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Sausalito Marin City SD |  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 his/her discretion, dismiss a probationary classified employee from district employment. A probationary employee shall not be entitled to a hearing.

Discipline of Permanent Classified Employees

Permanent classified employees shall be subject to disciplinary action only for cause. Disciplinary action includes, but is not limited to suspension without pay, demotion, reduction of pay and dismissal. Disciplinary action does not include layoffs or reductions in hours. The Board of Trustees' determination of the sufficiency of the cause for disciplinary action shall be conclusive.

1. Compulsory Dismissal

The district shall not employ or retain in employment any person it is mandated to terminate by law, including persons who have been convicted of any sex offense as defined in Education Code section 44010 or 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.

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 or the acts upon which the original charges were based.

2. Causes

In addition to any disqualifying or actionable causes otherwise provided for or mandated by statute, policy or regulation of this district, each of the following constitutes cause for disciplinary action against a permanent classified employee, up to and including dismissal:

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. Unsatisfactory performance, i.e., inability to comply with the minimum standard of an employee's position for a significant period of time.

c. Inefficiency or inexcusable neglect of duty, i.e., failure to perform duties required of an employee within his/her position.

d. Neglect of duty.

e. Willful disobedience or insubordination, a willful failure to submit to duly appointed and acting supervisor or to conform to duly established orders or directions of persons in a supervisory position or insulting or demeaning the authority of a supervisor or manager.

f. Dishonesty involving employment.

g. Possessing alcohol at work; furnishing alcohol to a minor at or away from the workplace; and/or 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, students or members of the public with whom the employee interacts with while at work.

h. Possessing a controlled substance at work; furnishing a controlled substance to a minor at or away from the workplace; and/or being under the influence of a controlled substance while on duty or in such close time proximity thereto as to cause any detrimental effect upon the employee or upon employees, students or members of the public with whom the employee interacts with while at work.

i. Conviction of a felony, conviction of any sex offense as defined by law, conviction of any crime of moral turpitude, 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. Inexcusable absence without leave.

k. Excessive absenteeism, i.e. absence at a level of frequency that disrupts the smooth operation of the district.

l. Abuse of sick leave, i.e., taking sick leave without a doctor's certificate when one is required or misuse of sick leave.

m. Immoral conduct.

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

o. Improper political activity. Example: Those campaigning for or espousing the election or non-election of any candidate in national, state, county or municipal elections while on duty and/or during working hours or the dissemination of political material of any kind while on duty and/or during working hours.

p. Any willful conduct undertaken in bad faith, either during or outside of duty hours which is of such a nature that it causes discredit to the district, the employee's department or division.

q. Improper or unauthorized use of district property.

r. Violation of 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 employer's class specification or otherwise necessary for the employee to perform the duties of the position.

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 renders the employee unable to perform the essential job functions of his/her job with or without reasonable accommodation as determined by competent medical authority, or without presenting a direct threat to the health and safety of self or others.

v. Unlawful discrimination, including harassment, on t 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.

w. Unlawful retaliation against any other district officer or employee or member of the public who, in good faith, report 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. Acceptance from any source of a reward, gift or other form of remuneration in addition to regular compensation to an employee for the performance of his/her official duties.

y. Inattention to duty, tardiness, indolence, carelessness, or negligence in the care and handling of district property.

z. Working overtime without authorization.

Except as defined in subsection 2(u) above, no disciplinary 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 intent 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.

In the event of a conflict or inconsistency between the terms of this Section 2 and any applicable collective bargaining agreement, the collective bargaining agreement shall prevail.

3. Initiation and Notification of Charges

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

In all cases involving a disciplinary action, the Superintendent or designee shall file a written recommendation of disciplinary action with the Board. A copy of the 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 recommendation shall include the following:

a. A statement of the nature of the disciplinary action intended (suspension without pay, demotion, reduction of pay, or dismissal).

b. A statement of the specific charges, as set forth in Section 1 above, upon which the disciplinary action is based.

c. A factual summary of the specific acts or omissions upon which the charges are based.

d. The date, time and person before whom the employee may respond in no less than five working days.

e. Notice that a failure to respond at the time specified shall constitute a waiver of the right to respond prior to final discipline being imposed.

f. In the event of a conflict or inconsistency between the terms of this Section 3 and any applicable collective bargaining agreement, the collective bargaining agreement shall prevail.

4. Pre-Discipline Opportunity to be Heard

a. In no less than five working days after receipt of the Notice of Recommended Discipline, the Employee shall be afforded an opportunity to respond to the charges in person or in writing, to the appointed district administrator.

b. Upon hearing from the employee, or upon waiver by the employee of his or her right to respond to the charges, the appointed Administrator shall determine whether to administer the recommended discipline.

