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Certificated School District Employees – Know Your Suspension Rights!
We have handled many suspension cases over the years and it is amazing how often the procedure goes wrong. In a typical situation, a senior administrator (sometimes the Superintendent or Assistant Superintendent) sends a notice to a teacher or principal informing them that they will be suspended without pay within 10 days. In some cases, the letter will offer a “hearing” of some sort.
If you are on the receiving end of one of these notices, you need to know that they violate the procedures set forth in the California Education Code, which governs termination and suspension of certificated employees. Indeed, there is a very detailed protocol set forth in the code and, unless the school district has negotiated an alternate procedure with an employee union, the “code procedures” govern suspensions.
There are several points to keep in mind.
First, employees should know that the Superintendent or upper level administrators do not have the power to suspend employees. The code allocates that responsibility to the governing board (in most cases the governing body is called the Board of Trustees or the Board of Education). This rule is set forth in Education Code § 44932(b).
Second, everyone should understand that the Education Code provides a number of particulars. Indeed, in order to suspend (or dismiss) an employee:
• Verified charges must be brought to the governing board (“verified” means the charges must be attested under oath) (§44934)
• A majority of the governing board must vote to suspend or dismiss (§44934)
• The employee then must receive notice of the board’s proposed action and be afforded 30 days in which to request a hearing (§§ 44934, 44937, 44941)
• If no hearing is requested within 30 days, it is waived (§§ 44937, 44941)
• If the employee requests a hearing, it must be conducted before a Commission on Professional Competence composed of three persons – one nominated by the district; one by the employee; and a third member who is an Administrative Law Judge (ALJ). The ALJ chairs the proceeding and “shall be responsible for assuring that the legal rights of the parties are protected at the hearing.” (§44944(a) & (b))
• The employee has full discovery rights and can take depositions, subpoena documents and witnesses – in short, conduct the proceeding the same as if it were an administrative hearing conducted pursuant to the California Government Code (§§ 44941, 44944(a))
• The tribunal decides by majority vote, and must prepare written findings of fact and determinations of issues, with a disposition that must be one of the following:
1) That the employee should be suspended for a specific period of time without pay;
2) That the employee should not be suspended (44944(c)(1))
• The decision of the Commission on Professional Competence is final and binding on the governing board (44944(c)(4)).
These procedures should take place before a person is suspended.
In several cases where a school district has ignored these procedures, but nevertheless attempted to suspend an employee without pay, we have been successful in convincing the district to withdraw the discipline and start over with full recognition of the employee’s legal rights.
Employees and employers alike should know what the law requires and should insist that mandated procedures be followed.
If you have an issue in this area, feel free to give us a call.