BILL NUMBER: SB 546 CHAPTERED
BILL TEXT
CHAPTER 90
FILED WITH SECRETARY OF STATE AUGUST 12, 2013
APPROVED BY GOVERNOR AUGUST 12, 2013
PASSED THE SENATE JULY 8, 2013
PASSED THE ASSEMBLY JUNE 25, 2013
AMENDED IN ASSEMBLY JUNE 19, 2013
INTRODUCED BY Senator Wright
FEBRUARY 22, 2013
An act to amend Section 44949 of the Education Code, and to amend
Sections 11500, 11503, 11505, 11506, 11507, 11507.3, 11509, 11516,
and 11520 of the Government Code, relating to education employment.
LEGISLATIVE COUNSEL'S DIGEST
SB 546, Wright. Education employment: termination: hearing.
Existing law requires that, when a reduction in the number of
certificated employees employed by a school district is authorized,
the layoffs occur in order of employee seniority. Under existing law,
when an employee is terminated due to a reduction in force pursuant
to these provisions, the employee has the option to request a hearing
to determine if there is cause for not reemploying him or her for
the ensuing year. Existing law requires that this hearing be
conducted in accordance with specified provisions of law. With
respect to this hearing, existing law defines the "respondent" as any
person against whom an accusation is filed pursuant to specified
provisions of law. Additionally, existing law provides for a "notice
of defense," which, when signed by or on behalf of the respondent and
returned to the agency, will acknowledge service of the accusation
and constitute a notice of defense under specified provisions of law.
This bill would change the phrase "accusation" to "District
Statement of Reduction in Force," and "Notice of Defense" to "Notice
of Participation in Reduction in Force Hearing" for purposes of the
provisions relating to the termination of a certificated employee due
to a reduction in force and would make conforming changes.
This bill would also make technical, nonsubstantive changes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 44949 of the Education Code is amended to read:
44949. (a) (1) 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 school district that 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.
(2) 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) If 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 in that chapter, except that all of the
following shall apply:
(1) The respondent shall file his or her notice of participation,
if any, within five days after service upon him or her of the
District Statement of Reduction in Force and he or she shall be
notified of this five-day period for filing in the District Statement
of Reduction in Force.
(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 District Statement of Reduction in Force,
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 of
the schools. 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.
(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 a request for hearing pursuant to subdivision (b) a
continuance is granted pursuant to Section 11524 of the Government
Code, the dates prescribed in subdivision (c) that occur on or after
the date of granting the continuance and the date prescribed in
subdivision (c) of Section 44955 that occurs after the date of
granting the continuance shall be extended for a period of time equal
to the continuance.
(f) The governing board may adopt from time to time rules and
procedures not inconsistent with this section as may be necessary to
effectuate this section.
SEC. 2. Section 11500 of the Government Code is amended to read:
11500. In this chapter unless the context or subject matter
otherwise requires:
(a) "Agency" includes the state boards, commissions, and officers
to which this chapter is made applicable by law, except that wherever
the word "agency" alone is used the power to act may be delegated by
the agency, and wherever the words "agency itself" are used the
power to act shall not be delegated unless the statutes relating to
the particular agency authorize the delegation of the agency's power
to hear and decide.
(b) "Party" includes the agency, the respondent, and any person,
other than an officer or an employee of the agency in his or her
official capacity, who has been allowed to appear or participate in
the proceeding.
(c) "Respondent" means any person against whom an accusation or
District Statement of Reduction in Force is filed pursuant to Section
11503 or against whom a statement of issues is filed pursuant to
Section 11504.
(d) "Administrative law judge" means an individual qualified under
Section 11502.
(e) "Agency member" means any person who is a member of any agency
to which this chapter is applicable and includes any person who
himself or herself constitutes an agency.
SEC. 3. Section 11503 of the Government Code is amended to read:
11503. (a) A hearing to determine whether a right, authority,
license, or privilege should be revoked, suspended, limited, or
conditioned shall be initiated by filing an accusation or District
Statement of Reduction in Force. The accusation or District Statement
of Reduction in Force shall be a written statement of charges that
shall set forth in ordinary and concise language the acts or
omissions with which the respondent is charged, to the end that the
respondent will be able to prepare his or her defense. It shall
specify the statutes and rules that the respondent is alleged to have
violated, but shall not consist merely of charges phrased in the
language of those statutes and rules. The accusation or District
Statement of Reduction in Force shall be verified unless made by a
public officer acting in his or her official capacity or by an
employee of the agency before which the proceeding is to be held. The
verification may be on information and belief.
(b) In a hearing involving a reduction in force that is conducted
pursuant to Section 44949 of the Education Code, the hearing shall be
initiated by filing a "District Statement of Reduction in Force."