5. Decision After Pre-discipline Opportunity to be Heard

a. If the administrator decides that discipline should not be administered, his or her decision is final. The administrator will provide written notice of the decision to the employee.

b. If the administrator decides that the recommended discipline should be administered, or a lesser discipline administered, the administrator will prepare the Notice of Discipline, which shall include:

(1) A statement of the nature of the disciplinary action being imposed and the effective date of the discipline.

(2) A statement of the specific charges, as set forth in Section 1 above, upon which the disciplinary action is based.

(3) A factual summary of the specific acts or omissions upon which the charges are based

(4) Copies of all documents on which the district has relied to assert the charges.

(5) A statement of the employee's right to appeal the discipline, within five calendar days of receipt of the Notice of Discipline, and the manner within which the appeal must be filed.

(6) A card or paper, the signing and filing of which shall institute a demand for hearing and a denial of all charges.

(7) Notice that a failure to submit a demand for hearing within five calendar days of receiving the notice of discipline shall constitute a waiver of the right to a post-disciplinary evidentiary hearing.

6. Employment Status Pending Hearing or Waiver

a. Non-Emergency Procedures

Except as provided herein, any employee against whom a recommendation of disciplinary action has been issued shall remain on active duty status and responsible for fulfilling the duties of the position pending his/her hearing or waiver thereof.

b. Emergency Procedures

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 disciplinary 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.

7. Right to Hearing

Within five calendar days after receiving the recommendation of disciplinary action described in Section 5 above, the employee may request a hearing by signing and filing the card or paper included with the final notice. A notice of hearing is filed only by delivering the notice of hearing to the office of the Superintendent or designee during normal work hours of that office. A request for hearing 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.

If the employee fails to file a notice of hearing within the time specified in these rules, he/she shall be deemed to have waived his/her right to a hearing.

8. Amended/Supplemental Charges

At any time before the charges are submitted to the Board or to a hearing officer for decision, the Superintendent or designee 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 disciplinary 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 as to the new causes or allegations. 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.

9. Hearing Procedures

a. In the event of a conflict or inconsistency between the terms of this Section 9 and any applicable collective bargaining agreement, the collective bargaining agreement shall prevail.

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 procedure entitled "Administrative Adjudication" commencing with Government Code 1150 shall not apply to any such hearing before the Board or a hearing officer.

c. Neither the Board nor a hearing officer shall be bound by technical rules of evidence used in California courts but hearings shall be conducted in a manner most conducive to determination of the truth. Informality in any such hearing shall not invalidate any order or decision made or approved by the hearing officer or the Board.

d. All hearings may, at the discretion of either party or the Board, be recorded by a court reporter. Any hearing which does not utilize a court reporter may be recorded by audio tapes. If a court reporter is requested by either party, that party shall pay the cost of the court reporter.

e. 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 charges itself. In any case in which the Board hears the charges, 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 charges are heard by the Board, the Board shall affirm, modify or revoke the recommended disciplinary action.

f. If the charges are 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:

(1) Adopt the proposed decision in its entirety.

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

(3) Reject a proposed reduction in disciplinary action, approve the disciplinary action sought by the Superintendent or designee or any lesser penalty, and adopt the balance of the proposed decision.

(4) Reject/the proposed decision in its entirety.

g. 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 Subsection 10(f) above, upon the additional evidence and the transcript and other papers which are part of the record of the prior hearing. A copy of this proposed decision shall be furnished to each party within 10 days after the proposed decision is filed by the Board.

h. In arriving at a decision or a proposed decision on the propriety of the proposed disciplinary action, the Board or the hearing officer may consider the records of any prior disciplinary action proceeding against the employee in which a disciplinary action was ultimately sustained and any records that were contained in the employee's personnel files and introduced into evidence at the hearing.

8. Final Board Decision

The decision of the Board shall be in writing and shall contain findings of fact and the disciplinary 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 forwarded to the Superintendent or designee who recommended the disciplinary action, and he/she shall enforce and follow this decision. A copy of the decision shall be delivered to the employee or his/her designated representative personally or by certified mail, return receipt requested. The decision of the Board shall be final.

9. Extension of Compulsory Leave

The Board may extend an employee's compulsory leave of absence by giving him/her notice, within 10 days after the entry of judgment in the proceedings, that he/she will be dismissed in 30 days unless he/she demands a hearing. Employee compensation during the period of compulsory leave shall be made in accordance with law.

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 SAUSALITO MARIN CITY SCHOOL DISTRICT

approved: February 11, 2010 Sausalito, California