Article 3 - Resignations, Dismissals, and Leaves of Absence

California Education Code — §§ 44930-44988

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Sections (77)

Amended by Stats. 1999, Ch. 80, Sec. 1. Effective January 1, 2000.

(a)Governing boards of school districts shall accept the resignation of any employee and shall fix the time when the resignation takes effect, which, except as provided by subdivision (b), shall not be later than the close of the school year during which the resignation has been received by the board.

(b)Notwithstanding any other provision of law, an employee and the governing board of a school district may agree that a resignation will be accepted at a mutually agreed upon date not later than two years beyond the close of the school year during which the resignation is received by the board.

§ 44931

Amended by Stats. 1994, Ch. 922, Sec. 94. Effective January 1, 1995.

Whenever any certificated employee of any school district who, at the time of his or her resignation, was classified as permanent, is reemployed within 39 months after his or her last day of paid service, the governing board of the district shall, disregarding the break in service, classify him or her as, and restore to him or her all of the rights, benefits and burdens of, a permanent employee, except as otherwise provided in this code. However, time spent in active military service, as defined in Section 44800, subsequent to the last day of paid service shall not count as part of the aforesaid 39-month period.

§ 44932

Amended by Stats. 2015, Ch. 303, Sec. 86. (AB 731) Effective January 1, 2016.

(a)A permanent employee shall not be dismissed except for one or more of the following causes:

(1)Immoral conduct, including, but not limited to, egregious misconduct. For purposes of this chapter, “egregious misconduct” is defined exclusively as immoral conduct that is the basis for an offense described in Section 44010 or 44011 of this code, or in Sections 11165.2 to 11165.6, inclusive, of the Penal Code.

(2)Unprofessional conduct.

(3)Commission, aiding, or advocating the commission of acts of criminal syndicalism, as prohibited by Chapter 188 of the Statutes of 1919, or in any amendment to

that chapter.

(4)Dishonesty.

(5)Unsatisfactory performance.

(6)Evident unfitness for service.

(7)Physical or mental condition unfitting him or her to instruct or associate with children.

(8)Persistent violation of or refusal to obey the school laws of the state or reasonable regulations prescribed for the government of the public schools by the state board or by the governing board of the school district employing him or her.

(9)Conviction of a felony or of any crime involving moral turpitude.

(10)Violation of Section 51530 or conduct specified in Section

1028 of the Government Code, added by Chapter 1418 of the Statutes of 1947.

(11)Alcoholism or other drug abuse that makes the employee unfit to instruct or associate with children.

(b)The governing board of a school district may suspend without pay for a specific period of time on grounds of unprofessional conduct a permanent certificated employee or, in a school district with an average daily attendance of less than 250 pupils, a probationary employee, pursuant to the procedures specified in Sections 44933, 44934, 44934.1, 44935, 44936, 44937, 44943, and 44944. This authorization does not apply to a school district that has adopted a collective bargaining agreement pursuant to subdivision (b) of Section 3543.2 of the Government Code.

§ 44933

Amended by Stats. 1983, Ch. 498, Sec. 52. Effective July 28, 1983.

A permanent employee may be dismissed or suspended on grounds of unprofessional conduct consisting of acts or omissions other than those specified in Section 44932, but any such charge shall specify instances of behavior deemed to constitute unprofessional conduct. This section shall also apply to the suspension of probationary employees in a school district with an average daily attendance of less than 250 pupils.

§ 44934

Amended by Stats. 2014, Ch. 55, Sec. 3. (AB 215) Effective January 1, 2015.

(a)This section shall apply to dismissal or suspension proceedings based on charges as specified in Section 44932 or 44933, including proceedings based on charges of egregious misconduct in combination with other charges. Section 44934.1 shall apply to dismissal or suspension proceedings based solely on charges of egregious misconduct described in paragraph (1) of subdivision (a) of Section 44932.

(b)Upon the filing of written charges, duly signed and verified by the person filing them, with the governing board of the school district, or upon a written statement of charges formulated by the governing board of the school district, charging that there exists cause, as specified in

Section 44932 or 44933, for the dismissal or suspension of a permanent employee of the school district, the governing board of the school district may, upon majority vote, except as provided in this article if it deems the action necessary, give notice to the permanent employee of its intention to dismiss or suspend him or her at the expiration of 30 days from the date of service of the notice, unless the employee demands a hearing as provided in this article. Suspension proceedings may be initiated pursuant to this section only if the governing board of the school district has not adopted a collective bargaining agreement pursuant to subdivision (b) of Section 3543.2 of the Government Code.

