Bill Text: CA SB955 | 2009-2010 | Regular Session | Amended
Bill Title: School districts.
Spectrum: Slight Partisan Bill (Republican 2-1)
Status: (Introduced - Dead) 2010-07-01 - From committee with author's amendments. Read second time. Amended. Re-referred to Com. on RLS. [SB955 Detail]
Download: California-2009-SB955-Amended.html
BILL NUMBER: SB 955 AMENDED
BILL TEXT
AMENDED IN SENATE JULY 1, 2010
AMENDED IN SENATE JUNE 2, 2010
AMENDED IN SENATE APRIL 28, 2010
AMENDED IN SENATE APRIL 13, 2010
INTRODUCED BY Senator Huff
( Principal coauthors:
Senators Emmerson and Romero )
FEBRUARY 4, 2010
An act to amend Sections 1294, 1296, 14501, 44662,
44929.21, 44936, 44944, 44945, 44955, and 44956 of, to amend and
repeal Section 44660 of, to add Sections 44955.1
44660.5, 44955.1, and 44955.2 to, and to repeal
Section 44949 of, the Education Code, relating to school districts,
and declaring the urgency thereof, to take effect immediately.
LEGISLATIVE COUNSEL'S DIGEST
SB 955, as amended, Huff. School districts.
(1) Existing law provides that, after a certificated employee of a
school district or a county superintendent of schools with an
average daily attendance of 250 or more completes 2 consecutive years
of employment and is reelected for the next succeeding school year
to a position requiring certification, the employee becomes and is
classified as a permanent employee of the school district or county
superintendent. Existing law additionally requires the governing
board of a school district or county superintendent to notify the
employee on or before March 15 of the employee's 2nd year of
probation of the decision of the governing board or school district
to reelect or not reelect the employee for the next succeeding school
year to the position.
This bill would instead require the governing board and county
superintendent of schools to notify the employee of its decision to
reelect or not reelect the employee on or after May 1 but no later
than 30 days before the last schoolday scheduled on the school
calendar of the employee's 2nd year of probation.
(2) Existing law states the intent of the Legislature that
governing boards of school districts establish a uniform system of
evaluation and assessment of the performance of all certificated
personnel within each school district of the state, including schools
conducted or maintained by county superintendents of education.
Existing law requires the evaluation and assessment system to involve
the development and adoption of objective guidelines that may be
uniform throughout the district or, for compelling reasons, be
individually developed for territories or schools within the
district.
This bill would make this provision inoperative on July 1, 2012,
and repeal it as of January 1, 2013. The bill would reenact the
requirement that the governing board establish a uniform system of
evaluation and assessment and require it to be a rigorous,
transparent, and fair multiple measures evaluation system for both
teachers and principals. By requiring the evaluation and assessment
system to conform to specified multiple measure requirements, the
bill would impose a state-mandated local program. The bill would
subject the requirement to develop and implement the evaluation
system to specified annual audits commencing with the 2012-13 fiscal
year and would require the Superintendent of Public Instruction to
institute fiscal penalties, as specified, for noncompliance.
(3) Existing law prohibits the evaluation and assessment of
certificated employee performance from including the use of
publishers' norms established by standardized tests.
The bill would delete this prohibition.
(2)
(4) Existing law establishes certain procedures with
which the governing board of a school district is required to comply
before dismissing or suspending a permanent employee, including, at
the employee's option, a hearing. Existing law establishes a
Commission on Professional Competence for each hearing, consisting of
specified members. Existing law deems the decision of the Commission
on Professional Competence to be the final decision of the governing
board.
Existing law prohibits a notice of dismissal or suspension
initiated pursuant to these provisions from being given between May
15 and September 15, inclusive, in any year.
This bill would delete that prohibition. The bill would make
various changes to the provisions relating to the hearing, including
authorizing the commission on professional competence to consist
solely of an administrative law judge, as well as providing that the
decision of the commission would be advisory, and the final decision
regarding the discipline of the employee would be determined by
action of the governing board. The bill would provide that an
employee requesting a hearing would be placed on administrative leave
without pay, unless the employee furnishes to the school district
acceptable security, as specified, in which case the employee would
be continued to be paid his or her regular salary.
