Article 2 - Appointment, Tenure, Layoff and Dismissal of Employees

California Education Code — §§ 89530-89546

Sections (21)

§ 89530

Amended by Stats. 1983, Ch. 143, Sec. 129.

(a)As used in this article, unless the context otherwise requires:

(1)“Dismissal” means dismissal for cause.

(2)“Layoff” means separation from a position for lack of funds or lack of work.

(3)“Probation” means the period an employee must serve before becoming entitled to permanent employment.

(4)“Permanent” means that the employee has a right to continued employment unless dismissed or laid off.

(b)This article does not apply to the California State University presidents.

(c)This article does not apply to student assistants.

§ 89531

Amended by Stats. 1979, Ch. 1072.

(a)Every nonacademic employee shall be appointed for one year which is a probationary period. On reappointment for the second year, the employee shall be permanent at the same level and salary step or higher salary step as at completion of the probationary year.

(b)If the provisions of this section are in conflict with the provisions of a memorandum of understanding reached pursuant to Chapter 12 (commencing with Section 3560) of Division 4 of Title 1 of the Government Code, the memorandum of understanding shall be controlling without further legislative action, except that if such provisions of a memorandum of understanding require the expenditure of funds, the provisions shall not become effective unless approved by the Legislature in the annual Budget Act.

§ 89532

Amended by Stats. 1982, Ch. 796, Sec. 1.

(a)All vacant or newly established nonacademic positions shall, as far as consistent with federal, state, and campus affirmative action guidelines and the best interests of the California State University, be filled from qualified nonacademic employees currently employed by the California State University.

§ 89533

Amended by Stats. 1979, Ch. 1072.

(a)Any nonacademic employee shall be required to serve only one probationary period to gain permanent status in a position or in a substantially similar position. If such an employee is promoted to a position with substantially different duties or to a position that requires additional duties and abilities, he shall serve an additional probationary period; but if he does not become permanent in the new position, he shall have the right to return to any class in which he was permanent or to the class in which he was serving before his promotion. An employee who is promoted before he completed the probationary period in the lower class and is returned to such class without having become permanent in the new position shall receive credit toward permanent status in the lower class for the period of time he had previously performed satisfactorily therein. An employee who is promoted before he completed the probationary period in the lower class shall earn permanent status in the lower class at the end of one year from the original appointment date in the lower class, provided the duties in the higher class are substantially similar to the duties in the lower class and the employee’s performance in both classes has been satisfactory.

§ 89534

Amended by Stats. 1979, Ch. 1072.

(a)The trustees shall adopt rules prescribing the form, time and method of notice of rejection at any time during the probationary period to any probationary nonacademic employee, or notice of intention not to recommend reappointment of an academic employee for the succeeding year to any such employee not having permanent status.

§ 89535

Amended by Stats. 1984, Ch. 1635, Sec. 39.

Any permanent or probationary employee may be dismissed, demoted, or suspended for the following causes:

(a)Immoral conduct.

(b)Unprofessional conduct.

(c)Dishonesty.

(d)Incompetency.

(e)Addiction to the use of controlled substances.

(f)Failure or refusal to perform the normal and reasonable duties of the position.

(g)Conviction of a felony or conviction of any misdemeanor involving moral turpitude.

(h)Fraud in securing appointment.

(i)Drunkenness on duty.

§ 89536

Enacted by Stats. 1976, Ch. 1010.

Any permanent or probationary employee who is physically or mentally unfit for the position occupied may be suspended, demoted, or dismissed pursuant to the provisions of Sections 89538, 89539, and 89540.

§ 89536.1

Added by Stats. 2003, Ch. 213, Sec. 1. Effective January 1, 2004.

(a)If, after considering the conclusions of a medical examination or medical reports from an employee’s physician or other pertinent information, the trustees determine that the employee is unable to perform the work of his or her present position or any other position in the state university system, and the employee is eligible for, and does not waive the right to, retire for disability, the trustees shall file an application for disability retirement on the employee’s behalf. The trustees shall give the employee 15 days’ written notice of their intention to file the application and a reasonable opportunity to respond prior to the filing of the application. However, the decision to file the application is final, and is not appealable to the State Personnel Board.

(b)Notwithstanding Section 21153 of the Government Code, upon filing the application for disability retirement, the trustees may remove the employee from his or her job and place the employee on involuntary leave status. The employee may use any accrued leave during the period of the involuntary leave. If the employee’s leave credits and programs are exhausted, or if they do not provide benefits that are at least equal to the estimated retirement allowance, the trustees shall pay the employee an additional temporary disability allowance so that the employee receives payment that is equal to the estimated retirement allowance. The trustees shall continue to make all employer contributions to the employee’s health insurance plan during the period of involuntary leave.

