Existing law requires the governing board of a school district to employ persons for positions not requiring certification qualifications, and requires the governing board of a community college district to employ persons for positions that are not academic. For those employees, known as the classified service, existing law authorizes those governing boards to grant leaves of absence and vacations with or without pay.

This bill would explicitly provide that the above-referenced authority of the governing boards of school districts and community college districts, to grant leaves of absence and vacations with or without pay, applies to voluntary leaves of absence and vacations.

Existing law establishes procedures for a school district or community college district to adopt a merit system for its classified employees and, if adopted, requires compliance with specified laws related to imposing discipline on its classified employees. For certain criminal charges for which a compulsory leave of absence or suspension without pay is imposed, existing law requires the employee to receive back pay after an acquittal or dismissal of the charges. Existing law authorizes a school district or community college that has not adopted a merit system to adopt rules for imposing discipline on its classified employees, subject to limited restrictions.

This bill would require a classified employee placed on an involuntary leave of absence while the employee has criminal charges, a criminal investigation, or an administrative matter pending, to receive full compensation for the period of involuntary leave if the matter is resolved in favor of the employee, regardless of whether or not a merit system has been adopted.

Existing law requires the governing board of a school district to employ persons for positions not requiring certification qualifications, and requires the governing board of a community college district to employ persons for positions that are not academic. For those employees, known as the classified service, existing law authorizes those governing boards to grant leaves of absence and vacations with or without pay.

This bill would explicitly provide that the above-referenced authority of the governing boards of school districts and community college districts, to grant leaves of absence and vacations with or without pay, applies to voluntary leaves of absence and vacations.

Existing law establishes procedures for a school district or community college district to adopt a merit system for its classified employees and, if adopted, requires compliance with specified laws related to imposing discipline on its classified employees. For certain criminal charges for which a compulsory leave of absence or suspension without pay is imposed, existing law requires the employee to receive back pay after an acquittal or dismissal of the charges. Existing law authorizes a school district or community college that has not adopted a merit system to adopt rules for imposing discipline on its classified employees, subject to limited restrictions.

This bill would require a classified employee placed on an involuntary leave of absence while the employee has criminal charges, a criminal investigation, or an administrative matter pending, to receive full compensation for the period of involuntary leave if the matter is resolved in favor of the employee, regardless of whether or not a merit system has been adopted.

Existing law requires the governing board of a school district to employ persons for positions not requiring certification qualifications and the governing board of a community college district to employ persons for positions that are not academic. For those employees, known as the classified service, existing law authorizes those governing boards to grant leaves of absence and vacations with or without pay.

This bill would explicitly provide that the above-referenced authority of the governing boards of school districts and community college districts, to grant leaves of absence and vacations with or without pay, applies to voluntary leaves of absence and vacations.

Existing law establishes procedures for a school district or community college district to adopt a merit system for its classified employees and, if adopted, requires compliance with specified laws related to imposing discipline on its classified employees. For certain criminal charges for which a compulsory leave of absence or suspension without pay is imposed, existing law requires the employee to receive back pay after an acquittal or dismissal of the charges. Existing law authorizes a school district or community college that has not adopted a merit system to adopt rules for imposing discipline on its classified employees, subject to limited restrictions.

This bill would require a classified employee placed on an involuntary leave of absence while the employee has criminal charges, an a criminal investigation, or an administrative matter pending, to receive full compensation for the period of involuntary leave if the matter is resolved in favor of the employee, regardless of whether or not a merit system has been adopted.

Existing law requires the governing board of a school district to employ persons for positions not requiring certification qualifications and the governing board of a community college district to employ persons for positions that are not academic. For those employees, known as the classified service, existing law authorizes those governing boards to grant leaves of absence and vacations with or without pay.

This bill would explicitly provide that the above-referenced authority of the governing boards of school districts and community college districts, to grant leaves of absence and vacations with or without pay, applies to voluntary leaves of absence and vacations.

Existing law establishes procedures for a school district or community college district to adopt a merit system for its classified employees and, if adopted, requires compliance with specified laws related to imposing discipline on its classified employees. For certain criminal charges for which a compulsory leave of absence or suspension without pay is imposed, existing law requires the employee to receive back pay after an acquittal or dismissal of the charges. Existing law authorizes a school district or community college that has not adopted a merit system to adopt rules for imposing discipline on its classified employees, subject to limited restrictions.

This bill would require a classified employee placed on an involuntary leave of absence while the employee has criminal charges, an investigation, or an administrative matter pending, to receive full compensation for the period of involuntary leave if the matter is resolved in favor of the employee, regardless of whether or not a merit system has been adopted.

By imposing additional duties on school districts, the bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

 THIRD READING  

Bill No: AB 472

Author: Wicks (D), et al.

Amended: 5/18/23 in Assembly

Vote: 21

SENATE LABOR, PUB. EMP. & RET. COMMITTEE: 4-0, 7/12/23

AYES: Cortese, Durazo, Laird, Smallwood-Cuevas

NO VOTE RECORDED: Wilk

SENATE APPROPRIATIONS COMMITTEE: 5-2, 9/1/23

AYES: Portantino, Ashby, Bradford, Wahab, Wiener

NOES: Jones, Seyarto

ASSEMBLY FLOOR: 66-8, 5/31/23 - See last page for vote

SUBJECT: Classified school district and community college employees: compulsory leaves of absence: compensation

SOURCE: American Federation of State, County and Municipal Employees

California School Employees Association

DIGEST:

This bill requires non-merit school and community college districts to pay a classified employee their full compensation upon returning to service for the district from a period of involuntary leave of absence following a finding in favor of the employee for charges of a criminal offense, a criminal investigation or job-related administrative determinations.

ANALYSIS:

Existing law:

1. Provides various voluntary leaves of absence and requirements relating to compensation and the employment status subsequent to returning from such leaves for classified district employees. These leaves of absence include: vacation, illness, injury, pregnancy, parental, bereavement, and industrial and nonindustrial accidents, among other stipulations relating to the various leaves of absence. (Education Code (EDC) §45190 et seq. (related to K-12 school districts) and §88190 et seq. (related to community college districts))
2. Establish that the immediately aforementioned forms of leaves of absence apply to districts that have adopted the merit system in the same manner and effect as it were a part of the merit system, as provided. (EDC §45240 et seq. (relating to K-12 school districts) and §88060 et seq. (relating to community college districts)
3. Prohibits, subject to certain specified exceptions, the suspension, demotion, or dismissal without, or reduction in, pay of a permanent classified employee employed by a district who timely requests a hearing on charges against the employee and before a decision is rendered on the matter, among other provisions. (EDC §45113, §45122.1 and §88013)
4. Provides that, in addition to any other prohibition or provision, a person who has been convicted of a violent or serious felony must not be employed by a school district, as provided, and a school district must not retain a classified employee who is under these circumstances in employment who is a temporary, substitute, or probationary employee who has not attained permanent status, among other provisions, including that a person must not be denied of, or terminated from, employment solely on the basis that the person has been convicted of a serious felony that is not also a violent felony if that person can prove to the sentencing court, by clear and convincing evidence, that they have been rehabilitated for school employment for at least one year. (EDC §45122.1, §45123 and §45124)
5. Prohibits a person from being employed by a district if they have been convicted of a sex offense, as defined, or determined to be a sexual psychopath, as provided. (EDC §45123 and §45124 and §88023)
6. Authorizes a school district or county office of education (COE) to request a local law enforcement agency to conduct an automated records check of a prospective noncertificated employee to ascertain whether the prospective noncertificated employee has a criminal record, among other provisions. (EDC §45125.5)
7. Authorizes, for reasonable causes, an employee to be suspended without pay for no more than 30 days, except as provided, or demoted or dismissed; however, a school district must file written charges with the personnel commission within 10 days of the suspension, demotion or dismissal. (EDC §45304)
8. Specifies, for merit system districts, that when an employee of the school district or county of education is charged with a mandatory leave of absence offense, the governing board of the school district must immediately place the employee on a compulsory leave of absence for up to 10 days after the date entry of the judgment in the proceedings, and once the employee is placed on such leave:
   1. The employee must continue to be paid their regular salary during the period of the leave if they provide a suitable bond or other security interest to the school district or governing board, as applicable. (EDC §44940.5)
   2. If the employee is acquitted of the offense, or the charges are dismissed against the employee, the school district must reimburse the employee for the cost of the bond upon the employee returning to service in the school district. (EDC §44940.5)
   3. If the employee does not elect to furnish a bond or other acceptable security, and if the employee is acquitted of the offense, or the charges against the employee are dismissed without guilt being established, the district must pay the employee their full compensation for the period of the compulsory leave upon their return to service in the school district, among other provisions. (EDC §44940.5)

This bill:

1. Requires, if a school or community college district places an employee on an involuntary leave of absence during the period in which the employee is charged with a criminal offense; under criminal investigation; or, waiting due to administrative delay for necessary job-related administrative determinations, the district to pay the employee’s full compensation for the period of the involuntary leave of absence upon the employee’s return to service for the district, if the conclusion of the proceedings are in favor of the employee.
2. Defines for these purposes, “involuntary leave of absence” to include, but not limited to, a compulsory leave of absence or suspension.
3. Provides that these provisions shall not reduce any entitlement to paid leave or replace any relevant procedures under any other law.
4. Maintains that these provisions must apply to districts that have adopted the merit system in the manner and effect as if it were a part of the merit system, as specified.

