January 2018 Newsletter – Community College Districts

Changes to Involuntary Paid Leaves for Community College Faculty

California community college academic employees just got a due-process boost. A recently signed law has expanded the principles in the landmark Skelly case, which provided public employees notice and an opportunity to respond to allegations against them. (Skelly v. State Personnel Board (1975) 15 Cal.3d 194.) Previously, an academic employee’s placement on paid administrative leave did not trigger due process protections. However, in drafting Assembly Bill 1651, the author noted that “an increasing number of community college professors are being disciplined by placing them on paid administrative leave without being notified of the accusations against them.” The author further noted that “district administrators [were] not required to provide evidence or access to the evidence,” effectively placing faculty in limbo. In its analysis of the Bill, the Senate Committee on Education remarked that, despite the anecdotes of the author, “it is unclear how prevalent instances of community college faculty being disciplined through paid administrative leave without notification are.” (S. Comm. Education (June 21, 2017).) Whether a widespread problem or not, Governor Brown approved the bill on October 13, 2017.

Paid administrative leave is defined to mean a temporary leave with all pay and benefits intact. (Educ. Code § 87623(d).) A.B. 1651 should apply to all “academic employees” of a community college, including faculty members teaching both credit and noncredit courses, librarians, counselors, EOPS and DSPS workers, and apprenticeship instructors, among others. (See Educ. Code § 87001; 87356.) There is no corresponding protection provided for K-12 academic employees or classified employees.

Notice Requirement

The new law imposes on Districts an affirmative duty to provide notice to affected employees, requiring community college academic employees subject to accusations of misconduct be provided with written notice at least two (2) days before the District may place the employee on involuntary paid administrative leave.

While a previous version of the bill required “copies” of allegations to be furnished to employees, concerns about disclosing the identity of the accuser and details that may be used to intimidate the victim or lead to the destruction of evidence caused the legislature to amend the bill to require only that notice must set forth the “general nature” of the allegation(s) against the employee that led to the decision to place them on leave. (Educ. Code § 87623(a).)

Length of Leave

A District may place an academic employee on involuntary paid administrative leave for up to 90 days. (Educ. Code § 87623(c).) During this period, the District should be investigating accusations of misconduct and gathering evidence to support whatever disciplinary action may be necessitated on the facts. Once the statutory 90-day period has lapsed, the District must either initiate discipline or reinstate the employee.

Safety Exception

Because the District may need to act promptly to preserve the health and safety of students, employees, or the public, the law has a built-in safety exception that allows Districts to immediately place an employee on involuntary leave if allegations against them indicate the employee may present a “serious risk of physical danger,” to be determined case-by-case. (Educ. Code § 87623(b).) An employee placed on immediate leave under this provision must be given written notice of the allegations against them within five (5) business days of being placed on involuntary paid leave. The 90-day period is triggered on the first day of the involuntary leave.

If you have any question or concerns, or if you wish to further discuss any of these issues, please feel free to contact our law firm.

For more information regarding this article, please contact Joshua Taylor at jtaylor@ericksonlaw.com. For questions in general regarding this newsletter, please contact Kristina Limon at klimon@ericksonlaw.com.

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This publication was prepared solely for information purposes and should not be construed to be legal advice. If you would like further information on this matter, please contact our office.

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