For purposes of this chapter, a "District Statement of Reduction in
Force" shall have the same meaning as an "accusation." Respondent's
responsive pleading shall be entitled "Notice of Participation in
Reduction in Force Hearing."
SEC. 4. Section 11505 of the Government Code is amended to read:
11505. (a) Upon the filing of the accusation or District
Statement of Reduction in Force the agency shall serve a copy thereof
on the respondent as provided in subdivision (c). The agency may
include with the accusation or District Statement of Reduction in
Force any information that it deems appropriate, but it shall include
a postcard or other form entitled Notice of Defense, or, as
applicable, Notice of Participation, that, when signed by or on
behalf of the respondent and returned to the agency, will acknowledge
service of the accusation or District Statement of Reduction in
Force and constitute a notice of defense, or, as applicable, notice
of participation, under Section 11506. The copy of the accusation or
District Statement of Reduction in Force shall include or be
accompanied by (1) a statement that respondent may request a hearing
by filing a notice of defense, or, as applicable, notice of
participation, as provided in Section 11506 within 15 days after
service upon the respondent of the accusation or District Statement
of Reduction in Force, and that failure to do so will constitute a
waiver of the respondent's right to a hearing, and (2) copies of
Sections 11507.5, 11507.6, and 11507.7.
(b) The statement to respondent shall be substantially in the
following form:
Unless a written request for a hearing signed by or on behalf of
the person named as respondent in the accompanying accusation or
District Statement of Reduction in Force is delivered or mailed to
the agency within 15 days after the accusation or District Statement
of Reduction in Force was personally served on you or mailed to you,
(here insert name of agency) may proceed upon the accusation or
District Statement of Reduction in Force without a hearing. The
request for a hearing may be made by delivering or mailing the
enclosed form entitled Notice of Defense, or, as applicable, Notice
of Participation, or by delivering or mailing a notice of defense,
or, as applicable, notice of participation, as provided by Section
11506 of the Government Code to: (here insert name and address of
agency). You may, but need not, be represented by counsel at any or
all stages of these proceedings.
If you desire the names and addresses of witnesses or an
opportunity to inspect and copy the items mentioned in Section
11507.6 of the Government Code in the possession, custody, or control
of the agency, you may contact: (here insert name and address of
appropriate person).
The hearing may be postponed for good cause. If you have good
cause, you are obliged to notify the agency or, if an administrative
law judge has been assigned to the hearing, the Office of
Administrative Hearings, within 10 working days after you discover
the good cause. Failure to give notice within 10 days will deprive
you of a postponement.
(c) The accusation or District Statement of Reduction in Force and
all accompanying information may be sent to the respondent by any
means selected by the agency. But no order adversely affecting the
rights of the respondent shall be made by the agency in any case
unless the respondent shall have been served personally or by
registered mail as provided herein, or shall have filed a notice of
defense, or, as applicable, notice of participation, or otherwise
appeared. Service may be proved in the manner authorized in civil
actions. Service by registered mail shall be effective if a statute
or agency rule requires the respondent to file the respondent's
address with the agency and to notify the agency of any change, and
if a registered letter containing the accusation or District
Statement of Reduction in Force and accompanying material is mailed,
addressed to the respondent at the latest address on file with the
agency.
(d) For purposes of this chapter, for hearings involving a
reduction in force that are conducted pursuant to Section 44949 of
the Education Code, a "Notice of Participation" shall have the same
meaning as a "Notice of Defense."
SEC. 5. Section 11506 of the Government Code is amended to read:
11506. (a) Within 15 days after service of the accusation or
District Statement of Reduction in Force the respondent may file with
the agency a notice of defense, or, as applicable, notice of
participation, in which the respondent may:
(1) Request a hearing.
(2) Object to the accusation or District Statement of Reduction in
Force upon the ground that it does not state acts or omissions upon
which the agency may proceed.
(3) Object to the form of the accusation or District Statement of
Reduction in Force on the ground that it is so indefinite or
uncertain that the respondent cannot identify the transaction or
prepare a defense.
(4) Admit the accusation or District Statement of Reduction in
Force in whole or in part.
(5) Present new matter by way of defense.
(6) Object to the accusation or District Statement of Reduction in
Force upon the ground that, under the circumstances, compliance with
the requirements of a regulation would result in a material
violation of another regulation enacted by another department
affecting substantive rights.
(b) Within the time specified the respondent may file one or more
notices of defense, or, as applicable, notices of participation, upon
any or all of these grounds but all of these notices shall be filed
within that period unless the agency in its discretion authorizes the
filing of a later notice.
(c) The respondent shall be entitled to a hearing on the merits if
the respondent files a notice of defense or notice of participation,
and the notice shall be deemed a specific denial of all parts of the
accusation or District Statement of Reduction in Force not expressly
admitted. Failure to file a notice of defense or notice of
participation shall constitute a waiver of respondent's right to a
hearing, but the agency in its discretion may nevertheless grant a
hearing. Unless objection is taken as provided in paragraph (3) of
subdivision (a), all objections to the form of the accusation or
District Statement of Reduction in Force shall be deemed waived.
