Red Bluff ESD | AR 4218 Personnel
Termination of Probationary Employment
At any time prior to the expiration of the probationary period, the Superintendent or designee may, at his/her discretion, dismiss a probationary classified employee from district employment. A probationary employee shall not be entitled to a hearing. (Education Code 41
Involuntary Suspension Without Pay, Demotion, Reduction of Pay Step in Class, or Dismissal of Permanent Classified Employees
Permanent classified employees shall be subject to personnel action (suspension without pay, demotion, reduction of pay step in class, dismissal) only for cause. The Board's determination of the sufficiency of the cause for disciplinary action shall be conclusive.
1. Causes for Disciplinary Action
In addition to any disqualifying or actionable causes otherwise provided for by statute or by policy or regulation of this district, each of the following constitutes cause for personnel action against a permanent classified employee:
a. Falsifying any information supplied to the school district, including, but not limited to, information supplied on application forms, employment records, or any other school district records.
c. Unsatisfactory performance.
d. Unprofessional conduct.
f. Neglect of duty.
i. Use of tobacco, alcohol or a controlled substance while on duty or in such close time proximity thereto as to affect the employee's performance.
(cf. 4020 - Tobacco, Drug and Alcohol-Free Workplace)
(cf. 4359 - Employee Assistance Programs)
j. Possessing or being under the influence of a controlled substance at work or away from work or furnishing a controlled substance to a minor.
k. Conviction of a felony, conviction of any sex offense made relevant by provisions of law, or conviction of a misdemeanor which is of such a nature as to adversely affect the employee's ability to perform the duties and responsibilities of his/her position. A plea or verdict of guilty, or a conviction following a plea of nolo contendere, is deemed to be a conviction for this purpose.
l. Absence without leave.
m. Immoral conduct.
(cf. 5141.4 Child Abuse Prevention and Reporting)
n. Discourteous treatment of the public, students, or other employees.
o. Improper political activity in violation of Education Code 45303 or Government Code 1028 (advocacy of communism).
p. Willful disobedience.
q. Misuse or destruction of district property.
(cf. 4040 - Employee Use Of Technology)
r. Violation or refusal to obey state or federal law or regulation, or District, Board or departmental rule, policy, or procedure.
s. Failure to possess or keep in effect any license, certificate, or other similar requirement specified in the employee's class specification or otherwise necessary for the employee to perform the duties of the position.
(cf. 4112 - Appointment And Conditions Of Employment)
(cf. 4112.4 - Health Examinations)
t. Refusal to take and subscribe any oath or affirmation which is required by law in connection with his/her employment.
u. A physical or mental disability which precludes the employee from the proper performance of his/her duties and responsibilities as determined by competent medical authority, except as otherwise provided by a contract or by law regulating the retirement of employees.
(cf. 4030 - Nondiscrimination In Employment)
(cf. 4032.-. Reasonable Accommodation)
v. Unlawful discrimination, including harassment, on the basis of race, religious creed, color, national origin, ancestry, physical handicap, marital status, sex, or age against the public, students, or other employees while acting in the capacity of a district employee.
(cf. 4119.11/4219.11/4313.11 - Sexual Harassment)
(cf. 5145.3 - Nondiscrimination/Harassment)
(cf. 5145.7 - Sexual Harassment)
w. Unlawful retaliation against any other district officer or employee or member of the public who, in good faith, reports, discloses, divulges, or otherwise brings to the attention of any appropriate authority any information relative to an actual or suspected violation of state or federal law occurring on the job or directly related thereto.
x. Any other failure of good behavior either during or outside of duty hours which is of such nature that it causes discredit to the district or his/her employment.
Except as defined in item "u" above, no personnel action shall be taken for any cause which arose before the employee became permanent, nor for any cause which arose more than two years before the date of the filing of the notice of cause unless this cause was concealed or not disclosed by the employee when it could be reasonably assumed that the employee would have disclosed the facts to the district. (Education Code 45113)
No employee shall be suspended, disciplined, reassigned, transferred, dismissed, or otherwise retaliated against solely for acting to protect a student., or for refusing to infringe on a student's protected conduct, when that student is exercising free speech or press rights pursuant to Education Code 48907 or 48950.
(cf. 4216 - Probationary/Permanent Status)
(cf. 4216- Probationary Permanent Status)
2. Initiation and Notification of Charges
The Superintendent or designee may initiate a personnel action as defined herein against a permanent classified employee. In all such cases the Superintendent or designee shall prepare a recommendation for discipline.
The Superintendent or a designee shall provide written notice to the employee of a recommendation for discipline, informing the employee of the specific charges against him or her. The notification shall identify an impartial district official ("Skelly officer") with whom the employee may meet at a specified time and place or to whom the employee may provide a written response to the recommendation of discipline. After meeting with the employee or considering any response from the employee, the Skelly officer shall recommend to the Superintendent or designee whether to proceed with the recommendation for discipline.
