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December 18, 2014
 Information & NewsDepartmentsPersonnel CommissionClassified Employee HandbookChapter 19   
 

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CHAPTER 19: PROCEDURES FOR DISCIPLINARY ACTION AND APPEAL

 

19.1 General Provisions on Disciplinary Actions
19.2 Notice of Proposed Disciplinary Action
19.3 Preliminary Skelly Hearing
19.4 Skelly Hearing Decision and Notice
19.5 Appeal Hearing Before Personnel Commission 


19.1 GENERAL PROVISIONS ON DISCIPLINARY ACTIONS

19.1.1 DISCIPLINARY ACTION ONLY PURSUANT TO THIS RULE: A permanent classified employee shall be subject to disciplinary action only for cause as prescribed by these Rules and Regulations, and only pursuant to the procedures outlined herein.

REFERENCE: Education Code Sections 45260, 45261, and 45302

19.1.2 TIME LIMITS ON DISCIPLINARY ACTION: Disciplinary action shall not be taken against an employee for any charges based on acts or omissions which occurred prior to the employee's becoming permanent, nor for any acts or omissions which occurred more than two (2) years prior to the date of the filing of the Notice of Proposed Disciplinary Action unless such acts or omissions were concealed or not known to the District within the two year period.

REFERENCE: Education Code Sections 45260 and 45261

19.1.3 DEFINITION OF DISCIPLINE: Disciplinary action includes any action whereby a permanent classified employee is deprived of any classification or any incident of any classification, including dismissal, suspension, demotion, or any reassignment that causes a reduction in pay without the employee's voluntary written consent, except a layoff for lack of work or lack of funds. A suspension may be for a period not to exceed thirty (30) assigned days.

REFERENCE: Education Code Sections 45260 and 45261

19.1.4 CAUSES FOR DISCIPLINARY ACTION: The following causes shall be grounds for disciplinary action:

19.1.4.1 Incompetency

19.1.4.2 Inefficiency: the continuing inability or unwillingness to perform the regularly assigned duties and responsibilities of the position. Amended 9/5/95

19.1.4.3 Insubordination: knowingly refusing to perform lawful and reasonably assigned duties or refusing to perform those duties in accordance with established or prescribed procedures; challenging, resisting, defying or demonstrating contempt toward a designated supervisor or other school district official having authority to issue directions and instructions to the employee by the nature of his or her position. Amended 9/5/95 & 2/4/97

19.1.4.4 Inattention to or dereliction of duty: dereliction in the performance of assigned duties and responsibilities. Amended 9/5/95

19.1.4.5 Any willful or persistent violation of the Education Code, or Personnel Commission Rules and Regulations, or the procedures adopted by the District or a department when such procedures are made known to the employees in writing. Amended 9/5/95

19.1.4.6 Knowingly falsifying or withholding any material information supplied to the District, including but not limited to, information required on application forms and employment records, or other official documents of the District.

19.1.4.7 Use or possession of alcoholic beverages on District property, or appearing for work under the effects of alcohol. “On District property” shall also include District vehicles. Amended 9/5/95

19.1.4.8 The use or possession of illegal controlled substance or restricted dangerous drugs, other than that prescribed by a state licensed physician or appearing for work under the effects of illegal or restricted dangerous drugs. Amended 9/5/95

19.1.4.9 Convicted of a sex offense as defined in Education Code Section 44010. Conviction of such offense shall result in dismissal. Amended 9/5/95

19.1.4.10 Convicted of a narcotics offense as defined in Education Code Section 44011. Conviction of such offense shall result in dismissal. Amended 9/5/95

19.1.4.11 Engaging in political activities during assigned hours of duty. "Engaging in political activities" shall be defined to include door-to-door campaigning; placing campaign literature in/on vehicles on District facilities, parking lots, or adjacent streets, telephone solicitation or contacts; use of District time or materials for reproduction of campaign literature or materials; and, engaging fellow employees, students, or others in a discussion or debate regarding any candidate for public office or ballot measure. “During assigned working hours” shall be defined to include any and all time an employee is scheduled to be at his/her work site and/or engaged in District business and for which the employee is compensated by the District; including paid rest break. Amended 9/5/95

19.1.4.12 Conviction of a felony or a crime involving moral turpitude. A plea, verdict, or finding of guilty or a conviction following a plea of nolo contendere, is deemed to be a conviction. Amended 12/7/99

19.1.4.13 Discourteous, abusive, or threatening treatment of the public, employees, or students, including discriminatory harassment; or malicious engagement in reprisals by managers or supervisors against employees, applicants, candidates, or eligibles who file a written complaint pursuant to Government Code Section 53297 regarding gross mismanagement or a significant waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety. Amended 9/5/95

19.1.4.14 Repeated unexcused absence or tardiness, abuse of leave privileges or absence without notification.

19.1.4.15 Abandonment of Position - Absence of three (3) consecutive days without notification or permission (and failure to notify the District of a valid or acceptable reason for absence).

19.1.4.16 Failure to return to work or notify the District within three (3) consecutive days following an authorized leave of absence without notification or permission except in the case of dire emergency.

19.1.4.17 The uninsurability of an employee to drive a District vehicle when such is a requirement of the employee's position. Upon notification or confirmation by the District’s insurance carrier, discipline under this section shall be handled in the following manner: Amended 9/5/95

19.1.4.17.1 The District shall attempt to reassign the employee within the same class or to a vacant position in a related class not requiring operation of a motor vehicle with the approval of the Commission.