Background

The Assembly Public Employment and Retirement Committee provides a brief history of the establishment of merit systems, important for the purposes of this discussion. They note:

““Merit systems,” also commonly referred to as district “civil service systems” relating to public education in California are independent of the school or community college district’s governing board where the Personnel Commission of a “merit system” district is responsible for administering the hiring and retention of classified school employees through a statutory framework pursuant to the Education Code. In California, there are approximately 100 of these systems that currently exist.

“Merit systems derive from the late 19^th and early 20^th century civil service movement that sought to curtail the “spoils” resulting from political patronage in the system whereby elected political candidates rewarded their supporters with government positions. These systems arose out of a particularly egregious school board decision to discharge over 700 classified employees in the 1930s upon the new board’s election.

“This history strongly suggests that the Legislature intended the merit system framework as a means to protect classified employees from local political mistreatment at a time prior to public sector collective bargaining, and in which such systems continue to presently exist.

“Generally, in the public education employment arena, districts that have not formally adopted the merit system are referred to as “nonmerit” districts. For such districts, employee disciplinary and termination matters are not addressed by a personnel commission.

“Although this bill proposes to amend existing law, it maintains provisions in existing law such that, “[it must] apply to districts that have adopted the merit system in the manner and effect as if it were a part of the [merit system].”^[1]

Need for this bill? As noted under existing law, a district is prohibited, subject to certain specified exceptions, from suspending, demoting, or dismissing without pay or a reduction in pay, a permanent classified employee, if the employee timely requests a hearing on charges against the employee and before a decision is rendered on the matter relating to criminal misconduct, as defined. Additionally, for districts operating under the merit system, existing law specifies that if the employee is acquitted, or the charges are dismissed against the employee, the school district must reimburse the employee for the cost of the bond (required per Education Code Section 44940.5) upon the employee returning to service in the school district. If, however, the employee does not elect to furnish a bond or other acceptable security, and if the employee is acquitted or the charges against the employee are dismissed, the district must pay the employee their full compensation for the period of the compulsory leave upon their return to service in the school district, among other provisions.

This bill addresses similar situations for classified employees of nonmerit school and community college districts by protecting the employee’s compensation interests pending the outcome of a hearing relating to criminal charges, criminal investigation, or administrative delay for necessary job-related administrative decisions while the employee is on an involuntary leave of absence. This bill defines “involuntary leave of absence” for its purposes to include, but is not limited to, “a compulsory leave of absence or suspension,” in which the full payment of compensation for the period of the involuntary leave of absence is predicated on the outcome of a criminal offense determination, investigation, or administrative delay in an administrative decision in favor of the employee.

According to the author, “Addressing this disparity is a fairness issue for classified employees in non-merit districts. In these circumstances, this right to be compensated is already afforded to classified employees in merit districts. Additionally, classified employees in both merit and non-merit districts are not now but should be paid for time missed in all other cases where charges are not brought, dismissed, or the employee is acquitted. AB 472 will clarify that if a school district places an employee on an involuntary leave of absence during the period an employee is charged with a criminal offense, is under investigation, or is waiting due to administrative delay for necessary job-related administrative determinations, then upon the conclusion of the proceedings in favor of the employee and the employee’s return to service in the school district, the school district shall pay the employee’s total compensation for the period of the involuntary leave of absence.”

Related/Prior Legislation

AB 2413 (Carrillo, Chapter 913, Statutes of 2022) prohibited K-12 and community college districts from suspending without pay, suspending with a reduction in pay, demoting, or dismissing a permanent classified employee who timely requests a hearing on the charges against the employee before the district or hearing officer renders a decision on the matter except for certain conduct as specified.

FISCAL EFFECT: Appropriation: No Fiscal Com.: No Local: No

According to the Senate Appropriations Committee:

• This bill could result in additional, unknown Proposition 98 General Fund costs to nonmerit school and community college districts to provide back pay to classified employees for involuntary leaves of absence. The extent of these costs would depend on the number of employees placed on an involuntary leave of absence, the length of their absences, and the number of determinations found in favor of the employees. There could also be one-time Proposition 98 General Fund costs for districts to update campus policies and procedures. According to the Chancellor’s Office, the maximum cost to do this at a community college district is approximately $2,862. There are currently about 900 nonmerit school districts in the state, and most of the community college districts are nonmerit districts.
• To the extent that the Commission on State Mandates determines this bill’s requirements to be a reimbursable state mandate, there could be pressure on the state to reimburse these costs to school and community college districts.

SUPPORT: (Verified 9/1/23)

American Federation of State, County, and Municipal Employees (co-source)

California School Employees Association (co-source)

California Federation of Teachers
California Labor Federation
California Teachers Association
Faculty Association of California Community Colleges

SEIU California

OPPOSITION: (Verified 9/1/23)

None received

ARGUMENTS IN SUPPORT: According to the co-sponsors of the measure, American Federation of State, County, and Municipal Employees and the California School Employees Association, “Under current law, only merit school districts must pay a classified employee their full compensation for a period of involuntary leave of absence upon the employee’s return following acquittal or dismissal of certain charges (Ed Code sections 45304, 44940.5). Due to a 1968 court ruling, if a non-merit school district places an employee on involuntary leave of absence for the same offense, it is unconstitutional to compensate employees upon their return to service absent a preexisting rule adopted by the school board or statutory authorization.

“Addressing this disparity is a fairness issue for classified employees in non-merit districts. This right to be compensated in these circumstances is already afforded to classified employees in merit districts. Additionally, classified employees in both merit and non-merit districts should be compensated for time missed in all other cases where charges are not brought, dismissed or the employee is acquitted. Additionally, classified employees are also often not compensated for time missed due to administrative delays that are at no fault of the employee and prevent them from having the requisite certification or paperwork to perform their duties.

“AB 472 will clarify that if a school district places an employee on an involuntary leave of absence during the period an employee is charged with a criminal offense, is under investigation, or is waiting due to administrative delay for necessary job-related administrative determinations, then upon the conclusion of the proceedings in favor of the employee and the employee’s return to service in the school district, the school district shall pay the employee’s full compensation for the period of the involuntary leave of absence.”

ASSEMBLY FLOOR: 66-8, 5/31/23

AYES: Addis, Aguiar-Curry, Alanis, Alvarez, Arambula, Bains, Bauer-Kahan, Bennett, Berman, Boerner, Bonta, Bryan, Calderon, Juan Carrillo, Wendy Carrillo, Cervantes, Chen, Connolly, Mike Fong, Friedman, Gabriel, Garcia, Gipson, Grayson, Haney, Hart, Holden, Irwin, Jackson, Jones-Sawyer, Kalra, Lee, Low, Lowenthal, Maienschein, McCarty, McKinnor, Muratsuchi, Stephanie Nguyen, Ortega, Pacheco, Papan, Pellerin, Petrie-Norris, Quirk-Silva, Ramos, Reyes, Luz Rivas, Robert Rivas, Rodriguez, Blanca Rubio, Santiago, Schiavo, Soria, Ting, Valencia, Villapudua, Waldron, Wallis, Ward, Weber, Wicks, Wilson, Wood, Zbur, Rendon

NOES: Megan Dahle, Davies, Dixon, Essayli, Flora, Gallagher, Joe Patterson, Sanchez

NO VOTE RECORDED: Vince Fong, Hoover, Lackey, Mathis, Jim Patterson, Ta

Prepared by: Alma Perez-Schwab / L., P.E. & R. / (916) 651-1556

9/5/23 9:25:14

**** END ****

1. See subdivision (c) of Sections 45190 and 88190, respectively, of this bill. ↑

SENATE COMMITTEE ON APPROPRIATIONS

Senator Anthony Portantino, Chair

2023 - 2024 Regular Session

AB 472 (Wicks) - Classified school district and community college employees: compulsory leaves of absence: compensation

Bill Summary:

This bill requires, if a school or community college district places an employee on an involuntary leave of absence during the period in which the employee is charged with a criminal offense, under criminal investigation or waiting due to administrative delay for necessary job-related administrative determinations, to pay the employee for the period of the involuntary leave of absence upon the employee’s return, as specified.

Fiscal Impact:

This bill could result in additional, unknown Proposition 98 General Fund costs to nonmerit school and community college districts to provide back pay to classified employees for involuntary leaves of absence. The extent of these costs would depend on the number of employees placed on an involuntary leave of absence, the length of their absences, and the number of determinations found in favor of the employees. There could also be one-time Proposition 98 General Fund costs for districts to update campus policies and procedures. According to the Chancellor’s Office, the maximum cost to do this at a community college district is approximately $2,862. There are currently about 900 nonmerit school districts in the state, and most of the community college districts are nonmerit districts.

To the extent that the Commission on State Mandates determines the bill’s requirements to be a reimbursable state mandate, there could be pressure on the state to reimburse these costs to school and community college districts.

Background:

Existing law provides various voluntary leaves of absence and requirements relating to compensation and the employment status subsequent to returning from such leaves for classified district employees. These leaves of absence include vacation, illness, injury, pregnancy, and bereavement.

