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Stanislaus COE |  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 Stanislaus County Superintendent of Schools or designee may, at his/her discretion, dismiss a probationary classified employee from Stanislaus County Office of Education 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

Permanent classified employees shall be subject to personnel action (suspension without pay, demotion, reduction of pay step in class, dismissal) only for cause. The County Superintendent or designee's determination of the sufficiency of the cause for disciplinary action shall be conclusive.

1. Causes

In addition to any disqualifying or actionable causes otherwise provided for by statute or by policy or regulation of this County Office, each of the following constitutes cause for personnel action against a permanent classified employee:

a. Falsifying any information supplied to the school County Office, including, but not limited to, information supplied on application forms, employment records, or any other school County Office 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.

(cf. 4020 - Drug and Alcohol-Free Workplace)

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

i. 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.

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 County Office property.

p. Violation of County Office, Stanislaus County Board of Education 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 the 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 County Office employee.

u. Unlawful retaliation against any other County Office 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.

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 County Office or his/her employment.

Except as defined in item "s" 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 County Office.

2. Initiation and Notification of Charges

The County 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 County Superintendent or designee. 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:

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 County Office 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.

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 County 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 County 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 County Superintendent or designee shall give the employee written notice of the proposed dismissal at least five calendar days before the effective date of any order of suspension issued in conjunction with the proposed 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 County Superintendent or designee orally or in writing before the final dismissal order is 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.

5. Right to Appeal

Within five calendar days after receiving the notice of proposed personnel action described above, 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 County Superintendent or designee during normal work hours of that office. A notice of appeal may be mailed to the office of the County 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 the proposed dismissal, any appeal of the proposed 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 these rules, he/she shall be deemed to have waived his/her right to appeal, and the County Superintendent or designee may order the personnel action into effect immediately.

6. Hearing Procedures

a. The hearing shall be held at the earliest convenient date, taking into consideration the established schedule of the County Superintendent or designee 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 County Superintendent or designee County 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 County Superintendent or a hearing officer. Neither the County Superintendent 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 County 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 County Superintendent determines to hear the appeal him/herself. In any case in which the County Superintendent hears the appeal, the County Superintendent 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 County Superintendent, the County Superintendent shall affirm, modify or revoke the proposed personnel action.

c. 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 County Superintendent as the decision in the case. A copy of the proposed decision shall be received and filed by the County Superintendent and furnished to each party within 10 days after the proposed decision is filed by the County Superintendent. The County Superintendent 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 County Superintendent rejects the proposed decision in its entirety, each party shall be notified of such action and the County Superintendent 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. A copy of this proposed decision shall be furnished to each party within 10 days after the proposed decision is filed by the County Superintendent.

e. In arriving at a decision or a proposed decision on the propriety of the proposed personnel action, the County Superintendent 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.

7. Hearing Decision

The decision of the County Superintendent 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.

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 County Superintendent shall be final.

Nonmerit System Districts

8. Compulsory Dismissal

The County Office shall not employ or retain in employment any person who has been convicted of any sex offense as defined in Education Code 44010 or any controlled substance offense as defined in Education Code 44011. However, the County Office may employ a person convicted of a controlled substance offense if the County Superintendent 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 County Office, although reemployment is not a guarantee. (Education Code 45123)

The County Office 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.

Classified Management, Supervisory, Confidential Personnel and Bargaining Unit Members

For personnel in this classification:

Demotion means assignment to an inferior position or status, without the employee's written voluntary consent. (Education Code 45101)

Reclassification means the upgrading of a position to a higher classification as a result of the gradual increase of the duties being performed by the incumbent in such position. (Education Code 45101)

If assigned to a position within a bargaining unit, management, supervisory and confidential classified employees shall be reclassified at the discretion of the County Office subject to provisions of the applicable collective bargaining agreement.

(cf. 4312.1 - Contracts)

Any decision regarding the demotion of a permanent management, supervisory or confidential classified employee shall be subject to the causes, appeal rights, and procedure set forth in County Office policy, regulation or collective bargaining agreements for disciplinary action against classified employees. (Education Code 45113)

(cf. 4218 - Dismissal/Suspension/Disciplinary Action)

The County Board shall provide 45 days' notice before demoting a deputy, associate or assistant superintendent or employee in the senior management of the classified service. (Education Code 35031)

In initiating the involuntary reassignment of a classified manager, the County Superintendent or designee shall provide the classified manager with prior written notice of the intent to reassign him/her to a designated position. The notice will inform the manager of the specific reasons for the reassignment, his/her right to a hearing, and the time within which an appeal must be filed. The notice shall also contain a card or paper for requesting a hearing. The classified manager may, within five days after receiving such notice, file a written request for hearing before the County Board.

The request for hearing shall be filed in the office of the County Superintendent or designee. If the manager fails to file a request for hearing as specified above, he/she will be deemed to have waived the right to a hearing and the reassignment may be made effective immediately.

If a request for hearing is filed as specified above, a hearing shall be scheduled before the County Board. The County Board shall hear the matter, with the party initiating the reassignment bearing the burden of proving the reasons for the reassignment. The hearing shall be recorded by a reporter or tape recording. After the hearing, the County Board shall determine whether to approve, modify, or revoke the reassignment. The decision of the County Board shall be final.

Requests for reclassification initiated by the employee will be accepted once each fiscal year. A classified employee who wants their position considered for reclassification must initiate the request beginning on the second Friday in April and it must reach the Director of Human Resources no later than the first Friday in May. The County Superintendent will provide applicants with a definite and final response on or before the second Friday in June. Reclassifications resulting from this process will be effective July 1st of each year. (Education Code 45101)

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 STANISLAUS COUNTY OFFICE OF EDUCATION

approved: February 4, 2003 Modesto, California

revised: August 28, 2008