19.1.4.17.2 If reassignment is not possible, then the employee may be demoted, pursuant to these Rules and Regulations.

19.1.4.17.3 If a position does not exist for a demotion to be accomplished, then the employee may be dismissed, pursuant to these Rules and Regulations.

19.1.4.18 Violation of local, state, or federal law which results in cancellation or suspension of a license required for the performance of assigned duties.

19.1.4.19 Dishonesty, theft, willful misuse for personal gain, willful destruction or mishandling of District property, unauthorized use of District or student body property.

19.1.4.20 Unlawful harassment pursuant to federal and state laws. Amended 4/3/07

19.1.4.21 Failure to obey a subpoena issued by the Personnel Commission and duly served, or any refusal to furnish testimony or documents, other than self-incriminating, at a hearing or investigation before the Commission or Board of Education.

19.1.4.22 Advocacy of the overthrow of the federal, state, or local government by force, violence, or other unlawful means.

19.1.4.23 Offering anything of value or offering any service in exchange for special treatment in connection with the employee's job or employment, or the accepting of anything of value or any service in exchange for granting any special treatment to another employee or to any member of the public.

19.1.4.24 Conviction of a felony or misdemeanor or a record of one (1) or more misdemeanors, which convictions indicate that the person is a poor employment risk for the particular job which the employee holds in the District. A plea, verdict, or finding of guilty, or a conviction following a plea of nolo contendere is to be deemed a conviction within the meaning of these Rules.

19.1.4.25 Any other failure of good conduct tending to injure the public service.

19.1.4.26 Any action that might cause harm to the District's employees, students or the public. Carrying out a physical attack or assault upon a student, a member of the public, another District employee, or a District official, except in self-defense (as supported by facts and other information submitted). Amended 9/5/95

19.1.4.27 Any action/activity that interferes with the effective operation of the District.

19.1.4.28 Any action or lack of action which may cause harm to a student. Added 9/5/95

19.1.4.29 Defrauding the District by collecting sick leave or industrial accident/illness leave pay while working elsewhere for pay during his/her normal scheduled work assignment with the District.

19.1.4.30 Physical or mental inability to perform the tasks assigned to employee’s classification to the extent permissible under federal and state laws. Amended 12/7/99, 4/3/07

19.1.4.31 Failure to submit to involuntary drug testing requirements for classifications requiring a commercial drivers license or designated as safety-sensitive by state or federal courts.

19.1.4.32 Any conduct creating “a discriminatory, intimidation, ridicule, and abusive work environment” whether or not the loss of tangible job benefits is determined. Amended 9/5/95

19.1.4.33 Working overtime without authorization. Amended 12/7/99

REFERENCE:
1. Education Code Sections 212.5, 230, 44010, 44011, 45123,45260, 45261, 45302, 45303, and 45304
2. Government Code Section 1028,12940 et seq.
3. Penal Code Section 261
4. Health and Safety Code Sections 11054, 11056, 11355-11361, 11363-11368, 11377-11382,11550

19.1.5 PROGRESSIVE DISCIPLINE - WRITTEN WARNING/REPRIMAND: Written reprimands may be administered as set forth below: Amended 12/7/99

19.1.5.1 Written warning shall state the Rule violated, the acts or omissions in violation, the basis for improvement developed in conjunction with the employee, and a reasonable time period during which the employee's performance will be reviewed for improvement or attainment of goals. Amended 12/7/99

19.1.5.2 If the basis for the discipline is performance, the supervisor shall give a reasonable period of time to permit the employee the opportunity to correct the deficiency without incurring further disciplinary action. If the basis for the discipline is misconduct, action may be taken immediately. Amended 12/7/99

19.1.5.3 There is no right of appeal from a written warning or reprimand,. However, within ten days of receipt of the reprimand, the employee may submit a written response, which will be attached to the written warning or reprimand for placement in the personnel file. Amended 12/7/99

19.1.5.4 For any of the causes for disciplinary action listed in Rule 19.1.4, Causes for Disciplinary Actions, any employee may be suspended immediately for not more than 30 assigned days or may be demoted or dismissed.

REFERENCE: Education Code Sections 45260 and 45261

19.1.6 PROGRESSIVE DISCIPLINE - SUSPENSION: An employee may be terminated, or suspended not to exceed (30) assigned days without pay. The proposed length of suspension shall reasonably relate to the seriousness of the alleged offense. Amended 12/7/99

REFERENCE: Education Code Sections 45260 and 45261

19.1.7 PROGRESSIVE DISCIPLINE - FINAL STEP: The employee may be subjected to more severe disciplinary action, including demotion or termination. Amended 12/7/99

REFERENCE: Education Code Sections 45260 and 45261

19.1.8 A COMPULSORY LEAVE OF ABSENCE: An employee may be immediately placed on a compulsory leave of absence without pay if charged with the commission of any sex offense or narcotics offense referred to in Education Code Sections 44010, 44011, and 45304, and the mandatory leave of absence shall continue for not more than ten (10) days after the date of the entry of the court judgment. The compulsory leave of absence may be extended beyond such ten (10) day period if the governing board gives notice within such ten (10) day period that it will dismiss the employee thirty (30) days after the service of the notice, unless the employee demands a hearing. Any employee on a compulsory leave of absence shall continue to be paid his/her regular salary during the period of absence if the employee furnishes the District a suitable bond, or other security acceptable to the Board of Education, as a guarantee that the employee will repay the District the amount of salary so paid to him/her during the period of mandatory leave of absence in case the employee is convicted of such charges, or the employee does not return to service after such period of absence. If the judgment determines that the employee is not guilty of such charges, or if the complaint, information, or indictment is dismissed, the District shall reimburse the employee for the cost of the bond; or, if the employee has not elected to furnish such bond, the District shall pay to the employee his/her full compensation during the period of the compulsory leave of absence, provided the employee returns to service after such period of absence. Amended 9/5/95

REFERENCE:
1. Education Code Sections 45302, 45303, and 45304
2. Penal Code Section 261

19.1.9 IMMEDIATE SUSPENSION - WITH PAY: An employee, other than stated in Rule 19.1.8 above, may be immediately suspended without loss of compensation pending the initiation and completion of disciplinary action procedures to the Board of Education. The District may end the suspension without loss of compensation or take action to suspend without pay in accordance with these Rules as warranted.