Existing
(5) Existing law authorizes the
decision of a Commission on Professional Competence to be reviewed by
a court of competent jurisdiction on petition of either the
governing board or the employee.
This bill would instead authorize the decision to be reviewed on
petition of the employee.
(3)
(6) Existing law requires, when a reduction in the
number of certificated employees employed by a school district is
authorized for specified reasons, the notice of the termination of
the services of an employee in the subsequent school year be given by
the governing board to the employee, in a prescribed manner, before
May 15. Existing law requires the superintendent of the district,
prior to March 15 and before an employee is given the described
notice, to give written notice to the governing board and the
employee that it has been recommended that the notice be given to the
employee, and stating the reasons therefor. Existing law authorizes
an employee who is given this notice to request a hearing to
determine if there is cause for not reemploying him or her for the
ensuing year.
This bill would eliminate this notice requirement and the
authority of an employee to request a hearing.
Existing
(7) Existing law provides that
when employees are terminated pursuant to a reduction in workforce,
that a school district is required to terminate the employees in
order of seniority. Existing law provides certain exceptions to this
rule.
This bill would provide additional exceptions, including
authorizing school districts to terminate employees on the basis of
performance evaluations, as specified, and on the basis that the
employee is assigned to a schoolsite that has been selected by the
governing board for exemption from certificated reductions in force,
based upon the needs of the educational program.
(4)
(8) Existing law generally requires school districts to
adhere to certain requirements with respect to teacher and
administrator employment. Existing law requires a charter school
petition to set forth specified information in its charter relating
to employment, including the qualifications to be met by individuals
to be employed at the school.
This bill would authorize school districts, county offices of
education, and charter schools to assign, reassign, and transfer
teachers and administrators based on effectiveness and subject matter
needs, and without regard to years of service.
(5)
(9) Existing law provides certain rights for permanent
school employees who have been terminated pursuant to specified
provisions of law, including the right to 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, as specified, and generally requires
terminations and reappointments to be made in order of seniority, as
specified. Existing law also authorizes a school district to deviate
from the order of seniority in certain circumstances.
This bill would expand the list of circumstances under which a
school district is authorized to deviate from terminating or
reappointing a certificated employee in order of seniority. The bill
would revise the compensation requirements for employees who serve as
substitute teachers in a position requiring certification
qualifications for 21 days or more within a period of 60 schooldays
by requiring a school district to compensate the employee at a rate
no less than the amount the employee would have received if he or she
were being reappointed beginning on the 22nd day during that 60-day
period instead of the first day of that service. The bill would
prohibit a school district from taking into consideration whether an
employee has exercised specified rights to meet and negotiate when
deviating from the order of seniority.
The bill would make the bill's provisions applicable to county
superintendent of schools, and would delete obsolete provisions
relating to employees who were on probation prior to 1984.
(10) The California Constitution requires the state to reimburse
local agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that, if the Commission on State Mandates
determines that the bill contains costs mandated by the state,
reimbursement for those costs shall be made pursuant to these
statutory provisions.
(6)
(11) This bill would declare that it is to take effect
immediately as an urgency statute.
Vote: 2/3. Appropriation: no. Fiscal committee: no
yes . State-mandated local program: no
yes .
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 1294 of the Education Code is amended to read:
1294. Each person employed by a county superintendent of schools
in a position requiring certification qualifications, except
employees included in the civil service system or in any merit
system, or any person who holds an office by virtue of an election
conducted under the Elections Code or the Education Code, and whose
salary is paid from the county school service fund, has the same
right with respect to leaves of absence, sick leave, and bereavement
leave as a person employed by a school district or a community
college district in a position requiring certification
qualifications.