(c)If the application for disability retirement is subsequently granted, the retirement system shall reimburse the trustees for the temporary disability allowance, which shall be deducted from any back disability retirement benefits that are otherwise payable to the employee. If the application is denied, the trustees shall reinstate the employee to his or her position, with back salary and benefits, less any temporary disability allowance paid by the trustees. The trustees shall also restore any leave credits that the employee used during the period of the involuntary leave.

§ 89537

Amended by Stats. 1995, Ch. 758, Sec. 266. Effective January 1, 1996.

“Unprofessional conduct” as used in Section 89535 includes, but is not limited to, willful advocacy of the overthrow of the government of the United States or of the state, by force, violence or other unlawful means, either on or off the campus.

If the provisions of this section are in conflict with the provisions of a memorandum of understanding reached pursuant to Chapter 12 (commencing with Section 3560) of Division 4 of Title 1 of the Government Code, the memorandum of understanding shall be controlling without further legislative action, except that if such provisions of a memorandum of understanding require the expenditure of funds, the provisions shall not become effective unless approved by the Legislature in the annual Budget Act.

§ 89538

Amended by Stats. 1999, Ch. 283, Sec. 1. Effective January 1, 2000.

(a)Notice of dismissal, demotion, or suspension for cause of an employee shall be in writing, signed by the chancellor or his or her designee and be served on the employee. The notice shall set forth a statement of causes, the events or transactions upon which the causes are based, the nature of the penalty and the effective date, and a statement of the employee’s right to answer within 30 days and request a hearing before the State Personnel Board.

(b)Notice of the reassignment of an administrative employee pursuant to Section 66609 shall be in writing, and shall be served on the employee. The notice shall set forth a statement of the employee’s right to answer within 30 days and request a hearing before the trustees. This hearing shall be only on the question of whether the position to which the employee is reassigned is commensurate with his or her qualifications.

§ 89539

Amended by Stats. 1999, Ch. 283, Sec. 2. Effective January 1, 2000.

(a)(1) Any employee dismissed, suspended, or demoted for cause may request a hearing by the State Personnel Board by filing a request, in writing, with the board within 30 days of being served with the notice.

(2)The request may be on any one or more of the following grounds:

(A)The required procedure was not followed.

(B)There is no ground for dismissal, suspension, or demotion.

(C)The penalty is excessive, unreasonable, or discriminatory.

(D)The employee did not do the acts or omissions alleged as the events or transactions upon which the causes are based.

(E)The acts or omissions alleged as the events or transactions upon which the causes are based were justified.

(b)The State Personnel Board shall hold a hearing, following the same procedure as in state civil service proceedings, and shall render a decision affirming, modifying, or revoking the action taken. In a hearing, the burden of proof shall be on the party taking the dismissal action.

(c)An administrative employee reassigned pursuant to Section 66609 may request a hearing by the trustees by filing a request for a hearing, in writing, with the trustees within 30 days of being served with the notice. The request may be on the grounds that the required procedure was not followed or that the position to which the employee is reassigned is not commensurate with his or her qualifications. The trustees shall hold a hearing, and shall render a decision affirming, modifying, or revoking the action taken.

(d)The State Personnel Board may bill the California State University for the costs incurred in conducting hearings involving employees of the California State University pursuant to Sections 89535 to 89542, inclusive.

§ 89539.1

Added by Stats. 2003, Ch. 846, Sec. 1. Effective January 1, 2004.

An employee who has been served with notice of dismissal, suspension, or demotion for cause, or a representative designated by the employee, shall have the right to inspect any documents in the possession of, or under the control of, the trustees that are relevant to the action taken or that would constitute “relevant evidence,” as defined in Section 210 of the Evidence Code.

§ 89539.2

Amended by Stats. 2005, Ch. 22, Sec. 54. Effective January 1, 2006.

(a)Any party claiming that his or her request for discovery pursuant to Section 89539.1 has not been complied with may serve and file a petition to compel discovery with the Hearing Office of the State Personnel Board, naming as the respondent the party refusing or failing to comply with Section 89539.1. The petition shall state facts showing that the respondent failed or refused to comply with Section 89539.1, a description of the matters sought to be discovered, the reason or reasons why the matter is discoverable under Section 89539.1, and the ground or grounds for the respondent’s refusal so far as known to the petitioner.