Existing law prohibits, subject to certain specified exceptions, the suspension, demotion, or dismissal without, or reduction in, pay of a permanent classified employee employed by a district who timely requests a hearing on charges against the employee and before a decision is rendered on the matter, among other provisions. The law also provides that, in addition to any other prohibition or provision, a person who has been convicted of a violent or serious felony must not be employed by a school district, as provided, and a school district must not retain a classified employee who is under these circumstances in employment who is a temporary, substitute, or probationary employee who has not attained permanent status, among other provisions, including that a person must not be denied of, or terminated from, employment solely on the basis that the person has been convicted of a serious felony that is not also a violent felony if that person can prove to the sentencing court, by clear and convincing evidence, that they have been rehabilitated for school employment for at least one year.

Existing law specifies, for merit system districts, that when an employee of the school district or county of education is charged with a mandatory leave of absence offense, the governing board of the school district must immediately place the employee on a compulsory leave of absence for up to 10 days after the date entry of the judgment in the proceedings, and once the employee is placed on such leave:

• 1. The employee must continue to be paid their regular salary during the period of the leave if they provide a suitable bond or other security interest to the school district or governing board, as applicable.
  2. If the employee is acquitted of the offense, or the charges are dismissed against the employee, the school district must reimburse the employee for the cost of the bond upon the employee returning to service in the school district.
  3. If the employee does not elect to furnish a bond or other acceptable security, and if the employee is acquitted of the offense, or the charges against the employee are dismissed without guilt being established, the district must pay the employee their full compensation for the period of the compulsory leave upon their return to service in the school district, among other provisions.

Proposed Law:

This bill requires that, if a school or community college district places an employee on an involuntary leave of absence during the period in which the employee is charged with a criminal offense, under criminal investigation, or waiting due to administrative delay for necessary job-related administrative determinations, to pay the employee the employee’s full compensation for the period of the involuntary leave of absence upon the employee’s return to service for the district, if the conclusion of the proceedings are in favor of the employee.

This bill defines for these purposes, “involuntary leave of absence” to include, but not limited to, a compulsory leave of absence or suspension. It also provides that these provisions shall not reduce any entitlement to paid leave or replace any relevant procedures under any other law.

This bill maintains that these provisions must apply to districts that have adopted the merit system in the manner and effect as if it were a part of the merit system, as specified.

Related Legislation:

AB 2413 (Carrillo, Chapter 913, Statutes of 2022) prohibits K-12 and community college districts from suspending without pay, suspending with a reduction in pay, demoting, or dismissing a permanent classified employee who timely requests a hearing on the charges against the employee before the district or hearing officer renders a decision on the matter except for certain conduct as specified.

-- END --

SENATE COMMITTEE ON LABOR, PUBLIC EMPLOYMENT AND RETIREMENT

Senator Dave Cortese, Chair

2023 - 2024 Regular

Bill No: AB 472 Hearing Date: July 12, 2023

SUBJECT: Classified school district and community college employees: compulsory leaves of absence: compensation

KEY ISSUE

Should the Legislature provide non-merit school and community college district classified employees the right to receive full compensation for a period of involuntary leave following a finding in favor of the employee for charges of a criminal offense or criminal investigation or due to an administrative delay outside the employee’s control?

ANALYSIS

Existing law:

1. Provides various voluntary leaves of absence and requirements relating to compensation and the employment status subsequent to returning from such leaves for classified district employees. These leaves of absence include: vacation, illness, injury, pregnancy, parental, bereavement, and industrial and nonindustrial accidents, among other stipulations relating to the various leaves of absence. (Education Code (EDC) §45190 et seq. (related to K-12 school districts) and §88190 et seq. (related to community college districts))
2. Establish that the immediately aforementioned forms of leaves of absence apply to districts that have adopted the merit system in the same manner and effect as it were a part of the merit system, as provided. (EDC §45240 et seq. (relating to school districts) and §88060 et seq. (relating to community college districts)
3. Prohibits, subject to certain specified exceptions, the suspension, demotion, or dismissal without, or reduction in, pay of a permanent classified employee employed by a district who timely requests a hearing on charges against the employee and before a decision is rendered on the matter, among other provisions. (EDC §45113, §45122.1 and §88013)
4. Provides that, in addition to any other prohibition or provision, a person who has been convicted of a violent or serious felony must not be employed by a school district, as provided, and a school district must not retain a classified employee who is under these circumstances in employment who is a temporary, substitute, or probationary employee who has not attained permanent status, among other provisions, including that a person must not be denied of, or terminated from, employment solely on the basis that the person has been convicted of a serious felony that is not also a violent felony if that person can prove to the sentencing court, by clear and convincing evidence, that they have been rehabilitated for school employment for at least one year. (EDC §45122.1, §45123 and §45124)
5. Prohibits a person from being employed by a district if they have been convicted of a sex offense, as defined, or determined to be a sexual psychopath, as provided. (EDC §45123 and §45124 and §88023)
6. Authorizes a school district or county office of education (COE) to request a local law enforcement agency to conduct an automated records check of a prospective noncertificated employee to ascertain whether the prospective noncertificated employee has a criminal record, among other provisions. (EDC §45125.5)
7. Authorizes, for reasonable causes, an employee to be suspended without pay for no more than 30 days, except as provided, or demoted or dismissed; however, a school district must file written charges with the personnel commission within 10 days of the suspension, demotion or dismissal. (EDC §45304)
8. Specifies, for merit system districts, that when an employee of the school district or county of education is charged with a mandatory leave of absence offense, the governing board of the school district must immediately place the employee on a compulsory leave of absence for up to 10 days after the date entry of the judgment in the proceedings, and once the employee is placed on such leave: (EDC §45304)
   1. The employee must continue to be paid their regular salary during the period of the leave if they provide a suitable bond or other security interest to the school district or governing board, as applicable. (EDC §44940.5)
   2. If the employee is acquitted of the offense, or the charges are dismissed against the employee, the school district must reimburse the employee for the cost of the bond upon the employee returning to service in the school district. (EDC §44940.5)
   3. If the employee does not elect to furnish a bond or other acceptable security, and if the employee is acquitted of the offense, or the charges against the employee are dismissed without guilt being established, the district must pay the employee their full compensation for the period of the compulsory leave upon their return to service in the school district, among other provisions. (EDC §44940.5)

This bill:

1. Requires that, if a school or community college district places an employee on an involuntary leave of absence during the period in which the employee is charged with a criminal offense; under criminal investigation; or, waiting due to administrative delay for necessary job-related administrative determinations, to pay the employee the employee’s full compensation for the period of the involuntary leave of absence upon the employee’s return to service for the district, if the conclusion of the proceedings are in favor of the employee.
2. Defines for these purposes, “involuntary leave of absence” to include, but not limited to, a compulsory leave of absence or suspension.
3. Provides that these provisions shall not reduce any entitlement to paid leave or replace any relevant procedures under any other law.
4. Maintains that these provisions must apply to districts that have adopted the merit system in the manner and effect as if it were a part of the merit system, as specified.

COMMENTS

1. Background: History of the Establishment of Merit Systems in CA Public Schools

The Assembly Public Employment and Retirement Committee provides a brief history of the establishment of merit systems, important for the purposes of this discussion. They note:

““Merit systems,” also commonly referred to as district “civil service systems” relating to public education in California are independent of the school or community college district’s governing board where the Personnel Commission of a “merit system” district is responsible for administering the hiring and retention of classified school employees through a statutory framework pursuant to the Education Code. In California, there are approximately 100 of these systems that currently exist.

Merit systems derive from the late 19^th and early 20^th century civil service movement that sought to curtail the “spoils” resulting from political patronage in the system whereby elected political candidates rewarded their supporters with government positions. These systems arose out of a particularly egregious school board decision to discharge over 700 classified employees in the 1930s upon the new board’s election.

This history strongly suggests that the Legislature intended the merit system framework as a means to protect classified employees from local political mistreatment at a time prior to public sector collective bargaining, and in which such systems continue to presently exist.

Generally, in the public education employment arena, districts that have not formally adopted the merit system are referred to as “nonmerit” districts. For such districts, employee disciplinary and termination matters are not addressed by a personnel commission.

Although this bill proposes to amend existing law, it maintains provisions in existing law such that, “[it must] apply to districts that have adopted the merit system in the manner and effect as if it were a part of the [merit system].”^[1]

2. Need for this bill?

As noted under existing law, a district is prohibited, subject to certain specified exceptions, from suspending, demoting, or dismissing without pay or a reduction in pay, a permanent classified employee, if the employee timely requests a hearing on charges against the employee and before a decision is rendered on the matter relating to criminal misconduct, as defined. Additionally, for districts operating under the merit system, existing law specifies that if the employee is acquitted, or the charges are dismissed against the employee, the school district must reimburse the employee for the cost of the bond (required per Education Code Section 44940.5) upon the employee returning to service in the school district. If, however, the employee does not elect to furnish a bond or other acceptable security, and if the employee is acquitted or the charges against the employee are dismissed, the district must pay the employee their full compensation for the period of the compulsory leave upon their return to service in the school district, among other provisions.

This bill addresses similar situations for classified employees of nonmerit school and community college districts by protecting the employee’s compensation interests pending the outcome of a hearing relating to criminal charges, criminal investigation, or administrative delay for necessary job-related administrative decisions while the employee is on an involuntary leave of absence. This bill defines “involuntary leave of absence” for its purposes to include, but is not limited to, “a compulsory leave of absence or suspension,” in which the full payment of compensation for the period of the involuntary leave of absence is predicated on the outcome of a criminal offense determination, investigation, or administrative delay in an administrative decision in favor of the employee.

