Human Resources Academy II for Community College Districts

Section 87679 sets forth the nature of the administrative law judge’s proceedings and the scope of discovery. Any discovery must be completed at least one week prior to the scheduled hearing date. The hearing proceeds pursuant to the Administrative Procedures Act (“APA”), with some modifications. The governing board’s written statement of decision to dismiss or penalize, delivered to the employee pursuant to Education Code Section 87672, is deemed the board’s “accusation.” (An “accusation” is the document required under the APA to initiate an action.) Similarly, the employee’s written objection, delivered pursuant Education Code Section 87673, is deemed the employee’s “notice of defense”—the “answer” required under the APA. 53 Witness testimony at the hearing must be upon oath or affirmation. Moreover, as noted above, testimony and other evidence introduced must be limited to matters occurring within f our years prior to the filing of the notice. Evidence of records regularly kept by the governing board concerning the employee may be introduced, but again, no decision relating to the dismissal or suspension of any employee may 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. 54 If the administrative law judge finds there is cause to dismiss or penalize the employee, the judge must determine whether the employee should be dismissed and determine the precise penalty to be imposed, and whether this decision should be imposed immediately or postponed under the conditions set forth in Education Code Section 87672. 55 If the administrative law judge decides that the decision should be postponed, any question of terminating the postponement must be determined by the judge. 56 Any charges levied by the Office of Administrative Hearings must be paid by the district. 57 The administrative law judge’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 . 58

L AYOFFS OF A CADEMIC E MPLOYEES

Section 6

A. G ROUNDS FOR A CADEMIC L AYOFFS The Education Code permits districts to implement a layoff of academic employees upon one of two grounds: a response to a decline in enrollment (“ADA layoff”), 59 or to effect a reduction or discontinuance of a particular kind of service (“PKS layoff”). 60 ADA layoffs are based upon difficult calculations that invite inadvertent errors that can invalidate the layoff. Because a decline in enrollment provides a legitimate basis for implementing a PKS layoff, districts will generally be better off implementing a PKS layoff. Liebert Cassidy Whitmore recommends community college districts never attempt an ADA layoff, but instead utilize the PKS layoff grounds and procedures. To implement a PKS layoff, the district should describe the PKS being eliminated with sufficient specificity to alert those employees who may be affected. The district

Human Resources Academy II for Community College Districts ©2019 (c) Liebert Cassidy Whitmore 37