Sections 22724, 44845, 44922, 44929.21, 44936, 44944, 44945,44955,
44955.1, 44956, 44962 to 44976, inclusive, 44977, 44978, 44979,
44983, 44984, 44985, 44987, 87413, 87414, 87740, 87743, 87763 to
87779, inclusive, 87780, 87781, 87782, 87786, 87787, and 87788 apply
to persons so employed by a county superintendent of schools and so
paid from the county school service fund. Whenever, in those
provisions, a duty or power is imposed upon or granted to the
governing board of a school district or community college district or
an employee thereof, the power or duty shall, for the purposes of
this section, be deemed to be granted to or imposed on the county
superintendent of schools or his or her employee, respectively. When
"district" is used in those provisions, it shall, for the purposes of
this section, be deemed to mean "county superintendent of schools."
Compensation paid to employees during those leaves shall be paid from
the county school service fund.
The granting of leaves of absence to employees pursuant to Section
44966 or 87767 shall be by the county superintendent of schools,
upon approval by the county board of education.
SEC. 2. Section 1296 of the Education Code is amended to read:
1296. (a) If the average daily attendance of the schools and
classes maintained by a county superintendent of schools is 250 or
more, each person who, after being employed for two complete
consecutive school years by the superintendent in a teaching position
in those schools or classes requiring certification qualifications
and whose salary is paid from the county school service fund, is
reelected for the next succeeding school year to a certificated
position in those schools or classes, shall be classified as and
become a permanent employee of the county superintendent of schools.
(b) The county superintendent of schools shall notify the
employee, on or after May 1, but no later than 30 days before the
last schoolday scheduled on the school calendar of the employee's
second complete consecutive year of employment by the superintendent
in a teaching position in schools or classes maintained by the
superintendent requiring certification qualifications, of the
decision to reelect or not reelect the employee for the next
succeeding school year to the position. If the county superintendent
does not give notice to the employee within that time period, the
employee shall be deemed reelected for the next succeeding school
year. The employee shall have the same rights and duties as employees
of school districts to which Section 44882 applies. Sections 44841,
44842, 44882, 44948.3, and 44948.5 are applicable to these employees.
(c) As used in this section, "teaching position" means any
certificated position designated as of January 1, 1983, by the county
board of education or the county superintendent of schools as a
teaching position for the purpose of granting probationary or
permanent status.
SEC. 3. Section 14501 of the Education
Code is amended to read:
14501. (a) As used in this chapter, "financial and compliance
audit" shall be consistent with the definition provided in the
"Standards for Audits of Governmental Organizations, Programs,
Activities, and Functions" promulgated by the Comptroller General of
the United States. Financial and compliance audits conducted under
this chapter shall fulfill federal single audit requirements.
(b) As used in this chapter, "compliance audit" means an audit
that ascertains and verifies whether or not funds provided through
apportionment, contract, or grant, either federal or state, have been
properly disbursed and expended as required by law or regulation or
both and includes the verification of each of the following:
(1) The reporting requirements for the sufficiency of textbooks or
instructional materials, or both, as defined in Section 60119.
(2) Teacher misassignments pursuant to Section 44258.9.
(3) The accuracy of information reported on the School
Accountability Report Card required by Section 33126. The
requirements set forth in paragraphs (1) and (2) and this paragraph
shall be added to the audit guide requirements pursuant to
subdivision (b) of Section 14502.1.
(4) The development and implementation of the teacher and
principal evaluation system required pursuant to Section 44660.5.
SEC. 4. Section 44660 of the Education
Code is amended to read:
44660. (a) It is the intent of the
Legislature that governing boards establish a uniform system of
evaluation and assessment of the performance of all certificated
personnel within each school district of the state, including schools
conducted or maintained by county superintendents of education. The
system shall involve the development and adoption by each school
district of objective evaluation and assessment guidelines which may,
at the discretion of the governing board, be uniform throughout the
district or, for compelling reasons, be individually developed for
territories or schools within the district, provided that all
certificated personnel of the district shall be subject to a system
of evaluation and assessment adopted pursuant to this article.
This
(b) This article does not apply
to certificated personnel who are employed on an hourly basis in
adult education classes.
(c) This section shall become inoperative on July 1, 2012, and, as
of January 1, 2013, is repealed, unless a later enacted statute,
that becomes operative on or before January 1, 2013, deletes or
extends the dates on which it becomes inoperative and is repealed.
