HOUSE BILL 392

51st legislature - STATE OF NEW MEXICO - first session, 2013

INTRODUCED BY

Mary Helen Garcia

AN ACT

RELATING TO EDUCATION; ESTABLISHING THE PUBLIC EDUCATION COMMISSION AS AN INDEPENDENT ENTITY AND REMOVING ITS ADMINISTRATIVE ATTACHMENT TO THE PUBLIC EDUCATION DEPARTMENT; PROVIDING FOR PUBLIC EDUCATION COMMISSION RULEMAKING AUTHORITY AND STAFF; REMOVING FROM THE PUBLIC EDUCATION DEPARTMENT AND GRANTING TO THE PUBLIC EDUCATION COMMISSION THE AUTHORITY TO REVIEW DECISIONS TO GRANT, RENEW, DENY OR REVOKE A CHARTER.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

     SECTION 1. Section 9-24-9 NMSA 1978 (being Laws 2004, Chapter 27, Section 9) is amended to read:

     "9-24-9. PUBLIC EDUCATION COMMISSION--CREATION--POWERS AND DUTIES--LEGISLATIVE OVERSIGHT.--

          A. The "public education commission" is created pursuant to Article 12, Section 6 of the constitution of New Mexico. [The commission shall be administratively attached to the department, with administrative staff provided by the department. Additional requests for staff services shall be made through the secretary.] The commission shall advise the department on policy matters and shall perform other functions pursuant to the Charter Schools Act and as otherwise provided by law.

          B. The commission shall consist of ten members elected from public education districts as provided in the decennial educational redistricting act. Members shall be entitled to receive per diem and mileage as provided in the Per Diem and Mileage Act but shall receive no other perquisite, compensation or allowance.

          C. The commission shall annually elect a [chairman] chair, vice [chairman] chair and secretary from among its membership. A majority of the members constitutes a quorum for the conduct of business. The commission shall keep a record of all proceedings of the commission.

          D. The commission shall meet at the call of the [chairman] chair at least quarterly or at the request of a majority of the members. Meetings of the commission shall be held in Santa Fe and at other sites within the state at the direction of the commission. [The chairman in consultation with the secretary shall call a meeting at the request of a majority of the members.] Commission members shall not vote by proxy.

          E. No member of the commission shall be appointed secretary or be employed by the department on either a full- or part-time basis.

          F. Subject to appropriation by the legislature, the commission shall employ staff as needed to assist the commission in the performance of its duties. Staff shall be subject to the provisions of the Personnel Act. 

          G. The commission shall prepare an annual budget.

          H. Each year, the commission shall report to the legislature and governor:

                (1) the commission's policies and rules; and

                (2) any actions the commission takes to grant, renew or deny an application for a charter or to review on appeal a granted or denied application pursuant to the Charter Schools Act."

     SECTION 2. Section 22-8B-6 NMSA 1978 (being Laws 1999, Chapter 281, Section 6, as amended) is amended to read:

     "22-8B-6. CHARTER SCHOOL REQUIREMENTS--APPLICATION PROCESS--AUTHORIZATION--STATE BOARD OF FINANCE DESIGNATION

REQUIRED--PUBLIC HEARINGS--SUBCOMMITTEES--APPEALS.--

          A. A local school board has the authority to approve or deny an application for the establishment of or the renewal of a charter for a charter school within the school district in which it is located. The commission has the authority to approve or deny an application for the establishment of or the renewal of a charter for a state-chartered charter school.

          B. No later than the second Tuesday of January of the year in which an application will be filed, the organizers of a proposed charter school shall provide written notification to the commission and the school district in which the charter school is proposed to be located of their intent to establish a charter school. Failure to notify may result in an application not being accepted.

          C. [A charter school applicant shall apply to either a local school board or the commission for a charter. If an application is submitted to a chartering authority, it must process the application. Applications for initial charters shall be submitted between June 1 and July 1 to be eligible for consideration for the following fiscal year; provided that the July 1 deadline may be waived upon agreement of the applicant and the chartering authority.] No fees shall be assessed by the chartering authority for consideration of the application.

          D. An application shall include the total number of grades the charter school proposes to provide, either immediately or phased. A charter school may decrease the number of grades it eventually offers, but it shall not increase the number of grades or the total number of students proposed to be served in each grade.

          E. An application shall include a detailed description of the charter school's projected facility needs, including projected requests for capital outlay assistance that have been approved by the director of the public school facilities authority or the director's designee. The director shall respond to a written request for review from a charter applicant within forty-five days of the request.