REFERENCE: Education Code Sections 45260 and 45261

19.1.10 DISMISSAL OF SUBSTITUTE /LIMITED-TERM/PROVISIONAL EMPLOYEES: A substitute, limited-term, provisional, probationary or other temporary employee may be terminated at any time during his/her assignment without cause and without regard to procedures set forth in this chapter.

REFERENCE: Education Code Sections 45260, 45261 and 45305

19.1.11 PERMANENT EMPLOYEE IN PROBATIONARY PROMOTIONAL POSITION: A permanent classified employee who has not served the full probationary period for the class to which promoted, and who is demoted to his/her former class, does not have the right to appeal such demotion. A permanent classified employee who has not served the full probationary period for the class to which promoted, and who is subjected to disciplinary action that would result in the separation of the employee from the permanent classified service shall have full appeal rights as if the employee had completed permanency in his/her present class. Amended 12/7/99

REFERENCE: Education Code Sections 45260, 45261 and 45305

19.1.12 BURDEN OF PROOF: The burden of proof in disciplinary hearings is the District’s. The standard is preponderance of the evidence. Amended 12/7/99

REFERENCE: Education Code Sections 45260 and 45261

19.1.13 PROHIBITED ACTS RELATIVE TO DISCIPLINE: No employee shall be suspended, demoted, dismissed, subjected to any other form of disciplinary action, harassment, or in any way discriminated against because of the employee’s race, color, gender, national origin, marital status, disabling or handicapping condition, ancestry, sexual orientation, sexual identity, employee organization membership or nonmembership and legal activities related thereto, medical condition to the extent permitted by federal and state laws, or religious or political beliefs or acts. Amended 12/7/99, 4/3/07

REFERENCE:
1. Education Code Sections 45260 and 45261
2. Government Code 12926

19.1.14 HEALTH BENEFITS MAINTAINED UNTIL APPEAL CONCLUDED: A classified employee who is subjected to a disciplinary action (as provided in these Rules and Regulations), who is receiving health insurance coverage and would otherwise lose those benefits, shall continue to receive such coverage until the timeliness for filing an appeal has passed or, in the event that the employee files a timely appeal, until all appeal processes contained in these Rules and Regulations have been exhausted. Amended 9/5/95

REFERENCE: Education Code Sections 45260 and 45261

19.2 NOTICE OF PROPOSED DISCIPLINE

19.2.1 NO DISCIPLINE WITHOUT NOTICE: No disciplinary action may be taken against a permanent classified employee until the employee has received a "Notice of Proposed Disciplinary Action" and the employee has had an opportunity to respond to the charges. The exception to this Rule is in the case of action taken in accordance with Rules 19.1.8 or 19.1.9 above.

REFERENCE: Education Code Sections 45260 and 45261

19.2.2 CONTENTS OF NOTICE OF PROPOSED DISCIPLINE: The Notice of Proposed Disciplinary Action shall contain in ordinary and concise language the following:

19.2.2.1 The nature of the proposed action (suspension, demotion, dismissal, etc).

19.2.2.2 The specific causes for the disciplinary action and sections of these Rules citing specific rules or procedures that the employee is accused of violating. Amended 9/5/95

19.2.2.3 The specific acts or omissions which establish the causes for disciplinary action, including times, dates, and locations, in ordinary and concise language. Amended 12/7/99

19.2.2.4 The proposed effective date(s) of the disciplinary action.

19.2.2.5 The employee's rights to see and obtain copies of all evidence and documentation used to support the District's case against the employee. Amended 9/5/95

19.2.2.6 The employee's right to representation.

19.2.2.7 The employee's right to respond to the charges before the Superintendent or designee to dispute the charges and/or proposed action.

19.2.2.8 The employee's right to a reasonable amount of time off with pay to respond to the charges.

REFERENCE: Education Code Sections 45260, 45261, and 45305

19.2.3 NOTICE SHALL USE READILY UNDERSTOOD LANGUAGE: The charges outlined in the “Notice of Proposed Disciplinary Action” shall be written so clearly that the employees will know the exact complaint(s) and charge(s) against him/her, such that the employee can respond to them. A “Notice of Proposed Disciplinary Action” stating one or more causes shall be insufficient for such purpose. Amended 9/5/95 and 12/7/99

REFERENCE: Education Code Sections 45116, 45260 and 45261

19.2.4 APPEAL FORM SHALL ACCOMPANY DISCIPLINARY NOTICE: An employee response form shall accompany the Notice of Proposed Disciplinary Action which shall explain the procedure for filing responding to the charges. The form shall be submitted to the District Personnel Office by the deadline noted in the Notice of Proposed Disciplinary Action. Amended 9/5/95

REFERENCE: Education Code Sections 45260 and 45261

19.2.5 DISCIPLINARY NOTICE SENT TO DIRECTOR-PERSONNEL COMMISSION: The Notice of Proposed Disciplinary Action shall be delivered to the Personnel Commission Office. The district Human Resources Office shall have the responsibility of ensuring that the Notice of Proposed Disciplinary Action is delivered to the employee pursuant to Chapter 19.2.5.

