0001| AN ACT | 0002| RELATING TO PUBLIC SCHOOLS; PROVIDING FOR BACKGROUND CHECKS OF | 0003| APPLICANTS FOR AN INITIAL CERTIFICATION; REQUIRING SCHOOL DISTRICT | 0004| SUPERINTENDENTS TO REPORT CONVICTIONS OF A FELONY OR A MISDEMEANOR | 0005| INVOLVING MORAL TURPITUDE; ALLOWING LOCAL SCHOOL BOARDS TO RUN | 0006| EMPLOYEE BACKGROUND CHECKS; AMENDING SECTIONS 22-10-22 AND 28-2-4 NMSA | 0007| 1978 (BEING LAWS 1967, CHAPTER 16, SECTION 124 AND LAWS 1974, CHAPTER | 0008| 78, SECTION 4, AS AMENDED); ENACTING NEW SECTIONS OF THE PUBLIC SCHOOL | 0009| CODE; CREATING A FUND. | 0010| | 0011| BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO: | 0012| Section 1. A new section of the Public School Code is enacted to | 0013| read: | 0014| "BACKGROUND CHECKS.-- | 0015| A. An applicant for initial certification shall be | 0016| fingerprinted and shall provide two fingerprint cards to the | 0017| department of education. Convictions of felonies or misdemeanors | 0018| contained in the federal bureau of investigation record shall be used | 0019| in accordance with Sections 28-2-1 through 28-2-6 NMSA 1978. Other | 0020| information contained in the federal bureau of investigation record, | 0021| if supported by independent evidence, can form the basis for the | 0022| denial, suspension or revocation of a certificate for good and just | 0023| cause. Such records and any related information shall be privileged | 0024| and shall not be disclosed to individuals not directly involved in the | 0025| certification or employment decisions affecting the specific | 0001| applicants or employees. The applicant shall pay for the cost of | 0002| obtaining the federal bureau of investigation record. The department | 0003| of education shall implement the provisions of this section on or | 0004| before July 1, 1998. | 0005| B. Local school boards shall develop policies and | 0006| procedures to require employment background checks. Such policies and | 0007| procedures may include requiring applicants who have been offered | 0008| employment by the local school board to provide the applicant's | 0009| federal bureau of investigation record. Applicants may be required to | 0010| pay for the cost of obtaining a background check. Local school boards | 0011| may require that contractors whose employees are in direct contact | 0012| with students ensure that the employees of such contractors be | 0013| fingerprinted and provide two fingerprint cards to the local school | 0014| board. The department of education is authorized to release copies of | 0015| federal bureau of investigation records on file with the department of | 0016| education to a local school board that requires that applicants who | 0017| have been offered employment provide such records. Convictions of | 0018| felonies or misdemeanors contained in the federal bureau of | 0019| investigation record shall be used in accordance with Sections 28-2-1 | 0020| through 28-2-6 NMSA 1978; provided that other information contained in | 0021| the federal bureau of investigation record, if supported by | 0022| independent evidence, can form the basis for the employment decisions | 0023| for good and just cause. Such records and any information related | 0024| thereto shall be privileged and shall not be disclosed to individuals | 0025| not directly involved in the certification or employment decisions | 0001| affecting the specific applicants or employees." | 0002| Section 2. A new section of the Public School Code is enacted to | 0003| read: | 0004| "KNOWN CONVICTION--REPORTING REQUIREMENT--LIMITED IMMUNITY FROM | 0005| LIABILITY--PENALTY FOR FAILURE TO REPORT.-- | 0006| A. A school district superintendent shall report to the | 0007| department of education any known conviction of a felony or | 0008| misdemeanor involving moral turpitude of a certified school employee | 0009| that results in any type of action against the school employee. | 0010| B. The state board may suspend or revoke a certificate held | 0011| by a certified school administrator who fails to report a criminal | 0012| conviction involving moral turpitude of a certified school employee in | 0013| accordance with Subsection A of this section. | 0014| C. An individual who in good faith reports any known | 0015| conviction of a felony or misdemeanor involving moral turpitude of a | 0016| school employee shall not be held liable for civil damages as a result | 0017| of the report; provided that the person being accused shall have the | 0018| right to sue for any damages sustained as a result of negligent or | 0019| intentional reporting of inaccurate information or the disclosure of | 0020| any information to an unauthorized person." | 0021| Section 3. Section 22-10-4 NMSA 1978 (being Laws 1967, Chapter | 0022| 16, Section 107) is amended to read: | 0023| "22-10-4. CERTIFICATE FEES.--The state board shall charge a | 0024| reasonable fee for each application for or the renewal of a | 0025| certificate. This fee may be waived if the applicant meets a standard | 0001| of indigency as established by the department of education." | 0002| Section 4. Section 22-10-22 NMSA 1978 (being Laws 1967, Chapter | 0003| 16, Section 124, as amended) is amended to read: | 0004| "22-10-22. SUSPENSION AND REVOCATION OF CERTIFICATES--APPEAL.