(c)Any written statement of charges shall specify instances of behavior and the acts or omissions constituting the charge so that the employee will be able to prepare his or her defense. It shall, where applicable, state the statutes and rules that the

employee is alleged to have violated, and it shall also set forth the facts relevant to each charge.

(d)If the governing board of the school district has given notice to a certificated employee of its intention to dismiss or suspend him or her, based upon written charges filed or formulated pursuant to this section, the charges may be amended less than 90 days before the hearing on the charges only upon a showing of good cause. If a motion to amend charges is granted by the administrative law judge, the employee shall be given a meaningful opportunity to respond to the amended charges.

(e)A notice of the governing board of the school district to an employee of its intention to dismiss or suspend him or her, together with written charges filed or formulated pursuant to this section, shall be sufficient to initiate a hearing under Section 11503 of the Government Code, and the

governing board of the school district shall not be required to file or serve a separate accusation.

(f)This section shall also apply to the suspension of probationary employees in a school district with an average daily attendance of less than 250 pupils that has not adopted a collective bargaining agreement pursuant to subdivision (b) of Section 3542.2 of the Government Code.

§ 44934.1

Added by Stats. 2014, Ch. 55, Sec. 4. (AB 215) Effective January 1, 2015.

(a)This section shall apply only to dismissal or suspension proceedings based solely on charges of egregious misconduct, as described in paragraph (1) of subdivision (a) of Section 44932.

(b)Upon the filing of written charges, duly signed and verified by the person filing them, with the governing board of a school district, or upon a written statement of charges formulated by the governing board of a school district charging that there exists cause, as specified in paragraph (1) of subdivision (a) of Section 44932, for the dismissal or suspension of a permanent employee of the school district, the governing board of the school district may, upon majority vote, except as provided in this article if it

deems the action necessary, give notice to the permanent employee of its intention to dismiss or suspend him or her at the expiration of 30 days from the date of service of the notice, unless the employee demands a hearing as provided in this article.

(c)Any written statement of charges of egregious misconduct shall specify instances of behavior and the acts or omissions constituting the charge so that the employee will be able to prepare his or her defense. It shall, where applicable, state the statutes and rules that the employee is alleged to have violated, and it shall also set forth the facts relevant to each occasion of alleged egregious misconduct.

(d)This section shall also apply to the suspension of probationary employees in a school district with an average daily attendance of less than 250 pupils that has not adopted a collective bargaining agreement pursuant to

subdivision (b) of Section 3542.2 of the Government Code.

§ 44935

Amended by Stats. 2014, Ch. 55, Sec. 5. (AB 215) Effective January 1, 2015.

(a)A report on the fitness of a certificated employee in a dismissal or suspension proceeding initiated pursuant to Section 44934 or 44934.1 shall not be received from a statewide professional organization by a governing board unless the certificated employee shall have been given, prior to the preparation of the report in its final form, the opportunity to submit in writing his or her comments on the report and unless a copy of the report in final form is given to the certificated employee investigated at least 10 days prior to its submission to the governing board.

(b)A report shall not be distributed other than to the governing board and those persons participating in its

preparation, unless the certificated employee does not demand a hearing as provided by Section 44937.

§ 44936

Amended by Stats. 2014, Ch. 55, Sec. 6. (AB 215) Effective January 1, 2015.

(a)The notice of dismissal or suspension in a proceeding initiated pursuant to Section 44934 or 44934.1 may be given at any time of year.

(b)Notwithstanding subdivision (a), the notice of dismissal or suspension in a proceeding involving only charges of unsatisfactory performance initiated pursuant to Section 44934 shall only be given during the instructional year of the schoolsite where the employee is physically employed. However, a notice of dismissal or suspension in a proceeding involving charges of unsatisfactory performance may be initiated pursuant to paragraph (2) of subdivision (b) of Section 44938.