          F. An application may be made by one or more teachers, parents or community members or by a public post-secondary educational institution or nonprofit organization. Municipalities, counties, private post-secondary educational institutions and for-profit business entities are not eligible to apply for or receive a charter.

          G. An initial application for a charter school shall not be made after June 30, 2007 if the proposed charter school's proposed enrollment for all grades or the proposed charter school's proposed enrollment for all grades in combination with any other charter school's enrollment for all grades would equal or exceed ten percent of the total MEM of the school district in which the charter school will be geographically located and that school district has a total enrollment of not more than one thousand three hundred students.

          H. A state-chartered charter school shall not be approved for operation unless [its] the governing body of the charter school has qualified to be a board of finance.

          [I. The chartering authority shall receive and review all applications for charter schools submitted to it. The chartering authority shall not charge application fees.           J.] I. The chartering authority shall hold at least one public hearing in the school district in which the charter school is proposed to be located to obtain information and community input to assist it in its decision whether to grant a charter school application. The chartering authority may designate a subcommittee of no fewer than three members to hold the public hearing, and, if so, the hearing shall be transcribed for later review by other members of the chartering authority. Any member of the chartering authority who was not present at the public hearing shall receive the transcript of the public hearing together with documents submitted for the public hearing before a decision to accept or deny an application is made. Community input may include written or oral comments in favor of or in opposition to the application from the applicant, the local community and, for state-chartered charter schools, the local school board and school district in whose geographical boundaries the charter school is proposed to be located.

          [K.] J. Provided that the application was submitted to the chartering authority by July 1, the chartering authority shall rule on the application for a charter school in a public [meeting] hearing by the following September 1. [of the year the application was received; provided, however, that prior to ruling on the application for which a designated subcommittee was used, any member of the chartering authority who was not present at the public hearing shall receive the transcript of the public hearing together with documents submitted for the public hearing. If not ruled upon by that date, the charter application shall be automatically reviewed by the secretary in accordance with the provisions of Section 22-8B-7 NMSA 1978.] The absence of a ruling pursuant to the provisions of this subsection shall constitute a final decision denying the charter application from which an applicant may appeal pursuant to the provisions of Subsection M of this section. The charter school applicant and the chartering authority may [however] jointly waive the deadlines set forth in this section.

          [L.] K. A chartering authority may approve, approve with conditions or deny an application. A chartering authority may deny an application if:

                (1) the application is incomplete or inadequate;

                (2) the application does not propose to offer an educational program consistent with the requirements and purposes of the Charter Schools Act;

                (3) the proposed head administrator or other administrative or fiscal staff was involved with another charter school whose charter was denied or revoked for fiscal mismanagement or the proposed head administrator or other administrative or fiscal staff was discharged from a public school for fiscal mismanagement;

                (4) for a proposed state-chartered charter school, it does not request to have the governing body of the charter school designated as a board of finance or the governing body does not qualify as a board of finance; or

                (5) the application is otherwise contrary to the best interests of the charter school's projected students, the local community or the school district in whose geographic boundaries the charter school applies to operate.

          [M.] L. If the chartering authority denies a charter school application or approves the application with conditions, it shall state its reasons for the denial or conditions in writing within fourteen days of the [meeting] hearing. If the chartering authority grants a charter, the approved charter shall be provided to the applicant together with any imposed conditions.

          [N.] M. A [charter school that has received a notice from the chartering authority denying approval of the charter shall have a right to a hearing by the secretary as provided in Section 22-8B-7 NMSA 1978] denial of the charter application by a local school board may be appealed by the charter school applicant or governing body to the commission pursuant to the provisions of Section 22-8B-16 NMSA 1978. A denial of the charter application that is a final decision of the commission may be appealed by the charter school applicant or governing body to the district court pursuant to the provisions of Section 39-3-1.1 NMSA 1978."

     SECTION 3. Section 22-8B-7 NMSA 1978 (being Laws 1999, Chapter 281, Section 7, as amended) is amended to read:

     "22-8B-7. [APPEAL OF DENIAL, NONRENEWAL, SUSPENSION OR REVOCATION] COMMISSION REVIEW OF GRANTED OR RENEWED CHARTERS--PROCEDURES--APPEAL.--

          [A. The secretary, upon receipt of a notice of appeal or upon the secretary's own motion, shall review decisions of a chartering authority concerning charter schools in accordance with the provisions of this section.