According to the author, “Addressing this disparity is a fairness issue for classified employees in non-merit districts. In these circumstances, this right to be compensated is already afforded to classified employees in merit districts. Additionally, classified employees in both merit and non-merit districts are not now but should be paid for time missed in all other cases where charges are not brought, dismissed, or the employee is acquitted. AB 472 will clarify that if a school district places an employee on an involuntary leave of absence during the period an employee is charged with a criminal offense, is under investigation, or is waiting due to administrative delay for necessary job-related administrative determinations, then upon the conclusion of the proceedings in favor of the employee and the employee’s return to service in the school district, the school district shall pay the employee’s total compensation for the period of the involuntary leave of absence.”

3. Proponent Arguments:

According to the co-sponsors of the measure, AFSCME and the California School Employees Association, “Under current law, only merit school districts must pay a classified employee their full compensation for a period of involuntary leave of absence upon the employee’s return following acquittal or dismissal of certain charges (Ed Code sections 45304, 44940.5). Due to a 1968 court ruling, if a non-merit school district places an employee on involuntary leave of absence for the same offense, it is unconstitutional to compensate employees upon their return to service absent a preexisting rule adopted by the school board or statutory authorization.

Addressing this disparity is a fairness issue for classified employees in non-merit districts. This right to be compensated in these circumstances is already afforded to classified employees in merit districts. Additionally, classified employees in both merit and non-merit districts should be compensated for time missed in all other cases where charges are not brought, dismissed or the employee is acquitted. Additionally, classified employees are also often not compensated for time missed due to administrative delays that are at no fault of the employee and prevent them from having the requisite certification or paperwork to perform their duties.

AB 472 will clarify that if a school district places an employee on an involuntary leave of absence during the period an employee is charged with a criminal offense, is under investigation, or is waiting due to administrative delay for necessary job-related administrative determinations, then upon the conclusion of the proceedings in favor of the employee and the employee’s return to service in the school district, the school district shall pay the employee’s full compensation for the period of the involuntary leave of absence.”

4. Opponent Arguments:

None received.

5. Staff Comments:

As noted above under existing law, the current provisions governing classified employees of merit system districts provides that when an employee of the school district or county of education is charged with a mandatory leave of absence offense, the governing board of the school district must immediately place the employee on a compulsory leave of absence for up to 10 days after the date entry of the judgment in the proceedings, and once the employee is placed on such leave: (EDC §45304)

• 1. The employee must continue to be paid their regular salary during the period of the leave if they provide a suitable bond or other security interest to the school district or governing board, as applicable.
  2. If the employee is acquitted of the offense, or the charges are dismissed against the employee, the school district must reimburse the employee for the cost of the bond upon the employee returning to service in the school district.
  3. If the employee does not elect to furnish a bond or other acceptable security, and if the employee is acquitted of the offense, or the charges against the employee are dismissed without guilt being established, the district must pay the employee their full compensation for the period of the compulsory leave upon their return to service in the school district, among other provisions. (EDC §44940.5)

The provisions of this bill would require, for nonmerit systems, if a school or community

college district places an employee on an involuntary leave of absence during the period in

which the employee is charged with a criminal offense; under criminal investigation; or,

waiting due to administrative delay for necessary job-related administrative determinations,

to pay the employee the employee’s full compensation for the period of the involuntary leave

of absence upon the employee’s return to service for the district, if the conclusion of the

proceedings are in favor of the employee. The committee may wish to consider the need for

uniformity between provisions of the two systems.

6. Prior Legislation:

AB 2413 (Carrillo, Chapter 913, Statutes of 2022) prohibits K-12 and community college districts from suspending without pay, suspending with a reduction in pay, demoting, or dismissing a permanent classified employee who timely requests a hearing on the charges against the employee before the district or hearing officer renders a decision on the matter except for certain conduct as specified.

SUPPORT

American Federation of State, County, and Municipal Employees (Co-Sponsor)

California School Employees Association (Co-Sponsor)

California Federation of Teachers
California Labor Federation
California Teachers Association
Faculty Association of California Community Colleges

SEIU California

OPPOSITION

None received

-- END --

1. See subdivision (c) of Sections 45190 and 88190, respectively, of this bill. ↑

ASSEMBLY THIRD READING

ATR Bill Id:AB 472

Author:(Wicks)

As Amended Ver:May 18, 2023

Majority vote

SUMMARY

Requires school and community college districts to pay a classified employee upon returning to service for the district for the period of an involuntary leave of absence after the proceedings of a charge of a criminal offense, criminal investigation, or job-related administrative determination are found in favor of the employee.

Major Provisions

1. Require that, if a district places an employee on an involuntary leave of absence during the period in which the employee is charged with a criminal offense; is under criminal investigation; or, waiting due to administrative delay for necessary job-related administrative determinations, to pay the employee the employee's full compensation for the period of the involuntary leave of absence upon the employee's return to service for the district, if the conclusion of the proceedings are in favor of the employee.
2. Define for these purposes, "involuntary leave of absence" to include, but not be limited to, a compulsory leave of absence or suspension.
3. Establish that these provisions must not reduce any entitlement to paid leave or replace any relevant procedures under any other law.

COMMENTS

1. Background and This Bill

Under existing law, a district is prohibited, subject to certain exceptions, from suspending, demoting, or dismissing without pay or a reduction in pay, a permanent classified employee, if the employee timely requests a hearing on charges against the employee and before a decision is rendered on the matter relating to criminal misconduct; misconduct that presents a risk of harm to pupils, students, staff, or property, or habitual violations of the district's policies or regulations. In addition, a permanent classified employee cannot be suspended (among other specified actions against an employee), and not receive pay or incur a reduction in pay if the employee timely requests a hearing relating to a crime, intentional tort, or egregious misconduct, as defined.

Moreover, when an employee of the school district or County Office of Education is charged with a mandatory leave of absence offense, the governing board of the school district must immediately place the employee on a compulsory leave of absence for up to 10 days after the date entry of the judgement in the proceedings, and once the employee is placed on such leave, the employee must continue to be paid their regular salary during the period of the leave if they provide a suitable bond or other security interest to the school district or governing board, as applicable. If the employee is acquitted, or the charges are dismissed against the employee, the school district must reimburse the employee for the cost of the bond upon the employee returning to service in the school district.

This bill would protect the employee's compensation interests pending the outcome of a hearing relating to criminal charges, criminal investigation, or administrative delay for necessary job-related administrative decisions while the employee is on an involuntary leave of absence.

1. Brief History of the Establishment of Merit Systems in California Public Schools

"Merit systems," also commonly referred to as district "civil service systems" relating to public education in California are independent of the school or community college district's governing board where the Personnel Commission of a "merit system" district is responsible for administering the hiring and retention of classified school employees through a statutory framework pursuant to the Education Code. In California, there approximately 100 of these systems that currently exist.

Merit systems derive from the late 19th and early 20th century civil service movement that sought to curtail the "spoils" resulting from political patronage in the system whereby elected political candidates rewarded their supporters with government positions. These systems arose out of a particularly egregious school board decision to discharge over 700 classified employees in the 1930s upon the new board's election.

This history strongly suggests that the Legislature intended the merit system framework as a means to protect classified employees from local political mistreatment at a time prior to public sector collective bargaining, and in which such systems continue to presently exist.

Generally, in the public education employment arena, districts that have not formally adopted the merit system are referred to as "nonmerit" districts. For such districts, employee disciplinary and termination matters are not addressed by a personnel commission.

Although this bill proposes to amend existing law, it maintains provisions in existing law such that, "[it must] apply to districts that have adopted the merit system in the manner and effect as if it were a part of the [merit system]."

1. Relevant Judicial Rulings Regarding Conduct, Compulsory Leave, and Back Pay

In Hutton v. Pasadena (1968 261 Cal.App.2d, 586, a school district employee, dismissed after a conviction but reinstated after a new trial and acquittal, could not be paid for time while dismissed because the district had neither a merit pay system nor regulations allowing for such compensation.

After a board and superintendent notified a teacher that the teacher was discharged with immoral conduct, evident unfitness for service, and suspended the teacher, the teacher demanded a hearing and the commission found in favor of the teacher. The court held that the commission did not have jurisdiction to enter its decision to dismiss the employee, although its findings were supported by the weight of the evidence. The employee was entitled to be paid in full for the period of the suspension upon being cleared of the charges. (Bd. of Educ. Los Angeles County v. Comm. on Prof. Competence (1976) 61 Cal.App.3d, 664.

In Von Durjais v. Bd. of Trustees (1978) 83 Cal.App.3d 681, the appellate court found that because the employee was cleared of all charges upon which the suspension and compulsory leave were predicated, the employee was entitled to back pay, and that possession of peyote/marijuana did not constitute immoral conduct as a matter of law.

1. Equity Solutions and Maximizing Benefits for Underserved and Marginalized Communities

Pursuant to House Resolution (HR) 39 (Gipson, 2021), to continue the Assembly's commitment to investing in equity solutions and maximizing benefits for underserved and marginalized communities, legislative analyses of the Assembly must discuss the equity impact that a bill will, or may, have on such communities, if any.

