School District Client Advisory: Senate Bill 843 – Is It Enough to Protect Students from Dangerous Teachers?

I.    Introduction

Last year Governor Brown vetoed Assembly Bill 375, the most recent legislative effort to simplify the teacher dismissal process. The bill was introduced in response to the dismissal of Los Angeles Unified School teacher Mark Berndt. Mr. Berndt was charged with 23 counts of molestation and lewd conduct with students. The District paid a $30 million settlement. Parents accused the District of not doing enough to protect students, and the District responded that it was constrained by the teacher dismissal statutes. Although Assembly Bill 375 introduced measures to expedite proceedings, such as discovery limitations and an extended time period during which to file dismissal notices, Governor Brown wrote the bill was, an “imperfect solution” and encouraged “the Legislature to continue working with stakeholders to identify changes that are balanced and reduce procedural complexities.”

Fast forward to 2014 where news reports of teacher sexual misconduct are almost weekly occurrences. In February 2014, State Senator Lou Correa announced that he had “answered the Governor’s directive” with Senate Bill 843 that simplifies the teacher dismissal process in cases where student safety is jeopardized. Quite similar to Assembly Bill 375, Senate Bill 843 introduced in an environment of not only tremendous concern about student safety, but also growing cynicism about whether our laws and lawmakers can improve public education in California. This concern prompted the much publicized case of Vergara v. State of California. In Vergara, plaintiffs expended vast resources to challenge the constitutionality of teacher tenure, layoff and dismissal laws as unconstitutionally impacting equal access to quality education in California. It seems like a perfect time to fix the morass of administrative, criminal, civil and constitutional laws that have all impacted California’s teacher dismissal process. However, Senate Bill 843 reminds us that there are powerful forces at work and the poetry of promises does not always match the prose of politics.

Let’s analyze what the bill says and whether it will actually help.

II.    Statements v. Reality

SB 843 is endorsed by many well-respected organizations including the California School Boards Association and victims’ rights groups including The Child Abuse Prevention Center. Recent press releases suggest that the legislation will protect children by making the teacher dismissal process “more efficient and less expensive.” But will it?

A.    Will it be easier to remove dangerous teachers from the classroom?

Public statement

Adds being criminally charged with a serious or violent felony to the list of conduct that allows a school district to place a certificated employee on mandatory leave.

Practical reality

Existing law allows a school district to immediately suspend an employee from their duties if the District deems such action as necessary. There are certain offenses that require suspension, including, sex offenses and the sale or use of certain controlled substances. Optional leave of absence offenses are similarly delineated. However, districts already have the discretion to immediately suspend employees who engage in conduct involving alleged criminal activity. Therefore, SB 843 is not a significant change.

B.    Will more serious charges be handled in a more effective manner?

Public statement

Allegations of serious and egregious conduct or severe misconduct such as immoral conduct and dishonesty will be heard by an administrative law judge (“ALJ”) instead of a panel including teachers and administrators.

Practical reality

The legislation adds “serious and egregious misconduct” as a specified ground for dismissal of a permanent employee. Serious and egregious conduct is defined as sex offenses, certain controlled substance offenses, and homicide offenses; including murder and torture. Existing law provides that a permanent employee may be dismissed for immoral conduct, evident unfitness for duty, refusal to obey school laws, and conviction of a felony involving crime or moral turpitude. Serious and egregious conduct is already proscribed by existing law. It is reasonable to conclude that murder and/or torture constitutes either immoral conduct or a felony offense.

It is prudent to delineate serious charges to be heard by an Administrative Law Judge instead of a panel. The theoretical genesis for the panel was to allow a teacher, who knew the profession, to sit in judgment of teachers. However, the panel process has evolved into both the school district and the teacher being allowed to identify a person most sympathetic to their case. A further constraint of the panel process is the extreme difficultly and time-consuming nature of locating appropriate panel members. Elimination of dismissal panels in favor of a single ALJ for these claims is, therefore, a positive development.