REFERENCE: Education Code Sections 45260 and 45261

19.2.6 NOTICE SHALL BE IN WRITING AND SERVED ON EMPLOYEE: The Notice of Proposed Disciplinary Action shall be in writing and served in person or by Certified Mail Return Receipt Requested to the employee. This requirement will be deemed to have been met if the Notice of Proposed Disciplinary Action is sent Certified Mail to the last known home address on file in the District Personnel Office. Failure of the employee to retrieve delivered mail, or respond to notifications by the U.S. Postal Service of attempted delivery shall not be grounds for voiding notification, or the staying of the time lines outlined in these Rules. The responsibility for keeping the District informed of a home address is the requirement of the employee. For purposes of this Rule, if a notice is mailed, the second working day following the postmark date of the notice shall be considered to be the official date of receipt.

REFERENCE: Education Code Sections 45260 and 45261

19.3 PRELIMINARY SKELLY HEARING

19.3.1 ACTION IF APPEAL IS NOT FILED: If the employee does not respond to the charges within the ten (10) working day period outlined in the Notice of Proposed Disciplinary Action, the Superintendent or designee shall recommend to the Board that the proposed disciplinary action be approved. The Board shall have the power to either accept, lessen, or reject the recommendation of the Superintendent. The Board shall not act to provide for a penalty or disciplinary action more severe than that recommended by the Superintendent.

REFERENCE: Education Code Sections 45260 and 45261

19.3.2 SKELLY HEARING BEFORE SUPERINTENDENT: If the employee submits a request to respond to the charges within ten (10) working days after receipt of the Notice the employee shall have a right to meet with the Superintendent or designee, and the effective date of the proposed disciplinary action shall be stayed pending the outcome of the appeal process. The employee shall be allowed to respond to the charges prior to the Superintendent's recommendation of disciplinary action to the Board. Amended 12/7/99

REFERENCE: Education Code Sections 45260 and 45261

19.3.3 NOTIFICATION OF SKELLY HEARING TO EMPLOYEE: The District Human Resources Office shall notify the Superintendent, or designee upon receipt or lack of receipt of a request for a Skelly hearing, and shall coordinate the scheduling of the Skelly Hearing. The District Human Resources Office shall notify the employee in writing of the time, date, and place of the Skelly Hearing before the Superintendent. Notification shall be either in person or sent by Certified Mail (Return Receipt Requested). This requirement will be deemed to have been met if the notification of the Preliminary Appeal Hearing is sent Certified Mail to the last known home address on file in the District Human Resources Office. Failure of the employee to retrieve delivered mail, or respond to notifications by the U.S. Postal Service of attempted delivery shall not be grounds for voiding notification, or the staying of the timelines outlined in these Rules. For purposes of this Rule, if a notice is mailed, the second working day following the postmark date of the notice shall be considered to be the official date of receipt. Amended 12/7/99

REFERENCE: Education Code Sections 45260 and 45261

19.3.4 DESIGNEE FOR SUPERINTENDENT: If the Superintendent is unable or unwilling to serve as the preliminary appeal-hearing officer, the Superintendent may assign a designee. That designee shall be an administrator who has the authority and authorization to accept, modify, or rescind the proposed disciplinary action. The administrator may not be a party to the proposed action, either as the supervisor initiating proposed disciplinary action, or as a witness.

REFERENCE: Education Code Sections 45260 and 45261

19.3.5 EMPLOYEE SHALL HAVE OPPORTUNITY TO RESPOND TO CHARGES: The employee shall have the opportunity to respond to all charges. The Skelly Hearing is not an evidentiary hearing. The employee will not be allowed to call or examine witnesses. Amended 12/7/99

REFERENCE: Education Code Sections 45260 and 45261

19.3.6 RIGHT TO REPRESENTATION: The employee may be represented by legal counsel, union representative, or any other person designated by the employee. If the employee fails to appear, the Superintendent may recommend action to the Board of Education. Amended 12/7/99

REFERENCE: Education Code Sections 45260 and 45261

19.4 SKELLY HEARING DECISION AND NOTICE

19.4.1 SUPERINTENDENT OR DESIGNEE’S DECISION: The Superintendent or designee shall issue a written decision within five (5) working days after the conclusion of the Skelly Hearing, to either implement the proposed disciplinary action, to modify the proposed disciplinary action, or to rescind and halt the proposed disciplinary action. The Superintendent or designee shall not act to provide for a penalty or disciplinary action more severe than that recommended in the Notice of Proposed Disciplinary Action. The written decision of the Superintendent or designee shall be filed with the Personnel Commission Office. The District Human Resources Office shall be responsible for notification of the employee as to the findings of the Superintendent, pursuant to Rule 19.4.2. Amended 12/7/99

19.4.1.1 If the employee requests a hearing with the Superintendent or designee, and at that hearing the employee and Superintendent agree on an alternative course of action pursuant to Rule 19.1.7.1, this agreement shall be in writing. If the agreed alternative action requires Board action, the Superintendent shall recommend to the Board that the alternative action be approved. The Board's decision to accept or reject the alternative action shall be final.

19.4.1.2 An unpaid suspension may be implemented (notwithstanding 19.1.9) after the employee has either waived his/her right to a Skelly Hearing or after the Superintendent, or his designee, renders a decision. Amended 12/7/99

19.4.1.3 The Superintendent’s or designee’s decision shall be communicated to the Board of Education. Amended 12/7/99

REFERENCE: Education Code Sections 45260 and 45261

19.4.2 CONTENTS OF NOTICE OF DISCIPLINARY ACTION: The Notice of Disciplinary Action, which is the notification that disciplinary action has been approved by the Board of Education, shall contain statements in ordinary and concise language of:

19.4.2.1 The nature of the disciplinary action taken (suspension, demotion, dismissal, etc.).

19.4.2.2 The specific causes and sections of these Rules that the employee is accused of violating and upon which the disciplinary action is based.