(c)The

notice of dismissal or suspension given during the instructional year of the schoolsite where the employee is physically employed shall be in writing and be served upon the employee personally or by United States registered mail addressed to him or her at his or her 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.

(d)A notice of dismissal or suspension given outside of the instructional year of the schoolsite where the employee is physically employed shall be in writing and shall be served upon the employee personally. A copy of the charges filed, containing the information required pursuant to Section 11503 of the Government Code, together with a copy of the provisions of this article, shall be attached to the notice.

§ 44937

Amended by Stats. 2014, Ch. 55, Sec. 7. (AB 215) Effective January 1, 2015.

In a dismissal or suspension proceeding initiated pursuant to Section 44934 or 44934.1, if the employee does not demand a hearing by filing a written request for hearing with the governing board, he or she may be dismissed or suspended without pay for a specific period of time at the expiration of the 30-day period.

§ 44938

Amended by Stats. 1995, Ch. 392, Sec. 4. Effective January 1, 1996.

(a)The governing board of any school district shall not act upon any charges of unprofessional conduct unless at least 45 calendar days prior to the date of the filing, the board or its authorized representative has given the employee against whom the charge is filed, written notice of the unprofessional conduct, specifying the nature thereof with such specific instances of behavior and with such particularity as to furnish the employee an opportunity to correct his or her faults and overcome the grounds for the charge. The written notice shall include the evaluation made pursuant to Article 11 (commencing with Section 44660) of Chapter 3, if applicable to the employee.

(b)The governing board of any school district shall not act upon any charges of unsatisfactory performance unless it acts in accordance with the provisions of paragraph (1) or (2):

(1)At least 90 calendar days prior to the date of the filing, the board or its authorized representative has given the employee against whom the charge is filed, written notice of the unsatisfactory performance, specifying the nature thereof with such specific instances of behavior and with such particularity as to furnish the employee an opportunity to correct his or her faults and overcome the grounds for the charge. The written notice shall include the evaluation made pursuant to Article 11 (commencing with Section 44660) of Chapter 3, if applicable to the employee.

(2)The governing board may act during the time period composed of the last one-fourth of the schooldays it has scheduled for purposes of computing apportionments in any fiscal year if, prior to the beginning of that time period, the board or its authorized representative has given the employee against whom the charge is filed, written notice of the unsatisfactory performance, specifying the nature thereof with such specific instances of behavior and with such particularity as to furnish the employee an opportunity to correct his or her faults and overcome the grounds for the charge. The written notice shall include the evaluation made pursuant to Article 11 (commencing with Section 44660) of Chapter 3, if applicable to the employee.

(c)“Unsatisfactory performance” as used in this section means, and refers only to, the unsatisfactory performance particularly specified as a cause for dismissal in Section 44932 and does not include any other cause for dismissal specified in Section 44932.

“Unprofessional conduct” as used in this section means, and refers to, the unprofessional conduct particularly specified as a cause for dismissal or suspension in Sections 44932 and 44933 and does not include any other cause for dismissal specified in Section 44932.

§ 44939

Amended by Stats. 2015, Ch. 303, Sec. 87. (AB 731) Effective January 1, 2016.

(a)This section applies only to dismissal or suspension proceedings initiated pursuant to Section 44934.

(b)Upon the filing of written charges, duly signed and verified by the person filing them with the governing board of a school district, or upon a written statement of charges formulated by the governing board of a school district, charging a permanent employee of the school district with immoral conduct, conviction of a felony or of any crime involving moral turpitude, with incompetency due to mental disability, with willful refusal to perform regular assignments without reasonable cause, as prescribed by reasonable rules and regulations of the employing school district, or with violation of Section 51530, the

governing board of the school district may, if it deems that action necessary, immediately suspend the employee from his or her duties and give notice to him or her of his or her suspension, and that 30 days after service of the notice of dismissal, he or she will be dismissed, unless he or she demands a hearing.

(c)(1) An employee who has been placed on suspension pursuant to this section may serve and file with the Office of Administrative Hearings a motion for immediate reversal of suspension. Review of a motion filed pursuant to this section shall be limited to a determination as to whether the facts as alleged in the statement of charges, if true, are sufficient to constitute a basis for immediate suspension under this section. The motion shall include a memorandum of points and authorities setting forth law and argument supporting the employee’s contention that the statement of charges does not set forth a

sufficient basis for immediate suspension.