This bill does not present a particular focus towards addressing equity in relation to maximizing benefits for underserved or marginalized communities in relation to the provisions articulated in HR 39. However, under the broader context, information provided by the author states that, "[t]his bill is a true fairness issue addressing classified employees, many of whom make less than $30,000 a year and work only part-time without benefits. This bill would ensure that these classified employees are given full compensation in cases of dismissal or acquittal of charges or upon resolution of administrative delays."

It is noted that under this context, if a decision ultimately favors an employee who was on an involuntary leave of absence, it reasonably may be contemplated or argued that the employee should receive full compensation for that period, and reasonably presumable that the employee would have been at work and working for the district, but for the involuntary leave of absence.

1. Please see the respective policy committee analyses for a full discussion of this bill.

According to the Author

"Addressing this disparity is a fairness issue for classified employees in non-merit districts. In these circumstances, this right to be compensated is already afforded to classified employees in merit districts. Additionally, classified employees in both merit and non-merit districts are not now but should be paid for time missed in all other cases where charges are not brought, dismissed, or the employee is acquitted. [This bill] will clarify that if a school district places an employee on an involuntary leave of absence during the period an employee is charged with a criminal offense, is under investigation, or is waiting due to administrative delay for necessary job-related administrative determinations, then upon the conclusion of the proceedings in favor of the employee and the employee's return to service in the school district, the school district shall pay the employee's total compensation for the period of the involuntary leave of absence."

Arguments in Support

A number of supporters of this bill express that this bill is a fairness issue for classified school employees who provide crucial support services to students and the right to be compensated in the circumstances proposed by this bill, which provides parity among merit and nonmerit district classified employees.

Arguments in Opposition

None.

FISCAL COMMENTS

According to the Assembly Appropriations Committee, this bill would result in the following:

1. Ongoing, unknown Proposition 98 General Fund costs to nonmerit school districts and community college districts to provide back pay to classified employees for involuntary leaves of absence in situations where they otherwise would not. Costs would depend on the number of classified employees placed on involuntary leaves of absence and the number of determinations that find in favor of the employees. The state has about 900 nonmerit school districts and most community college districts are nonmerit districts.
2. One-time Proposition 98 General fund costs to community college districts to update campus policies and procedures. According to the community college Chancellor's office, the single maximum cost to do this at a community college district is about $2,862.

If the Commission on State Mandates determines the bill's requirements to be a reimbursable state mandate, the state would need to reimburse these costs to school districts and community college districts.

VOTES

ASM PUBLIC EMPLOYMENT AND RETIREMENT: 6-0-1

YES: McKinnor, Addis, Alanis, Haney, Stephanie Nguyen, Schiavo

ABS, ABST OR NV: Lackey

ASM HIGHER EDUCATION: 10-1-1

YES: Mike Fong, Addis, Arambula, Gabriel, Irwin, Low, Ortega, Santiago, Wallis, Weber

NO: Sanchez

ABS, ABST OR NV: Ta

ASM APPROPRIATIONS: 11-3-2

YES: Holden, Bryan, Calderon, Wendy Carrillo, Mike Fong, Hart, Lowenthal, Papan, Pellerin, Weber, Ortega

NO: Megan Dahle, Dixon, Sanchez

ABS, ABST OR NV: Mathis, Robert Rivas

UPDATED

VERSION: May 18, 2023

CONSULTANT: Michael Bolden / P. E. & R. / (916) 319-3957 FN: 0000682

Date of Hearing: May 3, 2023

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Chris Holden, Chair

ABPCA Bill Id:AB 472

Author:(Wicks) – As Introduced Ver:February 6, 2023

Urgency: No State Mandated Local Program: Yes Reimbursable: Yes

SUMMARY:

This bill requires certain school districts and California Community College (CCC) districts to provide back pay to any classified employee if the school district or CCC district places the employee on an involuntary leave of absence during the period in which the employee is charged with a criminal offense, under investigation, or waiting due to administrative delay for necessary job-related administrative determinations, if the determination is found in favor of the employee. This bill applies only to nonmerit districts.

FISCAL EFFECT:

1. Ongoing, unknown Proposition 98 General Fund costs to nonmerit school districts and CCC districts to provide back pay to classified employees for involuntary leaves of absence in situations where they otherwise would not. Costs would depend on the number of classified employees placed on involuntary leaves of absence and the number of determinations that find in favor of the employees. The state has about 900 nonmerit school districts and most CCC districts are nonmerit districts.
2. One-time Proposition 98 General fund costs to CCC districts to update campus policies and procedures. According to the CCC Chancellor’s office, the single maximum cost to do this at a CCC district is about $2,862.

If the Commission on State Mandates determines the bill’s requirements to be a reimbursable state mandate, the state would need to reimburse these costs to school districts and CCC districts.

COMMENTS:

1. Purpose. According to American Federation of State, County and Municipal Employees, AFL-CIO, a supporter of this bill:

Due to a 1968 court ruling, if a nonmerit school district places an employee on involuntary leave of absence for the same offense [as a merit district], it is unconstitutional to compensate employees upon their return to service absent a preexisting rule adopted by the school board or statutory authorization. Addressing this disparity is a fairness issue for classified employees in nonmerit districts. This right to be compensated in these circumstances is already afforded to classified employees in merit districts. Additionally, classified employees in both merit and nonmerit districts should be compensated for time missed in all other cases where charges are not brought, dismissed or the employee is acquitted.

1. Background. Existing law establishes procedures for a school district or CCC district to adopt a “merit system” for its classified employees. A relatively small number of school districts and CCC districts are considered “merit system” districts. Merit system districts adhere to certain laws, rules and procedures for their classified employees. Merit system districts operate similarly to state and federal governments’ civil service systems, whereby the selection and retention of classified employees is based on merit, fitness, and the principle of "like pay for like work." Current law authorizes both the adoption and termination of a merit system in a school district or CCC district by a majority vote of its classified employees, or by a majority vote of the voting electors of the district, and sets out various processes for these elections. The vast majority of school districts and CCC districts have not adopted a merit system, and are known as “nonmerit” districts. These districts adhere to different laws, rules, and procedures for their classified staff.

If a school district or CCC district has adopted a merit system, current law allows the district to adopt rules to provide back pay to classified employees for certain criminal charges and instances if a determination on the charges is found in favor of the employee. Current law does not permit a nonmerit school district or a CCC districts to adopt rules to provide back pay to a classified employee for certain criminal charges and instances if a determination on the charges is found in favor of the employee.

This bill requires nonmerit districts to provide back pay to classified employees in certain instances, including if an employee is under investigation. The bill does not specify if the term “under investigation” refers to an internal or external investigation.

Analysis Prepared by: Natasha Collins / APPR. / (916) 319-2081

Date of Hearing: April 11, 2023

ASSEMBLY COMMITTEE ON HIGHER EDUCATION

Mike Fong, Chair

ABPCA Bill Id:AB 472 (

Author:Wicks) – As Introduced Ver:February 6, 2023

SUBJECT: Classified school district and community college employees: compulsory leaves of absence: compensation

SUMMARY: Requires school and community college districts (“district”), as provided, to pay a classified employee upon returning to service to the district for the period of an involuntary leave of absence after the proceedings of a charge of a criminal offense, investigation, or job-related administrative determination are found in favor of the employee, among other provisions. Specifically, this bill:

1. Requires that, if a district places an employee on an involuntary leave of absence during the period in which the employee is charged with a criminal offense; under investigation; or, waiting due to administrative delay for necessary job-related administrative determinations, to pay the employee the employee’s full compensation for the period of the involuntary leave of absence upon the employee’s return to service for the district, if the conclusion of the proceedings are in favor of the employee.
2. Defines for these purposes, “involuntary leave of absence” to include, but not limited to, a compulsory leave of absence or suspension.
3. Establishes that these provisions must not reduce any entitlement to paid leave or replace any relevant procedures under any other law.
4. Maintains that these provisions must apply to districts that have adopted the merit system in the manner and effect as if it were a part of the merit system, as specified.

EXISTING LAW:

1. Provides various voluntary leaves of absence and requirements relating to compensation and the employment status subsequent to returning from such leaves for classified district employees. These leaves of absence include: vacation, illness, injury, pregnancy, parental, bereavement, and industrial and nonindustrial accidents, among other stipulations relating to the various leaves of absence. (Education Code (EDC) Sections 45190 et seq. and 88190 et seq.)
2. Establish that the immediately aforementioned forms of leaves of absence apply to districts that have adopted the merit system in the same manner and effect as it were a part of the merit system, as provided. (EDC Sections 45240 et seq. and 88060 et seq.)
3. Prohibits, subject to certain specified exceptions, the suspension, demotion, or dismissal without, or reduction in, pay of a permanent classified employee employed by a district who timely requests a hearing on charges against the employee and before a decision is rendered on the matter, among other provisions. (EDC Sections 45113 and 88013)
4. Prohibits, subject to certain specified exceptions, the suspension, demotion, or dismissal without, or reduction in, pay of a permanent classified employee employed by a district who timely requests a hearing on charges against the employee and before a decision is rendered on the matter, among other provisions. (EDC Sections 45122.1 and 88013)
5. Provides that, in addition to any other prohibition or provision, a person who has been convicted of a violent or serious felony must not be employed by a school district, as provided, and a school district must not retain a classified employee who is under these circumstances in employment who is a temporary, substitute, or probationary employee who has not attained permanent status, among other provisions, including that a person must not be denied of, or terminated from, employment solely on the basis that the person has been convicted of a serious felony that is not also a violent felony if that person can prove to the sentencing court, by clear and convincing evidence, that they have been rehabilitated for school employment for at least one year. (EDC Sections 45123 and 45124)
6. Prohibits a person from being employed by a district if they have been convicted of a sex offense, as defined, or determined to be a sexual psychopath, as provided. (EDC Section 45125.5 and 88023)
7. Authorizes a school district or county office of education (COE) to request a local law enforcement agency to conduct an automated records check of a prospective noncertificated employee to ascertain whether the prospective noncertificated employee has a criminal record, among other provisions. (EDC Section 45304)

FISCAL EFFECT: Unknown.

