OPED: HOW CALIFORNIA ADMINISTRATORS ABUSE THEIR AUTHORITY
(LEGAL LOOPHOLES) & WHY SCHOOL BOARDS CAN’T PROTECT TEACHERS
Many have asked why teachers have such a hard with mental health, sustaining employment in one district, professional support and other issues teachers face as educators. We must begin with the statutory scheme where administers derive their power…
Referring to Ca Code 3540.1(EERA) “Supervisory employee” means an employee, regardless of job description, having authority in the interest of the employer to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or the responsibility to assign work to and direct them, or to adjust their grievances, or effectively recommend that action, if, in connection with the foregoing functions, the exercise of that authority is not of a merely routine or clerical nature, but requires the use of independent judgment.”
The conflict. This arbitrary power given to administrators is not subject to an evidentiary standard. The standard comes from the decisional law Boliou v. Stockton Unified School District; 207 Cal.App.4th 170 (Cal. Ct. App. 2012) 143 Cal. Rptr. 3d 189.
What happens after a teacher is disciplined? In no uncertain terms the appeals court decreed that …“The question becomes what was required at that hearing. The governing statute explains what kind of testimony and evidence can be heard and taken at the hearing. (§ 44944, subd. (a)(5).) For example, witnesses must testify under oath or affirmation and testimony and evidence must relate to matters that occurred within four years of the date of the filing of the notice to suspend or terminate. ( Ibid.) However, there is nothing in the statutory scheme that requires an evidentiary hearing on the merits of the charges in the accusation. The most that can be said is the hearing had to be an “adjudicative proceeding.”
This edict conflicts with the protection that come from evidence code 300:
“Except as otherwise provided by statute, this code applies in every action before the Supreme Court or a court of appeal or superior court, including proceedings in such actions conducted by a referee, court commissioner, or similar officer, but does not apply in grand jury proceedings.”
Hearsay evidence (evidence code 1200) most often used to attack teachers but inadmissible in court is the loophole and and weapon used attack teachers in the Office of Administrative Hearings, Skelly proceedings, and the kangaroo courts of the Commission on Teacher Credentialing. So in effect teachers are guilty until proven innocent and not innocent until proven guilty.
This extends to the evaluation process in which content (i.e. evidence) can not be challenged by the teacher with the benefits of other teacher observers or Weingarten rights. Collective Bargaining provides no protection from this abuse.
In 1979, the employee friendly Rose Bird California State Supreme Court attempted to win evidence code statutory protections by interpreting California Education Code 44031(b)(1).(Miller v. Chico Unified School District (1979) 24 Cal.3d 703);
which stated that “Information of a derogatory nature shall not be entered into an employee’s personnel records unless and until the employee is given notice and an opportunity to review and comment on that information. The employee shall have the right to enter, and have attached to any derogatory statement, his or her own comments.”
Unfortunately this victory for teachers was short lived. It is normal practice by administrators to keep secret site files, discipline files, and other files against teachers without their knowledge. This material is in turn used to terminate teachers without due process and largely under false pretenses. Sadly the dissent by conservative Justice Clark lost the battle but won the war. He declared:
“The majority’s construction of section 44031 in reality tends to convert it into a rule of evidence. Section 44031 merely provides for rebuttal of information in personnel files. However, providing that a demotion is invalidated by consideration of unanswered non file material — such as the instant internal memoranda — establishes an evidentiary requirement.”
School Boards have no power stop this abuse. The statutory scheme under education code 44939 is setup to bypass the board review process entirely. Teachers must organize at their sites, unions, parents, and the state legislature to curb this abuse which was initially contrived under then Governor Reagan. A tragic exchange occurs when teachers walk into school sites on a daily basis. They give up their constitutional and due process rights in exchange for a job. Unknowing that abusive administrative with arbitrary powers is waiting for them. However, I am optimistic with political education to rank and file teachers this can be changed.
Brian Crowell; Advocate