(2)The motion shall be served upon the governing board of the school district and filed with the Office of Administrative Hearings within 30 days after service upon the employee of the initial pleading in the matter. The governing board of the school district has the right to serve and file a written response to the motion before or at the time of hearing.

(3)The hearing on the motion for immediate reversal of suspension shall be held no later than 30 days after the motion is filed with the Office of Administrative Hearings.

(4)The administrative law judge shall, no later than 15 days after the hearing, issue an order denying or granting the motion. The order shall be in writing, and a copy of the order shall be served by the Office of Administrative Hearings upon the

parties. The grant or denial of the motion shall be without prejudice to consideration by the Commission on Professional Competence, based upon the full evidentiary record before it, of the validity of the grounds for dismissal. The ruling shall not be considered by the commission in determining the validity of the grounds for dismissal, and shall not have any bearing on the commission’s determination regarding the grounds for dismissal.

(5)An order granting a motion for immediate reversal of suspension shall become effective within five days of service of the order. The school district shall make the employee whole for any lost wages, benefits, and compensation within 14 days after service of an order granting the motion.

(6)A motion made pursuant to this section shall be the exclusive means of obtaining interlocutory review of suspension pending dismissal. The grant or denial

of the motion is not subject to interlocutory judicial review.

(d)A motion for immediate reversal of suspension pursuant to this section does not affect the authority of a governing board of a school district to determine the physical placement and assignment of an employee who is suspended or placed on administrative leave during the review of the motion or while dismissal charges are pending.

§ 44939.1

Added by Stats. 2014, Ch. 55, Sec. 9. (AB 215) Effective January 1, 2015.

(a)This section shall apply only to dismissal or suspension proceedings initiated pursuant to Section 44934.1.

(b)Upon the filing of written charges, duly signed and verified by the person filing them with the governing board of a school district, or upon a written statement of charges formulated by the governing board of a school district, charging a permanent employee of the school district with egregious misconduct, as defined in paragraph (1) of subdivision (a) of Section 44932, the governing board of the school district may, if it deems such action necessary, immediately suspend the employee from his or her duties and give notice to him or her of his or her suspension, and that 30 days after

service of the notice of dismissal, he or she will be dismissed, unless he or she demands a hearing.

§ 44939.5

Amended by Stats. 2025, Ch. 460, Sec. 12. (SB 848) Effective January 1, 2026.

(a)School districts, county offices of education, charter schools, state special schools and diagnostic centers operated by the department, and private schools shall not enter into an agreement that would prevent a mandatory report of egregious misconduct, as defined in paragraph (1) of subdivision (a) of Section 44932, to the Commission on Teacher Credentialing or any other state or federal agency.

(b)School districts, county offices of education, charter schools, state special schools and diagnostic centers operated by the department, and private schools shall not expunge from an employee’s personnel file, nor shall they enter into an agreement that would authorize expunging from an employee’s personnel file, credible complaints of, substantiated

investigations into, or discipline for, egregious misconduct, as defined in paragraph (1) of subdivision (a) of Section 44932. This prohibition does not preclude removing, or entering into an agreement to remove, documents containing allegations that have been the subject of a hearing before an arbitrator, school board, personnel commission, Commission on Professional Competence, or administrative law judge, in which the employee prevailed, the allegations were determined to be false, not credible, or unsubstantiated, or a determination was made that the discipline was not warranted.

(c)(1) A person applying for a certificated position at a school district, county office of education, charter school, state special school or diagnostic center operated by the department, or private school shall provide that prospective employer with a complete list of every school district, county office of education, charter school, state

special school or diagnostic center operated by the department, and private school that the applicant has previously been an employee of.

(2)School districts, county offices of education, charter schools, state special schools and diagnostic centers operated by the department, and private schools considering an applicant for a certificated position shall inquire with each school district, county office of education, charter school, state special school and diagnostic center operated by the department, and private school that previously employed the applicant, as disclosed pursuant to paragraph (1), as to whether the applicant, while previously employed by the school district, county office of education, charter school, state special school or diagnostic center operated by the department, or private school was the subject of any credible complaints of, substantiated investigations into, or discipline for, egregious misconduct, as defined in

paragraph (1) of subdivision (a) of Section 44932, that were required to be reported to the Commission on Teacher Credentialing.

