116564-2:n:01/20/2010:KMS/tan LRS2010-406R1
| SYNOPSIS: | This bill would authorize the immediate termination of the employment of any employee on nonprobationary status convicted of a felony or of a sex offense involving a child, would provide for a pretermination hearing before the local board of education, and would restrict the use of testimony offered in employment termination hearings in related criminal proceedings. |
Relating to public K-12 education; to amend Sections 36-26-102, 36-26-103, 36-26-104, and 36-26-114, Code of Alabama 1975, relating to the fair dismissal law; to authorize the immediate termination of the employment of any nonprobationary employee convicted of a felony or of a sex offense involving a child; to provide for a pretermination hearing before the local board of education; and to restrict the use of testimony offered in employment termination hearings in related criminal proceedings.
BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:
Section 1. Sections 36-26-102, 36-26-103, 36-26-104, and 36-26-114 of the Code of Alabama 1975, are amended to read as follows:§36-26-102.
"(a) Upon the completing by the employee of said the probationary period, said the employee shall be deemed employed on a nonprobationary status and said the employee's employment shall thereafter not be terminated except for failure to perform his or her duties in a satisfactory manner, incompetency, neglect of duty, insubordination, immorality, justifiable decrease in jobs in the system, or other good and just causes; provided, however, such termination cause. Termination of employment shall may not be made for political or personal reasons on the part of any party recommending or voting to approve said termination.
"(b) The employment of an employee, whether or not the employee is on nonprobationary status, may be terminated by majority vote of the local board of education upon conviction of the employee of a felony or upon entry of a plea of guilty or nolo contendere by the employee in any court to a felony charge under federal or state law if the felony constitutes a crime of moral turpitude, or upon conviction of the employee or upon entry of a plea of guilty of the employee to any of the following charges:
"(1) Rape in the first or second degree, pursuant to Section 13A-6-61 or 13A-6-62.
"(2) Sodomy in the first or second degree, pursuant to Section 13A-6-63 or 13A-6-64.
"(3) Sexual torture, pursuant to Section 13A-6-65.1.
"(4) Sexual abuse in the first or second degree, pursuant to Section 13A-6-66 or 13A-6-67.
"(5) Enticing a child to enter a vehicle, room, house, office, or other place for immoral purposes, pursuant to Section 13A-6-69.
"(6) Promoting prostitution in the first or second degree, pursuant to Section 13A-12-111 or 13A-12-112.
"(7) Violation of the Alabama Child Pornography Act pursuant to Section 13A-12-191, 13A-12-192, 13A-12-196, or 13A-12-197.
"(8) Kidnapping a minor, except by a parent, in the first or second degree, pursuant to Section 13A-6-43 or 13A-6-44.
"(9) Incest, pursuant to Section 13A-13-3, when the offender is an adult and the victim is a minor.
"(10) Transmitting obscene material to a child by computer, pursuant to Section 13A-6-111.
"(11) Facilitating solicitation of unlawful sexual conduct with a child, pursuant to Section 13A-6-121.
"(12) Electronic solicitation of a child or facilitating the online solicitation of a child, pursuant to Section 13A-6-122 or 13A-6-123.
"(13) Traveling to meet a child for an unlawful sex act or facilitating the travel of a child for an unlawful sex act, pursuant to Section 13A-6-124 or 13A-6-125.
"(14) Any solicitation, attempt, or conspiracy to commit any of the offenses listed in subdivisions (1) to (13), inclusive.
"(15) Any crime committed in any state or a federal, military, or foreign jurisdiction which, if committed in this state under the law existing at the time of the offense, would constitute an offense listed in subdivisions (1) to (13), inclusive.
"(16) Any criminal sex offense in which the victim is a child under the age of 12 or any offense involving child pornography.
"(17) Any crime committed in any jurisdiction which, regardless of the specific description or statutory elements, may be characterized or known as rape, sodomy, sexual assault, sexual battery, sexual abuse, sexual torture, solicitation of a child, enticing or luring a child, child pornography, lewd and lascivious conduct, taking indecent liberties with a child, or molestation of a child.
"(18) Any crime not listed in this subsection involving endangerment to the health, safety, or welfare of a child that may be created on or after the effective date of the act adding this subdivision.
§36-26-103.
