New Bill Would Improve Teacher Dismissal Procedures and Widen Scope of Conduct That Can Be Charged

State Senator Lou Correa (D-Santa Ana), with the support of the California School Boards Association (“CSBA”), has drafted a bill that would streamline the teacher dismissal process and specify additional types of conduct that can be charged by school districts. Senate Bill 843 would also make teacher dismissal procedures fairer for school districts, make it easier to remove teachers charged with “serious and egregious conduct” and “immoral conduct” from the classroom, and provide that each side pay its own attorneys’ fees. For school districts, this is the bill they have all been waiting for. Below is an analysis of some of the key provisions of the bill.

Time Period for Notice Before Filing Charges Would Be Reduced for All Cases

Currently, Education Code section 44938 states that a school district is prohibited from acting upon any charges of unprofessional conduct or unsatisfactory performance, unless at least 45 or 90 calendar days respectively, prior to the date of filing charges, the district has given the teacher written notice. SB 843 would delete these provisions and instead prohibit a district from acting upon unprofessional conduct, unsatisfactory performance, or persistent violation of state law or reasonable regulations of state board or governing board of a school district charges until at least 30 workdays before the date for filing the charges the district has given the teacher notice.

More Realistic Time Period for Setting of Hearing Date and Discovery and More Relaxed Evidentiary Standard for All Cases

Education Code section 44944 currently requires that a dismissal or suspension hearing against a permanent employee commence within 60 days from the date of the employee’s demand for hearing and that discovery be completed by no later than 30 calendar days after an employee was served with an accusation (except for depositions, which may be completed no later than seven days before hearing). With any cases that involve more than a few incidents of conduct or dismissal, these timelines in practice have proven to be unwieldy, unrealistic, and unfair to school districts. Although school districts are supposedly given “all discovery rights” under the Code of Civil Procedure, 30 days of discovery has proven to not even closely approximate the same rights provided by those same laws in civil litigation cases. Furthermore, with the budgetary constraints of California governmental agencies, it is not at all unusual for teacher dismissal cases to be set out 6 months to a year, based upon the limited availability of administrative law judges. Therefore, the 60-day teacher dismissal hearing process is something that simply does not exist in reality.

The new law would instead require that any hearing be submitted for decision within 12 months from the date of the employee’s demand for hearing, that a final status conference be held at least seven calendar days before the hearing is to commence, and that discovery would be required to be completed seven calendar days before the final status conference. The judge would also be authorized to extend these periods with good cause or by stipulation of the parties.

SB 843 would further permit introduction of testimony or evidence that occurred more than four years prior to the filing of the notice of charges, if it is relevant to the resolution of a charge, and it is relevant for purposes of rebuttal, impeachment of the witness, or showing that notice was given. Currently, evidence of conduct occurring outside of four years is only permitted to be introduced if the information was not known at the time and was later discovered within the four years prior to the filing of charges.

New Law Would Add Serious and Egregious Conduct Cause, Define Unprofessional Conduct

SB 843 would add “serious and egregious conduct” to the list of specified causes for which a permanent teacher may be dismissed. As defined by the bill, “serious and egregious conduct” would constitute any violations of Education Code sections 44010 (“sex offenses”) and 44011 (“controlled substance offenses”); Penal Code sections 187 (murder), 206 (torture), 11165.1 (sexual abuse), 11165.2 (child neglect), 1165.3 (child endangerment), 11165.4 (unlawful corporal punishment), 11165.5 (child abuse or neglect in out-of-home care), and 11165.6 (child abuse); and any offense under state or federal law that is punishable by death or life imprisonment without the possibility of parole. Although these criminal violations can currently be charged under “immoral conduct” or “conviction of a felony moral turpitude” (if convicted), these crimes are not defined in the Education Code as conduct warranting a specific cause for dismissing a teacher.

Furthermore, under SB 843, “unprofessional conduct”, which is currently undefined, would now be partially defined as “including, but not limited to, excessive absences, excessive tardiness, and insubordination.”

SB 843 would also prohibit districts from expunging teachers’ personnel files from credible complaints and proven accusations of egregious misconduct.

Conduct Cases Would Be Heard By Administrative Law Judge

Education Code section 44944 currently establishes that a Commission on Professional Competence (“CPC”) panel, consisting of one member selected by the district, one member selected by the employee, and one member serving as an administrative law judges for all teacher dismissal cases.

The new law would continue the practice of a CPC panel for unprofessional conduct, unsatisfactory performance, and persistent violation or refusal to obey the school laws of the state or reasonable regulations of the State Board of Education or governing board of a school district. However, an administrative law judge alone would preside over all other causes, including immoral conduct, serious and egregious conduct, commission of acts of criminal syndicalism, dishonesty, evident unfitness for service, physical or mental condition unfitting him or her to instruct or associate with children, conviction of a felony or any crime involving moral turpitude, or alcohol or other drug abuse which make the employee unfit.

It is unclear under the new law who would preside in the event there was a hybrid of both kinds of causes.

No Attorneys’ Fees for All Actions, Employees Would Pay Expenses and Costs for Proceeding with Frivolous Action

Under current law, even if the CPC panel determines that a certificated employee should be dismissed, a school district still is responsible for paying its share of the expense of the hearing, including the cost of an administrative law judge. If the CPC panel determines that a certificated employee should not be dismissed, a school district is responsible for paying all of the expense of hearing, the cost of the employee’s panel member, and the employee’s attorneys’ fees.

Under SB 843, if the CPC panel determines that a certificated employee should be dismissed, a school district is responsible for the entire expense of the hearing, including the cost of an administrative law judge. However, if the CPC panel determines that a certificated employee should not be dismissed, while a school district is still responsible for paying all of the expense of hearing and the cost of the employee’s panel member, it would no longer be required to pay for the certificated employee’s attorneys’ fees.

Furthermore, under the legislation, if the CPC panel determine that a certificated employee should be dismissed and that the employee’s decision to demand a hearing was “a frivolous tactic that wasted public resources”, the employee would be responsible for paying the entire expense of the hearing, including the cost of the administrative law judge.

Significance of SB 843 to School Districts

The significance of SB 843 to school districts is that they would be entitled to a dismissal process that more closely approximates the kind of fairness provided in civil litigation cases. No longer would school districts be required to show good cause to obtain more than 30 days of discovery or to schedule a hearing greater than 60 days after an employee’s request for a hearing. No longer would teachers be entitled to attorneys’ fees for forcing a hearing and prevailing on what is often a teacher-favored system. This would result in more cases being settled sooner, as teachers will be less likely to go to hearing if they have to pay out of their own pockets and/or risk having to pay the expenses of hearing if their decision to demand a hearing is found to be “frivolous”.

By the addition of a “serious and egregious conduct” cause, SB 843 also provides that violations of many specific felony crimes (especially violent or sexual misconduct) will be cause for a teacher’s termination, regardless of whether their crimes are found to be “immoral” or constitute “moral turpitude”, terms that are difficult to ascertain or prove. This would result in more certainty about whether a teacher can be terminated for certain types of offenses and again result in more and quicker settlements.

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