(b)(1) The petition shall be served upon the respondent, and filed within 14 days after the respondent first evidenced his or her failure or refusal to comply with Section 89539.1, or within 30 days after the request was made and the party has failed to reply to the request, whichever period is longer. However, no petition may be filed within 15 days of the date set for commencement of the administrative hearing, except upon a petition and a determination by the administrative law judge of good cause. In determining good cause, the administrative law judge shall consider the necessity and reasons for the discovery, the diligence or lack of diligence of the moving party, whether the granting of the petition will delay the commencement of the administrative hearing on the date set, and the possible prejudice of the action to any party.

(2)The respondent shall have a right to file a written answer to the petition. Any answer shall be filed with the Hearing Office of the State Personnel Board and the petitioner within 15 days of service of the petition.

(3)Unless otherwise stipulated by the parties and as provided by this section, the administrative law judge shall review the petition and any response filed by the respondent, and issue a decision granting or denying the petition within 20 days after the filing of the petition. Nothing in this section shall preclude the administrative law judge from determining that an evidentiary hearing shall be conducted prior to the issuance of a decision on the petition. In the event that a hearing is ordered, the decision of the administrative law judge shall be issued within 20 days of the closing of the hearing.

(4)A party aggrieved by the decision of the administrative law judge may, within 30 days of service of the decision, file a petition to compel discovery in the superior court for the county in which the administrative hearing will be held or in the county in which the headquarters of the trustees is located. The petition shall be served on the respondent.

(c)If, from a reading of the petition, the court is satisfied that the petition sets forth good cause for relief, the court shall issue an order to show cause directed to the respondent; otherwise the court shall enter an order denying the petition. The order to show cause shall be served upon the respondent and his or her attorney of record in the administrative proceeding by personal delivery or certified mail, and shall be returnable no earlier than 10 days from its issuance nor later than 30 days after the filing of the petition. The respondent shall have the right to serve and file a written answer or other response to the petition and order to show cause.

(d)The court may, in its discretion, order the administrative proceeding stayed during the pendency of the proceeding, and, if necessary, for a reasonable time thereafter to afford the parties time to comply with the court order.

(e)If the matter sought to be discovered is under the custody or control of the respondent and the respondent asserts that the matter is not a discoverable matter under Section 89539.1, or is privileged against disclosure under Section 89539.1, the court may order lodged with it matters that are provided in subdivision (b) of Section 915 of the Evidence Code, and shall examine the matters in accordance with the provisions thereof.

(f)The court shall decide the case on the matters examined by the court in camera, the papers filed by the parties, and any oral argument and additional evidence as the court may allow.

(g)Unless otherwise stipulated by the parties, the court shall, no later than 45 days after the filing of the petition, file its order denying or granting the petition. However, the court may, on its own motion, for good cause, extend the time an additional 45 days. The order of the court shall be in writing, setting forth the matters or parts the petitioner is entitled to discover under Section 89539.1. A copy of the order shall forthwith be served by mail by the clerk upon the parties. If the order grants the petition in whole or in part, the order shall not become effective until 10 days after the date the order is served by the clerk. If the order denies relief to the petitioning party, the order shall be effective on the date it is served by the clerk.

(h)(1) The order of the superior court shall be final and, except for this subdivision, shall not be subject to review by appeal. A party aggrieved by the order, or any part thereof, may, within 30 days after the service of the superior court’s order, serve and file in the district court of appeal for the district in which the superior court is located, a petition for a writ of mandamus to compel the superior court to set aside, or otherwise modify, its order.

(2)If a review is sought from an order granting discovery, the order of the trial court and the administrative proceeding shall be stayed upon the filing of the petition for writ of mandamus. However, the court of appeal may dissolve or modify the stay thereafter, if it is in the public interest to do so. If the review is sought from a denial of discovery, neither the trial court’s order nor the administrative proceeding shall be stayed by the court of appeal except upon a clear showing of probable error.

(i)If the superior court finds that a party or his or her attorney, without substantial justification, failed or refused to comply with Section 89539.1, or, without substantial justification, filed a petition to compel discovery pursuant to this section, or, without substantial justification, failed to comply with any order of court made pursuant to this section, the court may award court costs and reasonable attorney’s fees to the opposing party. Nothing in this subdivision shall limit the power of the superior court to compel obedience to its orders by contempt proceedings.

§ 89540

Enacted by Stats. 1976, Ch. 1010.

If the dismissal, suspension, or demotion or the reassignment is revoked or modified by the State Personnel Board or the trustees, the employee shall be restored to his position in accord with the decision, and shall be paid back salary equal to that which the employee would have earned if continuously employed in accord with the decision.

