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Article 3. Resignations, Dismissals, and Leaves of Absence - California Education Code Section 44944

Legal Research Home > California Laws > Education Code > Article 3. Resignations, Dismissals, and Leaves of Absence - California Education Code Section 44944

44944.  (a) This section shall apply only to dismissal or suspension
proceedings initiated pursuant to Section 44934.
   (b) (1) (A) 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 six months from the date of
the employee's demand for a hearing. A continuance shall not extend
the date for the commencement of the hearing more than six months
from the date of the employee's request for a hearing, except for
extraordinary circumstances, as determined by the administrative law
judge. If extraordinary circumstances are found that extend the date
for the commencement of the hearing, the deadline for concluding the
hearing and closing the record pursuant to this subdivision shall be
extended for a period of time equal to the continuance. The hearing
date shall be established after consultation with the employee and
the governing board of the school district, or their representatives,
except that if the parties are not able to reach an agreement on a
date, the Office of Administrative Hearings shall unilaterally set a
date in compliance with this section. The hearing shall be completed
by a closing of the record within seven months of the date of the
employee's demand for a hearing. A continuance shall not extend the
date for the close of the record more than seven months from the date
of the employee's request for a hearing, except for good cause, as
determined by the administrative law judge.
   (B) Where substantial progress has been made in completing the
previously scheduled days of the hearing within the seven-month
period but the hearing cannot be completed, for good cause shown,
within the seven-month period, the period for completing the hearing
may be extended by the presiding administrative law judge. If the
administrative law judge grants a continuance under this
subparagraph, he or she shall establish a reasonable timetable for
the completion of the hearing and the closing of the record. The
hearing shall be initiated and 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 Commission
on Professional Competence shall have all of the power granted to an
agency pursuant to that chapter, except as described in this article.
   (2) (A) A witness shall not be permitted to testify at the hearing
except upon oath or affirmation. No testimony shall be given or
evidence introduced relating to matters that occurred more than four
years before the date of the filing of the notice, except allegations
of an act described in Section 44010 of this code or Sections
11165.2 to 11165.6, inclusive, of the Penal Code.
   (B) Evidence of records regularly kept by the governing board of
the school district concerning the employee may be introduced, but no
decision relating to the dismissal or suspension of an employee
shall be made based on charges or evidence of any nature relating to
matters occurring more than four years before the filing of the
notice, except allegations of an act described in Section 44010 of
this code or Sections 11165.2 to 11165.6, inclusive, of the Penal
Code.
   (c) (1) The hearing provided for in this section shall be
conducted by a Commission on Professional Competence, unless the
parties submit a statement in writing to the Office of Administrative
Hearings, indicating that both parties waive the right to convene a
Commission on Professional Competence and stipulate to having the
hearing conducted by a single administrative law judge. If the
parties elect to waive a hearing before the Commission on
Professional Competence, the hearing shall be initiated and
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 administrative law judge conducting the
hearing shall have all the powers granted to a Commission on
Professional Competence pursuant to that chapter, except as described
in this article.
   (2) If the parties elect not to waive a hearing before a
Commission on Professional Competence, one member of the commission
shall be selected by the employee, one member shall be selected by
the governing board of the school district, and one member shall be
an administrative law judge of the Office of Administrative Hearings
who shall be chairperson and a voting member of the commission and
shall be responsible for assuring that the legal rights of the
parties are protected at the hearing.
   (3) The governing board of the school district and the employee
shall select Commission on Professional Competence members no later
than 45 days before the date set for hearing, and shall serve notice
of their selection upon all other parties and upon the Office of
Administrative Hearings. Failure to meet this deadline 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.
   (4) Any party who believes that a selected Commission on
Professional Competence member is not qualified may file an
objection, including a statement describing the basis for the
objection, with the Office of Administrative Hearings and serve the
objection and statement upon all other parties within 10 days of the
date that the notice of selection is filed. Within seven days after
the filing of any objection, the administrative law judge assigned to
the matter shall rule on the objection or convene a teleconference
with the parties for argument.
   (5) (A) The member selected by the governing board of the school
district and the member selected by the employee shall not be related
to the employee and shall not be employees of the school district
initiating the dismissal or suspension. Each member shall hold a
currently valid credential and have at least three years' experience
within the past 10 years in the discipline of the employee.
   (B) For purposes of this paragraph, the following terms have the
following meanings:
   (i) For an employee subject to dismissal whose most recent
teaching assignment is in kindergarten or any of the grades 1 to 6,
inclusive, "discipline" means a teaching assignment in kindergarten
or any of the grades 1 to 6, inclusive.
   (ii) For an employee subject to dismissal whose most recent
assignment requires an education specialist credential or a services
credential, "discipline" means an assignment that requires an
education specialist credential or a services credential,
respectively.
   (iii) For an employee subject to dismissal whose most recent
teaching assignment is in any of the grades 7 to 12, inclusive,
"discipline" means a teaching assignment in any of grades 7 to 12,
inclusive, in the same area of study, as that term is used in Section
51220, as the most recent teaching assignment of the employee
subject to dismissal.
   (d) (1) The decision of the Commission on Professional Competence
shall be made by a majority vote, and the commission shall prepare a
written decision containing findings of fact, determinations of
issues, and a disposition that shall be, solely, one of the
following:
   (A) That the employee should be dismissed.
   (B) That the employee should be suspended for a specific period of
time without pay.
   (C) That the employee should not be dismissed or suspended.
   (2) The decision of the Commission on Professional Competence that
the employee should not be dismissed or suspended shall not be based
on nonsubstantive procedural errors committed by the school district
or governing board of the school district unless the errors are
prejudicial errors.
   (3) The Commission on Professional Competence shall not have the
power to dispose of the charge of dismissal by imposing probation or
other alternative sanctions. The imposition of suspension pursuant to
subparagraph (B) of paragraph (1) shall be available only in a
suspension proceeding authorized pursuant to subdivision (b) of
Section 44932 or Section 44933.
   (4) The decision of the Commission on Professional Competence
shall be deemed to be the final decision of the governing board of
the school district.
   (5) The governing board of the school district 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 of the school district and the employee
shall have the right to be represented by counsel.
   (e) (1) If the member selected by the governing board of the
school district or the member selected by the employee is employed by
any school district in this state, the member shall, during any
service on a Commission on Professional Competence, continue to
receive salary, fringe benefits, accumulated sick leave, and other
leaves and benefits from the school district in which the member is
employed, but shall receive no additional compensation or honorariums
for service on the commission.
   (2) If the member selected is a retired employee, the member shall
receive pay at the daily substitute teacher rate in the school
district that is a party to the hearing. Service on a Commission on
Professional Competence shall not be credited toward retirement
benefits.
   (3) If service on a Commission on Professional Competence occurs
during summer recess or vacation periods, the member shall receive
compensation proportionate to that received during the current or
immediately preceding contract period from the member's employing
school district, whichever amount is greater.
   (f) (1) If the Commission on Professional Competence determines
that the employee should be dismissed or suspended, the governing
board of the school district and the state shall share equally the
expenses of the hearing, including the cost of the administrative law
judge. The state shall pay any costs incurred under paragraphs (2)
and (3) of subdivision (e), the reasonable expenses, as determined by
the administrative law judge, of the member selected by the
governing board of the school district 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 of the school district 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 of the school district shall pay
their own attorney's fees.
   (2) If the Commission on Professional Competence determines that
the employee should not be dismissed or suspended, the governing
board of the school district shall pay the expenses of the hearing,
including the cost of the administrative law judge, any costs
incurred under paragraphs (2) and (3) of subdivision (e), the
reasonable expenses, as determined by the administrative law judge,
of the member selected by the governing board of the school district
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 of the school district 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 (e).
   (4) If either the governing board of the school district or the
employee petitions a court of competent jurisdiction for review of
the decision of the Commission on Professional Competence the payment
of expenses to members of the commission required by this
subdivision shall not be stayed.
   (5) If the decision of the Commission on Professional Competence
is 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 of the school
district for those expenses, or the governing board of the school
district, having paid the expenses, shall be entitled to
reimbursement from the state. If either the governing board of the
school district or the employee petitions a court of competent
jurisdiction for review of the decision to overturn the
administrative law judge's decision, the payment of the expenses of
the hearing, including the cost of the administrative law judge
required by this paragraph, shall be stayed until no further appeal
is sought, or all appeals are exhausted.
   (g) The hearing provided for in this section shall be conducted in
a place selected by agreement among the members of the Commission on
Professional Competence. In the absence of agreement, the place
shall be selected by the administrative law judge.

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Last modified: February 16, 2015