July 18, 2003 (corrected January 7, 2010)
To: County and District Superintendents
County and District Chief Business Officials
Charter School Administrators
From: Janet Sterling, Director
School Fiscal Services Division
Subject: Penalties for Lack of Teacher Credentials
The purpose of this memorandum is to advise you as to our understanding of statutes pertaining to state apportionment and penalties as they relate to teacher credential and assignment requirements. In particular, this memorandum describes the scope of new penalties established in Education Code Section 45037 as enacted by Assembly Bill 2859 (Chapter 1069, Statutes of 2002). In addition, the last section of this memorandum highlights the teacher qualification requirements contained in the federal No Child Left Behind Act of 2001 and the potential for penalties or revenue losses imposed under that law. For your reference, a copy of this memorandum and each of the Education Code sections discussed in this memorandum can be found on our website at
www.cde.ca.gov/fiscal/financial/corresp.htm [Note: the preceding Web address is no longer valid and has been replaced by http://www.cde.ca.gov/fg/au/ag/statecomp.asp].
It is our view that the scope of penalties established in Education Code Section 45037 is limited to teachers who lack valid certification documents, and does not extend to whether the teachers also are appropriately assigned consistent with the authorization of their valid credential documents. Further, the penalties do not apply to charter schools, their chartering agencies or to county offices of education on account of the certification status of charter school teachers. These interpretations are discussed below in more detail.
In addition, the plain language of Education Code Section 45037 leads us to conclude that its penalties apply only to teachers and not to persons assigned to administrative positions or other non-teaching assignments. Moreover, Education Code Section 45037 does not change the way that state or local certification documents are issued.
State financing of school instruction is premised on pupils being taught by teachers who have authorization from the State to teach in public schools. As such, state law establishes various conditions, requirements, and penalties on local education agencies to ensure that only authorized personnel are hired to teach. In addition, the State establishes requirements for the issuance of teacher credentials and other requirements designed to ensure that teachers are appropriately assigned; that is, that they are assigned to teach in a position that is consistent with the authorizations (subject, grade level) of their credentials.
Local education agencies receive state funding for reported average daily attendance on the condition that pupils are taught by teachers who hold valid certification documents (Education Code Section 46300). A valid certification document is any state-issued certificate or credential -- including a vocational credential and internship credential or certificate; life document or diploma; emergency 30-day substitute teaching permit [Note, the preceding phrase has been added]; emergency permit or waiver -- that is in force, not expired or revoked, and authorizes the holder to teach in California public schools in kindergarten or any grades 1 through 12 (Education Code Section 44007). A valid certification document also includes any county board of education-issued temporary county certificate that is in force, not expired or revoked, and authorizes the holder to teach in K-12 public schools within the county office’s jurisdiction while the holder’s credential application is being processed (Education Code sections 44004 and 44332).
A valid certification document does not include adult education credentials, services credentials without an underlying basic elementary or secondary credential, child development or children center permits,
emergency 30-day substitute teaching permits wherein the teacher has inappropriately taught for more than 30 days during the valid period of the permit in any one classroom, [Note: this document is considered a valid certification document and added to the list in the preceding paragraph] or any certification document that is expired or revoked. A valid certification document also does not include electronic mail confirmations from the Commission on Teacher Credentialing that a credential application has been received or “C-19 letters” issued by colleges and universities. These letters, however, are used at local discretion as one basis for issuing temporary county certificates.
Each person who is employed by a school district in a position requiring certification qualifications is required within 60 days of the date of employment to register a valid certification document. The document must have an issue date on or before the date of employment and must authorize the person to serve in a position for which he or she is being employed. Similarly, each employee has 60 days to register a renewed certification document; and the authorization of any renewed document also must be consistent with the employee’s assignment (Education Code sections 44857 and 44330). As such, an employee must be appropriately assigned when registering his or her credential document. Each employee is required to register his or her document with the jurisdictional county office of education, or the employer school district if the district is fiscally independent pursuant to Education Code Section 42647.
