiatrist, shall be convened by, and at the expense of, the
governing board to review its original conclusion. If the original
conclusion is not changed by the new panel as a result of that
review, the employee shall be continued on the mandatory sick leave
of absence, except that when the employee's total period of absence
exceeds two years, the governing board shall either rescind its
action and reinstate the employee to the same or a substantially
similar position, or shall serve the employee with a notice of
intention to dismiss him or her, and proceed according to Section
44943.
(j) If a majority of the new panel concludes in its report, or any
subsequent review thereof, that the suspended employee or employee
on mandatory sick leave of absence should be permitted to return to
his or her duties, or if the court so concludes, the governing board
shall take immediate action to restore the employee to the position
from which he or she was suspended or transferred or to a
substantially similar position.
(k) Every hearing and action by or before the governing board
pursuant to this section shall be in executive session, and no
decision, action, or occurrence therein shall be made public, unless
the employee so requests in writing.
(l) Nothing in this section shall be construed to supersede
Section 44949.
44943. When any employee who has been served with notice pursuant
to Section 44934 of the governing board's intention to dismiss or
suspend him or her demands a hearing, the governing board shall have
the option either (a) to rescind its action, or (b) schedule a
hearing on the matter.
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) 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.
44944.1. At a hearing conducted pursuant to Section 44944, the
administrative law judge, before admitting any testimony or evidence
concerning an individual pupil, shall determine whether the
introduction of the testimony or evidence at an open hearing would
violate any provision of Article 5 (commencing with Section 49073) of
Chapter 6.5 of Part 27 of Division 4, relating to privacy of pupil
records. If the administrative law judge, in his or her discretion,
determines that any of such provisions would be violated, he or she
shall order that the hearing, or any portion thereof at which the
testimony or evidence would be produced, be conducted in executive
session.
44945. The decision of the Commission on Professional Competence
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.
44946. If the employee has been suspended pending the hearing, he
shall be reinstated within five days after the governing board's
decision in his favor, and shall be paid full salary by the governing
board for the period of his suspension.
44947. If an employee is dismissed for immoral conduct or
conviction of a felony or crime involving moral turpitude, the
governing board shall transmit to the Commission on Teacher
Credentialing and to the county board of education which issued the
certificate under which the employee was serving at the time of his
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.
44948. (a) Governing boards of school districts shall dismiss
probationary employees during the school year for cause only, as in
the case of permanent employees.
This subdivision shall apply only to probationary employees whose
probationary period commenced prior to the 1983-84 fiscal year or who
are employed in a school district having an average daily attendance
of less than 250 pupils.
(b) The governing board may suspend a probationary employee for a
specified period of time without pay as an alternative to dismissal
pursuant to this section. This subdivision shall apply only to
probationary employees whose probationary period commenced prior to
the 1983-84 fiscal year.
44948.2. Notwithstanding subdivision (a) of Section 44948 and
subdivision (c) of Section 44948.3, the governing board of any school
district having an average daily attendance of less than 250 may
elect to dismiss probationary employees during the school year
pursuant to the provisions of Section 44948.3. Once a district has
made an election pursuant to this section, it shall only dismiss
probationary certificated employees during the school year pursuant
to this section.
44948.3. (a) First and second year probationary employees may be
dismissed during the school year for unsatisfactory performance
determined pursuant to Article 11 (commencing with Section 44660) of
Chapter 3, or for cause pursuant to Section 44932. Any dismissal
pursuant to this section shall be in accordance with all of the
following procedures:
(1) The superintendent of the school district or the
superintendent's designee shall give 30 days' prior written notice of
dismissal, not later than March 15 in the case of second year
probationary employees. The notice shall include a statement of the
reasons for the dismissal and notice of the opportunity to appeal. In
the event of a dismissal for unsatisfactory performance, a copy of
the evaluation conducted pursuant to Section 44664 shall accompany
the written notice.
(2) The employee shall have 15 days from receipt of the notice of
dismissal to submit to the governing board a written request for a
hearing. The governing board may establish procedures for the
appointment of an administrative law judge to conduct the hearing and
submit a recommended decision to the board. The failure of an
employee to request a hearing within 15 days from receipt of a
dismissal notice shall constitute a waiver of the right to a hearing.
(b) The governing board, pursuant to this section, may suspend a
probationary employee for a specified period of time without pay as
an alternative to dismissal.
(c) This section applies only to probationary employees whose
probationary period commenced during the 1983-84 fiscal year or any
fiscal year thereafter, and does not apply to probationary employees
in a school district having an average daily attendance of less than
250 pupils.