COMMENTS: Double-referral. AB 472 (Wicks) was heard in the Assembly Committee on Public Employment and Retirement, where it passed with 6-0 vote on March 22, 2023. Issues germane to the Public Employment and Retirement Committee jurisdiction are referenced in that Committee’s analysis.

Purpose. According to the author, “addressing this disparity is a fairness issue for classified employees in non-merit districts. In these circumstances, this right to be compensated is already afforded to classified employees in merit districts. Additionally, classified employees in both merit and non-merit districts are not now but should be paid for time missed in all other cases where charges are not brought, dismissed, or the employee is acquitted. AB 472 will clarify that if a school district places an employee on an involuntary leave of absence during the period an employee is charged with a criminal offense, is under investigation, or is waiting due to administrative delay for necessary job-related administrative determinations, then upon the conclusion of the proceedings in favor of the employee and the employee’s return to service in the school district, the school district shall pay the employee’s total compensation for the period of the involuntary leave of absence.”

The author also notes that “this bill is a true fairness issue addressing classified employees, many of whom make less than $30,000 a year and work only part-time without benefits. This bill would ensure that these classified employees are given full compensation in cases of dismissal or acquittal of charges or upon resolution of administrative delays.”

Brief History of the Establishment of Merit Systems in California Public Schools

“Merit systems,” also commonly referred to as district “civil service systems” relating to public education in California are independent of the school or community college district’s governing board where the Personnel Commission of a “merit system” district is responsible for administering the hiring and retention of classified school employees through a statutory framework pursuant to the Education Code. In California, there approximately 100 of these systems that currently exist.

Merit systems derive from the late 19th and early 20th century civil service movement that sought to curtail the “spoils” resulting from political patronage in the system whereby elected political candidates rewarded their supporters with government positions. These systems arose out of a particularly egregious school board decision to discharge over 700 classified employees in the 1930s upon the new board’s election.

This history strongly suggests that the Legislature intended the merit system framework as a means to protect classified employees from local political mistreatment at a time prior to public sector collective bargaining, and in which such systems continue to presently exist.

Generally, in the public education employment arena, districts that have not formally adopted the merit system are referred to as “nonmerit” districts. For such districts, employee disciplinary and termination matters are not addressed by a personnel commission. Although this bill proposes to amend existing law, it maintains provisions in existing law such that, “[it must] apply to districts that have adopted the merit system in the manner and effect as if it were a part of the [merit system].

Comments from the Education Committee. According to the Assembly Education Committee, both K-12 certificated and classified employees who are charged with specific criminal offenses delineated in Education Code Section 44940 are entitled to back pay when placed on a compulsory leave of absence, and charges are dropped or the employee is acquitted, pursuant to Education Code Section 44940.5. Further, K-12 classified employees are entitled to continue to be paid until the conclusion of a dismissal hearing pursuant to Education Code Section 45113.

This bill establishes additional instances where K-12 classified employees would be entitled to back pay when placed on an involuntary leave of absence including instances where the employee is charged with any criminal offense, and when an employee is under internal investigation by the school district for any reason, including investigation for misconduct. The committee should consider whether it is appropriate for employees to be entitled to back pay while they are under investigation for misconduct, particularly if the misconduct is of a sexual nature. In some cases, inappropriate conduct may not rise to the level of dismissal, but the investigation may find that there was wrongdoing by the employee. Because the bill states that employees will be paid if the conclusion of the investigation is in favor of the employee, and that term is undefined, it is unclear how this situation would be handled.

Because the bill expands the types of criminal offenses that entitle a classified employee to back pay, and entitles a classified employee to receive back pay during an internal investigation, it appears this bill may provide K-12 classified employees the right to back pay in instances where K-12 certificated employees (including probationary employees) are not currently entitled to back pay, in statute. The committee should consider whether K-12 classified and certificated employees should have parity with regard to the instances in which employees are entitled to back pay when they are placed on a compulsory leave of absence during internal investigations and for all criminal charges.

Arguments in support. The California School Employees Association, the sponsor of AB 472 (Wicks), writes that “over half of California’s classified school employees earn less than $30,000 per year, and most cannot afford to be on unpaid leave without the possibility of receiving their lost wages. Under current law, only merit school districts must pay a classified employee their full compensation for a period of involuntary leave of absence upon the employee’s return following the acquittal or dismissal of certain charges (Ed Code sections 45304, 44940.5). Due to a 1968 court ruling, if a non-merit school district places an employee on an involuntary leave of absence for the same offense, it is unconstitutional to compensate employees upon their return to service absent a preexisting rule adopted by the school board or statutory authorization.”

“Addressing this disparity is a fairness issue for classified employees in non-merit districts. This right to be compensated in these circumstances is already afforded to classified employees in merit districts. Additionally, classified employees in both merit and non-merit districts should be compensated for time missed in all other cases where charges are not brought, dismissed or the employee is acquitted. Classified employees are also often not compensated for time missed due to administrative delays that are at no fault of the employee and prevents them from having the required certification or paperwork to perform their duties.”

The Faculty Association of the California Community Colleges also wrote in support, stating that “employees of school districts and community colleges often live on the margins of economic stability due to the conditions of our higher education system. Any disruption in their streams of income could be the thing that entirely destabilizes their environments, making it difficult to pay rent or put food on the table. While we recognize the importance of accountability for classified employees and the importance of pursuing criminal charges, investigations, and administrative matters for the well-being of the educational environment, however, if such proceedings have been dismissed, employees should not incur monetary penalties.”

REGISTERED SUPPORT / OPPOSITION:

Support

AFSCME

California Labor Federation, AFL-CIO

California School Employees Association

California State Council of Service Employees International Union

California Teachers Association

Faculty Association of California Community Colleges

Opposition

None on file

Analysis Prepared by: Kevin J. Powers / HIGHER ED. / (916) 319-3960

Date of Hearing: March 22, 2023

ASSEMBLY COMMITTEE ON PUBLIC EMPLOYMENT AND RETIREMENT

Tina S. McKinnor, Chair

ABPCA Bill Id:AB 472 (

Author:Wicks) – As Introduced Ver:February 6, 2023

SUBJECT: Classified school district and community college employees: compulsory leaves of absence: compensation

SUMMARY: Requires school and community college districts (both hereinafter referred to as “district”), as provided, to pay a classified employee upon returning to service for the district for the period of an involuntary leave of absence after the proceedings of a charge of a criminal offense, investigation, or job-related administrative determination are found in favor of the employee, among other provisions. Specifically, this bill:

1. Requires that, if a district places an employee on an involuntary leave of absence during the period in which the employee is charged with a criminal offense; under investigation; or, waiting due to administrative delay for necessary job-related administrative determinations, to pay the employee the employee’s full compensation for the period of the involuntary leave of absence upon the employee’s return to service for the district, if the conclusion of the proceedings are in favor of the employee.
2. Defines for these purposes, “involuntary leave of absence” to include, but not limited to, a compulsory leave of absence or suspension.
3. Establishes that these provisions must not reduce any entitlement to paid leave or replace any relevant procedures under any other law.
4. Maintains that [this section] must apply to districts that have adopted the merit system in the manner and effect as if it were a part of the merit system, as provided.^[1]

EXISTING LAW:

1. Provides various voluntary leaves of absence and requirements relating to compensation and the employment status subsequent to returning from such leaves for classified district employees. These leaves of absence include: vacation, illness, injury, pregnancy, parental, bereavement, and industrial and nonindustrial accidents, among other stipulations relating to the various leaves of absence.^[2]
2. Establish that the immediately aforementioned forms of leaves of absence apply to districts that have adopted the merit system in the same manner and effect as it were a part of the merit system, as provided.^[3]
3. Prohibits, subject to certain specified exceptions, the suspension, demotion, or dismissal without, or reduction in, pay of a permanent classified employee employed by a district who timely requests a hearing on charges against the employee and before a decision is rendered on the matter, among other provisions.^[4]
4. Provides that, in addition to any other prohibition or provision, a person who has been convicted of a violent or serious felony must not be employed by a school district, as provided, and a school district must not retain a classified employee who is under these circumstances in employment who is a temporary, substitute, or probationary employee who has not attained permanent status, among other provisions, including that a person must not be denied of, or terminated from, employment solely on the basis that the person has been convicted of a serious felony that is not also a violent felony if that person can prove to the sentencing court, by clear and convincing evidence, that they have been rehabilitated for school employment for at least one year.^[5]
5. Prohibits a person from being employed by a school district if they have been convicted of a sex offense, as defined, or determined to be a sexual psychopath, as provided.^[6]
6. Authorizes a school district or county office of education (COE) to request a local law enforcement agency to conduct an automated records check of a prospective noncertificated employee to ascertain whether the prospective noncertificated employee has a criminal record, among other provisions.^[7]
7. Allows, for reasonable causes, an employee to be suspended for no more than 30 days, except as provided, or demoted or dismissed; however, a school district must file written charges with the personnel commission within 10 days of the suspension, demotion or dismissal.^[8]

