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District Policies

Viewing Policy: SP 4218 Dismissal/Suspension/Disciplinary Action



                                                                                                                                          DISMISSAL/SUSPENSION/DISCIPLINARY ACTION

 

 

Termination of Probationary Employment

 

At any time prior to the expiration of the probationary period, the San Benito County Superintendent of Schools or designee may, at his/her discretion, dismiss a probationary classified employee from 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’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 Department, each of the following constitutes cause for personnel action against a permanent classified employee:

 

  1. Falsifying any information supplied to the Department, including, but not limited to, information supplied on application forms, employment records, or any other Department

 

  1. Incompetency or inefficiency in performance of job duties of his/her position.

 

  1. Abuse of sick leave.

 

  1. Neglect of duty.

 

 

 

  1. Drinking or possession 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.

 

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

 

 

 

DISMISSAL/SUSPENSION/DISCIPLINARY ACTION (continued)

 

 

  1. 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 A plea or verdict of guilty, or a conviction following a plea of nolo contendere, is deemed to be a conviction for this purpose.

 

  1. Absence without leave.

 

  1. Immoral conduct.

 

  1. Discourteous, offensive or abusive conduct or language toward the public, students, or other

 

  1. Improper political activity.

 

  1. Willful

 

  1. Misuse of Department

 

  1. Violation of Departmental, San Benito County Superintendent of Schools or San Benito County Board of Education rule, policy, or

 

  1. Failure to possess or keep in effect any license, certificate, or other similar requirement specified in the employee’s classification or otherwise necessary for the employee to perform the duties of the position.

 

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

 

  1. A physical or mental disability which renders the employee incapable of performing the essential functions of his/her position with or without reasonable accommodation.

 

  1. Unlawful discrimination, including harassment, on the basis of race, religious creed, color, national origin, ancestry, disability, marital status, sex, age, or any other legally protected characteristic, against the public or other employees while acting in the capacity of a Department

 

 

 

DISMISSAL/SUSPENSION/DISCIPLINARY ACTION (continued)

 

 

  1. Unlawful retaliation against any other Department 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.

 

  1. Any other failure of good behavior either during or outside of duty hours which is of such a serious nature that it causes discredit to the Department or his/her

 

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 Department.

 

  1. Informal Conference or “Skelly Meeting”

 

An employee against whom disciplinary action may be taken, may meet with the Department’s Skelly Officer prior to the service of the notice of official charges as provided for below.  The employee shall be informed in writing of the reasons for the proposed personnel action and of the recommended personnel action to be taken and be given an opportunity to orally respond.  The employee may be represented at the conference by a representative of his/her choice.  If after the informal conference the Skelly Officer determines that the employee should be subject to discipline, the employee shall be served with a formal notice of disciplinary action.

 

  1. Initiation and Notification of Charges

 

 

In all cases involving a personnel action, the Department staff member initiating the personnel action, referred to herein as the “Complainant”, shall file a written recommendation of personnel action with the County Superintendent. A copy of the Complainant’s 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.  If the notice of discipline is served by mail, the employee shall receive an additional five days to request a hearing.  The recommendation shall include:

 

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

 

  1. A statement of the cause or causes for the personnel action, as set forth above.

 

  1. A statement of the specific acts or omissions upon which the causes are If a violation of rule, policy, or regulation of the Department is alleged, the rule, policy, or regulation violated shall be stated in the recommendation.

 

DISMISSAL/SUSPENSION/DISCIPLINARY ACTION (continued)

 

  1. A statement of the employee’s right to appeal the recommendation and the manner and time within which the appeal must be filed.

 

  1. A card or paper, the signing and filing of which shall constitute a demand for hearing and a denial of all charges.

 

  1. 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 Complainant recommends that a permanent classified employee should be dismissed and determines 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 recommendation of dismissal at least five calendar days before the effective date of any order of suspension issued in conjunction with a recommendation involving dismissal. This notice shall state that immediate suspension without pay is being considered, the reasons for the proposed dismissal and proposed immediate suspension without pay, materials upon which the proposed action is based, and the employee’s right to respond to the County Superintendent in writing before the final recommendation and order are issued.

 

 

  1. Right to Appeal

 

Within five calendar days after receiving the recommendation of 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.

 

 

 

DISMISSAL/SUSPENSION/DISCIPLINARY ACTION (continued)

 

 

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 a recommendation of dismissal, any appeal of the recommendation of dismissal shall also constitute an appeal of the suspension order, and the necessity of the order shall be an issue in the appeal hearing.

 

A timely and complete filing of a notice of appeal shall constitute a demand for hearing and a denial of the charges.

 

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 may order the recommended personnel action into effect immediately.

 

  1. Amended/Supplemental Charges

 

At any time before an employee’s appeal is submitted to the County Superintendent or to a hearing officer for final decision, the complainant may, with the consent of the County Superintendent or hearing officer, serve on the employee and file with the County Superintendent 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.

 

  1. Hearing Procedures

 

  1. The hearing shall be held at the earliest convenient date, taking into consideration the established schedule of the County Superintendent or hearing officer and the availability of counsel and 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 complainant may also be represented by counsel. The procedure entitled “Administrative Adjudication” commencing with Government Code 1150 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 Superintendent.

 

 

 

 

DISMISSAL/SUSPENSION/DISCIPLINARY ACTION (continued)

 

 

  1. 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 In any case in which the County Superintendent hears the appeal, the County Superintendent may use the services of Department 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 recommended personnel action.

 

  1. 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 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:

 

  • Adopt the proposed decision in its entirety.

 

  • Reduce the personnel action set forth in the proposed decision and adopt the balance of the proposed decision.

 

  • 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.

 

  • Reject the proposed decision in its entirety.

 

  1. 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 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.

 

 

 

DISMISSAL/SUSPENSION/DISCIPLINARY ACTION (continued)

 

 

  1. 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 and admitted into evidence at the hearing.

 

  1. 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.

 

The decision of the County Superintendent shall be certified, 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 registered mail. The decision of the County Superintendent shall be final.

 

  1. Compulsory Dismissal

 

The Department 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 Department 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 is acquitted or charges against him/her are dismissed except as otherwise provided below, the employee may be reemployed by the Department, although reemployment is not a guarantee.  (Education Code 45123)

 

The Department 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.

 

 

 

DISMISSAL/SUSPENSION/DISCIPLINARY ACTION (continued)

 

  1. Extension of Compulsory Leave

 

Whenever a classified employee is charged with a mandatory leave of absence per Education Code 44940, the County Superintendent 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, including any posting of a suitable bond or other security acceptable to the County Superintendent, shall be made in accordance with law.  (Education Code 44940, 44940.5, 45304)

 

  1. Egregious Conduct

 

An administrative law judge shall determine whether sufficient cause exists to discipline a classified employee whenever an allegation involves egregious conduct with a minor.  (Education Code 44932, 44990, 45113)  Any hearing conducted by the administrative law judge shall be done in a manner to protect the rights of any minor witness, the accused, and the integrity of the judicial process. In such a proceeding, the administrative law judge may order the testimony of a minor to be taken without the accused present per the procedures prescribed in Education Code 44991.

 

 

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

44990-44994 Testimony of minor witnesses

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)