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Rescue Union ESD |  AR  4218  Personnel

Dismissal/Suspension/Disciplinary Action   

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Termination of Probationary Employment

At any time prior to the expiration of the probationary period, the Superintendent or designee may, at her/his discretion, dismiss a probationary classified employee from district employment. A probationary employee shall not be entitled to a hearing.

Involuntary Suspension Without Pay, Demotion, Reduction of Pay Step in Class, or Dismissal of Permanent Classified Employees

1. Causes

Permanent classified employees shall be subject to personnel action (suspension without pay, demotion, reduction of pay step in class, dismissal) only for cause.

In addition to any disqualifications for performance of the position or any other causes for discipline 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.

b. Incompetency.

c. Inefficiency.

d. Neglect of duty.

e. Insubordination.

f. Dishonesty.

g. Drinking alcoholic beverages while on duty or in such close time proximity thereto as to cause any detrimental effect upon the employee or upon employees associated with him/her.

h. Possessing or being under the influence of a controlled substance at work or away from work, or furnishing a controlled substance to minor.

i. Conviction of a felony, conviction of any sex offense made relevant 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.

j. Absence without leave.

k. Immoral conduct.

l. Discourteous treatment of the public, students, or other employees.

m. Improper political activity.

n. Willful disobedience.

o. Misuse of district property.

p. Violation of district, Board or departmental rule, policy, or procedure.

q. 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.

r. Refusal to take and subscribe any oath or affirmation which is required by law in connection with his/her employment.

s. 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 retirement of employees.

t. 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 or other employees while acting in the capacity of a district employee.

u. 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 actual or suspected violation of state or federal law occurring on the job or directly related thereto.

v. 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 #s above, no personnel action shall be taken for any cause which arose before the employee becomes 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.

2. Representation

Whenever any employee is required to appear before the Superintendent, Board or any committee or member thereof concerning any matter which could adversely affect the continuation of that employee in his/her position or employment, or the salary or any increments pertaining thereto, the employee shall be given the reasons for such meeting or interview and shall be entitled to have a representative of the exclusive employee organization present to advise and represent the employee during such meeting or interview.

3. Investigation Period

a. Investigation

If the conduct of or a report of the conduct of an employee is such as to be, if verified, sufficient to serve as cause for a personnel action, the Superintendent or designee shall investigate the matter.

b. Notification of Investigation and Opportunity to Be Heard

The employee shall be notified that an investigation of the matter is being conducted and of the nature of the recommendation for personnel action that shall be made should charges be brought concerning the matter. The employee shall be given an opportunity to be heard, either orally or in writing, regarding the matter. The individual conducting a meeting at which the employee is given the opportunity to be heard shall not be the direct supervisor of the employee.

c. Administrative Leave with Pay during Investigation

If the Superintendent or designee determines that it is in the best interest of the district, the employee may be placed on administrative leave with pay during the investigation.

4. Initiation of Personnel Action and Notification of Charges

The Superintendent or designee may initiate a personnel action as defined herein against a permanent classified employee.

In all cases involving a personnel action, the person initiating the action shall file a written recommendation of personnel action with the Board. A copy of the recommendation shall be served upon the employee either personally or by United States mail at the employee's last known address. The recommendation shall include:

a. A statement of the nature of the recommended personnel action (suspension without pay, demotion, reduction of pay step in class, or dismissal).

b. A statement of the cause or causes for the recommended 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, or attached to, the recommendation.

d. A statement of the employee's right to appeal the recommendation and the manner and time within which his/her 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. This filing will initiate an appeal, see section 5 below.

5. Appeal or Waiver of Appeal

a. Filing of Appeal

Within five calendar days after receiving the recommendation of personnel action described above, the employee may appeal this recommendation by signing and filing the card or paper included with the recommendation. Any other written document signed and appropriately filed within the specific time limit by the employee shall constitute a sufficient time limit by the employee shall constitute a sufficient notice of appeal. A notice of appeal is filed only by its delivery 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 postmarked, if delivered by U.S. mail, or received in that office, if delivered by other than U.S. mail, no later than the time limit stated herein.

b. Waiver of Appeal

If the employee fails to file a notice of appeal within the time specified in these rules, 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.

c. Employment Status Pending Appeal or Waiver

(1) Active Duty. 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.