After receiving the Skelly officer's recommendation, the Superintendent or designee shall file a final written recommendation of personnel action with the Board. The recommendation shall include:
a. A statement of the nature of the personnel action (suspension without pay, demotion, reduction of pay step in class, or dismissal).
b. A statement of the cause or causes for the personnel action, as set forth above.
c. A statement of the specific acts or omissions upon which the causes are based. If a violation of rule, policy, or regulation of the district is alleged, the rule, policy, or regulation violated shall be stated in the recommendation.
d. A statement of the employee's right to appeal the recommendation and the manner and time within which the appeal must be filed.
e. A card or paper, the signing and filing of which shall constitute a demand for hearing and a denial of all charges.
A copy of this final recommendation shall be served upon the employee either personally or by registered or certified mail, return receipt requested, at the employee's last known address. The notice of discipline shall, in ordinary and concise language, inform the employee of the specific charge(s) or causes(s) for disciplinary action, the specific acts or omissions upon which the action is based, and if applicable, the district rule or regulation that the employee has allegedly violated. In addition, the notice shall include a statement of the employee's right to a hearing on those charges, and the time within which the hearing may be requested (not less than five day after service of the notice to the employee), and a card or paper, the signing and filing of which shall constitute a demand for hearing, and a denial of all charges. (Education Code 45113, 45116)
3. Employment Status Pending Appeal or Waiver
Except as provided herein, any employee against whom a recommendation of personnel action has been issued shall remain on active duty status and responsible for fulfilling the duties of the position pending his/her appeal or waiver thereof.
If the Superintendent or designee determines that a permanent classified employee should be dismissed and that his/her continuing in active duty status would present an unreasonable risk of harm to students, staff, or property while proceedings are pending, the Superintendent or designee may order the employee immediately suspended from duty without pay in conjunction with the recommendation of personnel action. This suspension order shall be in writing and shall state the reasons that the suspension is deemed necessary. The suspension order shall be served upon the employee either personally or by registered or certified mail, return receipt requested, immediately after issuance. Except in cases of emergency when the employee must be removed from the premises immediately, the Superintendent or designee shall give the employee written notice of the proposed recommendation of dismissal at least five calendar days before the effective date of any order of suspension issued in conjunction with a recommendation involving dismissal. This notice shall state that immediate suspension without pay is being considered, the reasons for the proposed dismissal and proposed immediate suspension without pay, materials upon which the proposed action is based, and the employee's right to respond to the Superintendent or designee orally or in writing before the final recommendation and order are issued.
4. Time Limit of Suspension
Except for a suspension imposed under #3 above, any suspension invoked under these rules against any one person for one or more periods shall not aggregate more than 90 calendar days in any 12-month period; however, this time limitation shall not apply to cases in which a personnel action of dismissal is modified by the Board to a suspension.
5. Right to Appeal
Within the time specified in the notice of the recommendation of disciplinary action, the employee may appeal by signing and filing the card or paper included with the recommendation. Any other written document signed and appropriately filed within the specified time limit by the employee shall constitute a sufficient notice of appeal. A notice of appeal is filed only by delivering the notice of appeal to the office of the Superintendent or designee during normal work hours of that office. A notice of appeal may be mailed to the office of the Superintendent or designee but must be received or postmarked no later than the time limit stated herein. In cases where an order of suspension without pay has been issued in conjunction with a recommendation of dismissal, any appeal of the recommendation of dismissal shall also constitute an appeal of the suspension order, and the necessity of the order shall be an issue in the appeal hearing.
If the employee fails to file a notice of appeal within the time specified in the notice of recommendation of disciplinary action, he/she shall be deemed to have waived his/her right to appeal, and the Board may order the recommended personnel action into effect immediately.
6. Amended/Supplemental Charges
At any time before an employee's appeal is finally submitted to the Board or to a hearing officer for decision, the complainant may, with the consent of the Board or hearing officer, serve on the employee and file with the Board an amended or supplemental recommendation of personnel action.
If the amended or supplemental recommendation presents new causes or allegations, the employee shall be afforded a reasonable opportunity to prepare his/her defense. Any new causes or allegations shall be deemed controverted and any objections to the amended or supplemental causes or allegation may be made orally at the hearing and shall be noted on the record.
7. Hearing Procedures
a. All hearings shall be heard by the Board, unless:
i. The Board delegates its authority to a third-party hearing officer (who shall be an attorney licensed in the State of California); or
ii. If the matter involves an allegation of egregious misconduct as defined in Education Code 44932 and involves a minor, in which case the matter shall be referred to an administrative law judge to determine whether sufficient cause exists for disciplinary action against the employee. In such cases, the administrative law judge's ruling shall be binding on the district and employee. (Education Code 45113)
b. The hearing shall be held at the earliest convenient date, taking into consideration the established schedule of the Board or hearing officer and the availability of counsel and witnesses. The parties shall be notified of the time and place of the hearing. The employee shall be entitled to appear personally, produce evidence, and have counsel. The employee shall be entitled to a public hearing if he/she demands it when the Board is hearing the appeal. The complainant may also be represented by counsel.