44948.5. (a) This section applies only to (1) probationary
employees of a school district with an average daily attendance of
less than 250 pupils, or (2) those persons currently employed as
probationary employees whose probationary period commenced prior to
the 1983-84 fiscal year.
(b) No later than March 15 and before a probationary employee is
given notice by the governing board that his or her services will not
be required for the ensuing year for reasons other than those
specified in Section 44955, the governing board and the employee
shall be given written notice by the superintendent of the district
or his or her designee, or, in the case of a district which has no
superintendent, by the clerk or secretary of the governing board,
that it has been recommended that the notice be given to the
employee, and stating the reasons therefor.
If the probationary employee has been in the employ of the
district for less than 45 days on March 15, the giving of the notice
may be deferred until the 45th day of employment and all time period
and deadline dates prescribed by this subdivision shall be
coextensively extended.
Until the employee has requested a hearing as provided in
subdivision (c) or has waived his or her right to a hearing, the
notice and the reasons therefor shall be confidential and shall not
be divulged by any person, except as may be necessary in the
performance of duties. However, the violation of this requirement of
confidentiality, in and of itself, shall not in any manner be
construed as affecting the validity of any hearing conducted pursuant
to this section.
(c) The employee may request a hearing to determine if there is
cause for not reemploying him or her for the ensuing year. A request
for a hearing shall be in writing and shall be delivered to the
person who sent the notice pursuant to subdivision (b), on or before
a date specified in that subdivision, which shall not be less than
seven days after the date on which the notice is served upon the
employee. If an employee fails to request a hearing on or before the
date specified, his or her failure to do so shall constitute a waiver
of his or her right to a hearing. The notice provided for in
subdivision (b) shall advise the employee of the provisions of this
subdivision.
(d) In the event a hearing is requested by the employee, the
proceeding shall be 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 and the governing board shall have all
the power granted to an agency therein, except that all of the
following shall apply:
(1) The respondent shall file his or her notice of defense, if
any, within five days after service upon him or her of the accusation
and he or she shall be notified of this five-day period for filing
in the accusation.
(2) The discovery authorized by Section 11507.6 of the Government
Code shall be available only if request is made therefor within 15
days after service of the accusation, and the notice required by
Section 11505 of the Government Code shall so indicate.
(3) The hearing shall be conducted by an administrative law judge
who shall prepare a proposed decision, containing findings of fact
and a determination as to whether the charges sustained by the
evidence are related to the welfare of the schools and the pupils
thereof. The proposed decision shall be prepared for the governing
board and shall contain a determination as to the sufficiency of the
cause and a recommendation as to disposition. However, the governing
board shall make the final determination as to the sufficiency of the
cause and disposition. None of the findings, recommendations, or
determinations contained in the proposed decision prepared by the
administrative law judge shall be binding on the governing board.
Nonsubstantive procedural errors committed by the school district or
governing board of the school district shall not constitute cause for
dismissing the charges unless the errors are prejudicial errors.
Copies of the proposed decision shall be submitted to the governing
board and to the employee on or before May 7 of the year in which the
proceeding is commenced. All expenses of the hearing, including the
cost of the administrative law judge, shall be paid by the governing
board from the district funds.
The board may adopt from time to time such rules and procedures
not inconsistent with provisions of this section as may be necessary
to effectuate this section.
(e) The governing board's determination not to reemploy a
probationary employee for the ensuing school year shall be for cause
only. The determination of the governing board as to the sufficiency
of the cause pursuant to this section shall be conclusive, but the
cause shall relate solely to the welfare of the schools and the
pupils thereof. The decision made after the hearing shall be
effective on May 15 of the year the proceeding is commenced.
(f) Notice to the probationary employee by the governing board
that his or her service will not be required for the ensuing year,
shall be given no later than May 15.
(g) If a governing board notifies a probationary employee that his
or her services will not be required for the ensuing year, the board
shall, within 10 days after delivery to it of the employee's written
request, provide the employee with a statement of its reasons for
not reemploying him or her for the ensuing school year.
(h) Any notice or request shall be deemed sufficient when it is
delivered in person to the employee to whom it is directed, or when
it is deposited in the United States registered mail, postage prepaid
and addressed to the last known address of the employee.
(i) In the event that the governing board does not give notice
provided for in subdivision (e) on or before May 15, the employee
shall be deemed reemployed for the ensuing school year.
(j) If after request for hearing pursuant to subdivision (c) any
continuance is granted pursuant to Section 11524 of the Government
Code, the dates prescribed in subdivisions (d), (e), (f), and (i)
which occur on or after the date of granting the continuance shall be
extended for a period of time equal to the continuance.