19.4.2.3 The specific charges, a description of the chargeable action(s) or omissions, including times, dates, locations in ordinary and concise language. Amended 9/5/95 and 12/7/99

19.4.2.4 The effective date(s) of the disciplinary action.

19.4.2.5 A copy of charges and documentation to support the District's case against the employee.

19.4.2.6 The employee's right to representation.

19.4.2.7 A copy of the action taken by the Board of Education.

19.4.2.8 The employee's right to appeal the disciplinary action to the Personnel Commission within fourteen (14) working days of service of the Notice of Disciplinary Action, and the right to have such a hearing within the timelines specified in these Rules.

19.4.2.9 A notice that the Commission may sustain, reject, or modify the disciplinary action taken against the employee; and that the Commission may not provide for discipline more stringent than that invoked by the Board of Education. Amended 9/5/95

19.4.2.10 The employee's right to request the Personnel Commission to issue subpoenas for witnesses or other material evidence.

REFERENCE: Education Code Sections 45260 and 45261

19.4.3 APPEAL FORM SHALL ACCOMPANY DISCIPLINARY NOTICE: An appeal form shall accompany the Notice of Disciplinary Action which shall explain the procedure for hearing and the signing and filing of which shall constitute a demand for hearing and a denial of all charges. The appeal form shall be submitted to the Personnel Commission Office by the deadline noted in the Notice of Disciplinary Action. The employee shall include in the appeal his/her current mailing and residency address at which the employee may be contacted, in the event that additional correspondence or notices need to be sent to the employee. The appeal notice filed by the employee shall also contain the name of his/her legal counsel or representative and the address and telephone number of such counsel or representative. The employee shall attach to the appeal form the reasons for the appeal. Appeals can be made only on the following grounds: Amended 9/5/95

19.4.3.1 That the procedures set forth in these Rules and Regulations have not been followed.

19.4.3.2 That the action taken was not in accord with the facts.

19.4.3.3 That the penalty invoked by the District was excessive.

REFERENCE: Education Code Sections 45260 and 45261

19.4.4 NOTICE SHALL BE IN WRITING AND SERVED ON EMPLOYEE: The Notice of Disciplinary Action shall be in writing and served in person or by Certified Mail "Return Receipt Requested" to the employee. This requirement will be deemed to have been met if the Notice of Disciplinary Action is sent Certified Mail to the last known home address on file in the Human Resources Office. Failure of the employee to retrieve delivered mail, or respond to notifications by the U.S. Postal Service of attempted delivery shall not be grounds for voiding notification, or the staying of the timelines outlined in these Rules. For purposes of this Rule, if a notice is mailed, the second working day following the postmark date of the notice shall be considered to be the official date of receipt.

REFERENCE: Education Code Sections 45260 and 45261

19.4.5 ACTION IF APPEAL IS NOT FILED: If the employee does not respond and request a Personnel Commission Appeal Hearing within the fourteen (14) calendar day period outlined in the Notice of Disciplinary Action, the action of the Board of Education shall be final and conclusive, and no further appeal rights shall be allowed.

19.4.6 NOTIFICATION TO PERSONNEL COMMISSION: The Superintendent or designee shall notify the Personnel Commission of the Board of Education’s decision relative to the disciplinary action. The Personnel Commission shall notify the employee in writing of the results of the Board’s action. If the action of the Board was to reject all disciplinary action, the Personnel Commission shall notify the employee in writing within five (5) working days after notification of the Board’s decision. If the decision of the Board of Education were to continue or modify the proposed disciplinary action, the Personnel Commission shall notify the employee in writing within five (5) working days after the notification of the Board’s decision. Such notification shall be in the form of a Notice of Disciplinary Action.

REFERENCE: Education Code Sections 45260, 45261, and 45305

19.5 APPEAL HEARING BEFORE PERSONNEL COMMISSION:

If the employee submits an appeal notice to the Personnel Commission Office within fourteen (14) calendar days after receipt of the Notice of Disciplinary Action, the employee shall have a right to have an Appeal Hearing before the Personnel Commission. The Commission Appeal Hearing shall be held within reasonable days of receipt of the employee's appeal notice by the Personnel Commission Office. The Personnel Commission may agree to a thirty (30) calendar day extension for good cause.

REFERENCE: Education Code Sections 45260 and 45261

19.5.1 NOTIFICATION OF HEARING TO EMPLOYEE: The Director-Personnel Commission shall notify the District and the Personnel Commission upon receipt or lack of receipt of an appeal notice, and shall coordinate the scheduling of the Commission Appeal Hearing if a timely appeal is filed.

19.5.1.1 The Director-Personnel Commission shall notify the employee in writing within fifteen (15) days of the timely filing of an appeal notice, of the time, date, and place of the Commission Appeal Hearing before the Personnel Commission.

19.5.1.2 A notice of the time and place of hearing shall be given or mailed to each of the parties not less than ten (10) days prior to the hearing. The ten-day notice of hearing may be waived by agreement of the parties.

