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NAVIGATING THE DANGEROUS SEAS OF TEACHER DISCIPLINE

ACSA’s 2014 Personnel Institute

October 9, 2014

Presented By:Michelle L. Cannon

Introduction

Every former student can recall the “teacher who couldn’t teach.” Yet the belief that such teacher’s tenure meant absolute protection from dismissal was shared by students, parents, school administrators and school boards. Myth or reality?

It is possible to dismiss poor teachers and teachers who engage in misconduct.

An absolute first step in the teacher dismissal process is proper training of school administrators in evaluating teachers and documenting misconduct. District administrators must also develop a plan and work as a team with advice of legal counsel.

Knowledge about specific legal requirements

Statutory causes for dismissal Procedural pitfalls in Education Code Personnel files (Ed. Code § 44031) and Miller v.

Chico Performance evaluations & Documentation Commission on Professional Competence (CPC) and

Hearing Process Dismissal Process from A to Z

Changes in law starting January 1, 2015:

“Egregious Conduct” Alternative process Miscellaneous changes

Statutory Causes for Dismissal of Permanent Teacher

Education Code § 44932(a) lists the following causes for dismissal:

Immoral Conduct (Immediate unpaid suspension per Ed. Code § 44939)

Unprofessional conduct (45-day Notice of Deficiency per Ed. Code § 44938(a))

Dishonesty Unsatisfactory Performance (90-day Notice of Deficiency

per Ed. Code § 44938(a)) Evident Unfitness for Service

Statutory Causes for Dismissal of Permanent Teacher (cont’d)

Physical/Mental condition making person unfit to teach Persistent Violation of or Refusal to Obey School Laws

of the State or Reasonable Regulations [of State or Governing Board]

Conviction of a Felony or any Crime Involving Moral Turpitude (also allows for immediate unpaid suspension)

Knowing membership in Communist Party* Alcoholism or other drug abuse which makes employee

unfit to teach

Statutory Causes for Suspension of Permanent Teacher

Education Code § 44932(b) authorizes suspension without pay for a specific period of time.

Only for Unprofessional Conduct

Only if 45-day Notice of Deficiency has been sent

Only if there is no provision in collective bargaining agreement

Immediate Unpaid Suspension

Education Code § 44939 authorizes immediate unpaid suspension upon filing of charges for dismissal.

May be used when teacher charged with immoral conduct, conviction of a felony or a crime involving moral turpitude, incompetency due to mental disability, and willful refusal to perform regular assignments without reasonable cause.

Procedural Pitfalls – Education Code

Education Code § 44944(a):

“No witness shall be permitted to testify at the hearing except upon oath or affirmation. No testimony shall be given or evidence introduced relating to matters which occurred more than four years prior to the date of the filing of the notice. Evidence of records regularly kept by the governing board concerning the employee may be introduced, but no decision relating to the dismissal or suspension of any employee shall be made based on charges or evidence of any nature relating to matters occurring more than four years prior to the filing of the notice.” (Emphasis added.)

Procedural Pitfalls – Education Code (cont’d)

This section places a strict limitation on the time that can elapse between any incident and the filing of the Notice of Dismissal and Statement of Charges.

Possible exception based upon “equitable estoppel” (Atwater case).

Education Code § 44944(a) also provides that hearing must commence within 60 days from date of employee’s demand for hearing.

Statement of Charges must be verified.

Procedural Pitfalls – Education Code (cont’d)

Two charging documents: Statement of Charges under Education Code Accusation under Administrative Procedure

Act Education Code § 44936 prohibits giving of

Notice of Dismissal or Suspension between May 15 and September 15.*

Procedural Pitfalls – Cases

Morrison standards (Morrison v. State Board of Education – 1969 California Supreme Court)

Applies to teacher dismissal based upon the following causes: Immoral Conduct Dishonesty Evident Unfitness for Service

Case involved private, consensual, noncriminal homosexual relationship which had occurred 19 months before

Conduct must indicate teacher is not fit to teach

Procedural Pitfalls – Cases (cont’d)