This proposal may have unintended consequences. Districts may file more dismissal cases if they know they will be adjudicated by an ALJ. However, whether or not such charges are justified will inevitably be argued and determined by way of motion practice before hearing. This may increase public expense and prolong litigation. Also, the qualifications and preconceptions of the ALJ may come into question and be challenged as a matter of due process. (See Gov. Code § 11512). The State has limited resources and personnel. The qualifications and availability of qualified ALJs will clearly be taken into account in the “good cause” determination discussed in C. below, and further elongate the hearing process.

C.    Will the length of the process really be shortened?

Public statement

Establishes that the matter shall be submitted for decision within twelve (12) months of the employer’s demand for hearing, unless the time period is extended by the ALJ for good cause.

Practical reality

This provision is supposed to address the length of some teacher dismissal hearings. However, not only does this provision lack enforcement, but also operates contrary to its intended purpose. The statute does not identify any penalty for failure to bring the case to hearing within the requisite twelve (12) month time frame. Further, it vests the ALJ with discretion to continue a hearing for “good cause.” Good cause is ill-defined and can essentially mean anything. The case can be continued by stipulation of the parties. This is not a substantial change from current practice. Lawyers regularly agree to continue hearings based on settlement negotiations, preparedness, or scheduling obligations. As written, the law will do nothing to shorten the dismissal process.

Current law provides that all written discovery shall occur no later than thirty (30) days after the employee is served a copy of the accusation. (Ed. Code § 44944(a).) Teacher dismissal proceedings incorporate the California Discovery Act, giving litigants rights similar to those litigating civil actions. The new proposal provides for written discovery up to seven (7) days before the final status conference. The same recourse for discovery disputes exists; however, the new law specifies that delays incurred by these disputes shall not count toward the deadline by which the matter must be submitted for decision! This prolongs the time period for written discovery, discovery disputes, and increases litigation expense. This provision alone could effectively eviscerate the twelve (12) month timeline.

D.    Will more evidence of teacher misconduct be introduced at the hearing?

Public statement

Eliminates the prohibition on testimony or introduction of evidence on matters more than 4 years old for charges of serious or egregious misconduct. Permits the testimony and introduction of evidence for all charges regardless of when the matter occurred for the purposes of rebuttal, the impeachment of witnesses and to show notice was given.

Practical reality

This provision will ostensibly assist districts in proving charges that may be rooted in conduct more than 4 years old. (See Ed. Code § 44944(a)(5).) This provision is limited to “serious or egregious misconduct.” Cases involving rape or murder rarely proceed to hearing, so this provision represents change without progress.

Dismissal hearings are also governed by the Administrative Procedures Act. Government Code section 11513 provides in relevant part, “The hearing need not be conducted according to the technical rules relating to evidence and witnesses except as hereafter provided. Any relevant evidence shall be admitted if it is the sort of evidence upon which responsible persons are accustomed to rely in conduct of serious affairs.” This certainly creates a dynamic tension between the Education Code and the Government Code. During hearing, artful questioning and the flow of evidence has undoubtedly forced ALJs to consider, and allow, relevant evidence more than four years old for the purposes of rebuttal, impeachment and notice. This is not a meaningful change.

E.    Will the law prohibit the removal of derogatory materials from an employee’s personnel file?

Public statement

The new law prohibits any authorized representative of the District from amending, renewing, or entering into any agreement that requires removal from a school employees’ records any evidence of credible complaints, substantiated investigations, or discipline related to a school employee’s commission of alleged serious or egregious conduct.

Practical reality

Again, unforeseen consequences of these changes must be considered. Existing law allows the introduction of derogatory material into an employees’ personnel file if the employee is given an opportunity to review and comment on the information. This will not change. The proposed prohibition does not preclude the removal of documents containing unfounded, erroneous or false allegations from the school employee’s personnel file. This provision is again limited only to “serious and egregious conduct.” It is unlikely that evidence of rape, murder, and serious theft, or abuse is being removed from employees’ personnel files.