19.5.1.3 Notification shall be either in person or sent by Certified Mail Return Receipt Requested. This requirement will be deemed to have been met if the notification of the Commission Appeal Hearing is sent Certified Mail to the last known home address on file in the Human Resources Office. Failure of the employee to retrieve delivered mail, or respond to notifications by the U.S. Postal Service of attempted delivery shall not be grounds for voiding notification, or the staying of the timelines outlined in these Rules. For purposes of this Rule, if a notice is mailed, the second working day following the postmark date of the notice shall be considered to be the official date of receipt.

REFERENCE: Education Code Sections 45260 and 45261

19.5.2 GENERAL CONDUCT OF COMMISSION APPEAL HEARING: At this full evidentiary hearing, the employee shall have the right to present all evidence and testimony on his/her behalf, to examine all evidence submitted by the District, hear testimony of the supervisor(s) who initiated the action, and examine and cross-examine all witnesses giving testimony. All hearings before the Personnel Commission shall be in closed session, unless the appealing employee requests an open hearing in his/her appeal notice. The Personnel Commission will provide written notice of the employee’s right to open session no later than 24 hours before the hearing. The Personnel Commission Hearing shall be specifically conducted pursuant to Chapter 19.5. Amended 4/3/07

19.5.3 RIGHT TO REPRESENTATION: The employee may, at his/her option, be represented by legal counsel, union representation, or any other person designated by the employee. If the employee files an appeal, the employee shall be required to attend the Commission Appeal Hearing, even if the employee's designated representative appears on his/her behalf. If the employee fails to appear, the employee will be deemed to have forfeited his/her rights to further appeal and the Personnel Commission shall allow the Board of Education's disciplinary action to stand.

19.5.4 APPEAL TO PERSONNEL COMMISSION: Prior to the Personnel Commission's formal hearing, the Director-Personnel Commission may hold a pre-hearing conference with the Board's representative and the appellant's representative or the appellant if the appellant is representing himself or herself. Such pre-hearing conference shall include but not be limited to submission of witness lists, documents required for submission into evidence, and determination as to length of time necessary for the hearing.

19.5.4.1 SUBPOENA OF WITNESSESS/EVIDENCE: The Personnel Commission or its hearing officer may, and shall if requested by either party, subpoena witnesses and/or require the production of records, documents, or other material evidence. The Director-Personnel Commission shall issue the subpoenas on behalf of the Commission or its hearing officer. Subpoenas shall be delivered to the requesting party for service.

19.5.4.1.1 Requests for subpoenas shall be filed with the Personnel Commission Office at least five (5) calendar days prior to the date of the hearing.

19.5.4.2 LIST OF WITNESSES: A list of witnesses to be called by each party and a list of persons authorized to attend the hearing shall be submitted to the Personnel Commission Office at least five (5) calendar days prior to the date of the hearing. This will allow the Personnel Commission to secure the release time of employee witnesses prior to the hearing.

REFERENCE: Education Code Sections 45260, 45261, 45305, 45306, 45307

19.5.5 APPOINTMENT OF HEARING OFFICER: The Personnel Commission may authorize a hearing officer to conduct any hearing or investigation for which the Commission itself is authorized by the Education Code and/or these Rules to conduct, including disciplinary action. Any such hearing officer conducting such hearing or investigation may administer oaths, subpoena and require the attendance of witnesses and the production of books or papers, and cause the deposition of witnesses to be taken in the manner prescribed by law for like depositions in civil cases in the Superior Court of this State. The Commission may instruct such hearing officer to present findings or recommendations. The Commission may accept, reject, or amend any of the findings or recommendations of the hearing officer. Any rejection or amendment of findings or recommendations shall be based either on a review of the transcript of the hearing or investigation, or upon the results of such supplementary hearings or investigations as the Commission may order.

19.5.5.1 The Commission may employ by contract or as professional experts or otherwise any such hearing officer, and may adopt and amend such Rules and procedures as may be necessary to effectuate this section of the Rules.

REFERENCE: Education Code Sections 45260, 45261 and 45312

19.5.6 COMMISSION SHALL DETERMINE TIME AND PLACE OF HEARING: Upon receipt of the appeal notice, the Personnel Commission shall determine the date, time, and place of the hearing on appeal. The appeal hearing shall be held within the boundaries of the District.

REFERENCE: Education Code Sections 45260 and 45261

19.5.7 ALL HEARINGS SHALL BE RECORDED: All hearings under the authority of this Chapter shall be electronically recorded in such a manner that a verbatim written transcript can be produced if necessary.

19.5.7.1 Either party may request that the hearing be recorded by a court reporter, in which case the party making the request shall bear the cost. If both parties make such a request, the cost shall be equally shared by the parties.

REFERENCE: Education Code Sections 45260 and 45261

19.5.8 ORAL EVIDENCE BY OATH ONLY: Oral evidence shall be taken only on oath or affirmation.

19.5.9 ABILITY TO EXAMINE EVIDENCE: Each party shall have the following rights as it relates to examination of witnesses and evidence:

19.5.9.1 To call and examine witnesses.

19.5.9.2 To introduce exhibits.

19.5.9.3 To cross-examine opposing witnesses on any matter relevant to the issues even though that matter was not covered in the direct examinations(s).

19.5.9.4 To attempt to impeach any witness regardless of which party first called the witness to testify.

19.5.9.5 To rebut all evidence presented by the opposing party.

REFERENCE: Education Code Sections 45260 and 45261

19.5.10 APPELLANT MAY BE CALLED TO TESTIFY: The appellant may be called to testify and be cross-examined just as if he/she had testified on his/her own behalf.

19.5.11 ADMISSION OF EVIDENCE: The hearing need not be conducted according to the technical rules relating to evidence and the examination of witnesses. Any relevant evidence shall be admitted if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious business; regardless of the existence of any common law or statutory rule which might cause the evidence to be objected to or ruled out if presented in a criminal or civil procedure before a court of law.