§ 89541

Amended by Stats. 1979, Ch. 1072.

(a)Absence without leave of an employee, whether voluntary or involuntary, for five consecutive working days is an automatic resignation from state service, as of the last date on which the employee worked.

An employee may within 90 days of the effective date of such separation file a written request with the State Personnel Board for reinstatement. If the appointing authority has notified the employee of his automatic resignation, any request for reinstatement must be in writing and filed within 15 days of the service of notice of separation. Notice may be personally served or it may be served by mail to the last known residence or business address of the addressee and is complete on mailing. Proof of service, either personal or by mail, shall be made by affidavit. Reinstatement may be granted only if the employee makes a satisfactory explanation to the board as to the cause of his absence and his failure to obtain leave therefor, and the board finds that he is ready, able, and willing to resume the discharge of the duties of his position or, if not, that he has obtained the consent of his appointing power to a leave of absence to commence upon reinstatement.

Any employee so reinstated shall not be paid salary for the period of his absence or separation or for any portion thereof.

§ 89542

Amended by Stats. 1979, Ch. 1072.

(a)If a petition to set aside the resignation of any employee is filed with the State Personnel Board within 30 days after the last date upon which services to the state university or college are rendered, or the date the resignation is tendered, whichever is later, the resignation may be set aside on the ground that it was given or obtained pursuant to or by reason of mistake, fraud, duress, undue influence, or that for any other reason it was not the free, voluntary, and binding act of the person resigning. The State Personnel Board shall hold a hearing and render a decision on the petition following the same procedure as in the state civil service procedures governing resignations from the state civil service.

(b)If the provisions of this section are in conflict with the provisions of a memorandum of understanding reached pursuant to Chapter 12 (commencing with Section 3560) of Division 4 of Title 1 of the Government Code, the memorandum of understanding shall be controlling without further legislative action, except that if such provisons of a memorandum of understanding require the expenditure of funds, the provisions shall not become effective unless approved by the Legislature in the annual Budget Act.

§ 89542.5

Amended by Stats. 2001, Ch. 808, Sec. 1. Effective January 1, 2002.

(a)The Trustees of the California State University shall establish grievance and disciplinary action procedures for all academic employees, including all temporary employees who have been employed for more than one semester or quarter, whereby all of the following requirements are satisfied:

(1)Grievances and disciplinary actions shall be heard by a faculty hearing committee composed of full-time faculty members, selected by lot from a panel elected by the campus faculty, which shall make a recommendation to the president of the state university.

(2)The grievance or disciplinary hearing shall be open to the public at the option of the person aggrieved or the person charged in a disciplinary hearing.

(3)Each party to the dispute shall have the right of representation by a faculty adviser or counsel of his or her choice and to be provided access to a complete record of the hearing.

(4)If there is disagreement between the faculty hearing committee’s decision and the state university president’s decision, the matter shall go before an arbitrator whose decision shall be final.

(5)The costs incurred in arbitration shall be paid by the state university.

(6)If the parties cannot agree upon an arbitrator, either party may petition the Federal Mediation Service, the State Conciliation Service, or the American Arbitration Association for a list of seven qualified, disinterested persons, from which list each party shall alternate in striking three names, and the remaining person shall be designated as the arbitrator.

(7)The grievance procedure established pursuant to this section shall be exclusive with respect to any grievance that is not subject to a State Personnel Board hearing. In the case of a grievance or disciplinary action that is subject to a State Personnel Board hearing, pursuant to Sections 89535 to 89539, inclusive, and Section 89542, the procedures provided for in those sections or those provided for in this section may be utilized. The academic employee shall have the choice of which procedures shall be utilized.

(b)For purposes of this section, a “grievance” is an allegation by an employee that the employee was directly wronged in connection with the rights accruing to his or her job classification, benefits, working conditions, appointment, reappointment, tenure, promotion, reassignment, or the like. A grievance does not include matters, such as the salary structure, which require legislative action.

(c)If a memorandum of understanding is agreed to pursuant to Chapter 12 (commencing with Section 3560) of Division 4 of Title 1 of the Government Code, and it provides for merit pay for academic employees of the university, the arbitration provisions of this section shall not apply to grievances concerning merit pay.

(d)If the provisions of this section are in conflict with the provisions of a memorandum of understanding reached pursuant to Chapter 12 (commencing with Section 3560) of Division 4 of Title 1 of the Government Code, the memorandum of understanding shall be controlling without further legislative action, except that, if the provisions of a memorandum of understanding require the expenditure of funds, the provisions shall not become effective unless approved by the Legislature in the annual Budget Act.