Morrison standards: Harm caused by conduct to students or fellow teachers Degree of harm anticipated Proximity or remoteness in time Type of teaching certificate Extenuating or aggravating circumstances Motive Likelihood of recurrence Chilling effect on legal rights

Procedural Pitfalls – Cases (cont’d)

Impact of Morrison – there must be some nexus between teacher’s conduct and job performance before conduct can form basis for dismissal

Recent update – San Diego USD v. CPC (2011)

Personnel Files (Education Code §44031 and Miller v. Chico)

If it is not written down, given to employee and placed in the employee’s personnel file within a reasonable time, it did not happen.

Intent is to give teacher notice of any performance problems and the opportunity to respond, i.e. to tell his or her side of the story.

Unless CBA or Policy prohibits it, supervisors may keep a “working file” to store temporary records (such as calendars or handwritten notes) relative to recent incidents.

Personnel Files (Education Code §44031 and Miller v. Chico) (cont’d)

Any information in working file that has ongoing significance must find its way from working file into personnel file via: Performance evaluation Formal documentation Must be made available for inspection

Personnel Files (Education Code §44031 and Miller v. Chico) (cont’d)

Magic paragraph - “Pursuant to Education Code § 44031, you have the right to comment upon this Notice and to have your written comments attached to a copy, which will be placed in your personnel file maintained in the district’s personnel office in approximately ten days.”

Sound Evaluations Are Critical Component Of A Winning Case Based on Unsatisfactory Performance

Why are evaluations and documents so important? Because documents speak louder than words!

Full compliance with all provisions in CBA, including evaluation forms Timelines Procedural steps

Sound Evaluations Are Critical Component Of A Winning Case Based on Unsatisfactory Performance (cont’d)

Goal: Provide written record to support testimony

during hearing before CPC Importance of detail in evaluation – creating

an accurate record of what is occurring in classroom

Avoid union challenge

TEACHER EVALUATIONS CAN MAKE A DIFFERENCE!!

Properly prepared evaluations can reward and support good teachers and help them become better teachers

Enhance ongoing conversations between teacher and administrator about what works and what does not work and why and how to improve

TEACHER EVALUATIONS CAN MAKE A DIFFERENCE!! (cont’d)

Minimize misunderstandings – verbal communication can be misunderstood

Provide record for teacher for later reference Stimulate teacher reflection to enhance student

learning Provide documentation for any discipline

TEACHER EVALUATIONS CAN MAKE A DIFFERENCE!! (cont’d)

But remember: Primary objective is always to improve

job performance Secondary objective is to document poor

performance

Building a Winning Case

Types of Documentation: Evaluations Letters of warning, direction, reprimand Formal notices of deficiency (with most recent

evaluation attached) 45-Day Notice of Unprofessional Conduct 90-Day Notice of Unsatisfactory Performance Combined notice for both

Building a Winning Case (cont’d)

Plan for Improvement In a dismissal hearing documentation is key. School Districts

are inherently at a disadvantage in witness credibility battles. The natural tendency is to resolve any doubts in favor of the “underdog” the teacher who is fighting for their job. Without documentation teacher may argue performance

was satisfactory and/or had no knowledge of problems. Only accurate and specific documentation can counter this

argument.

Commission on Professional Competence

Dismissal hearing is conducted before a three-person panel (CPC) composed of:

Administrative law judge who serves as chairperson; One member selected by teacher; One member selected by district; and Both of these members cannot be employees of the district

initiating the dismissal, must hold a currently valid credential, and must have at least five years’ experience within the past ten years in the discipline of the teacher.

Commission on Professional Competence (cont’d)

Standard of proof – preponderance of the evidence.

Written decision by CPC.

Other Important Reminders

Placement of teachers on paid administrative leave.

Weingarten Rights – Employee’s right to representation in investigatory interviews/meetings that employee reasonably believes might result in disciplinary action. Right is not triggered until employee requests

representation. School district has no obligation to inform

employee of the right.

Dismissal of Probationary Teachers:

Non-reelection on or before March 15 of second consecutive complete school year. But effective at end of the year, not mid-year.