(3)School districts, county offices of education, charter schools, state special schools and diagnostic centers operated by the department, and private schools that have made a report of an employee’s egregious misconduct to the Commission on Teacher Credentialing shall disclose this fact to a school district, county office of education, charter school, state special school or diagnostic center operated by the department, or private school considering an application for employment from the employee, upon inquiry, and, notwithstanding any other law, shall provide the inquiring school district, county office of education, charter school, state special school or diagnostic center operated by the department, or private school with a copy of all relevant information that was reported to the Commission on Teacher

Credentialing, within its possession.

(d)Any school employee who alleges that another school employee has engaged in egregious misconduct, as defined in paragraph (1) of subdivision (a) of Section 44932, knowing at the time of making the allegation that the allegation was false, shall be subject to certificate revocation, if applicable.

§ 44940

Amended by Stats. 2015, Ch. 303, Sec. 88. (AB 731) Effective January 1, 2016.

(a)For purposes of this section, “charged with a mandatory leave of absence offense” is defined to mean charged by complaint, information, or indictment filed in a court of competent jurisdiction with the commission of any sex offense as defined in Section 44010, with a violation or attempted violation of Section 187 of the Penal Code, or with the commission of any offense involving aiding or abetting the unlawful sale, use, or exchange to minors of controlled substances listed in Schedule I, II, or III, as contained in Sections 11054, 11055, and 11056 of the Health and Safety Code.

(b)For purposes of this section, “charged with an optional leave of absence offense” is defined to mean a charge by complaint, information,

or indictment filed in a court of competent jurisdiction with the commission of any controlled substance offense as defined in Section 44011 or 87011 of this code, or Sections 11357 to 11361, inclusive, or Section 11363, 11364, or 11370.1 of the Health and Safety Code, insofar as these sections relate to any controlled substances except marijuana, mescaline, peyote, or tetrahydrocannabinols.

(c)For purposes of this section and Section 44940.5, the term “school district” includes county offices of education.

(d)(1) If a certificated employee of a school district is charged with a mandatory leave of absence offense, as defined in subdivision (a), upon being informed that a charge has been filed, the governing board of the school district shall immediately place the employee on compulsory leave of absence. The duration of the leave of absence shall be until a

time not more than 10 days after the date of entry of the judgment in the proceedings. No later than 10 days after receipt of the complaint, information, or indictment described by subdivision (a), the school district shall forward a copy to the Commission on Teacher Credentialing.

(2)Upon receiving a copy of a complaint, information, or indictment described in subdivision (a) and forwarded by a school district, the Commission on Teacher Credentialing shall automatically suspend the employee’s teaching or service credential. The duration of the suspension shall be until a time not more than 10 days after the date of entry of the judgment in the proceedings.

(e)(1) If a certificated employee of a school district is charged with an optional leave of absence offense as defined in subdivision (b), the governing board of the school district may immediately place

the employee upon compulsory leave in accordance with the procedure in this section and Section 44940.5. If any certificated employee is charged with an offense deemed to fall into both the mandatory and the optional leave of absence categories, as defined in subdivisions (a) and (b), that offense shall be treated as a mandatory leave of absence offense for purposes of this section. No later than 10 days after receipt of the complaint, information, or indictment described by subdivision (a), the school district shall forward a copy to the Commission on Teacher Credentialing.

proceedings.

§ 44940.5

Amended by Stats. 2008, Ch. 579, Sec. 1. Effective January 1, 2009.

A certificated employee placed on compulsory leave of absence pursuant to Section 44940, and a classified employee placed on compulsory leave of absence pursuant to Section 45304 shall be subject to the following procedures:

(a)The governing board of the school district may extend the compulsory leave of absence of the employee beyond the initial period specified in Section 44940 or 45304, whichever is applicable, by giving notice to the employee within 10 days after the entry of judgment in the proceedings that the employee will be dismissed at the expiration of 30 days from the date of service of the notice, unless the employee demands a hearing as provided in this article.