44949. (a) No later than March 15 and before an employee is given
notice by the governing board that his or her services will not be
required for the ensuing year for the reasons specified in Section
44955, the governing board and the employee shall be given written
notice by the superintendent of the district or his or her designee,
or in the case of a district which has no superintendent by the clerk
or secretary of the governing board, that it has been recommended
that the notice be given to the employee, and stating the reasons
therefor.
Until the employee has requested a hearing as provided in
subdivision (b) or has waived his or her right to a hearing, the
notice and the reasons therefor shall be confidential and shall not
be divulged by any person, except as may be necessary in the
performance of duties. However, the violation of this requirement of
confidentiality, in and of itself, shall not in any manner be
construed as affecting the validity of any hearing conducted pursuant
to this section.
(b) The employee may request a hearing to determine if there is
cause for not reemploying him or her for the ensuing year. A request
for a hearing shall be in writing and shall be delivered to the
person who sent the notice pursuant to subdivision (a), on or before
a date specified in that subdivision, which shall not be less than
seven days after the date on which the notice is served upon the
employee. If an employee fails to request a hearing on or before the
date specified, his or her failure to do so shall constitute his or
her waiver of his or her right to a hearing. The notice provided for
in subdivision (a) shall advise the employee of the provisions of
this subdivision.
(c) In the event a hearing is requested by the employee, the
proceeding shall be 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 and the governing board shall have all
the power granted to an agency therein, except that all of the
following shall apply:
(1) The respondent shall file his or her notice of defense, if
any, within five days after service upon him or her of the accusation
and he or she shall be notified of this five-day period for filing
in the accusation.
(2) The discovery authorized by Section 11507.6 of the Government
Code shall be available only if request is made therefor within 15
days after service of the accusation, and the notice required by
Section 11505 of the Government Code shall so indicate.
(3) The hearing shall be conducted by an administrative law judge
who shall prepare a proposed decision, containing findings of fact
and a determination as to whether the charges sustained by the
evidence are related to the welfare of the schools and the pupils
thereof. The proposed decision shall be prepared for the governing
board and shall contain a determination as to the sufficiency of the
cause and a recommendation as to disposition. However, the governing
board shall make the final determination as to the sufficiency of the
cause and disposition. None of the findings, recommendations, or
determinations contained in the proposed decision prepared by the
administrative law judge shall be binding on the governing board.
Nonsubstantive procedural errors committed by the school district or
governing board of the school district shall not constitute cause for
dismissing the charges unless the errors are prejudicial errors.
Copies of the proposed decision shall be submitted to the governing
board and to the employee on or before May 7 of the year in which the
proceeding is commenced. All expenses of the hearing, including the
cost of the administrative law judge, shall be paid by the governing
board from the district funds.
The board may adopt from time to time such rules and procedures
not inconsistent with provisions of this section as may be necessary
to effectuate this section.
(d) Any notice or request shall be deemed sufficient when it is
delivered in person to the employee to whom it is directed, or when
it is deposited in the United States registered mail, postage prepaid
and addressed to the last known address of the employee.
(e) If after request for hearing pursuant to subdivision (b) any
continuance is granted pursuant to Section 11524 of the Government
Code, the dates prescribed in subdivision (c) which occur on or after
the date of granting the continuance and the date prescribed in
subdivision (c) of Section 44955 which occurs after the date of
granting the continuance shall be extended for a period of time equal
to the continuance.
44951. Unless a certificated employee holding a position requiring
an administrative or supervisory credential is sent written notice
deposited in the United States registered mail with postage prepaid
and addressed to his or her last known address by March 15 that he or
she may be released from his or her position for the following
school year, or unless the signature of the employee is obtained by
March 15 on the written notice that he or she may be released from
his or her position for the following year, he or she shall be
continued in the position. The provisions of this section do not
apply to a certificated employee who holds a written contract with an
expiration date beyond the current school year, or to a certificated
employee holding a position that is funded for less than a school
year, or to a certificated employee assigned to an acting position
whose continuing right to hold this position depends on being
selected from an eligible list established for the position, or to
the termination of employment pursuant to Section 44955.
44952. The provisions of Section 44949 shall not be construed as in
any way modifying or affecting the provisions of Section 44948.
44953. Governing boards of school districts may dismiss substitute
employees at any time at the pleasure of the board.
44954. Governing boards of school districts may release temporary
employees requiring certification qualifications under the following
circumstances:
(a) At the pleasure of the board prior to serving during one
school year at least 75 percent of the number of days the regular
schools of the district are maintained.
