Human Resources Academy II for Community College Districts

B. T HE 90-D AY N OTICE : P REREQUISITE TO C HARGING U NPROFESSIONAL C ONDUCT OR U NSATISFACTORY P ERFORMANCE Education Code section 87734 provides that, prior to discipline for unprofessional conduct or unsatisfactory performance, the employee must receive a notice of the conduct at least 90 days prior to the discipline, and be given an opportunity to improve. Further, the “90-day notice” must have been provided to the employee during the preceding term, or half college year, prior to the date of filing of any charges. This 90-day notice is not required prior to initiating serious discipline on the basis of any of the other enumerated, statutory grounds. The 90-day notice must be accompanied by the employee’s most recent evaluation, or it is fatally defective , and does not satisfy the 90-day notice prerequisite to issuing charges of unprofessional conduct or unsatisfactory performance. Additionally, the 90-day Notice must set out with particularity what the employee must do to correct his or her faults and overcome the grounds for the charge. The 90-day Notice also serves as an early draft of the Statement of Charges to be provided to the employee. C. I MMORAL C ONDUCT Academic employees may also be dismissed for “immoral conduct” and employees so charged are not entitled to a prior 90-day Notice. However, the mere fact that a teacher has committed an allegedly immoral act is not, by itself, a sufficient basis for discharge. Rather, the conduct must indicate the employee’s unfitness to teach. Thus, a district charging an employee with immoral conduct must both prove the conduct by a preponderance of the evidence, and demonstrate a nexus between the conduct and the employee’s ability to do his or her job. The California Supreme Court, in Morrison v. State Board of Education , has set forth the factors to be considered in deciding whether a teacher’s immoral conduct indicates his or her unfitness to teach: 37

 Likelihood that conduct adversely affected students or fellow teachers;

 Proximity or remoteness in time of conduct to disciplinary action;

 Type of teaching certificate possessed by teacher;

 Extenuating or aggravating circumstances;

 Praiseworthiness or blameworthiness of motives resulting in teacher’s conduct;

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Likelihood of recurrence of conduct;

 Extent to which disciplinary action would have chilling effect on constitutional rights of teachers;

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Effect of notoriety and publicity;

 Impairment of teacher-student relationships; and

Human Resources Academy II for Community College Districts ©2019 (c) Liebert Cassidy Whitmore 33