Dismissal mid-year under Educ. Code §44948.3. Same causes as for permanent employees.

45 day/90 day notice requirements apply.

Dismissal of Probationary Teachers: (cont’d)

Notice of dismissal by March 15th for 2nd year probationary employees. Must include statement of reasons and notice of

opportunity to appeal. Teacher has 15 days from receipt of notice to request a

hearing. Hearing before an ALJ with a recommended decision to

governing board. No CPC panel.

Suspension without pay for a specified period of time as an alternative to dismissal.

Ok, We Are Ready to Move Forward With Dismissal of A Permanent Teacher, Now What?

Key Decision before filing charges – is it worth going forward?

Ok, We Are Ready to Move Forward With Dismissal, Now What? (cont’d)

Even if we can prove all these facts and charges – will the CPC panel actually vote to terminate?

Approval and support from administration at all levels?

Support from key witnesses?

Ok, We Are Ready to Move Forward With Dismissal, Now What? (cont’d)

Do we have all relevant documents in front of us; nothing too embarrassing or inconsistent with the dismissal case.

Having all documents this early helps to prepare charges and respond to the teacher’s later requests for documents and information.

Causes supporting dismissal in Educ. Code § 44932. Must be nexus between conduct and ability to

function as a teacher.

Pre-Disciplinary Conference

Send “Skelly” letter; setting informal meeting to notify teacher of intent to recommend disciplinary action (including dismissal) to the Superintendent and Board.

It should very closely resemble the draft Statement of Charges (see below).

The employee gets the letter a few days ahead of the meeting time.

Allow employee to bring representative (Weingarten).

Pre-Disciplinary Conference

This is employee’s chance to respond to charges before they go to the Board.

Purpose is to clear up factual mistakes, allow employee to state why the proposed action is improper under the circumstances.

Keep it short and simple; just hear what they have to say.

Pre-Disciplinary Conference

After meeting with Human Resources representative, that person then decides whether to continue to recommend discipline.

If district decides not to continue, notice should be sent to employee.

Full Skelly hearing like that done with classified employees not required here.

Statement of Charges

List all specific facts supporting charges/causes for dismissal; including dates and times, if possible.

Include specific laws, rules, regulations violated.

Adults referred to by first and last name, students by first name and last initial.

Statement of Charges

List all efforts to help the teacher improve, or understand the problem(s).

Have Superintendent sign charges and a verification.

Don’t charge Unprofessional Conduct or Unsatisfactory Performance without giving the required prior written notice of such charges and opportunity / plan to improve (45 and 90 days, respectively) (Ed. Code, § 44938).

Statement of Charges

File with board.

Board decides whether to issue Notice of Intention to Suspend and/or Dismiss in 30 days.

(Ed. Code, § 44934.)

Board Meets to Decide Whether to Authorize Dismissal

Serve Notice of Intention to Dismiss In 30 Days.

Cannot be served on teacher between May 15 and September 15 (Ed. Code, § 44936).

May include notice of unpaid suspension pending hearing, under certain charges (Ed. Code, § 44939).

Personal service or certified mail.

Board Meets to Decide Whether to Authorize Dismissal

Must include copies of: Notice of Intention to Suspend and/or

Dismiss after 30 days if no hearing requested

Statement of Charges

Board Meets to Decide Whether to Authorize Dismissal

Blank Request for Hearing. Copies of Education Code sections 44930

through 44988. Copies of Government Code sections 11507.5;

11507.6 and 11507.8. Proof of Mailing/Service by registered or

certified mail; or personal service.

Wait for Employee’s Written Request for Hearing.

If not received within 30 days, Teacher is automatically terminated (Ed. Code, § 44937).

If received within 30 days:

Contact Office of Administrative Hearings (“OAH”) to open a file and get possible hearing dates.

After Request, Board Must Either Rescind its Action or Schedule a Hearing (Ed. Code, § 44943).

At the next possible board meeting, have Board vote to either:

Rescind the disciplinary action; or Proceed with a hearing on the matter.