Charter Schools. Pursuant to Education Code Section 47605(l), charter school teachers are required to hold certification documents that are equivalent to those which teachers in public, noncharter schools are required to hold. This section states, further, that the certification documents of charter school teachers are to “be maintained on file at the charter school.” It concludes with legislative intent that “charter schools be given flexibility with respect to noncore, noncollege preparatory courses.” The California Department of Education interprets this section to mean that charter school teachers of at least core or college preparatory subjects are required to hold valid certification documents as a condition of apportionment. For state apportionment purposes, teachers of noncore, noncollege courses do not need to hold valid certification documents. For the credential and assignment monitoring purposes discussed below, the Commission on Teacher Credentialing interprets this section to mean that all charter school teachers must hold valid certification documents. In addition, the Commission advises all charter school teachers to register their credential documents with their charter schools and their charter schools’ chartering agencies.
Current law requires -- in an effort to ensure that the rate of teacher misassignment remains low and to the extent that funds are provided -- that school district certificated employee assignment practices be monitored and reviewed on a scheduled basis (Education Code Section 44258.9). Each county superintendent of schools is to annually monitor schools and school districts that are likely to have problems based on past experience or other available information. All others are to be reviewed on a four-year cycle. The Commission on Teacher Credentialing is responsible for the monitoring and review of assignment practices of counties or cities and counties in which there is a single school district to ensure that teachers in these districts are appropriately assigned. The Commission also is responsible for tabulating and responding to annual reports of monitoring results submitted by county superintendents of schools. For the California Department of Education’s purposes, appropriate assignment is not a condition of state apportionment.
Charter Schools. Pursuant to our understanding of the provisions of Education Code Section 47605(l), charter school teachers of at least the core subjects are to be appropriately assigned, the same as all teachers in public, noncharter schools. Like public, noncharter schools, appropriate assignment is not a condition of state apportionment. Education Code Section 47605(l) states that the certification documents of charter school teachers are “subject to periodic inspection by the chartering authority.” The Commission on Teacher Credentialing has issued guidance, in Coded Correspondence 98-9821, that indicates that the chartering agency, which may or may not be the county office of education, has discretion in determining the frequency and manner of such inspections and assignment monitoring. Neither the county superintendents of schools, unless they are the chartering authority, nor the Commission has responsibility for monitoring teacher assignments in charter schools.
County offices and school districts are prohibited from paying the salary of any person who while not holding a “proper” certification document is employed in a position requiring certification qualifications (Education Code Section 45034). Thus, in order to draw a salary, teachers (and other personnel) must be appropriately assigned, although the law does not attach a financial penalty for failure to meet this assignment requirement.
Charter Schools. Education Code Section 47610 states that charter schools are generally exempt from laws governing school districts. In addition, because the language of Education Code Section 45034 does not explicitly address charter schools, and charter school payroll agents as a uniform practice do not have access to information about charter school teachers’ certification status, it is the California Department of Education’s interpretation that the requirements of Education Code Section 45034 do not apply to charter schools. Therefore, county offices of education, school districts, and charter schools are not specifically prohibited from releasing salary payments to charter school teachers who lack proper certification documents. The California Department of Education advises chartering agencies to establish with their charter schools the frequency and manner of agency inspections of credential documents and teacher assignments, and any role that the payroll agent is to have in ensuring that charter school teachers of at least the core or college preparatory subjects hold valid certification documents and are appropriately assigned.
Prior to the recent establishment of Education Code Section 45037, if a teacher of kindergarten or any of grades 1 through 12 did not hold a valid certification document, the employer local education agency could incur up to three different penalties, which in total could be costly:
Assembly Bill 2859 was enacted to establish Education Code Section 45037 and supersede the above three penalties with a single penalty for cases when a teacher lacks a valid certification document. The above three legal requirements and penalties continue to be operative, however, for noncompliance involving other than teacher certification but still involving overclaimed average daily attendance, shortfalls in instructional time, and K-3
class-size reduction requirements.
The single penalty is calculated by dividing the number of school days taught for the local education agency by teachers who lacked valid certification documents by the number of school days taught by all teachers, and then multiplying this quotient by the local education agency’s revenue limit entitlement (Education Code Section 45037(b)). The single penalty became effective with the beginning of the 2001-02 school year (Education Code Section 45037(a)).
