Name that Section - Frequently Used Education Code and Title 5 Sections for Community College Districts

Name that Section: Frequently Used Education Code and Title 5 Sections for Community College Districts

In the latter case, the governing board has the authority to determine the type and manner of

presentation of the evidence. The governing board’s determination as to whether or not the

person has been rehabilitated is final.

b. Employment of Sexual Psychopaths

As with academic employees, the Education Code prohibits employing or retaining in

employment any classified employee, “who has been determined to be a sexual psychopath,”

pursuant to Section 5500 of the Welfare and Institutions Code, or similar provisions of law of

any other state.

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The section does not apply, however, if the determination is reversed and the

person is determined

not

to be a sexual psychopath in a new proceeding, or the proceeding is

dismissed.

c. Compulsory Leave of Absence upon Being Charged with Sex or Controlled

Substance Offense

In conjunction with the mandatory termination of employees

convicted

of sex or controlled

substance offenses, the Education Code permits

merit

districts to place non-academic employees

charged with these offenses on a compulsory leave of absence, “for a period of time extending

for not more than 10 days after the date of the entry of the judgment in the proceedings.”

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The

compulsory leave may be extended beyond the 10 days by serving upon the employee, within the

10 days, notice that the employee will be dismissed in 30 days unless the employee demands a

hearing.

Compulsory leave under this section is unpaid, unless the employee posts a bond. If the

employee is subsequently acquitted, or the charges dismissed, the district must reimburse the

employee for the cost of the bond (if posted) or pay the employee for the period of absence. The

duty to reimburse does not apply, however, if the district seeks to reinstate the acquitted

employee, and he or she fails or refuses to return to work.

Districts should note that nothing in this section precludes serving the employee with a Notice of

Intent to Dismiss if the employee is acquitted. Conviction of a crime requires proof “beyond a

reasonable doubt.” Thus, a district may have sufficient evidence of conduct warranting dismissal

(i.e. a preponderance of the evidence) although there was insufficient evidence to convict. Note,

however, that the district would have to establish grounds to dismiss.

On its face, this part of the Education Code only refers to merit systems.

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There is no

counterpart section for non-merit systems. However, there is no provision in the non-merit

system that would prevent a non-merit district from placing an employee on unpaid leave who

was charged with an enumerated sex or controlled substance offense. We believe non-merit

systems may do so. While there is no case law authorizing a non-merit system to place such an

employee on unpaid leave, Liebert Cassidy Whitmore has argued this successfully in at least one

administrative action.