(2) Suspension from Duty. If the Superintendent or designee determines that a permanent classified employee should be dismissed and that the employee's continuing in active duty status would present an unreasonable risk of harm to students, staff, or property while the proceedings are pending, the Superintendent or designee may order the employee immediately suspended for duty with or without pay. The suspension order shall be in writing. The suspension order shall be served upon the employee either personally or by U.S. mail. It may be served with the copy of the recommendation of personnel action.

i. Without Pay. If the suspension order is for suspension without pay, it shall state the reasons that the suspension is deemed necessary. Except in cases of emergency where the employee must be removed from the premises immediately, the Superintendent or designee shall give the employee written notice of the proposed recommendation of personnel action of dismissal at least five calendar days before the effective date of the order of suspension without pay issued in conjunction with a recommendation involving dismissal. This notice shall state the 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.

In cases where an order of suspension without pay has been issued in conjunction with a recommendation of dismissal, any appeal from the recommendation of dismissal shall also constitute an appeal from the suspension order, and the necessity of the order shall be an issue in the appeal hearing.

6. Appeal Hearing Procedures

a. 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. The procedure entitled "Administrative Adjudication" commencing with Government Code 11500 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 or 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.

b. All hearings shall be heard by a hearing officer (who shall be an attorney licensed in the State of California) except in those cases where the Board determines to hear the appeal itself. 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.

c. If the appeal is heard by a hearing officer, he/she shall prepare a proposed decision in such form that it may be adopted by the Board as the decision in the case. The proposed decision shall be received and filed by the Board and a copy shall be furnished to each party within ten days after the proposed decision is filed by the Board. The Board may:

(1) Adopt the proposed decision in its entirety.

(2) Reduce the personnel action set forth in the proposed decision and adopt the balance of the proposed decision.

(3) 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.

(4) Reject the proposed decision in its entirety.

d. 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 #c above, upon the additional evidence and the transcript and other papers which are part of the record of the prior hearing. A copy of such proposed decision shall be furnished to each party within 10 days after the proposed decision is filed by the Board.

e. In arriving at a decision or a proposed decision on the propriety of the proposed personnel action, the Board or the hearing office 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.

f. 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. Appeal 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 be 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 Board's determination of the cause for disciplinary action shall be conclusive, and the decision of the Board shall be final.

8. Miscellaneous Provisions

a. Employee Charged with Mandatory Leave of Absence Offense

Whenever an employee is charged with a mandatory leave of absence offense, as defined in Education Code 44940(a), or its successor, the Board shall immediately place the employee upon a compulsory leave of absence for a period of time extending for not more than 10 days after the date of entry of judgment in the proceedings. This leave may be extended by giving notice to the employee within 10 days after the entry of judgment in the proceedings that the employee will be dismissed at the expiration of 30 days from the date of service of the notice, unless the employee demands a hearing as provided in these rules. Employee compensation during this period of time shall be in accordance with Education Code 44940.5, or its successor.

b. Employee Charged with Optional Leave of Absence Offense

Whenever an employee is charged with an optional leave of absence offense, as defined in Education Code 44940(b), or its successor, the Board may immediately place the employee upon a compulsory leave of absence in accordance with Education Code 44940.5, or its successor.

c. Compulsory Dismissal

The district shall not employ or retain in employment any person who has been convicted of any sex offense as defined in Education Code 44010, or its successor, or any controlled substance offense as defined in Education Code 44011, or its successor. 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.

d. Time Limit of Suspension

In any 12-month period, no employee may be suspended for an aggregate of more than 90 calendar days. Time suspended during the processing of a dismissal shall not be included in the 90 calendar day limitation. Further, this time limitation shall not apply to cases in which a personnel action of dismissal is modified by the Board to a suspension.

Legal Reference:

EDUCATION CODE

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

VEHICLE CODE

1808.8 School bus drivers; dismissal for safety-related cause

UNITED STATES CODE, TITLE 42

12101 -12213 Americans With Disabilities Act

COURT DECISIONS

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)

Regulation RESCUE UNION SCHOOL DISTRICT

approved: September 2004 Rescue, California