Notification, Evaluation, Discipline and Dismissal of Employees
Employee discipline should include efforts to notify the employee of poor performance or conduct. While such notification may cause an employee to improve, it also serves the purpose of documenting the course of poor performance or conduct. Notes and memoranda of employee incidents or conferences, classroom or workplace observations, written reprimands and regular or special evaluations are all examples of such efforts. Except in cases involving extreme misconduct or violations of law, administrators faced with dismissing an employee should be able to show evidence that poor performance or conduct was pointed out to the employee and that disciplinary efforts short of dismissal have failed to bring about improvement or correction.
The utility of thorough documentation is obvious to any administrator whose dismissal decision is later challenged and tested in court. Before dealing with evaluation procedures and with personnel files, this memorandum will discuss the concept of due process, which is usually featured in any court challenge. Both classified and certificated employees are entitled to due process before they are subjected to discipline or dismissal. In most cases, this due process includes the right to a hearing.
All references in the paragraphs below are to the Education Code, and districts should consult the full text of the sections cited.
Right to a Hearing
A hearing is required by statute (if requested by the employee) for the dismissal of probationary or permanent certificated employees (Education Code Sections 44943, 44948.3, 44949, 44955, 87674). A hearing is also required (on request) for the discipline or dismissal of permanent classified employees (Sections 45113, 88013). Multi-year K 12 administrators are not entitled to a hearing upon reassignment for the following years. Community college administrators are not entitled to a hearing upon 90-day notice of reassignment.
Probationary classified employees and temporary and substitute certificated employees are not entitled to a hearing. Permanent classified employees are entitled to a hearing if they are transferred (demoted) to a lower classification as a disciplinary matter.
Pre-Hearing Due Process
In some cases, it may be insufficient to discipline or dismiss an employee initially and then give the employee a right to his first “hearing” on appeal. School administrators should be aware of the decision of the California Supreme Court in Skelly v. State Personnel Board (1975) 15 Cal.3d 194, 124 Cal.Rptr. 14. In that case, involving the dismissal of a doctor from permanent state civil service employment, the court held that the United States Constitution requires the following pre-removal protection: “notice of the proposed action, the reasons thereof, a copy of the charges and materials upon which the action is based, and the right to respond, either orally or in writing, to the authority initially imposing discipline.” (15 Cal.3d 215.)
It is uncertain how far Skelly must be applied in various categories of employee discipline or dismissal. However, it is a relatively simple matter to provide an adequate level of due process in each case. The essence of the Skelly decision is that each employee who has an ultimate right to a hearing (see discussion above) should be advised of the intention to discipline or dismiss him by the person who has the authority to impose that punishment, before the action is taken. The employee should have an opportunity to explain his conduct and comment on the proposed discipline.
This meeting is an informal “hearing” and does not require that the employee be permitted to confront and cross-examine persons who have provided information against him. However, the employee should have the opportunity to present his side of the story before being forced to appeal to the school board or, in the case of certificated employees, the hearing officer or Commission on Professional Competence. The employee has the right to union representation at this informal “hearing.”
The pre-disciplinary right to respond to proposed action is a matter of fundamental fairness but need not become a burden on the district. Any such meeting (or offer of an opportunity to participate in a meeting) should be documented in writing. No meeting is required where immediate suspension is necessary for the good of the district.
Discipline Short of Dismissal
A. Certificated Employees in K-12 Districts
In K-12 districts and county offices, permanent certificated employees are subject to suspension for unprofessional conduct without pay in one of two (mutually exclusive) ways: (1) according to a negotiated procedure; or (2) with notice and a right to a hearing before Commission on Professional Competence.
In K-12 districts and county offices of 250 ADA or more, probationary certificated employees initially employed on or after July 1, 1983 are subject to suspension without pay with notice and a right to a hearing before the governing board within 30 days. There is no express authority to suspend probationary employees hired on or before July 1, 1983, or probationary employees in districts of less than 250 ADA.
B. Community College District Certificated Employees
Contract and regular certificated employees may be suspended (with or without reduction or loss of pay) for up to one year. Such suspensions are subject to the employee’s right to have the matter heard by an arbitrator or administrative law judge whose decision is subject to judicial review. (Sections 87668-87683.)
C. Classified Employees in K-12 and Community College Districts and County Offices
There is no express authority to discipline probationary classified employees. However, any reasonable discipline which affects due process and which is consistent with established policies (including those of a Personnel Commission) and with the collective bargaining agreement will be upheld.
Permanent classified employees may be disciplined only in accordance with policies adopted by the board, county superintendent or Personnel Commission. These policies must specify the causes for discipline and must grant the right to a hearing. We will provide sample policy language or review your policies on request.
Different procedures for dismissal of different classes of employees have evolved over time. These procedures are set forth in various Education Code sections.
Permanent Certificated Employees in K-12 Districts
Grounds for dismissal for cause are set forth in Section 44932. In addition, a permanent certificated employee may be dismissed on charges of unprofessional conduct, but only if instances of behavior are specified (Section 44933) and only if the governing board has given written notice of these specific instances at least 45 calendar days prior to the date of filing such charges. (Section 44938.)
Incompetency is one of the grounds set forth in Section 44932, but Section 44938 requires that the governing board give written notice of specific instances at least 90 calendar days prior to the date of filing such charges. If the governing board has given such notice before the beginning of the last quarter of the school year, it may act during the last quarter, even though there has not been 90 days’ notice.
Written charges are filed with or formulated by the governing board under Section 44934, which provides that the board may give notice of its intention to dismiss the employee 30 days from the date of service of such notice, unless the employee demands a hearing. While charges may be filed or formulated at any time, the notice of intention to dismiss shall not be given between May 15 and September 15 in any year.