(b)An employee placed upon compulsory leave of absence pursuant to this section shall continue to be paid his or her regular salary during the period of his or her compulsory leave of absence if and 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 employee will repay to the school district the amount of salary so paid to him or her during the period of the compulsory leave of absence in case the employee is convicted of the charges, or fails or refuses to return to service following an acquittal of the offense or dismissal of the charges. If the employee is acquitted of the offense, or the charges against the employee are dismissed, the school district shall reimburse the employee for the cost of the bond upon his or her return to service in the school district.

(c)If the employee does not elect to furnish bond, or other security acceptable to the governing board of the district, and if the employee is acquitted of the offense, or the charges against him or her are dismissed without his or her guilt being established, the school district shall pay to the employee his or her full compensation for the period of the compulsory leave of absence upon his or her return to service in the school district. If the charges against the employee are dismissed as a result of the employee’s successful completion of a drug diversion program, upon the employee’s return to service in the school district, the school district, at the employee’s election, shall pay to the employee any accrued leave, and differential pay pursuant to Sections 44977, 45195, and 45196, for up to the length of the employee’s compulsory leave of absence.

(d)An action taken pursuant to this section by a governing board shall be reported immediately to the Commission on Teacher Credentialing. The commission shall give priority to the investigation and resolution of these cases.

§ 44941

Amended by Stats. 2014, Ch. 55, Sec. 12. (AB 215) Effective January 1, 2015.

(a)The notice of suspension and intention to dismiss shall be in writing and served pursuant to Section 44936. 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. If the employee does not demand a hearing within the 30-day period, he or she may be dismissed upon the expiration of 30 days after service of the notice.

(b)An employee who demands a hearing shall file a single document containing his or her request for a hearing pursuant to this section and a notice of defense pursuant to Sections 11505 and 11506 of the Government

Code.

§ 44941.1

Added by Stats. 2014, Ch. 55, Sec. 13. (AB 215) Effective January 1, 2015.

Notwithstanding Section 44941, the notice of suspension and intention to dismiss that is based exclusively on charges of egregious misconduct as described in paragraph (1) of subdivision (a) of Section 44932, shall be in writing and served pursuant to Section 44936. 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. If the employee does not demand a hearing within the 30-day period, he or she may be dismissed upon the expiration of 30 days after service of the notice.

§ 44942

Amended by Stats. 1989, Ch. 455, Sec. 1.

(a)Any certificated employee may be suspended or transferred to other duties by the governing board if the board has reasonable cause to believe that the employee is suffering from mental illness of such a degree as to render him or her incompetent to perform his or her duties.

(b)The governing board shall immediately, upon any suspension or transfer under this section, give to the employee a written statement of the facts giving rise to the board’s belief, and an opportunity to appear before the board within 10 days to explain or refute the charges.

(c)If, after the employee’s appearance before the board, the board decides to continue the suspension or transfer, or if the employee chooses not to appear before the board, the employee shall then be offered, in writing, the opportunity of being examined by a panel consisting of three persons who are either psychiatrists or psychologists, at least one of whom shall be a psychiatrist, selected by him or her from a list of psychiatrists and psychologists to be provided by the board. To assist the panel in making its determination, the governing board shall supply to the panel, prior to the date scheduled for the examination, a list of the duties of the position from which the employee was suspended or transferred. The employee shall continue to receive his or her regular salary and all other benefits of employment during the period dating from his or her suspension to the filing of the report of the panel with the governing board.

(d)The examination shall be conducted at school district expense within 15 days of any suspension or transfer ordered under this section. The employee shall submit to the examination, but shall be entitled to be represented by a psychiatrist, psychologist licensed under Chapter 6.6 (commencing with Section 2900) of Division 2 of the Business and Professions Code, or physician of his or her own choice, and any report of the psychiatrist, psychologist, or physician selected by him or her shall be filed with the panel at the request of the employee.

A written report of the panel on the examination of the suspended or transferred employee shall be submitted to the governing board no later than 10 days after completion of the examination. A copy shall be supplied to the employee upon request. The report shall contain a finding on whether the employee is suffering from mental illness of such a degree as to render him or her incompetent to perform his or her duties.

(e)If a majority of the panel conclude that the employee should be permitted to return to his or her duties, no written record of the suspension or of the determination of the panel shall be retained, and in all respects any written record concerning the employee shall appear as it did before the suspension was made.