There is no enforcement mechanism. The statute does not provide any penalty for violating the prohibition. It is unspecified who is making the decision about whether complaints are “credible,” “false,” “substantiated,” or “unfounded.” Practically speaking, it will probably be human resources personnel or school administrators who are immune from liability for discretionary conduct in the course and scope of their employment. (See Gov. Code § 820.2.) As such, there is no penalty for non-compliance or the wrong decision.

Finally, “sanitizing” a personnel file by not requiring the creation of dismissal paperwork such as a Statement of Charges and Board Resolution for Dismissal is a primary motivation for teachers to resign instead of fighting adverse personnel decisions. This statutory provision may have the unintended effect of reducing the number of voluntary resignations thereby resulting in more dismissal hearings. This would be inefficient and expensive.

F.    Will the new notice provisions promote safety and efficiency?

Public statement

This law would authorize the governing board of a school district to give notice at any time of the year. The bill would require that a notice of the governing board to an employee of its intention to dismiss or suspend, together with written charges filed are sufficient to initiate a hearing and would not require the governing board to file and serve a separate accusation.

Practical reality

These changes in the law would promote efficiency and help remove sub-standard teachers. Existing law requires a 45-day or 90-day notice before moving for dismissal. Existing law further prohibits a governing board from giving a notice of intention to dismiss or suspend between May 15 and September 15 in any year. School districts are often either unable to complete and serve the required notice(s) or become aware of misconduct warranting dismissal shortly before the May 15 deadline. However, they are unable to generate the documents necessary to initiate the dismissal process before that timeline. Consequently, either cases are not prosecuted, postponed, or they are dismissed for violating this statutory timeline. Furthermore, eliminating the requirement of an accusation, which is essentially duplicative, will save taxpayers money and eliminate one procedural requirement.

G.    Will schools pay less attorneys’ fees and/or recover more attorneys’ fees?

Public statement

The employee shall pay all expenses, except the governing board’s attorney’s fees, if the panel determines the employee’s decision to demand a hearing was a frivolous tactic that wasted public resources.

Practical reality

This provision is ostensibly designed to lower costs and reduce district fees if they do not successfully dismiss the employee. Existing law provides that if the hearing panel determines that an employee should be dismissed, the governing board still must pay the cost of the ALJ. If the hearing panel determines the employee should not be dismissed, the governing board shall pay the expenses of the hearing, including the cost of the ALJ, and reasonable attorneys’ fees incurred by the employee.

The offered legislation provides that each party shall pay her own fees and an employee shall pay the hearing expenses if an employee’s decision to demand a hearing is determined to be “frivolous.” Districts and labor organizations will pay for their attorneys. The specter of paying their own lawyers as well as an employee’s attorney’s fees is the primary motivation for districts to resolve cases. As such, this may reduce settlements. Finally, the “frivolous” standard is not dissimilar from other civil rights statutes that provide for attorneys’ fees. It is an extremely high burden for the State and only exercised by the courts in the most outrageous circumstances. The prospect of schools recovering these costs is remote.

III.    Conclusion

SB 843 was announced with much fanfare and optimistic prognostications. The bill reminds us that politics is the “art of the possible” and has some good components related to notice and charging documents. However, the bill is not a panacea. It makes negligible progress toward student safety or streamlining the teacher dismissal process. Although the bill is “imperfect,” it is still important and could serve as a launching pad for additional reforms in the future. The current statutory labyrinth was not created by one bill and it will not be solved by one bill. SB 843 is the beginning of a long process where leadership and political courage will be necessary to achieve the real reform necessary to protect students from dangerous teachers.

This document is intended to provide you with information about public entity/school district related developments. The contents of this document are not intended to provide specific legal advice. This communication may be considered advertising in some jurisdictions.

April 1, 2014