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

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/she/they 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. 292 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. d. Access to Criminal Records The Education Code provides procedures for accessing the criminal records of non-academic employees. 293 This provision describes the preparation of identification cards by local law enforcement that are then forwarded to the Department of Justice for background checks. However, the procedure differs from that of academic employees 294 in two key respects:

 The section states that for each person employed, or to be employed in a non-academic position, the governing board “ shall ” within 10 working days of the date of employment, require the employee to have identification cards prepared by a local law enforcement agency.  Rather than utilize the Department of Justice, a district with full-time equivalent students of at least 60,000 may process the cards itself.

Substitute and temporary employees, employed for less than a school year, may be exempted from these provisions. Further, the section does not apply to a district that has an average daily attendance of at least 400,000, or to a community college district wholly within a city and county, unless the governing board provides for adherence to this rule. 4. S TUDENT E MPLOYEES The Education Code provides that, notwithstanding any other provision of law to the contrary, a governing board may employ any student enrolled in the district who is an ex-convict or who is on parole, other than a person determined to be a sexual psychopath, to perform non-instructional duties. 295 Such students are not considered classified employees.

Name that Section: Frequently Used Education Code and Title 5 Sections for Community College Districts ©2020 (c) Liebert Cassidy Whitmore 96