§ 89543

Amended by Stats. 1979, Ch. 1072.

(a)The trustees shall adopt regulations for determination of the order in which nonacademic employees shall be laid off for lack of funds or because of lack of work. To the extent the trustees shall deem practical such regulations shall provide for layoff in the inverse order of employment.

The trustees shall adopt rules governing the reemployment of nonacademic employees laid off, pursuant to this section. To the extent the trustees deem practical, such regulations shall include provision that for a period of five years following layoff, an employee shall have a preferential right to reemployment in the same or a comparable position, in the event of a vacancy. This preferential right shall give the employee laid off the right to reemployment in a position comparable to that from which he was laid off over any person not employed at the time the particular employee was laid off.

§ 89544

Amended by Stats. 1979, Ch. 1072.

(a)A permanent nonacademic employee may, with his consent and the approval of the trustees, be employed at less than full time and retain permanent status. Seniority credit and any other credit shall be gained only in the proportion the actual time employed is to full-time employment in the position.

§ 89545

Amended by Stats. 1983, Ch. 143, Sec. 131.

(a)Whenever a new campus of the California State University is established and an employee is transferred from an existing campus of the California State University to the newly established campus before or during the first academic year of the newly established campus, each employee so transferred shall be entitled to retain all sickness and injury, all sabbatical and other leave rights, and all seniority and tenure rights accumulated as an employee of the existing campus of the California State University as though the rights had been accumulated as an employee of the newly established campus of the California State University.

Whenever the educational program of a newly established campus of the California State University is, during the first year of its existence, limited to an off-campus educational program rather than a regular educational program, any employee transferring from an existing campus of the California State University to the newly established campus of the California State University before or during the first three academic years of the newly established campus shall be entitled to retain all sickness and injury, all sabbatical and other leave rights, and all seniority and tenure rights accumulated as an employee of the existing campus as though the rights had been accumulated as an employee of the newly established campus.

(b)If the provisions of this section are in conflict with the provisions of a memorandum of understanding reached pursuant to Chapter 12 (commencing with Section 3560) of Division 4 of Title 1 of the Government Code, the memorandum of understanding shall be controlling without further legislative action, except that if the provisions of a memorandum of understanding require the expenditure of funds, the provisions shall not become effective unless approved by the Legislature in the annual Budget Act.

§ 89546

Amended by Stats. 1979, Ch. 1072.

(a)Every employee of a state university or college shall have the right to access to all reports, documents, correspondence, and other material which pertain to the employee which are kept by the university or college. Each employee shall also have the right to have another person of the employee’s choosing accompany the employee to inspect the employee’s records.

(b)Upon written request, the employee shall, within 10 calendar days of the request, be provided an exact copy of all or any portion the employee desires of any of the items specified in subdivision (a). The employee shall bear the cost of duplicating such items.

(c)If, after examination of the records pertaining to the employee, an employee believes that any portion of the material is not accurate, relevant, timely, or complete, the employee may request in writing correction of the record or deletion of the offending portion, or both. Such request shall include a written statement by the employee as to the corrections and deletions that the employee believes need to be made and the reasons therefor. This statement shall become part of the employee’s personnel file.

(d)Within 21 calendar days of the request for correction of the record or deletion of the portion of the record objected to, or both, the president of the state university or college shall either accede to the employee’s request or notify the employee in writing of the president’s refusal to grant the request. If the president refuses to grant the request, the president shall state the reasons for the refusal in writing, and the written statement shall become part of the employee’s personnel file.

(e)The remedies authorized by this section shall be in addition to any other remedy provided by law.

(f)Personnel recommendations or decisions relating to the promotion, retention, termination, or any other personnel action shall be based primarily on material contained in the employee’s personnel file and open to the employee’s inspection. If a personnel recommendation or decision is based on any reasons not contained in the employee’s personnel file, the party making the recommendation or decision shall commit those reasons to writing, and the written statement of those reasons shall become part of the employee’s personnel file.

(g)Preemployment materials shall be excluded from the requirements of this section, except as they may be considered in subsequent personnel actions.

(h)If the provisions of this section are in conflict with the provisions of a memorandum of understanding reached pursuant to Chapter 12 (commencing with Section 3560) of Division 4 of Title 1 of the Government Code, the memorandum of understanding shall be controlling without further legislative action, except that if such provisions of a memorandum of understanding require the expenditure of funds, the provisions shall not become effective unless approved by the Legislature in the annual Budget Act.