In addition, when an employee of the school district or COE is charged with a mandatory leave of absence offense, the governing board of the school district must immediately place the employee on a compulsory leave of absence for up to 10 days after the date entry of the judgment in the proceedings, and once the employee is placed on such leave, the employee must continue to be paid their regular salary during the period of the leave if they provide a suitable bond or other security interest to the school district or governing board, as applicable. If the employee is acquitted of the offense, or the charges are dismissed against the employee, the school district must reimburse the employee for the cost of the bond upon the employee returning to service in the school district. If the employee does not elect to furnish a bond or other acceptable security, and if the employee is acquitted of the offense, or the charges against the employee are dismissed without guilt being established, the district must pay the employee their full compensation for the period of the compulsory leave upon their return to service in the school district, among other provisions.^[9]

FISCAL EFFECT: Unknown. This bill is flagged as fiscal by Legislative Counsel.

COMMENTS: According to the author information provided by the author states that, “[u]nder current law, merit school districts must pay a classified employee their full compensation for a period of involuntary leave of absence upon the employee’s return following acquittal or dismissal of certain charges.^[10] However, a 1968 court ruling says that if a non-merit school district places an employee on an involuntary leave of absence for the same offense, it is unconstitutional to compensate employees upon their return to service absent a preexisting rule adopted by the school board or statutory authorization. Classified employees are often not compensated for time missed due to administrative delays that are no fault of the employee and prevent them from having the requisite certification or paperwork to perform their duties.”

As to this bill, the author states that, “[a]ddressing this disparity is a fairness issue for classified employees in non-merit districts. In these circumstances, this right to be compensated is already afforded to classified employees in merit districts. Additionally, classified employees in both merit and non-merit districts are not now but should be paid for time missed in all other cases where charges are not brought, dismissed, or the employee is acquitted. [This bill] will clarify that if a school district places an employee on an involuntary leave of absence during the period an employee is charged with a criminal offense, is under investigation, or is waiting due to administrative delay for necessary job-related administrative determinations, then upon the conclusion of the proceedings in favor of the employee and the employee’s return to service in the school district, the school district shall pay the employee’s total compensation for the period of the involuntary leave of absence.”

1. Dual Referral

The committee is informed that this bill also is referred to the Assembly Committee on Higher Education.

1. Compensation Protections of Classified Employees: Comparison of Select Differences Between Existing Laws and This Bill
2. Existing Law

As previously mentioned in item “3)” under “Existing Law,” a district is prohibited, subject to certain specified exceptions, from suspending, demoting, or dismissing without pay or a reduction in pay, a permanent classified employee, if the employee timely requests a hearing on charges against the employee and before a decision is rendered on the matter relating to criminal misconduct; misconduct that presents a risk of harm to pupils, students, staff, or property, or habitual violations of the district’s policies or regulations, among other provisions.

In addition, a permanent classified employee cannot be suspended (among other specified actions against an employee), and not receive pay or incur a reduction in pay if the employee timely requests a hearing relating to a crime, intentional tort, or egregious misconduct, as defined. Here, a “suspension” from employment for any of the specific charges may be considered a form of involuntary leave imposed upon the employee (unless the suspension is optional; and thus, voluntary); however, the employee’s compensation interests remain protected until a decision is rendered after the hearing.

Moreover, as previously stated in item “7)” under “Existing Law,” when an employee of the school district or COE is charged with a mandatory leave of absence offense, the governing board of the school district must immediately place the employee on a compulsory leave of absence for up to 10 days after the date entry of the judgement in the proceedings, and once the employee is placed on such leave, the employee must continue to be paid their regular salary during the period of the leave if they provide a suitable bond or other security interest to the school district or governing board, as applicable. If the employee is acquitted, or the charges are dismissed against the employee, the school district must reimburse the employee for the cost of the bond upon the employee returning to service in the school district. If, however, the employee does not elect to furnish a bond or other acceptable security, and if the employee is acquitted or the charges against the employee are dismissed, the district must pay the employee their full compensation for the period of the compulsory leave upon their return to service in the school district, among other provisions.

Another key distinction between existing law and the current bill is that, existing law (i.e., Sections 45113 and 88013 of the Educ. Code) is specifically related to “permanent classified employees;” whereas, no such qualifying employment status (i.e., “permanent”) is included in the provisions of this bill for the proposed compensation protections. Thus, the provisions of this bill would apply to all classified employees.

1. This Bill

As proposed, the current bill would protect the employee’s compensation interests pending the outcome of a hearing relating to criminal charges, investigation, or administrative delay for necessary job-related administrative decisions while the employee is on an involuntary leave of absence, among other provisions. This bill defines “involuntary leave of absence” for its purposes to include “a suspension,” in which the full payment of compensation for the period of the involuntary leave of absence is predicated on the outcome of a criminal offense determination, investigation, or administrative delay in an administrative decision in favor of the employee.

1. Related Judicial Decisions Regarding Conduct, Compulsory Leave and Back Pay

A school district employee was convicted of child molestation, dismissed by the employer, and did not challenge the dismissal. However, after a second trial, the employee was acquitted reinstated, and sought back pay for the time during the dismissal. Here, the court on appeal found that such back pay was impossible because the school district had not adopted any regulations to allow for the reimbursement. The court also found that the district had not adopted the merit system of employment which would have afforded the appellant the relief sought under the law. Further, the court held that the compensation to the employee without benefit of one of two statutory authorities would violate the anti-gift provisions of Sections 31 and 32, art. IV, Cal. Const., and further held that the fact that not all school districts were required to adopt the merit system under the law that it did not mean that the statute violated Equal Protection because the Legislature had presumably found meaningful differences between the various school districts.

Holding: The court affirmed the summary judgment awarded to the school district on the employee’s declaratory judgment action regarding back pay for time while dismissed from employment.^[11]

A board and superintendent notified a teacher that the teacher was charged with immoral conduct, evident unfitness for service, and subsequently suspended the teacher. The teacher demanded a hearing and the commission found that the teacher was not guilty of immoral conduct and concluded that the teacher should not have been dismissed. The board filed a petition to vacate the commission’s decision.

Holding: The court held that the commission did not have jurisdiction to enter its decision to dismiss the employee, although its findings were supported by the weight of the evidence. In addition, the employee was entitled to be paid in full for the period of suspension upon being cleared of charged.^[12]

In another matter, a school employee was charged with the unlawful possession of peyote/marijuana, found guilty of immoral conduct, and placed on compulsory leave without pay as a result of the criminal complaint. The criminal complaint against the employee was subsequently dismissed, and thereafter, the employee sought back pay for the period of the compulsory leave of absence.

Holding: The appellate court found that because the employee was cleared of all charges upon which the suspension and compulsory leave were predicated, the employee was entitled to back pay, and that possession of peyote/marijuana did not constitute immoral conduct as a matter of law.^[13]

1. Brief History of the Establishment of Merit Systems in California Public Schools

“Merit systems,” also commonly referred to as district “civil service systems” relating to public education in California are independent of the school or community college district’s governing board where the Personnel Commission of a “merit system” district is responsible for administering the hiring and retention of classified school employees through a statutory framework pursuant to the Education Code. In California, there approximately 100 of these systems that currently exist.

Merit systems derive from the late 19^th and early 20^th century civil service movement that sought to curtail the “spoils” resulting from political patronage in the system whereby elected political candidates rewarded their supporters with government positions. These systems arose out of a particularly egregious school board decision to discharge over 700 classified employees in the 1930s upon the new board’s election.

This history strongly suggests that the Legislature intended the merit system framework as a means to protect classified employees from local political mistreatment at a time prior to public sector collective bargaining, and in which such systems continue to presently exist.

Generally, in the public education employment arena, districts that have not formally adopted the merit system are referred to as “nonmerit” districts. For such districts, employee disciplinary and termination matters are not addressed by a personnel commission.

Although this bill proposes to amend existing law, it maintains provisions in existing law such that, “[it must] apply to districts that have adopted the merit system in the manner and effect as if it were a part of the [merit system].”^[14]

1. Threading the Eye of the Needle

Given the approaches of the various existing laws and this bill relating to compensation protection for permanent and nonpermanent classified employees, whether employed in a merit or nonmerit district, this bill attempts to carefully thread the tiniest eye of the smallest sewing needle. Although attempting to thread said needle, the thread is a bit frayed and may present particular challenges in the future, as discussed immediately below.

1. Suggestions to the Author for Consideration
2. Acts or Conduct

The acts or conduct of an individual towards another may completely be benign or not. However, certain acts or conduct that are intended to be benign, may offend the recipient or witness of the acts or conduct. For example, if a school employee habitually or occasionally rubs the shoulders or back of a particular student or only some students, such conduct may be intended to be benign by the school employee, but perceived as an offensive act or conduct by the recipient or witness of the acts or conduct.