-- | 0005| A. The state board may suspend or revoke a certificate held | 0006| by a certified school instructor or administrator for incompetency, | 0007| immorality or any other good and just cause. | 0008| B. A certificate may be suspended or revoked only according | 0009| to the following procedure: | 0010| (1) the state board serving written notice of the | 0011| suspension or revocation on the person holding the certificate in | 0012| accordance with the law for service of process in civil actions. The | 0013| notice of the suspension or revocation shall state the grounds for the | 0014| suspension or revocation of the certificate. The notice of the | 0015| suspension or revocation shall describe the rights of the person | 0016| holding the certificate and include instructions for requesting a | 0017| hearing before the state board. Such hearing shall be requested | 0018| within thirty days of receipt of the notice of suspension or | 0019| revocation. If a hearing is requested, the hearing shall be held not | 0020| more than ninety days from the date of the request for the hearing; | 0021| (2) the state board or its designated hearing officer | 0022| conducting a hearing which provides the person holding the | 0023| certificate, or his attorney, an opportunity to present evidence or | 0024| arguments on all pertinent issues. A transcript shall be made of the | 0025| entire hearing conducted by the state board or its designated hearing | 0001| officer; and | 0002| (3) the state board rendering a written decision in | 0003| accordance with the law and based upon evidence presented and admitted | 0004| at the hearing. The written decision shall include findings of fact | 0005| and conclusions of law and shall be based upon the findings of fact | 0006| and the conclusions of law. A written copy of the decision of the | 0007| state board shall be served upon the person holding the certificate | 0008| within sixty days from the date of the hearing. Service of the | 0009| written copy of the decision shall be in accordance with the law for | 0010| service of process in civil actions or by certified mail to the | 0011| person's address of record. | 0012| C. The secretary of the state board with the approval of | 0013| the state board or its designated hearing officer may subpoena | 0014| witnesses, require their attendance and giving of testimony and | 0015| require the production of books, papers and records in connection with | 0016| a hearing held pursuant to the provisions of Subsection B of this | 0017| section. Also, the state board may apply to the district court for | 0018| the issuance of subpoenas and subpoenas duces tecum in the name of and | 0019| on behalf of the state board. | 0020| D. Any person aggrieved by a decision of the state board | 0021| after a hearing pursuant to this section may appeal the decision to | 0022| the court of appeals by filing a notice of appeal with the clerk of | 0023| the court within thirty days after service of a written copy of the | 0024| decision of the state board on the person. The cost of transcripts on | 0025| appeal, including one copy for the use of the state board, shall be | 0001| borne by the appellant. Upon appeal, the court of appeals shall | 0002| affirm the decision of the state board unless the decision is found to | 0003| be: | 0004| (1) arbitrary, capricious or unreasonable; | 0005| (2) not supported by substantial evidence; or | 0006| (3) otherwise not in accordance with law." | 0007| Section 5. Section 28-2-4 NMSA 1978 (being Laws 1974, Chapter | 0008| 78, Section 4, as amended) is amended to read: | 0009| "28-2-4. POWER TO REFUSE, RENEW, SUSPEND OR REVOKE PUBLIC | 0010| EMPLOYMENT OR LICENSE.-- | 0011| A. Any board or other agency having jurisdiction over | 0012| employment by the state or any of its political subdivisions or the | 0013| practice of any trade, business or profession may refuse to grant or | 0014| renew or may suspend or revoke any public employment or license or | 0015| other authority to engage in the public employment, trade, business or | 0016| profession for any one or any combination of the following causes: | 0017| (1) where the applicant, employee or licensee has | 0018| been convicted of a felony or a misdemeanor involving moral turpitude | 0019| and the criminal conviction directly relates to the particular | 0020| employment, trade, business or profession; | 0021| (2) where the applicant, employee or licensee has | 0022| been convicted of a felony or a misdemeanor involving moral turpitude | 0023| and the criminal conviction does not directly relate to the particular | 0024| employment, trade, business or profession, if the board or other | 0025| agency determines after investigation that the person so convicted has | 0001| not been sufficiently rehabilitated to warrant the public trust; or | 0002| (3) where the applicant or employee has been | 0003| convicted of homicide, kidnapping, trafficking in controlled | 0004| substances, criminal sexual penetration or related sexual offenses or | 0005| child abuse and the applicant or employee has applied for | 0006| reinstatement, renewal or issuance of a teaching certificate, | 0007| regardless of rehabilitation. | 0008| B. The board or other agency shall explicitly state in | 0009| writing the reasons for a decision which prohibits the person from | 0010| engaging in the employment, trade, business or profession if the | 0011| decision is based in whole or in part on conviction of any crime | 0012| described in Paragraphs (1) and (3) of Subsection A of this section. | 0013| Completion of probation or parole supervision or expiration of a | 0014| period of three years after final discharge or release from any term | 0015| of imprisonment without any subsequent conviction shall create a | 0016| presumption of sufficient rehabilitation for purposes of Paragraph (2) | 0017| of Subsection A of this section." | 0018| "Section 6. EDUCATOR CERTIFICATION FUND--DISTRIBUTION-- | 0019| APPROPRIATION.-- | 0020| A. The "educator certification fund" is created in the | 0021| state treasury and shall be administered by the state department of | 0022| public education. The fund shall consist of money collected from | 0023| application fees for certification or for renewal of certification by | 0024| the state board of education. | 0025| B. Money in the fund is appropriated to the state | 0001| department of public education for the purpose of funding the | 0002| educator background check program. Money in the fund and any | 0003| interest that may accrue to the fund shall not revert at the end | 0004| of the fiscal year but shall remain to the credit of the fund." | 0005| |