In addition, Assembly Bill 2859 provides for a new penalty to be imposed on a county office of education if a school district in its jurisdiction was assessed the single penalty for lack of a valid certification document and the county office of education paid the teacher’s salary (Education Code Section 45037(c)). This county office penalty is effective with the beginning of the 2002-03 school year and is calculated as the lesser of three amounts as follows:Fifty percent of all penalties assessed for that fiscal year to all school districts in the county office's jurisdiction for lack of valid certification documents. One-half percent of the total expenditures for that fiscal year from unrestricted resources, as defined in the California School Accounting Manual, in the county office's county school service fund, when two or fewer districts in the county office's jurisdiction are subject to penalties for lack of valid certification documents. One percent of the total expenditures for that fiscal year from unrestricted resources, as defined in the California School Accounting Manual, in the county office's county school service fund, when three or more districts in the county office's jurisdiction are subject to penalties for lack of valid certification documents.
Charter Schools. Education Code Section 47610 states that charter schools are generally exempt from laws governing school districts. In addition, because the language of Education Code Section 45037 does not explicitly address charter schools, it is the California Department of Education’s interpretation that Education Code Section 45037 does not apply to charter schools. Therefore, Education Code Section 45037 does not provide for the levy of penalties on charter schools, their chartering agencies, or county offices of education on account of charter school teachers who lack valid certification documents.
Education Code Section 45037(a) affords relief from the penalties established in subdivisions (b) and (c) of that section through the existing Validation of Service process. State law permits the Commission on Teacher Credentialing, under limited circumstances, to validate or “make legal” the service of a person who while not holding a valid credential is employed in a position requiring certification qualifications (Education Code Section 45036). To be eligible for Validation of Service, the person, among other requirements, must have been qualified for the credential that was required for the position he or she had held without valid certification. In the absence of compelling circumstances, the Commission will validate a maximum of six months of service per occurrence, and requires the request for validation to be received within six months of the period requiring validation.
Validation of Service, thus, provides for the legal flow of salary payments and average daily attendance apportionment when credentialing requirements are materially met. Under Education Code Section 45037 it also serves, under limited circumstances, to relieve the employer school district and county office of education of the penalties that would otherwise be imposed by that section. For more detailed information on Validation of Service, please refer to California Code of Regulations, Title 5, Education, sections 80600 through 80604. For additional information, please contact the Commission on Teacher Credentialing at 888-921-2682.
Local education agencies that employ teachers who hold valid certification documents are not subject to the state-imposed penalties described above in this memorandum. It is not known, however, whether and to what extent these same local education agencies will be subject to revenue loss from federal funding sources if they do not meet the teacher qualification requirements imposed by the federal No Child Left Behind (NCLB) law.
Certain valid certification documents that currently provide authorization from the State to teach in California public schools are not aligned with the NCLB teacher qualification requirements. On the first day of school in 2002, all teachers new to the profession who were teaching core subjects in Title I targeted assistance or school-wide programs were required to meet NCLB teacher qualification requirements. At the start of the 2005-06 school year, all veteran teachers who teach core subjects, regardless of the funding source, must be “highly qualified” based on a definition that is to be adopted by the State. Currently, the State’s definition is pending approval by the State Board of Education. Although the State has not yet adopted a definition of “highly qualified,” it is certain that holders of emergency permits, waivers, and individuals who are classified as pre-interns will not meet the federal or state definition of “highly qualified.” For information on State Board actions with respect to teacher qualifications requirements and NCLB implementation, please refer to the California Department of Education website address,
http://www.cde.ca.gov/pr/nclb/ [Note: the preceding Web address is no longer valid].
If you have any questions regarding this memorandum, please call
Ellen Venturino, Administrator, by phone at 916-327-0538 or Scott Hannan, Director, by phone at 916-322-3024 [Note: the preceding contact information is no longer valid.]
To the extent that this memorandum contains guidelines in addition to recitation of the law, those guidelines are exemplary only and compliance with them is not mandatory.