(f)If a majority of the panel find in the panel’s report that the employee is suffering from mental illness of such a degree as to render him or her incompetent to perform his or her duties, the governing board may, upon receipt of the report, place the employee on mandatory sick leave of absence. Any mandatory sick leave of absence imposed under this section shall not exceed two years, during which period the employee shall be entitled to sick leave and hospital and medical benefits that he or she accrued during his or her employment by the governing board but only to the extent of that accrual.

(g)Any employee placed on mandatory sick leave of absence pursuant to this section may, in writing, immediately demand a hearing. Upon receipt of that written demand, the governing board shall file a complaint in the superior court of the county in which the school district, or the major part thereof, is located, setting forth the charges against the employee and asking that the court inquire into the charges and determine whether or not the charges are true, and, if true, whether they constitute sufficient grounds for placing the employee on mandatory sick leave of absence, and for a judgment pursuant to its findings.

(h)If the court finds that the employee was not, at the time of the suspension, incompetent to perform his or her assigned duties and should not have been placed on mandatory sick leave of absence, the employee shall be immediately reinstated to the same or a substantially similar position with full back salary, and any written record of the suspension or transfer or any report of the panel shall be destroyed.

(i)If the court confirms the placing of the employee on mandatory sick leave, or if the employee does not seek a hearing, then, upon written request of the employee made not earlier than six months nor later than two years after the date he or she was placed on mandatory sick leave of absence, a new panel consisting of three persons who are either psychiatrists or psychologists, at least one of whom shall be a psychiatrist, shall be convened by, and at the expense of, the governing board to review its original conclusion. If the original conclusion is not changed by the new panel as a result of that review, the employee shall be continued on the mandatory sick leave of absence, except that when the employee’s total period of absence exceeds two years, the governing board shall either rescind its action and reinstate the employee to the same or a substantially similar position, or shall serve the employee with a notice of intention to dismiss him or her, and proceed according to Section 44943.

(j)If a majority of the new panel concludes in its report, or any subsequent review thereof, that the suspended employee or employee on mandatory sick leave of absence should be permitted to return to his or her duties, or if the court so concludes, the governing board shall take immediate action to restore the employee to the position from which he or she was suspended or transferred or to a substantially similar position.

(k)Every hearing and action by or before the governing board pursuant to this section shall be in executive session, and no decision, action, or occurrence therein shall be made public, unless the employee so requests in writing.

(l)Nothing in this section shall be construed to supersede Section 44949.

§ 44943

Amended by Stats. 2014, Ch. 55, Sec. 14. (AB 215) Effective January 1, 2015.

When any employee who has been served with notice pursuant to Section 44934 or 44934.1 of the governing board’s intention to dismiss or suspend him or her demands a hearing, the governing board shall have the option either (a) to rescind its action, or (b) schedule a hearing on the matter.

§ 44944

Amended by Stats. 2021, Ch. 401, Sec. 9. (AB 1578) Effective January 1, 2022.

(a)This section applies 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) If 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, the administrative law judge 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. Testimony shall not be given or evidence shall not be introduced relating to matters that occurred more than four years before the date of the

filing of the notice, except in one of the following circumstances:

(i)Testimony or evidence regarding allegations of behavior or communication of a sexual nature with a pupil that is beyond the scope or requirements of the educational program, which may constitute misconduct, or an act described in Section 212.5, but not amounting to conduct described in clause (ii), may be introduced in a disciplinary proceeding based on similar conduct, where such allegations have been substantiated through an investigation or proceeding, or for which the employee was subject to discipline or other form of penalty.

(ii) Testimony or evidence regarding allegations of an act described in Section 288 of the Penal Code with respect to a pupil of any age, Section 288.3 of the Penal Code, Section 44010 of this code, or Sections 11165.2 to 11165.6, inclusive, of the Penal Code may be introduced in

any disciplinary proceeding.

(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 as allowed pursuant to subparagraph (A).

(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.

(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 not receive 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)(1) 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.

(2)Notwithstanding paragraph (1), the parties may mutually agree to hold the hearing by telephone, videoconference, or other electronic means.

§ 44944.05