(b) After serving during one school year the number of days set
forth in subdivision (a), if the employee is notified before the end
of the school year of the district's decision not to reelect the
employee for the next succeeding year.
44955. (a) No permanent employee shall be deprived of his or her
position for causes other than those specified in Sections 44907 and
44923, and Sections 44932 to 44947, inclusive, and no probationary
employee shall be deprived of his or her position for cause other
than as specified in Sections 44948 to 44949, inclusive.
(b) Whenever in any school year the average daily attendance in
all of the schools of a district for the first six months in which
school is in session shall have declined below the corresponding
period of either of the previous two school years, whenever the
governing board determines that attendance in a district will decline
in the following year as a result of the termination of an
interdistrict tuition agreement as defined in Section 46304, whenever
a particular kind of service is to be reduced or discontinued not
later than the beginning of the following school year, or whenever
the amendment of state law requires the modification of curriculum,
and when in the opinion of the governing board of the district it
shall have become necessary by reason of any of these conditions to
decrease the number of permanent employees in the district, the
governing board may terminate the services of not more than a
corresponding percentage of the certificated employees of the
district, permanent as well as probationary, at the close of the
school year. Except as otherwise provided by statute, the services of
no permanent employee may be terminated under the provisions of this
section while any probationary employee, or any other employee with
less seniority, is retained to render a service which said permanent
employee is certificated and competent to render.
In computing a decline in average daily attendance for purposes of
this section for a newly formed or reorganized school district, each
school of the district shall be deemed to have been a school of the
newly formed or reorganized district for both of the two previous
school years.
As between employees who first rendered paid service to the
district on the same date, the governing board shall determine the
order of termination solely on the basis of needs of the district and
the students thereof. Upon the request of any employee whose order
of termination is so determined, the governing board shall furnish in
writing no later than five days prior to the commencement of the
hearing held in accordance with Section 44949, a statement of the
specific criteria used in determining the order of termination and
the application of the criteria in ranking each employee relative to
the other employees in the group. This requirement that the governing
board provide, on request, a written statement of reasons for
determining the order of termination shall not be interpreted to give
affected employees any legal right or interest that would not exist
without such a requirement.
(c) Notice of such termination of services shall be given before
the 15th of May in the manner prescribed in Section 44949, and
services of such employees shall be terminated in the inverse of the
order in which they were employed, as determined by the board in
accordance with the provisions of Sections 44844 and 44845. In the
event that a permanent or probationary employee is not given the
notices and a right to a hearing as provided for in Section 44949, he
or she shall be deemed reemployed for the ensuing school year.
The governing board shall make assignments and reassignments in
such a manner that employees shall be retained to render any service
which their seniority and qualifications entitle them to render.
However, prior to assigning or reassigning any certificated employee
to teach a subject which he or she has not previously taught, and for
which he or she does not have a teaching credential or which is not
within the employee's major area of postsecondary study or the
equivalent thereof, the governing board shall require the employee to
pass a subject matter competency test in the appropriate subject.
(d) Notwithstanding subdivision (b), a school district may deviate
from terminating a certificated employee in order of seniority for
either of the following reasons:
(1) The district demonstrates a specific need for personnel to
teach a specific course or course of study, or to provide services
authorized by a services credential with a specialization in either
pupil personnel services or health for a school nurse, and that the
certificated employee has special training and experience necessary
to teach that course or course of study or to provide those services,
which others with more seniority do not possess.
(2) For purposes of maintaining or achieving compliance with
constitutional requirements related to equal protection of the laws.
44955.5. (a) During the time period between five days after the
enactment of the Budget Act and August 15 of the fiscal year to which
that Budget Act applies, if the governing board of a school district
determines that its total revenue limit per unit of average daily
attendance for the fiscal year of that Budget Act has not increased
by at least 2 percent, and if in the opinion of the governing board
it is therefore necessary to decrease the number of permanent
employees in the district, the governing board may terminate the
services of any permanent or probationary certificated employees of
the district, including employees holding a position that requires an
administrative or supervisory credential. The termination shall be
pursuant to Sections 44951 and 44955 but, notwithstanding anything to
the contrary in Sections 44951 and 44955, in accordance with a
schedule of notice and hearing adopted by the governing board.
(b) This section is inoperative from July 1, 2002, to July 1,
2003, inclusive.