SEC. 5. Section 44660.5 is added to the
Education Code , to read:
44660.5. (a) (1) By the 2012-13 school year, the governing board
of a school district shall establish a uniform system of evaluation
and assessment of the performance of all certificated employees
within the school district and shall fully implement the system by
the 2013-14 school year. The system shall clearly define a rigorous,
transparent, and fair multiple measures evaluation system for both
teachers and principals and shall involve the development and
adoption by the governing board of objective evaluation and
assessment guidelines. All certificated employees of the school
district shall be subject to a system of evaluation and assessment
adopted pursuant to this article, except that this article does not
apply to certificated employees who are employed on an hourly basis
in adult education classes.
(2) This article applies to the county superintendent of schools
and the employees of schools conducted or maintained by the county
superintendent of schools.
(b) For purposes of this section, a multiple measures evaluation
system is a teacher and principal evaluation system that uses
multiple research-validated approaches to measuring effectiveness,
including the measures specified in Section 44662. A school district
evaluation system also shall include a the quantitative pupil
academic achievement component that shall constitute at least 30
percent of the overall teacher and principal effectiveness measure.
(c) (1) The requirement to develop and implement the evaluation
system shall be subject to the annual audits, conducted pursuant to
Section 14501, commencing with the 2012-13 fiscal year.
(2) The Superintendent shall institute fiscal penalties for
noncompliance with this section. Fiscal penalties shall include, but
not be limited to, withholding 10 percent of the school district or
county office of education apportionments. This withholding shall be
returned to the school district or county office of education once
the evaluation system required by this section is implemented.
SEC. 6. Section 44662 of the Education
Code is amended to read:
44662. (a) The governing board of each school district shall
establish standards of expected pupil achievement at each grade level
in each area of study.
(b) The governing board of each school district shall evaluate and
assess certificated employee performance as it reasonably relates
to:
(1) The progress of pupils toward the standards established
pursuant to subdivision (a) and, if applicable, the state adopted
academic content standards as measured by state adopted criterion
referenced assessments.
(2) The instructional techniques and strategies used by the
employee.
(3) The employee's adherence to curricular objectives.
(4) The establishment and maintenance of a suitable learning
environment, within the scope of the employee's responsibilities.
(c) The governing board of each school district shall establish
and define job responsibilities for certificated noninstructional
personnel, including, but not limited to, supervisory and
administrative personnel, whose responsibilities cannot be evaluated
appropriately under the provisions of subdivision (b) and shall
evaluate and assess the performance of those noninstructional
certificated employees as it reasonably relates to the fulfillment of
those responsibilities.
(d) Results of an employee's participation in the Peer Assistance
and Review Program for Teachers established by Article 4.5
(commencing with Section 44500) shall be made available as part of
the evaluation conducted pursuant to this section.
(e) The evaluation and assessment of certificated employee
performance pursuant to this section shall not include the use of
publishers' norms established by standardized tests.
(f) Nothing in this section shall be construed as in any way
limiting
(e) This section does not limit
the authority of the governing board of a school district
governing boards to develop and adopt additional
evaluation and assessment guidelines or criteria.
SEC. 3. SEC. 7. Section 44929.21 of
the Education Code is amended to read:
44929.21. (a) Every employee of a school district of any type or
class having an average daily attendance of 250 or more who, after
having been employed by the district for two complete consecutive
school years in a position or positions requiring certification
qualifications, is reelected for the next succeeding school year to a
position requiring certification qualifications shall, at the
commencement of the succeeding school year, be classified as and
become a permanent employee of the district.
(b) The governing board shall notify the employee, on or after May
1, but no later than 30 days before the last schoolday scheduled on
the school calendar of the employee's second complete consecutive
school year of employment by the district in a position or positions
requiring certification qualifications, of the decision to reelect or
not reelect the employee for the next succeeding school year to the
position. In the event that the governing board does not give notice
to the employee within that time period, the employee shall be deemed
reelected for the next succeeding school year.
SEC. 4. SEC. 8. Section 44936 of the
Education Code is amended to read:
44936. The notice of dismissal or suspension in a proceeding
initiated pursuant to Section 44934 shall be in writing and be served
upon the employee personally or by United States registered mail
addressed to him at his the employee at the
employee's 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.