19.5.11.1 Hearsay evidence may be used for the purpose of explaining or providing supplemental evidence, but shall not be sufficient in and of itself to support a finding by the Personnel Commission or its hearing officer unless it would be admissible over objection in a civil action in a court of law.

19.5.11.2 The rules of privilege shall be effective to the extent that they are otherwise required by statute to be recognized at the hearing. Irrelevant and unduly repetitious evidence may be excluded.

REFERENCE: Education Code Sections 45260 and 45261

19.5.12 RIGHT TO BE REPRESENTED: The Board of Education and the appellant shall be allowed to be represented by legal counsel or other designated representatives.

19.5.13 GRANTING OF CONTINUANCE: The Personnel Commission or its hearing officer may, prior to or during the hearing, grant a continuance for reason(s) believed to be sufficient or important to reaching a fair and proper conclusion.

19.5.14 RULING ON OBJECTIONS: The Personnel Commission, its counsel, or its hearing officer shall rule on all objections raised by either party.

19.5.15 FINDINGS BASED ON PREPONDERANCE OF EVIDENCE: The Personnel Commission or its hearing officer shall determine the relevancy, weight, and credibility of the evidence and testimony presented. The findings of the Commission or hearing officer shall be based upon the preponderance of evidence.

19.5.16 ORDER OF PRESENTATION OF EVIDENCE: Each side will be permitted an opening statement, District's representative first, and closing arguments, appellant or his/her representative last. The District shall be first in presenting its witnesses and evidence in an effort to support its charges, and then the appellant or his/her representative will present his/her witnesses and evidence in defense.

19.5.17 EXAMINATION OF WITNESSES: Each side will be allowed to examine and cross-examine witnesses.

19.5.17.1 The Commission or its hearing officer may, at its discretion, exclude witnesses not under examination except for the appellant, District representative, the Director-Personnel Commission, and their respective counsels or designated representatives.

19.5.18 SWORN AFFIDAVITS: The policy of the Personnel Commission shall be that where possible, all witnesses shall give testimony orally at the hearing. However, if in the opinion of the Commission or its hearing officer, a witness has good and sufficient reason for being unable to be present, written testimony will be accepted under the following conditions:

19.5.18.1 Such evidence shall be submitted by sworn affidavit of the witness. The affidavit shall be confined to a statement of facts bearing on the case and within the knowledge of the witness, and shall not contain any conclusions of the witness, except that a witness who qualifies as an expert may express his/her opinion based upon the facts, which he/she has recited.

19.5.18.2 Copies of all such affidavits shall be filed with the Personnel Commission Office or the hearing officer at least five (5) working days prior to the date of the hearing, and may be inspected by the other party to the hearing, who shall be notified of the filing of such affidavits.

19.5.18.3 Neither party has objections to the submission of the affidavit(s) into evidence. Either party, upon request, may require the attendance of the witness who has given the sworn affidavit for purposes of cross-examination. A continuance may be necessary in order to secure the attendance of the witness.

19.5.18.4 The Personnel Commission or hearing officer may reject any such affidavit submitted which fails to comply with any of the foregoing conditions.

REFERENCE: Education Code Sections 45260 and 45261

19.5.19 DELIBERATION AND FINDINGS OF HEARING OFFICER: Whether the hearing is held in open or closed session, the hearing officer, if one is appointed by the Personnel Commission, shall deliberate on the evidence presented and administer a determination of his/her recommendations to the Personnel Commission in closed session.

19.5.19.1 The hearing officer shall submit his/her written recommendations and findings of fact to the Director-Personnel Commission within a reasonable period of time.

19.5.19.2 Upon receipt of the hearing officer's written recommendations and findings of fact, the Director-Personnel Commission shall contact the Chairperson of the Personnel Commission to schedule a meeting of the Commission to consider the findings and recommendations of the hearing officer.

19.5.19.3 In all cases assigned to a hearing officer, a proposed decision shall be prepared in a form to be adopted by the Commission as its decision in the case. Commission staff will notify the appellant, his/her representative and the District's representative of the date of the meeting when the Commission will consider its decision on the appeal. Copies of the proposed decision shall be made available upon request to the appellant and representatives after the Commission has received it at a regular Commission meeting. If either representative believes that the Commission should give further consideration to the decision, he/she shall submit a written request to the Personnel Commission with a copy to the opposing representative detailing reasons for further consideration and the remedy sought. The hearing officer may be present during the consideration of the case by the Commission and, at its request, may advise the Commission. The Commission may accept, reject, or amend any of the findings or recommendations in the proposed decision. Any rejections or amendment shall be based either on a review of the transcript of the hearing or investigation, or upon the results of such supplemental hearing or investigation as the Commission may order. If a further investigation or hearing is ordered, the Commission may decide the case itself or may refer the case to the same or another hearing officer for the purpose of taking additional evidence. If the case is referred to a hearing officer, he shall file another proposed decision.

REFERENCE: Education Code Sections 45260, 45261, 45305, and 45306 

19.5.20 DELIBERATION OF PERSONNEL COMMISSION: Whether the hearing before the Personnel Commission is held in open or closed session, the Commission, after it concludes the hearing, may deliberate its decision(s) in closed session. No persons other than members of the Personnel Commission, its legal counsel, and the Director-Personnel Commission, shall be permitted to participate in the deliberations. If the Director-Personnel Commission was the administrator initiating the disciplinary action, or if the Director acted on behalf of the Board of Education in the presentation of the case at any level of the appeal process, or if the Director served as a witness in the proceedings, the Director-Personnel Commission shall also be excluded from the Commission's deliberations.

