San Carlos ESD | AR 4218 Personnel
Dismissal/Suspension/Disciplinary Action Of Unrepresented Classified Employees (For Unrepresented Non-Management, Supervisory or Confidential Employees)
Scope of This Regulation
This regulation applies to classified employees who are not covered by a collective bargaining agreement. It does not apply to classified managers, supervisors or confidential employees who are covered by a separate policy or regulation, to any employee who is deemed to be part of classified senior management as provided by Education Code 45100.5 and 45108, or to any classified employee whose employment is governed by the terms of a written employment contract pursuant to Education Code 45031. As used in this regulation classified employee means an employee who is a member of the classified service as set forth in Education Code 45103.
Termination of Probationary Employment
At any time prior to the expiration of the probationary period, the Superintendent or designee may, at his/her discretion, dismiss a probationary classified employee from district employment. A probationary employee shall not be entitled to notice or a hearing.
Involuntary Suspension Without Pay, Demotion, Reduction of Pay Step in Class, Dismissal, or Other Personnel Action of Permanent Classified Employees
Permanent classified employees shall be subject to personnel action only for cause. The Governing Board's determination of the sufficiency of the cause for disciplinary action shall be conclusive. For purposes of this regulation, personnel action includes suspension without pay, demotion, reduction of pay step in class, involuntary reassignment in which the employee is deprived of any classification or any incident of any classification in which he or she has permanence, and dismissal. Disciplinary action which does not involve a loss of pay, benefits, or classification (for instance, a letter of reprimand) is not subject to this regulation.
In addition to any disqualifying or actionable causes otherwise provided for by law or by policy or regulation of this district, each of the following constitutes cause for personnel action against a permanent classified employee:
a. Falsifying any information supplied to the school district, including, but not limited to, information supplied on application forms, employment records, or any other school district records
d. Neglect of duty
g. Drinking alcoholic beverages on school grounds or while on duty, or in such close time proximity to being on duty as to create a detrimental effect upon the employee's job performance or otherwise create an unsafe or harmful situation for others
(cf. 4020 - Drug and Alcohol-Free Workplace)
h. Possessing or being under the influence of a controlled substance at work, other than one prescribed by a licensed health care provider, or furnishing a controlled substance to a minor
i. Conviction of a felony, conviction of any drug or 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. Excessive absence or tardiness, absence without leave or proper notification, and/or abuse of leave privileges
k. Immoral conduct indicating the employee's unfitness to serve in his or her position
l. Discourteous treatment of the public, students, or other employees
m. Improper political activity or conflict of interest
n. Willful disobedience
o. Theft, destruction, or misuse of district property
p. Violation of district, Board 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. For employees who drive a vehicle in the regular course of their employment, failure to satisfy the insurability requirements of the district's insurance carrier under the district's regular insurance policies. The district's ability to obtain insurance for the employee under a high risk policy or any policy other than the regular insurance policies does not mitigate this failure
s. A physical or mental disability which precludes the employee from the proper performance of the essential duties of his/her job as determined by competent medical authority, except as otherwise provided by law
t. Unlawful discrimination, including harassment, on the basis of race, religious creed, color, national origin, ancestry, physical handicap, marital status, sex, sexual orientation, gender identity or expression, age or any other basis prohibited by law, against students, the public or other employees while acting in the capacity of a district employee
u. Retaliation against any other district officer or employee, student, 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 district 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 recommendation of personnel action unless this cause was concealed or not disclosed by the employee when it could be reasonably assumed that the employee would have disclosed the facts to the district.
2. Initiation and Notification of Charges
The 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 Board. A copy of the recommendation shall be served upon the employee either personally or by registered or certified mail, return receipt requested, at the employee's last known address. The recommendation shall include:
a. A statement of the nature of the personnel action (suspension without pay, demotion, reduction of pay step in class, reassignment, 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 district 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 Superintendent or designee determines that personnel action should be taken against a permanent classified employee and that his/her continuing in active duty status would present an unreasonable risk of harm to students, staff, or property while proceedings are pending, the Superintendent or designee may order the employee immediately suspended from duty without pay in conjunction with the recommendation of personnel action. For example, the Superintendent or designee could order that the employee subject to a proposed dismissal be immediately suspended without pay pending final action on the dismissal. The 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 Superintendent or designee shall give the employee written notice of the order of suspension at least five calendar days before the effective date of the order of suspension. This notice shall state that immediate suspension without pay is being considered, the reasons for the proposed personnel action and proposed immediate suspension without pay, the materials upon which the proposed action is based, the employee's right to respond to a review officer designated by the district orally or in writing before the final recommendation and order are issued, and the employee's right to representation in this process. Nothing in this regulation shall prohibit the Superintendent or designee from placing an employee on paid administrative leave at any time, which shall not be considered disciplinary.