SEC. 5. SEC. 9. Section 44944 of the
Education Code is amended to read:
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 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 a 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.
(b) The hearing provided for in this section shall be conducted by
a commission on professional competence
Commission on Professional Competence . The commission shall be
established through one of the following two methods, as selected by
the governing board:
(1) 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 ensuring that the
legal rights of the parties are protected at the hearing. The member
selected by the governing board and the member selected by the
employee shall not be related to the employee, 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'
teaching or administrative experience. 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 commission shall consist solely of an administrative law
judge of the Office of Administrative Hearings who shall be
responsible for ensuring that the legal rights of the parties are
protected at the hearing.
(c) (1) 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 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 shall be advisory, and the
final decision regarding the discipline of the employee shall be
determined by action of the governing board of the school district.
(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 commission has been established pursuant to
paragraph (1) of subdivision (b), and 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 the commission, 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 the commission has been established pursuant to paragraph
(1) of subdivision (b), and service on the commission 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 governing board 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. If the commission has been
established pursuant to paragraph (1) of subdivision (b), 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 governing board 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 the employee petitions a court of competent jurisdiction
for review of the decision of the commission, the payment of expenses
to the administrative law judge required by this subdivision shall
not be stayed.
(5) (A) If the commission has been established pursuant to
paragraph (1) of subdivision (b), and the decision of the governing
board 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) 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.
If the commission has been established pursuant to paragraph (1) of
subdivision (b), in the absence of agreement, the place shall be
selected by the administrative law judge.
(g) (1) For the duration of the hearing conducted pursuant to this
section, the employee shall be placed on administrative leave
without pay, unless the employee furnishes to the school district a
suitable bond or other security acceptable to the governing board, as
specified in paragraph (2).
(2) An employee placed on administrative leave pursuant to this
section shall continue to be paid his or her regular salary during
the period of his or her administrative leave of absence if 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 school district will be repaid the amount of salary during
the employee's leave of absence if, by action of the governing board,
a final decision is made to terminate the employee, or the employee
fails or refuses to return to service following a decision not to
terminate the employee. If the governing board determines that the
employee should not be dismissed, the governing board shall reimburse
the employee for the cost of the bond upon his or her return to
service in the school district.
(3) If the employee prevails at the hearing, the administrative
law judge may recommend a suitable compensatory remedy, including
back wages and benefits, which the governing board may adopt if the
employee is reinstated. Any employee who is reinstated pursuant to
this section, either by the governing board or by order of a court of
competent jurisdiction, is entitled to reasonable back wages and
benefits.
SEC. 6. SEC. 10. Section 44945 of
the Education Code is amended to read:
44945. The decision of the governing board may, on petition of
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.
SEC. 7. SEC. 11. Section 44949 of
the Education Code is repealed.
SEC. 8. SEC. 12. Section 44955 of
the Education Code is amended to read:
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 Section 44948.
(b) (1) 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 has 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 has 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 a permanent employee shall not
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 the permanent employee is certificated and competent to render.
(2) 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.
(3) 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 pupils thereof, including distinctions based upon performance
evaluations. Upon the request of any employee whose order of
termination is so determined, the governing board shall furnish in
writing within 30 days of the request, 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 termination of services shall be given before the
15th of May, and services of those 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.
(d) Notwithstanding subdivision (b), except as specified in
subdivision (e), a school district may deviate from terminating a
certificated employee in order of seniority for any 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
as it applies to pupils .
(3) On the basis of performance evaluations, if pursuant to a
process whereby employees with superior evaluations are retained over
those with inferior evaluations. The governing board may exercise
its discretion in developing such a process, which shall be applied
uniformly to the entire class that is subject to the reduction in
force.
(4) On the basis that the employee is assigned to a schoolsite
that has been selected by the governing board for exemption from
certificated reductions in force, based upon the needs of the
educational program.
(e) A school district shall not deviate from terminating a
certificated employee in order of seniority if the employee has 18
months or less from his or her date of retirement, or is on medical
leave.