REFERENCE: Education Code Sections 45260, 45261, 45266, and 45305

19.5.21 DECISION OF PERSONNEL COMMISSION: The Personnel Commission shall render its judgment as soon after the conclusion of the hearing as possible. The decision(s) of the Commission shall be in writing and shall set forth which charges, if any, are sustained and the reasons therefore.

19.5.21.1 The Commission's written decision(s) shall contain findings of fact, a determination of the issues presented, and the penalty imposed (if any). The findings may be stated in the language of the pleading or included by reference thereto.

19.5.21.2 If the disciplinary action is not sustained, the Commission's order shall set forth the effective date that the employee is to be restored or reinstated to his/her former position and/or status; such date to be set forth at any time on or after the date that the disciplinary action was invoked.

19.5.21.3 Copies of the Commission's decision(s) shall be delivered to the parties, their counsel or other representative personally or transmitted to them by Certified Mail Return Receipt Requested. The requirement for notification of the employee will be deemed to have been met if the decision is sent, Certified Mail, to the last known home address on file in the Human Resources Office. Failure of the employee to retrieve delivered mail, or respond to notifications by the U.S. Postal Service of attempted delivery shall not be grounds for voiding notification. For purposes of this Rule, if a notice is mailed, the second calendar day following the postmark date of the notice shall be considered to be the official date of receipt.

19.5.21.4 If the Commission either sustains a suspension or modifies a dismissal, or other disciplinary action, to a suspension, such days of suspension shall be served on working days in which the employee is normally assigned.

REFERENCE: Education Code Sections 45260 and 45261

19.5.22 BOARD SHALL COMPLY WITH COMMISSION DECISION: Upon receipt of the Commission's written decision the Board of Education shall forthwith comply with the provisions thereof. When the Board of Education has fully complied with the Commission's decision, it shall so notify the Commission in writing.

19.5.22.1 If the Board of Education fails and/or refuses to fully comply with the Commission's written decision(s) and order(s) as required by these Rules and Regulations and legal statutes, the Commission shall seek judicial action to ensure compliance.

REFERENCE: Education Code Sections 45260, 45261, and 45307

19.5.23 COMMISSION ACTION: The Personnel Commission may sustain or reject any or all of the charges filed against the employee. The Commission may sustain, modify, or reject the disciplinary action invoked against the employee. However, the Commission may not invoke more stringent discipline against the employee than that invoked by the Board of Education should it sustain any or all of the Board's charges.

REFERENCE: Education Code Sections 45260, 45261, and 45307

19.5.24 DECISION SHALL INCLUDE CONSIDERATION OF JUST SETTLEMENT: Following its determination of the facts and findings relative to the disciplinary action invoked against the employee, the Commission shall consider such other matters as it deems necessary and proper to effect a just settlement of the appeal, including, but not limited to:

19.5.24.1 The granting of seniority credit for any or all of the off-duty time pending restoration or reinstatement.

19.5.24.2 Expunge from the employee's personnel file and record any causes or charges that are not sustained by the Commission.

REFERENCE: Education Code Sections 45260, 45261, and 45307

19.5.25 OBTAINING COPIES OF THE HEARING TRANSCRIPT: The employee or his/her designated representative and the Board of Education or its designated representative may obtain a copy of the transcript under the following conditions:

19.5.25.1 The cost of the transcript and copies if requested, shall be born by the party making the request.

19.5.25.2 The request shall be in writing and a cash deposit made in an amount determined by the Director-Personnel Commission prior to preparation, which shall not be less than the estimated cost of transcribing the hearing record.

19.5.25.3 The final cost of the transcript shall be the actual cost of preparation plus the cost of making copies as determined by the Director-Personnel Commission.

19.5.25.4 The transcript shall only be released upon payment in full. When the deposit is greater than the actual costs of the document (including the making of copies), the remainder shall be refunded to the party.

REFERENCE: Education Code Sections 45260 and 45261

19.5.26 DISQUALIFICATION OF HEARING OFFICER OR COMMISSIONER: A hearing officer or Personnel Commission member shall voluntarily disqualify himself/herself and withdraw from any appeal in which he/she cannot accord a fair and impartial hearing or consideration. Any party may request the disqualification of any hearing officer or Personnel Commission member by filing an affidavit, prior to the taking of evidence at a hearing, stating with particularity the grounds upon which it is claimed that a fair and impartial hearing cannot be accorded.

19.5.26.1 If the Personnel Commission determines that there is sufficient grounds for disqualification, it may elect to disqualify the hearing officer or Personnel Commission member.

19.5.26.2 Where the disqualification request concerns a Personnel Commission member, the issue shall be determined by the other members of the Commission. However, no Commission member shall withdraw voluntarily or be subject to disqualification if his/her disqualification would prevent the existence of a quorum qualified to act in that particular appeal.

REFERENCE: Education Code Sections 45260 and 45261

19.5.27 COUNSEL FOR THE PERSONNEL COMMISSION: The Personnel Commission may seek and appoint legal counsel as part of its appeal and investigatory hearing duties. To avoid any conflict of interest, the legal counsel shall not be the same counsel representing the Board of Education, nor shall the Board and the Commission be represented by members of the same legal firm in a hearing held pursuant to these Rules and Regulations. All reasonable costs associated with the use of such legal counsel by the Personnel Commission in hearings shall constitute a legal charge against the Board of Educations' general funds, whether or not the money or costs for legal services appear in the Commission's budget.

REFERENCE: Education Code Sections 45260, 45261, and 45313

 

 

  
 
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