4. 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 Superintendent or designee during normal work hours of that office. A notice of appeal may be mailed to the office of the Superintendent or designee but must be received or postmarked no later than the time limit stated herein. In cases where an order of suspension without pay has been issued in conjunction with a recommended personnel action, any appeal of the recommended personnel action shall also constitute an appeal of the suspension order, and the necessity of the order shall be an issue in the appeal hearing. However, such an appeal shall not prevent the district from continuing to implement the suspension while the appeal is pending.
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 Board may order the recommended personnel action into effect immediately.
5. Amended/Supplemental Charges
At any time before an employee's appeal is finally submitted to the Board or to a hearing officer for decision, the Superintendent or designee may, with the consent of the Board or hearing officer, serve on the employee and file with the Board an amended or supplemental recommendation of 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.
6. Hearing Procedures
a. The hearing shall be held at the earliest convenient date, taking into consideration the established schedule of the Board or hearing officer and the availability of the parties, 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. When the Board is hearing the appeal, the employee shall be entitled to a public hearing if he/she demands it. The employee shall be notified of his or her right to have the hearing held in open session. Unless the employee makes a demand to have the hearing in open session at least four days prior to the scheduled hearing date, the hearing before the Board shall be held in closed session. At the hearing, the Superintendent or designee 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 Board or a hearing officer. Neither the Board 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 Board
b. If the Board hears the appeal, the Board may use the services of its counsel or a hearing officer in ruling upon procedural questions, objections to evidence, and issues of law. The Board, with or without the assistance of its counsel or a hearing officer, may take appropriate steps to organize or control the proceedings, including for example, clarifying the issues to be addressed, resolving issues regarding the presentation of evidence or argument, and placing reasonable time limits on the hearing. If the appeal is heard by the Board, the Board shall affirm, modify or revoke the recommended personnel action
c. If a hearing officer hears the appeal, a copy of the proposed decision shall be received and filed by the Board and furnished to each party within ten days after the proposed decision is filed by the Board. The Board 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 Superintendent or designee or any lesser penalty, and adopt the balance of the proposed decision
(4) Reject the proposed decision in its entirety
d. If the Board rejects the proposed decision in its entirety, each party shall be notified of such action and the Board may reconvene and 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 #6c 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 with the Board
e. In arriving at a decision or a proposed decision on the propriety of the proposed personnel action, the Board or the hearing officer may consider any relevant evidence introduced at the hearing, including evidence of any prior disciplinary action against the employee. The district shall not be limited to introducing written evidence that is contained in the employee's personnel file. The district shall not rely on any document in the file of a derogatory nature as to which the employee was not provided notice and an opportunity to review and comment. Nothing in this subparagraph shall preclude the district from relying on any relevant non-documentary evidence as to any incidents or events
7. Hearing Decision
The decision of the Board 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 Board shall be certified to the Superintendent or designee who recommended the personnel action, and he/she shall enforce and follow this decision. A copy of the decision shall be delivered to the employee or his/her designated representative personally or by registered or certified mail. The decision of the Board shall be final.
8. Compulsory Dismissal
The district 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 district may employ a person convicted of a controlled substance offense if the Board determines from the evidence it requires that the person has been rehabilitated for at least five years. If any conviction requiring dismissal is reversed and the person acquitted or charges dismissed, the employee may be reemployed by the district, although reemployment is not a guarantee. (Education Code 45123).
The district reserves the right to dismiss or take other disciplinary action against an employee for any acts upon which the original criminal charges were based, despite the disposition by the courts. If the district seeks suspension and/or dismissal and such action is upheld, an employee will not be reemployed or compensated for the time he/she was on unpaid leave pending disposition of the criminal action unless otherwise required by law. An employee shall be given notice of the possibility of not being reimbursed during mandatory unpaid leave if he/she is ultimately suspended or dismissed for the acts upon which the original charges were based.
9. Judicial Review
Any action in court regarding any personnel action subject to this regulation shall be filed, if at all, within ninety (90) calendar days of the date the Board renders a final decision on the matter. If such action is not filed within ninety (90) days, then no action thereafter shall be filed.
Regulation SAN CARLOS ELEMENTARY SCHOOL DISTRICT
approved: September 11, 2014 San Carlos, California