Once charges issued and CPC is convened, District cannot unilaterally dismiss charges. See 2011 Boliou decision.

Prepare Accusation (Gov. Code, §§ 11500 et seq.)

Hearing must start within 60 days of receiving request (unless teacher agrees otherwise); Education Code section 44944.

Before setting hearing dates, document at least one attempt to consult/ agree with employee on dates.

If you need more time, try to get the employee to agree, in writing to dates farther away than 60 days, if possible; or formally “open” the hearing within 60 days and postpone the rest until later.

Prepare Accusation (Gov. Code, §§ 11500 et seq.) (cont’d)

Draft detailed Accusation (re-worded Statement of Charges) with an emphasis on specific, provable misconduct/violations; drafted like a “complaint” in a lawsuit; showing how all the specific elements of each charge are met under the facts and circumstances; (Gov. Code §11503.)

Must specify any statutes and rules violated, not just charges phrased in the language of those statutes / rules.

Obtain District’s Panel Member.

On three member panel, district picks a member, so does teacher; other member is an Administrative Law Judge who runs the process; rules on evidence and objections.

Member must be appointed by 7 days before hearing, or appointment power is waived.

Person cannot be related to the teacher, nor an employee of the district.

Obtain District’s Panel Member (cont’d)

Must hold a valid teaching credential and have taught for at least five years “in the discipline of the employee” out of the last ten years.

This definition allows the district to appoint an administrator who was previously a teacher.

Start your search early; and be persistent, as it often takes

longer than you anticipate, and can confer substantial benefit at hearing.

Obtain District’s Panel Member (cont’d)

Difficulty is that they only get reimbursement of costs and expenses of serving; no additional salary, and their employer must continue to pay them full salary (and cost of a substitute or replacement).

This can be burdensome in a hearing lasting many days.

Serve the Accusation Packet, which contains:

Statement to Respondent (setting forth basic notice of formal charges and various procedural rights; e.g. discovery and to be represented by counsel).

Accusation (Formal charging document; should closely resemble both the Predisciplinary Letter, and the Statement of Charges).

Serve the Accusation Packet, which contains: (cont’d)

Notice of Defense and Request for Hearing Form (check-off form response per Government Code section 11506 allowing teacher to object to the form of the Accusation and respond to it by admission or denial; redundancy in Government Code requires teacher to again request a hearing within 15 days or waive right to hearing; failure to file notice of defense also waives hearing right).

Serve the Accusation Packet, which contains: (cont’d)

Statement of Charges (another copy, with same attachments).

Proof of Mailing / Service by registered or certified mail or by personal service.

Prepare for Hearing

You have only 30 days from date of Accusation to send out Discovery requests; try to send out district’s discovery requests at the same time as the Accusation packet, to have documents prior to any depositions.

Early requests allow time for motion to compel further answers /response, if teacher or attorney is uncooperative; (only have 15 days from refusal).

Compile hearing binders.

Prepare for Hearing (cont’d)

Contact district’s witnesses to make sure their testimony are still solid and consistent with what they told you before.

Substantial amount of work in a short period of time.

Often, teacher’s attorney will file meritless “nuisance” motions (to limit or exclude evidence / discovery, dismiss entire action on “constitutional” or “jurisdictional” grounds) to run up district’s costs; discourage district from dismissing other teachers; disrupt district’s preparation for upcoming hearing.

Send Notice of Hearing at Least 10 Days Before (Gov. Code, § 11509)

Gives formal notice of time and place of hearing; reminder of various rights.

Arrange for court reporter to record all proceedings.

Complete Discovery by One Week Before Hearing

Broad discovery allowed; Education Code section 44944(a).

Not only Government Code section 11507.6, but also includes “all rights and duties of any party in a civil action brought in a Superior Court”; starting with Code of Civil Procedure section 2016.