SEC. 9. SEC. 13. Section 44955.1 is
added to the Education Code, to read:
44955.1. Notwithstanding any other law, a school district, county
office of education, or charter school may assign, reassign, and
transfer teachers and administrators based on effectiveness and
subject matter needs without regard to years of service.
SEC. 10. SEC. 14. Section 44955.2 is
added to the Education Code, to read:
44955.2. A school district that deviates from the order of
seniority for purposes of terminating a certificated employee
under any provision of this chapter shall do so on the basis of
one or more of the items specified in subdivision (d) of Section
44955 and shall not take into consideration whether an employee has
exercised any of the rights guaranteed under Chapter 10.7 (commencing
with Section 3540) of Division 4 of Title 1 of the Government Code.
SEC. 11. SEC. 15. Section 44956 of
the Education Code is amended to read:
44956. A permanent employee whose services have been terminated
as provided in Section 44955 shall have the following rights:
(a) For the period of 39 months from the date of the termination,
an employee who in the meantime has not attained 65 years of age
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 a probationary or other employee
with less seniority shall not be employed to render a service which
said employee is certificated and competent to render. However,
before reappointing an 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.
(b) This 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 the waiver shall not deprive the
employee of his or her right to subsequent offers of reappointment.
(c) Notwithstanding subdivision (a), a school district may deviate
from the order of seniority in reappointing a certificated employee
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
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
as it applies to pupils .
(d) For an employee who is reappointed, the period of his or her
absence shall be treated as a leave of absence and shall not be
considered as a break in the continuity of his or her service, he or
she shall retain the classification and order of employment he or she
had when his or her services were terminated, and credit for prior
service under any state or district retirement system shall not be
affected by the termination, but the period of his or her absence
shall not count as a part of the service required for retirement.
(e) During the period of his or her preferred right to
reappointment, an employee, in the order of original employment,
shall 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. However, his or her services
may be terminated upon the return to duty of the other employee and
the substitute service shall not affect the retention of his or her
previous classification and rights. If, in any school year the
employee serves as a substitute teacher in any position requiring
certification qualifications for 21 days or more within a period of
60 schooldays, the compensation the employee receives for that 60
days, beginning on the 22nd day, shall be not less than the amount
the employee would have received if he or she were being reappointed.
(f) Notwithstanding subdivision (e), a school district may deviate
from the order of seniority in reappointing a certificated employee
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 the
employee has special training and experience, and has demonstrated
the competency necessary to teach in a specified grade level or
course of study, or to provide those services, which others with more
seniority do not possess or are not able to provide.
(2) For purposes of maintaining or achieving compliance with
constitutional requirements related to equal protection of the laws.
(g) 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 or
her to service, which he or she is certificated and competent to
render, in the other district or districts. However, the compensation
the employee receives may in the discretion of the governing board
be the same as he or she would have received had he or she been
serving in the district from which his or her services were
terminated, and his or her service in the 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 or her services were terminated, and that a
permanent employee in the other district or districts shall not be
displaced by him or her.
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.
(h) At any time prior to the completion of one year after his or
her return to service, he or she may continue or make up, with
interest, his or her own contributions to a state or district
retirement system, for the period of his or her absence, but it shall
not be obligatory on the state or district to match the
contributions.
(i) If the employee becomes disabled or reaches retirement age at
any time before his or her return to service, he or she shall
receive, in any state or district retirement system of which he or
she was a member, all benefits to which he or she would have been
entitled if the disability or retirement occurred at the time of his
or her termination of service, plus any benefits he or she may have
qualified for thereafter, as though still employed.
SEC. 16. If the Commission on State Mandates
determines that this act contains costs mandated by the state,
reimbursement to local agencies and school districts for those costs
shall be made pursuant to Part 7 (commencing with Section 17500) of
Division 4 of Title 2 of the Government Code.
SEC. 12. SEC. 17. This act is an
urgency statute necessary for the immediate preservation of the
public peace, health, or safety within the meaning of Article IV of
the Constitution and shall go into immediate effect. The facts
constituting the necessity are:
In order to make the necessary statutory changes to implement the
Budget Act of 2010 at the earliest time possible, it is necessary
that this act take effect immediately.
