It is widely accepted that the time and cost to terminate a permanent certificated employee in California is excessive and presents an undue burden on public school employers. Accordingly, the Legislature is presently considering changes to the teacher termination process. While it is premature to speculate whether the changes under consideration will improve or further complicate the process, here is a brief overview of the existing process.
The termination of a permanent certificated employee is strictly by the Education Code. [Ed. Code §§ 44930, et seq.] The termination process is commenced serving a Notice of Intent to Dismiss. Generally, a Notice of Intent to Dismiss may not be filed between May 15 and September 15 of any school year. The employee has thirty (30) days from the date of service within which to request a hearing before a Commission on Professional Competence (“CPC”). If the employee requests a hearing, the employee must be served with an “Accusation” [Gov. Code § 11505] or the Board may elect to rescind its action. [Ed. Code § 44943.]
The CPC conducts the evidentiary hearing. The CPC consists of one member selected by the employee, one by the school district and an Administrative Law Judge (“ALJ”) appointed by the Office of Administrative Hearings. By law, the hearing is to be “commenced” within 60 days of the date of the employee’s request for a hearing, but hearings are customarily continued pending completion of pretrial proceedings. The hearing is conducted in accordance with rules prescribed under Administrative Procedures Act [Gov. Code §§ 11500, et seq.]. In addition, the employee is entitled to all the rights and duties of full civil discovery [Civ. Proc. Code § 2016.010]. [Ed. Code § 44944.] The decision of the CPC is deemed the final decision of the governing board. Either party may appeal the CPC’s decision to Superior Court. [Ed. Code § 44945.]
The causes for dismissal of a teacher are enumerated in Education Code section 44932(a). Absent a criminal conviction, the most common grounds for termination are:
1. Immoral or unprofessional conduct.
3. Unsatisfactory performance.
4. Evident unfitness for service.
5. Persistent violation of or refusal to obey the school laws of the state or reasonable regulation prescribed for by the government of the public schools by the State Board of Education or by the governing board of the school district employing him or her.
Although each of the above causes is an independent cause for dismissal, the determinative test is fitness to teach. The causes identified in the Education Code have been found to be so broad as and vague that, standing alone, they are deemed to be constitutionally deficient. Accordingly, the California Supreme Court has articulated several factors relevant to determining “fitness to teach.” [Morrison v. State Board of Education (1969) 1 Cal.3d 214.] The Morrision factors identified by the courts to determine whether a certificated employee is fit to teach include: (1) likelihood of recurrence of the questioned conduct; (2) extenuating or aggravating circumstances; (3) effect of notoriety and publicity; (4) impairment of teacher-student relationships; (5) disruption of the education process; (6) motive; (7) proximity or remoteness in time of conduct.
The Morrison factors have been applied to allegations of unprofessional conduct, immoral conduct, dishonesty, evident unfitness for service, and persistent violation or refusal to obey district regulations. While no reported case has specifically applied the Morrison factors to unsatisfactory performance, the weight of authority suggests the Morrison factors also apply to unsatisfactory performance.
The principal barrier to terminating a permanent certificated employee is the cost of protracted litigation. In our experience, the cost of terminating a certificated employee typically exceeds $100,000 for each party. Under California law, in addition to paying the costs of a hearing, the District must also pay the teacher’s legal fees and costs if the District does not prevail. These costs do not include the teacher’s salary and benefits pending trial. An unsuccessful teacher termination proceeding can easily end up costing a district more than $300,000. Thus, it is no surprise that most certificated employee dismissals result in a buy-out of the employee’s contract, rather than risk the costs of going to hearing.