Human Resources Academy II for Community College Districts

Generally, the four-year time limit still applies as a matter of law. The Atwater case provides that equitable estoppel may apply in a given case for particular reasons “wholly independent” of this general rule. Therefore, districts should accurately and timely document, assess and act on misconduct, and not allow problems to fester. This will prevent “stale evidence” problems and encourage core elements of effective management practices.

H. H EARING R IGHTS : A RBITRATOR OR A DMINISTRATIVE L AW J UDGE

1. A RBITRATOR Education Code Section 87674 provides that within 30 days of the district governing board’s receipt of the employee’s demand for a hearing, the employee and governing board shall agree on an arbitrator to hear the matter. This agreement must be confirmed in writing and entered into the governing board’s records. Upon entry of the confirmation, the arbitrator assumes complete and sole jurisdiction over the matter. Section 87675 sets forth the nature of the arbitration proceedings and the scope of discovery. Any discovery must be completed at least one week prior to the scheduled hearing date. Witness testimony must be upon oath or affirmation. Evidence of records regularly kept by the governing board concerning the employee may be introduced, but no decision relating to the dismissal or suspension of any employee shall be made based on charges or evidence of any nature relating to matters occurring more than four years prior to the filing of the notice. 47 At the hearing, the arbitrator decides whether there is cause to dismiss or penalize the employee. If the arbitrator finds cause, the arbitrator must determine whether the employee should be dismissed, the precise penalty to be imposed, and whether the decision should be imposed immediately or postponed. 48 If the arbitrator decides that the decision should be postponed, any question of terminating the postponement must be determined by the arbitrator. 49 The district alone bears the costs of the arbitrator’s fees and expenses as well as the “costs of proceedings” as determined by the arbitrator. Such costs do not include any expenses paid by the employee for his or her counsel, witnesses, or the preparation or presentation of evidence on his or her behalf. 50

The arbitrator’s decision may be appealed by either the district governing board or the employee to a court of competent jurisdiction. Such a court reviews the evidence de novo . 51

2. A DMINISTRATIVE L AW J UDGE If the employee and district governing board fail to submit to the secretary of the governing board a written confirmation of an agreed-upon arbitrator within 30 days of the district governing board’s receipt of the employee’s demand for a hearing, the governing board is required to certify the matter to the Office of Administrative Hearings (“OAH”) and request the appointment of an administrative law judge. 52

Human Resources Academy II for Community College Districts ©2019 (c) Liebert Cassidy Whitmore 36