Complete Discovery by One Week Before Hearing

Broad powers to inquire into any information/matter reasonably calculated to lead to admissible evidence, through: Requests for Documents (and other tangible items) Written Questions and Answers (Interrogatories) Written Requests for Admissions (Statements to admit or

deny in writing) Live Question and Answer Sessions (Depositions)

If Necessary, Amend Accusation to State Additional Facts or Charges

Sometimes, discovery reveals new facts and possible new charges.

You can amend accusation to reflect these new facts and charges you plan to use and prove at hearing.

Has teacher been contacting your witnesses? Intimidation? Other misconduct arisen since the charges filed?

If Necessary, Amend Accusation to State Additional Facts or Charges

However, doing so will most likely cause the other side to request, and obtain a postponement of the hearing, to help prepare a defense against any new matter raised.

District counsel can also move to amend the accusation to conform to proof at the hearing itself.

Settlement

Usually, the presiding ALJ will require at least one settlement conference (with different Judge than the one hearing the case).

Most cases settle for simple economic/reality reasons; district does not want to have to pay thousands of dollars in attorney fees and costs, and teacher does not want to create a public, written record of their misconduct.

Settlement (cont’d)

Good documentation/investigation/preparation often leads to fast settlement on favorable terms.

Do a careful cost/benefit analysis; what is in the district’s interests?

Draft the settlement agreement carefully to encompass and prevent as much future trouble as possible.

Settlement (cont’d)

Get teacher’s full release of claims against district (prevents future litigation by the teacher).

This may or may not prevent litigation by third parties (students and parents) against district and/or teacher.

Settlement (cont’d)

Settlement terms generally cannot be made confidential.

Resignation under circumstances related to one or more allegations of misconduct must be reported to CTC; per Title 5 regulations (§§ 80300 et seq.); within 30 days.

Attend Pre-Hearing Conference

Purpose is to clarify and narrow issues at hearing, to make the process more efficient, if possible.

Parties exchange final lists of witnesses and evidence. Make any last minute motions; requests for rulings. Settlement usually also discussed.

Dismissal Hearing

Depending on facts, lasts from 2 days to 30 days. Everything is recorded by court reporter (creates record for

any appeal). Despite “informal” nature of hearing compared to court

proceeding, it’s usually quite tense and acrimonious; prepare for cross-examination.

Dismissal Hearing (cont’d)

A lot is at stake for both parties; economically; politically; emotionally.

Decision is written, and is issued in 2 to 8 weeks (100 day max.); depending on size of case and ALJ caseload.

Dismissal Hearing (cont’d)

Appeal is by motion for reconsideration within 30 days, or by request for appeal to Superior Court within 60 days.

When any testimony or evidence concerns private pupil records or other private information, the ALJ may order that part of the hearing closed and evidence sealed (made a non-public record).

Dismissal Hearing (cont’d)

Note: districts have some breathing room on process: they are allowed to make “non-substantive procedural errors” in the process and still get a dismissal decision, so long as the errors are not “prejudicial errors.”

Hopefully, this prevents a decision in favor of a teacher on mere technicalities.

CPC Decision

CPC decision must be by majority vote and is limited to: (1) employee should be dismissed; (2) employee should be suspended without pay; or (3) employee should not be dismissed or suspended.

If Teacher Wins

Gets immediate reinstatement plus back-pay, if any was withheld.

District must pay full administrative costs of hearing.

If District Wins

If dismissal is for immoral conduct or conviction of a felony or crime involving moral turpitude, the Board must send the CTC and County Board a full transcript of hearing, and request that any certificate for the Teacher be revoked if the employee is not ordered reinstated after appeal; Education Code section 44947.

If District Wins (cont’d)

District must pay full administrative costs of hearing.

Report dismissal to CTC within 30 days.

There is always a possibility of a lawsuit or other challenge by teacher alleging wrongful termination; violation of rights, etc.

AB 215: Egregious Conduct(Effective 1/1/15) Adds egregious misconduct as a cause for dismissal under Education Code

section 44932.

Egregious misconduct is a form of immoral conduct and is defined by particular offenses:

Education Code section 44010 (sex offenses),

Education Code section 44011 (drug offenses), and

Penal Code sections 11165.2 to 11165.6 (child neglect, endangerment, abuse).