c. The procedure entitled "Administrative Adjudication" commencing with Government Code 1150 shall not apply to any such hearing before the Board or a hearing officer. Neither the Board nor a hearing officer shall be bound by rules of evidence used in California courts. Informality in any such hearing shall not invalidate any order or decision made or approved by the hearing officer or the Board. In any case in which the Board hears the appeal, the Board may use the services of its counsel or a hearing officer in ruling upon procedural questions, objections to evidence, and issues of law. If the appeal is heard by the Board, the Board shall affirm, modify or revoke the recommended personnel action.
d. If the appeal is heard by a hearing officer, he/she shall prepare a proposed decision in a form that may be adopted by the Board as the decision in the case. A copy of the proposed decision shall be received and filed by the Board and furnished to each party within 10 days after the proposed decision is filed by the Board. The Board may:
i. Adopt the proposed decision in its entirety.
ii. Reduce the personnel action set forth in the proposed decision and adopt the balance of the proposed decision.
iii. Reject a proposed reduction in personnel action, approve the personnel action sought by the complainant or any lesser penalty, and adopt the balance of the proposed decision.
iv. Reject the proposed decision in its entirety.
e. If the Board rejects the proposed decision in its entirety, each party shall be notified of such action and the Board may decide the case upon the record including the transcript, with or without the taking of additional evidence, or may refer the case to the same or another hearing officer to take additional evidence. If the case is so assigned to a hearing officer, he/she shall prepare a proposed decision, as provided in item "c" above, upon the additional evidence and the transcript and other papers which are part of the record of the prior hearing.
f. If the employee has not requested a hearing, after reviewing the Superintendent or designee's recommendation for disciplinary action, the Board shall affirm, modify, or reject the recommended disciplinary action. The decision of the Board shall be in writing and shall contain findings of fact and the disciplinary action approved, if any. The decision of the Board shall be final.
g. In arriving at a decision or a proposed decision on the propriety of the proposed personnel action, the Board or the hearing officer may consider the records of any prior personnel action proceedings against the employee in which a personnel action was ultimately sustained and any records that were contained in the employee's personnel files and introduced into evidence at the hearing.
8. Hearing Decision
The decision of the Board shall be in writing and shall contain findings of fact and the personnel action approved, if any. The findings may reiterate the language of the pleadings or simply refer to them.
The decision of the Board shall be certified to the Superintendent or designee who recommended the personnel action, and he/she shall enforce and follow this decision. A copy of the decision shall be delivered to the appellant or his/her designated representative personally or by registered mail. The decision of the Board shall be final.
Within 10 working days of the Board's final decision, a copy of the decision shall be delivered to the employee and/or designated representative personally or by registered mail.
9. Compulsory Dismissal
Upon notification by law enforcement that a classified employee has been charged with "mandatory leave of absence offense," the Superintendent or designee shall immediate place the employee on a leave of absence. A "mandatory leave of absence offense" includes
1. Any sex offense as defined in Education Code 44010
2. Violation or attempted violation of Penal Code 187 (murder or attempted murder)
The Superintendent or designee may place on an immediate compulsory leave of absence a classified employee who is charged any controlled substance offense as defined in Education Code 44011. However, the district may employ a person convicted of a controlled substance offense if the Board determines from the evidence it requires that the person has been rehabilitated for at least five years. If any such conviction is reversed and the person acquitted or charges dismissed except as otherwise provided below, the employee may be reemployed by the district, although reemployment is not a guarantee. (Education Code 45123)
The district reserves the right to dismiss an employee for any acts upon which the original criminal charges were based, despite the disposition by the courts. If dismissal is recommended and upheld, an employee will not be reemployed or compensated for the time he/she was suspended unless otherwise required by law. An employee shall be given notice of the possibility of not being reimbursed during mandatory suspension if he/she is ultimately dismissed for the acts upon which the original charges were based.
35161 Delegation of powers and duties
44009 Conviction of specified crimes
44010 Sex offense
44011 "Controlled substance offense" defined
44940 Leave of absence; employee charged with mandatory or optional leave of absence offense
44940.5 Compulsory leave of absence; procedures; extension; compensation; bond or security; reports
45101 Definitions (including "disciplinary action," "cause")
45109 Fixing of duties
45113 Rules and regulations for classified service in districts not incorporating the merit system
45123 Employment after conviction of sex or narcotics offense
45302 Demotion and removal from permanent classified service
45303 Additional cause for suspension or dismissal of employees in classified service
45304 Suspension for reasonable cause; filing of charges; employee charged with mandatory or optional leave of absence offense
1808.8 School bus drivers; dismissal for safety-related cause
UNITED STATES CODE, TITLE 42
12101 -12213 Americans With Disabilities Act
California School Employees v. Livingston Union School District, (2007) 149 Cal.App 4th 391
CSEA v. Foothill Community College District, 52 Cal. App. 3rd 150, 155-156, 124 Cal. Rptr 830 (1975)
Skelly v. State Personnel Board (1975) 15 Cal. 3d 194
Regulation RED BLUFF UNION ELEMENTARY SCHOOL DISTRICT
approved: January 14, 2020 Red Bluff, California