          B. A charter applicant or governing body that wishes to appeal a decision of the chartering authority concerning the denial, nonrenewal, suspension or revocation of a charter school or the imposition of conditions that are unacceptable to the charter school or charter school applicant shall provide the secretary with a notice of appeal within thirty days after the chartering authority's decision. The charter school applicant or governing body bringing the appeal shall limit the grounds of the appeal to the grounds for denial, nonrenewal, suspension or revocation or the imposition of conditions that were specified by the chartering authority. The notice shall include a brief statement of the reasons the charter school applicant or governing body contends the chartering authority's decision was in error. Except as provided in Subsection E of this section, the appeal and review process shall be as follows within sixty days after receipt of the notice of appeal, the secretary, at a public hearing that may be held in the school district in which the charter school is located or in which the proposed charter school has applied for a charter, shall review the decision of the chartering authority and make findings. If the secretary finds that the chartering authority acted arbitrarily or capriciously, rendered a decision not supported by substantial evidence or did not act in accordance with law, the secretary may reverse the decision of the chartering authority and order the approval of the charter with or without conditions. The decision of the secretary shall be final.

           C.] A. The [secretary, on the secretary's] commission, on its own motion, may review a [chartering authority's] local school board's decision to grant or renew a charter [Within sixty days after the making of a motion to review by the secretary, the secretary, at a public hearing that may be held in the school district in which the proposed charter school that has applied for a charter will be located, shall review the decision of the chartering authority] and determine whether the decision was arbitrary or capricious or whether the establishment or operation of the proposed charter school would:

                (1) violate any federal or state laws concerning civil rights;

                (2) violate any court order; or

                (3) threaten the health and safety of students within the school district.

          [D.] B. If the [secretary] commission determines that the charter would violate the provisions set forth in Subsection [C] A of this section, the [secretary] commission shall [deny] revoke the charter [application]. The [secretary] commission may extend the time lines established in this section for good cause. The decision of the [secretary] commission shall be final.

          [E. If a chartering authority denies an application or refuses to renew a charter because the public school capital outlay council has determined that the facilities do not meet the standards required by Section 22-8B-4.2 NMSA 1978, the charter school applicant or charter school may appeal the decision to the secretary as otherwise provided in this section; provided that the secretary shall reverse the decision of the chartering authority only if the secretary determines that the decision was arbitrary, capricious, not supported by substantial evidence or otherwise not in accordance with the law.

          F.] C. A [person aggrieved by] charter school applicant or governing body may appeal a final decision of the [secretary may appeal the decision] commission in accordance with this section to the district court pursuant to the provisions of Section 39-3-1.1 NMSA 1978."

     SECTION 4. Section 22-8B-16 NMSA 1978 (being Laws 2006, Chapter 94, Section 29) is amended to read:

     "22-8B-16. PUBLIC EDUCATION COMMISSION--[POWERS AND DUTIES] APPEAL OF LOCAL SCHOOL BOARD RULINGS AGAINST THE CHARTER SCHOOL APPLICANT OR GOVERNING BOARD.--[The commission shall receive applications for initial chartering and renewals of charters for charter schools that want to be chartered by the state and approve or disapprove those charter applications. The commission may approve, deny, suspend or revoke the charter of a state-chartered charter school in accordance with the provisions of the Charter Schools Act. The chartering authority for a charter school existing on July 1, 2007 may be transferred to the commission; provided, however, that if a school chartered under a previous chartering authority chooses to transfer its chartering authority, it shall continue to operate under the provisions of that charter until its renewal date unless it is suspended or revoked by the commission. An application for a charter school filed with a local school board prior to July 1, 2007, but not approved, may be transferred to the commission on July 1, 2007.]

          A. The commission, upon receipt of a notice of appeal from a charter school applicant or governing body, shall review a denial, nonrenewal, suspension or revocation of a charter by a local school board in accordance with the provisions of this section.

          B. A charter school applicant or governing body may appeal a decision of the local school board to deny, not renew, suspend or revoke a charter by providing the commission with a notice of appeal within thirty days after the local school board's decision. The charter school applicant or governing body bringing the appeal shall limit the grounds of the appeal to the grounds upon which the local school board based its decision. The notice shall include a brief statement of the reasons that the charter school applicant or governing body contends that the denial, nonrenewal, suspension or revocation of the charter by the local school board was erroneous. Within sixty days after receipt of the notice of appeal, the commission shall review the decision of the local school board. If the commission finds that the local school board acted arbitrarily or capriciously, rendered a decision not supported by substantial evidence or did not act in accordance with law, the commission may grant to the charter school or charter school applicant a charter as a state-chartered charter school. The decision of the commission shall be final.

          C. A charter school applicant or governing body may appeal a final decision of the commission in accordance with this section to the district court pursuant to the provisions of Section 39-3-1.1 NMSA 1978."

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