44956. (a) Any permanent employee whose services have been
terminated as provided in Section 44955 shall have the following
rights:
(1) For the period of 39 months from the date of such termination,
any employee who in the meantime has not attained the age of 65
years shall have the preferred right to reappointment, in the order
of original employment as determined by the board in accordance with
the provisions of Sections 44831 to 44855, inclusive, if the number
of employees is increased or the discontinued service is
reestablished, with no requirements that were not imposed upon other
employees who continued in service; provided, that no probationary or
other employee with less seniority shall be employed to render a
service which said employee is certificated and competent to render.
However, prior to reappointing any employee to teach a subject which
he or she has not previously taught, and for which he or she does not
have a teaching credential or which is not within the employee's
major area of postsecondary study or the equivalent thereof, the
governing board shall require the employee to pass a subject matter
competency test in the appropriate subject.
(2) The aforesaid right to reappointment may be waived by the
employee, without prejudice, for not more than one school year,
unless the board extends this right, but such waiver shall not
deprive the employee of his right to subsequent offers of
reappointment.
(3) Notwithstanding paragraph (1), a school district may deviate
from reappointing a certificated employee in order of seniority for
either of the following reasons:
(A) The district demonstrates a specific need for personnel to
teach a specific course or course of study, or to provide services
authorized by a services credential with a specialization in either
pupil personnel services or health for a school nurse, and that the
employee has special training and experience necessary to teach that
course or course of study, or to provide those services, which others
with more seniority do not possess.
(B) For purposes of maintaining or achieving compliance with
constitutional requirements related to equal protection of the laws.
(4) As to any such employee who is reappointed, the period of his
absence shall be treated as a leave of absence and shall not be
considered as a break in the continuity of his service, he shall
retain the classification and order of employment he had when his
services were terminated, and credit for prior service under any
state or district retirement system shall not be affected by such
termination, but the period of his absence shall not count as a part
of the service required for retirement.
(5) During the period of his preferred right to reappointment, any
such employee shall, in the order of original employment, be offered
prior opportunity for substitute service during the absence of any
other employee who has been granted a leave of absence or who is
temporarily absent from duty; provided, that his services may be
terminated upon the return to duty of said other employee and that
said substitute service shall not affect the retention of his
previous classification and rights. If, in any school year the
employee serves as a substitute in any position requiring
certification for any 21 days or more within a period of 60
schooldays, the compensation the employee receives for substitute
service in that 60-day period, including his or her first 20 days of
substitute service, shall be not less than the amount the employee
would receive if he or she were being reappointed.
(6) During the period of the employee's preferred right to
reappointment, the governing board of the district, if it is also the
governing board of one or more other districts, may assign him to
service, which he is certificated and competent to render, in said
other district or districts; provided, that the compensation he
receives therefor may in the discretion of the governing board be the
same as he would have received had he been serving in the district
from which his services were terminated, that his service in the said
other district or districts shall be counted toward the period
required for both state and local retirement, as defined by Section
22102, as though rendered in the district from which his services
were terminated, and that no permanent employee in said other
district or districts shall be displaced by him.
It is the intent of this subsection that the employees of a school
district, the governing board of which is also the governing board
of one or more other school districts, shall not be at a disadvantage
as compared with employees of a unified school district.
(7) At any time prior to the completion of one year after his
return to service, he may continue or make up, with interest, his own
contributions to any state or district retirement system, for the
period of his absence, but it shall not be obligatory on state or
district to match such contributions.
(8) Should he become disabled or reach retirement age at any time
before his return to service, he shall receive, in any state or
district retirement system of which he was a member, all benefits to
which he would have been entitled had such event occurred at the time
of his termination of service, plus any benefits he may have
qualified for thereafter, as though still employed.
44956.5. For a certificated employee initially employed in an
administrative position on or after July 1, 1983, who transfers to a
teaching position, the period of employment in the administrative
position shall not be included in determining seniority for purposes
of Sections 44955 and 44956, except for school site administrators
who shall earn up to a maximum of three years seniority while serving
as site administrators.
44957. Any probationary employee whose services have been
terminated as provided in Section 44955 shall have the following
rights:
(a) For the period of 24 months from the date of such termination,
any employee who in the meantime has not attained the age of 65
years shall have the preferred right to reappointment, subject to the
prior rights to reappointment by all permanent employees as set
forth in Section 44956, in the order of original employment as
determined by the governing board in accordance with the provisions
of Sections 44831 to 44855, inclusive, if the number of employees is
increased or the discontinued service is reestablished, with no
requirements that were not imposed upon other employees who continued
in service. Except as otherwise provided, no probationary or
temporary employee with less seniority shall be employed to render a
service which such employee is certificated and competent to render
and provided that such an employee shall