"(a) An Except as provided in subsection (b) of Section 36-26-102, the employment of an employee on nonprobationary status may be terminated only in the following manner: The superintendent shall give written notice to the employing board and the employee of the superintendent's intention to recommend a termination as provided in subsection (a) of Section 36-26-102. Such notice shall state the reasons for the proposed termination, and shall contain a short and plain statement of the facts showing that the termination is taken for one or more of the reasons listed in subsection (a) of Section 36-26-102, and. The notice shall state the time and place for of the board's meeting hearing on the proposed termination, which meeting hearing shall be held no less than 20 days and no more than 30 days after the receipt of such notice by the employee. The notice shall also inform the employee that in order to request a conference with the board preserve the right to a board hearing on the proposed termination, the employee must shall file a written request with the superintendent within 15 no later than five days after the receipt of such notice before the date of the hearing. Failure of the employee to timely request a hearing or other waiver of the right to a hearing before the board does not prejudice the right of the employee to appeal the decision of the board pursuant to Section 36-26-104. At such conference the board hearing, which shall may be public or private at the discretion of the employee, the employee, or his or her representative, shall be afforded the opportunity to speak to the board on matters relevant to such termination respond orally or in writing to the charges on which the proposed termination is based and to offer evidence and reasons as to why the proposed action should not be taken. The employee shall have the right to counsel, at the expense of the employee, and either party may and to have a court reporter record his or her statement, both at the expense of the employee. Thereafter and transcribe the proceedings before the board, at the expense of the State Department of Education. Unless the employee chooses a public hearing, expressly waives his or her right to testify, or offers the hearing transcript or record, or any part thereof, into evidence in a criminal proceeding, no testimony or statement offered by the employee during or in connection with the board hearing shall constitute a waiver of the right of the employee not to testify in a criminal proceeding and no part of the transcript or record of the termination hearing that memorializes or evidences any statement or testimony by the employee before the board shall be admissible in any criminal proceeding in which the employee is a defendant and which arises out of or relates to the facts and circumstances on which the proposed termination is based. Nothing in this subsection shall preclude the proffer or consideration of the transcript or record of the termination hearing, or the decision of the board, in any appeal brought pursuant to Section 16-24-10. Following the hearing, the board shall determine, by majority vote, whether such termination shall be effectuated to terminate the employment contract of the employee. The decision of the board shall be accorded a presumption of correctness in the event the employee appeals the decision of the board pursuant to Section 36-26-114.
"(b) Regardless of whether Whether or not the employee elects to have a conference hearing, if the board votes to terminate the employee, the superintendent shall give notice to the employee of the board's action by providing notice by personal service, by the United States registered or certified mail with postage paid thereon to the employee's last known address, or by private mail carrier for overnight delivery, signature required, with postage paid thereon to the employee's last known address within 10 days of the board's action. Such notice shall be in writing and shall inform the employee of the right to contest the action by filing with the superintendent a written notice of contest of the action within 15 days of the receipt of the notice. Such contest shall be taken by filing a written notice of contest with the superintendent within 15 days after receipt of the notice of the decision of the employing board. If the contest is not timely taken, the board's decision shall be final. The employing board may suspend the employee with pay if the action is taken. However, no pay shall be provided in cases involving moral turpitude. If the board's action is overturned on appeal, pay shall be reinstated. No termination shall be effected until the time for filing notice of contest has expired and, if notice of contest is filed, not until the hearing officer has issued an opinion.
§36-26-104.