If such acts or conduct were brought to light in a complaint against the employee, such acts or conduct might not rise to the level equating to egregious or immoral conduct, as referenced in existing law^[15] or case law. Moreover, such conduct might or might not be sufficient for a suspension from service, but could warrant a verbal or written reprimand at the very least.

Nevertheless, if such acts or conduct do not rise to the level equating to egregious or immoral conduct, but warrant a verbal or written reprimand or a compulsory leave of a absence, the acts or conduct might continue in the future regardless of those forms of disciplinary action. If such acts or conduct warrant a suspension from service, a finding later that the employee intended no harm (in other words, the acts or conduct were benign) and/or the charges are dismissed in favor of the employee on those or other grounds; ostensibly, the employee could receive full compensation for the period of the suspension, as proposed by this bill. As such, there may not be a sufficient disincentive or deterrence, including punitive, to discourage or deter such behavior in the future.

Because the provisions of this bill are not clear and raise a number of other possible scenarios and concerns relating to the lack of an enforceable disincentive or deterrence from similar future offensive acts or conduct, it is suggested that the author address this matter via appropriate amendments in the future that, for example, are aligned with other provisions in the Education Code regarding employee (mis)conduct.^[16]

It is acknowledged that the aforementioned example may not constitute a crime as a matter of law; however, depending on the complaint or legal claim filed, the specific facts and circumstances articulated in the complaint or legal claim argued before a court, a court may find and appropriately assign liability for a tortious act or conduct in a civil legal proceeding. In this instance, such liability could be assigned or apportioned by the court to the employer, employee, or both.

1. Ambiguity and Vagueness

This bill includes the provision “... is under investigation…” among other specific qualifying conditions relating to compensation protection. However, this phrase is unclear as to whether “under investigation” is related to a criminal investigation, civil complaint, administrative investigation, or other form of investigation as to the charges against the employee.

Because of the inherent vagueness of this particular qualifying condition, it may be subject to more than one interpretation for lack of exactitude, and therefore, is ambiguous. This may lead to confusion as to interpretation and application by employers, affected employees, and employee representatives, whom may be forced to litigate the meaning of this particular phrase.

Here, it is suggested that the author address this matter through appropriate amendments in the future to resolve the ambiguity and vagueness.

1. Equity Solutions and Maximizing Benefits for Underserved and Marginalized Communities

Pursuant to House Resolution (HR) 39 (Gipson, 2021), to continue the Assembly’s commitment to investing in equity solutions and maximizing benefits for underserved and marginalized communities, legislative analyses of the Assembly must discuss the equity impact that a bill will, or may, have on such communities, if any.

This bill does not present a particular focus towards addressing equity in relation to maximizing benefits for underserved or marginalized communities in relation to the provisions articulated in HR 39.

Under the broader context, information provided by the author states that, “[t]his bill is a true fairness issue addressing classified employees, many of whom make less than $30,000 a year and work only part-time without benefits. This bill would ensure that these classified employees are given full compensation in cases of dismissal or acquittal of charges or upon resolution of administrative delays.”

It is noted that under this context, if a decision ultimately favors an employee who was on an involuntary leave of absence, it reasonably may be argued that the employee should receive full compensation for that period, and reasonably presumable that the employee would have been at work and working for the district, but for the involuntary leave of absence, notwithstanding the particular items previously raised.

1. Comments by the Assembly Committee on Education

The committee is informed that the Assembly Committee on Education has requested inclusion of their following comments regarding this bill in this analysis, which raise several similar items previously discussed:

“Parity [among] K-12 classified and certificated employees. Both K-12 certificated and classified employees who are charged with specific criminal offenses delineated in Education Code Section 44940 are entitled to back pay when placed on a compulsory leave of absence, and charges are dropped or the employee is acquitted, pursuant to Education Code Section 44940.5. Further, K-12 classified employees are entitled to continue to be paid until the conclusion of a dismissal hearing pursuant to Education Code Section 45113.

“This bill establishes additional instances where K-12 classified employees would be entitled to back pay when placed on an involuntary leave of absence including instances where the employee is charged with any criminal offense, and when an employee is under internal investigation by the school district for any reason, including while they are under investigation for misconduct. [It should be considered] whether it is appropriate for employees to be entitled to back pay while they are under investigation for misconduct, particularly if the misconduct is of a sexual nature. In some cases, inappropriate conduct may not rise to the level of dismissal, but the investigation may find that there was wrongdoing by the employee. Because the bill states that employees will be paid if the conclusion of the investigation is in favor of the employee, and that term is undefined, it is unclear how this situation would be handled.”

In addition, “[b]ecause the bill expands the types of criminal offenses that entitle a classified employee to back pay, and entitles a classified employee to receive back pay during an internal investigation, it appears this bill may provide K-12 classified employees the right to back pay in instances where K-12 certificated employees (including probationary employees) are not currently entitled to back pay, in statute. [It should be considered] whether K-12 classified and certificated employees should have parity with regard to the instances in which employees are entitled to back pay when they are placed on a compulsory leave of absence during internal investigations and for all criminal charges.”

1. Other Information to the Committee

Because this analysis, including comments by the Assembly Committee on Education raise several similar issues, again, as also previously stated in this analysis, “… it is suggested that the author address this matter via appropriate amendments in the future that, for example, are similarly aligned with other provisions in the Education Code regarding employee (mis)conduct.”^[17]

1. Comments by Supporters

The California School Employees Association (CSEA), AFL-CIO, states in part that, “[c]lassified employees are also often not compensated for time missed due to administrative delays that are at no fault of the employee and prevents them from having the required certification or paperwork to perform their duties. [This bill] will clarify that if a school district places an employee on involuntary leave of absence during the period an employee is charged with a criminal offense, is under investigation, or is waiting due to administrative delay for necessary job-related administrative determinations, then upon the conclusion of the proceedings in favor of the employee and the employee’s return to service in the school district, the school district shall pay the employee’s full compensation for the period of the involuntary leave of absence.”

The American Federation of State, County and Municipal Employees (AFSCME), AFL-CIO, states in part that, “[u]nder current law, only merit school districts must pay a classified employee their full compensation for a period of involuntary leave of absence upon the employee’s return following acquittal or dismissal of certain charges….” Due to a 1968 court ruling, if a nonmerit school district places an employee on involuntary leave of absence for the same offense, it is unconstitutional to compensate employees upon their return to service absent a preexisting rule adopted by the school board or statutory authorization. Addressing this disparity is a fairness issue for classified employees in nonmerit districts. This right to be compensated in these circumstances is already afforded to classified employees in merit districts. Additionally, classified employees in both merit and nonmerit districts should be compensated for time missed in all other cases where charges are not brought, dismissed or the employee is acquitted.”

The Service Employees International Union, California (SEIU CA) states in part that, “SEIU classified employees provide students with essential services that are crucial to addressing student attendance, transportation to and from school, clean and healthy schools, multiple warm meals a day, and one-on-one classroom support. Despite their role in providing crucial support services, classified employees are often an afterthought. Legislation such as this bill address key parity issues that our members deserve…,” among other statements similar to those expressed by AFSCME, AFL-CIO and CSEA, AFL-CIO.

REGISTERED SUPPORT / OPPOSITION:

Support

California School Employees Association, AFL-CIO (Sponsor)

American Federation of State, County and Municipal Employees, AFL-CIO (Co-Sponsor)

California Labor Federation, AFL-CIO

Service Employees International Union, California

Opposition

None on file.

Analysis Prepared by: Michael Bolden / P. E. & R. / (916) 319-3957

1. Subdivisions (c) of Section 45190 and 88190 of this bill, respectively, ↑

2. Sections 45190 et seq. (relating to K-12 school districts) and 88190 et seq. (relating to community college districts), of the Educ. Code. ↑

3. Ibid. Here, Article 6 (commencing with Section 45240) relating to school districts, and Article 3 (commencing with Section 88060) relating to community college districts, are referenced as applicable. ↑

4. Chapter 913, Statutes of 2022 (Assembly Bill 2413, Carrillo). Also see Sections 45113 (relating to school districts) and 88013 (relating to community college districts), of the Educ. Code. ↑

5. Section 45122.1, ibid. ↑

6. Sections 45123 and 45124 of the Educ. Code. ↑

7. Section 45125.5, ibid. ↑

8. Section 45304 of the Educ. Code. This section also references Section 44940.5 of the Educ. Code. ↑

9. Section 44940.5 of the Educ. Code. ↑

10. Sections 45304 and 44940.5 of the Educ. Code. ↑

11. Hutton v. Pasadena (1968) 261 Cal.App.2d, 586 ↑

12. Bd. of Educ. Los Angeles County v. Comm. on Prof. Competence (1976) 61 Cal.App.3d, 664 ↑

13. Von Durjais v. Bd. of Trustees (1978) 83 Cal.App.3d, 681 ↑

14. See subdivision (c) of Sections 45190 and 88190, respectively, of this bill. Also see fn. 1. ↑

15. Section 44932 of the Educ. Code, for example. ↑

16. See Sections 44940.5, 45304, 45113, and 88013 of the Educ. Code, for example. ↑

17. Ref. “Suggestions to the Author for Consideration” and more specifically, in paragraph 4 of Comment 5) a) i) of that discussion. ↑