(d) The notice of defense or notice of participation shall be in
writing signed by or on behalf of the respondent and shall state the
respondent's mailing address. It need not be verified or follow any
particular form.
(e) As used in this section, "file," "files," "filed," or "filing"
means "delivered or mailed" to the agency as provided in Section
11505.
SEC. 6. Section 11507 of the Government Code is amended to read:
11507. At any time before the matter is submitted for decision,
the agency may file or permit the filing of, an amended or
supplemental accusation or District Statement of Reduction in Force.
All parties shall be notified of the filing. If the amended or
supplemental accusation or District Statement of Reduction in Force
presents new charges the agency shall afford the respondent a
reasonable opportunity to prepare his or her defense thereto, but he
or she shall not be entitled to file a further pleading unless the
agency in its discretion so orders. Any new charges shall be deemed
controverted, and any objections to the amended or supplemental
accusation or District Statement of Reduction in Force may be made
orally and shall be noted in the record.
SEC. 7. Section 11507.3 of the Government Code is amended to read:
11507.3. (a) When proceedings that involve a common question of
law or fact are pending, the administrative law judge on the judge's
own motion or on motion of a party may order a joint hearing of any
or all the matters at issue in the proceedings. The administrative
law judge may order all the proceedings consolidated and may make
orders concerning the procedure that may tend to avoid unnecessary
costs or delay.
(b) The administrative law judge on the judge's own motion or on
motion of a party, in furtherance of convenience or to avoid
prejudice or when separate hearings will be conducive to expedition
and economy, may order a separate hearing of any issue, including an
issue raised in the notice of defense or notice of participation, or
of any number of issues.
SEC. 8. Section 11509 of the Government Code is amended to read:
11509. The agency shall deliver or mail a notice of hearing to
all parties at least 10 days prior to the hearing. The hearing shall
not be prior to the expiration of the time within which the
respondent is entitled to file a notice of defense, or, as
applicable, notice of participation.
The notice to respondent shall be substantially in the following
form but may include other information:
You are hereby notified that a hearing will be held before
here insert name of agency] at here insert place of hearing] on the
____ day of ____, 20__, at the hour of ____, upon the charges made in
the accusation or District Statement of Reduction in Force served
upon you. If you object to the place of hearing, you must notify the
presiding officer within 10 days after this notice is served on you.
Failure to notify the presiding officer within 10 days will deprive
you of a change in the place of the hearing. You may be present at
the hearing. You have the right to be represented by an attorney at
your own expense. You are not entitled to the appointment of an
attorney to represent you at public expense. You are entitled to
represent yourself without legal counsel. You may present any
relevant evidence, and will be given full opportunity to
cross-examine all witnesses testifying against you. You are entitled
to the issuance of subpoenas to compel the attendance of witnesses
and the production of books, documents or other things by applying to
here insert appropriate office of agency].
SEC. 9. Section 11516 of the Government Code is amended to read:
11516. The agency may order amendment of the accusation or
District Statement of Reduction in Force after submission of the case
for decision. Each party shall be given notice of the intended
amendment and opportunity to show that he or she will be prejudiced
thereby unless the case is reopened to permit the introduction of
additional evidence on his or her behalf. If such prejudice is shown,
the agency shall reopen the case to permit the introduction of
additional evidence.
SEC. 10. Section 11520 of the Government Code is amended to read:
11520. (a) If the respondent either fails to file a notice of
defense, or, as applicable, notice of participation, or to appear at
the hearing, the agency may take action based upon the respondent's
express admissions or upon other evidence and affidavits may be used
as evidence without any notice to respondent; and where the burden of
proof is on the respondent to establish that the respondent is
entitled to the agency action sought, the agency may act without
taking evidence.
(b) Notwithstanding the default of the respondent, the agency or
the administrative law judge, before a proposed decision is issued,
has discretion to grant a hearing on reasonable notice to the
parties. If the agency and administrative law judge make conflicting
orders under this subdivision, the agency's order takes precedence.
The administrative law judge may order the respondent, or the
respondent's attorney or other authorized representative, or both, to
pay reasonable expenses, including attorney's fees, incurred by
another party as a result of the respondent's failure to appear at
the hearing.
(c) Within seven days after service on the respondent of a
decision based on the respondent's default, the respondent may serve
a written motion requesting that the decision be vacated and stating
the grounds relied on. The agency in its discretion may vacate the
decision and grant a hearing on a showing of good cause. As used in
this subdivision, good cause includes, but is not limited to, any of
the following:
(1) Failure of the person to receive notice served pursuant to
Section 11505.
(2) Mistake, inadvertence, surprise, or excusable neglect.