"(a) If notice of contest is filed pursuant to Section 36-26-103, the hearing officer shall be selected as provided in subsection (b) of Section 36-26-114. Upon selection, the hearing officer shall immediately cause notice to be given to the parties of the date and time for a hearing, which date shall be no less than 30 days and no more than 60 days following the appointment of the hearing officer. The parties shall agree as to the location of the hearing and, if the parties are unable to agree, the hearing officer shall determine the location within the jurisdiction of the employing board. No less than 30 days before such date, the parties shall submit to the hearing officer, with a copy to the opposing party, documents supportive of, or in contravention to, the action, as well as a list of witnesses to be called at such hearing; provided, however, that such. The witness list or documentary submissions may be amended at any time prior to five days before such hearing. The hearing may be public or private at the discretion of the employee. The State Department of Education shall bear the expense of having a court reporter present at such hearing. The hearing officer shall have power to administer oaths and issue subpoenas to compel the attendance of witnesses and production of papers necessary as evidence and/or or information, or both, in connection with the dispute or claim. If requested, the hearing officer shall issue subpoenas for witnesses to testify at the hearing, under oath, either in support of the charges or on behalf of the employee. Unless waived by the employee, the terms, conditions, and prohibitions provided in Section 36-26-103, pertaining to the use of the hearing transcript in criminal proceedings, shall apply in the same manner to hearings and related proceedings conducted by the hearing officer pursuant to this section. The employee shall have the burden of proving that the decision of the board should be set aside. To determine whether the employee has met his or her burden, the The hearing officer shall conduct a de novo review hearing and shall render a decision, based on the record of proceedings before the board and the evidence and/or or information, or both, submitted to the hearing officer. The hearing officer shall determine which of the following actions should be taken relative to the employee: Termination of the employee, a suspension of the employee, with or without pay, a reprimand, other disciplinary action, or no action against the employee. The hearing officer shall render a written decision, with findings of fact and conclusions of law, within 30 days after its hearing. Expenses of the hearing officer shall be borne by the State Department of Education. Should a hearing officer set aside the termination of an employee's contract, the employee shall be entitled to restitution of any unpaid compensation.
"(b) All appeals of a final decision of the hearing officer shall lie with the Alabama Court of Civil Appeals. An appeal by either party shall be perfected by filing a written notice of appeal with the Clerk of the Court of Civil Appeals within 21 days after the receipt of the final written decision of the hearing officer. Failure to file a timely notice of appeal shall render the decision of the hearing officer final, in which case the employing board shall take possession of the record of the hearing and shall maintain such record for a period of three years. The Court of Civil Appeals shall have discretion to refuse to hear appeals of final decisions of a hearing officer pursuant to this article. Review by the Court of Civil Appeals pursuant to this article is not a matter of right, but of judicial discretion, and an appeal may be granted only when the court determines there are special and important reasons for granting the appeal. Within 30 days after an appeal is granted, the hearing officer shall transmit the record to the clerk, with the appealing party bearing the costs associated with the preparation and transmission of the record and transcript of the hearing. The decision of the hearing officer shall be affirmed on appeal unless the Court of Civil Appeals finds the decision arbitrary and capricious, in which case the court may order that the parties conduct another hearing consistent with the procedures of this article.
§36-26-114.
"(a) Notices which are required to be given to the employee shall be served by personal service, by United States registered or certified mail with postage prepaid thereon to the employee's last known address, or by private mail carrier for overnight delivery, signature required, with postage prepaid thereon to the employee's last known address.
"(b) If an employee should timely file a contest of a decision as provided in this article, the employing board and the employee shall, within seven days of such filing, either mutually agree upon a person to hear the employee's contest, or submit a joint request for a panel of arbitrators to the Federal Mediation and Conciliation Services' Office of Arbitration Services (FMCS). The joint request shall specify that the parties prefer a hearing officer who is experienced in employment law. Thereafter, FMCS shall submit to each party an identical list of names of persons chosen to serve as a hearing officer in such matter. Each party shall have 10 days from the date of receipt of the list to strike any name to which it objects, number the remaining names in the order of preference, and return the list to FMCS. If a party does not return the list within the time specified, all persons named therein shall be deemed acceptable. From among the persons who have been approved on both lists, and in accordance with the designated order of mutual preference, the FMCS shall invite the acceptance of a hearing officer to serve. If the parties fail to agree upon any of the persons named, if those named decline, or if for any other reason the appointment cannot be made from the submitted lists, FMCS shall make the appointment from among other members of the panel. FMCS will formally appoint the hearing officer, who shall be known for purposes of this article as the "hearing officer."
"(c) Unless the employee chooses a public hearing, expressly waives his or her right to testify, or offers the hearing transcript or record, or any part thereof, into evidence in a criminal proceeding, no testimony or statement offered by the employee during or in connection with the board hearing or hearing before the hearing officer shall constitute a waiver of the right of the employee not to testify in a criminal proceeding and no part of the transcript or record of the proceedings that memorializes or evidences any statement or testimony by the employee before the board or the hearing officer shall be admissible in any criminal proceeding in which the employee is a defendant and which arises out of or relates to the facts and circumstances on which the proposed action is based. Nothing in this subsection shall preclude the proffer or consideration of the transcript or the decision of the board in any appeal brought pursuant to Section 36-26-104."
Section 2. This act shall become effective immediately following its passage and approval by the Governor, or its otherwise becoming law.