AB 215: Egregious Conduct(Effective 1/1/15)

Adds Education Code section 44934.1 for processing egregious conduct cases:

Requires service on the employee of written notice of the district’s intent to dismiss, along with a statement of charges, and allows for immediate unpaid suspension pending dismissal under newly added Education Code section 44939.1.

Notice of dismissal may be served at any time during the year. (Educ. Code § 44936(a).)

AB 215: Egregious Misconduct New Dismissal Process Adds Education Code section 44944.1 as exclusive means for dismissal

based solely on charges of egregious misconduct. (Educ. Code § 44944.1(b).)

Hearing conducted by single ALJ instead of 3-member CPC panel. (Educ. Code § 44944.1(c).)

Hearing must begin within 60 days of employee’s demand for hearing and OAH must prioritize these cases over other dismissal cases. (Educ. Code § 44944.1(d)(1)(A).)

AB 215: Egregious Misconduct New Dismissal Process

Evidence may be admitted regarding egregious misconduct that occurred more than 4 years prior to the initiation of the proceedings. (Educ. Code § 44944.1(d)(3).)

AB 215: Egregious Misconduct New Dismissal Process

If ALJ determines employee should be dismissed or suspended, the district and State share expenses of hearing (including ALJ) and district and employee pay own attorney fees.

IF ALJ determines employee should not be dismissed or suspended, district pays costs of hearing and reasonable attorney’s fees for employee.

AB 215: Changes to Existing Law

Eliminates the May 15- Sept 15 “blackout period” for serving dismissal charges for all causes of action other than unsatisfactory performance.

Charges based on unsatisfactory performance may only be served during the instructional year of the schoolsite where the teacher is physically employed.

Hearing must be commenced within 6 months and completed within 7 months.

AB 215: Changes to Existing Law

CPC can be waived by mutual agreement so that heard by single ALJ.

Discovery now limited to depositions, initial disclosures & Pre-hearing disclosures.

AB 215: Changes to Existing Law (unpaid suspension not based on egregious misconduct)

Allows employees who have been immediately suspended without pay to file a motion with OAH for reversal of the suspension within 30 days and a hearing must be held within 30 days of filing motion. (Educ. Code § 44939(c).)

ALJ must issue an order within 15 days of the hearing and if the suspension is not upheld, the district must provide the employee with lost wages, benefits, and compensation within 14 days of service of the order.

AB 215: Changes to Existing Law

Adds Education Code section 44939.5 which prohibits districts from entering settlement agreements to remove credible complaints of, substantiated investigations into, or discipline for egregious misconduct from personnel files.

Districts must disclose they made a report to the CTC about egregious misconduct when other school employers inquire about a potential applicant. (Educ. Code § 44939.5.)

Amended Title V, section 80303 Regulation Effective July 1, 2014.

Section 80303 requires superintendents to report change of certificated employment status as a result of misconduct to the CTC.

Prior language often resulted in over-reporting to include “misconduct” such as unsatisfactory performance or even layoffs.

Prior law also failed to provide guidance to superintendents as to documentation which must be submitted.

Amended Title V, section 80303 Regulation Provides CTC must be notified whenever, as a result of misconduct or while

an allegation of misconduct is pending, an employee is: dismissed or non-reelected; resigns, is suspended or placed on unpaid admin leave (as a final adverse employment action); retires or is “otherwise terminated.”

Otherwise terminated “shall not include or be interpreted to include a change of status that is solely for unsatisfactory performance … or a layoff or reduction in force[.]”

Amended Title V, section 80303 Regulation Requires “all known information about each alleged act of misconduct”

organized as follows:

Name of credential holder; current address of credential holder; name of reporting district; name of last school or district assignment; explanation of the allegation of misconduct or pending allegation of misconduct; current contact information for all persons who may have information relating to the alleged misconduct; and any and all documentation related to the case.

Amended Title V, section 80303 Regulation

Failure to make a report constitutes unprofessional conduct.

CTC must now investigate a superintendent who fails to file required report.

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