Committee Substitute for HB0436JCS

HOUSE JUDICIARY COMMITTEE SUBSTITUTE FOR

HOUSE BILL 436

49th legislature - STATE OF NEW MEXICO - first session, 2009

AN ACT

RELATING TO PUBLIC SCHOOL PERSONNEL; AMENDING THE SCHOOL PERSONNEL ACT TO CLARIFY THE PROCESS FOR TERMINATION AND DISCHARGE OF SCHOOL EMPLOYEES.

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

Section 1. Section 22-10A-21 NMSA 1978 (being Laws 1967, Chapter 16, Section 113, as amended) is amended to read:

"22-10A-21. EMPLOYMENT CONTRACTS--DURATION.--

A. All employment contracts between [local] school [boards] districts and [certified] licensed school [personnel] employees and between governing authorities of state agencies and [certified school instructors] licensed school employees shall be in writing on forms approved by the [state board] department or the state agency. These forms shall contain and specify the term of service, the salary to be paid, the method of payment, the causes for termination of the contract and other provisions required by [the regulations of the state board] rules of the department or the state agency.

B. All employment contracts between [local] school [boards] districts and [certified] licensed school [personnel] employees and between governing authorities of state agencies and [certified school instructors] licensed school employees shall be for a period of one school year except:

(1) contracts for less than one school year are permitted to fill personnel vacancies [which] that occur during the school year;

(2) contracts for the remainder of a school year are permitted to staff programs when the availability of funds for the programs is not known until after the beginning of the school year;

(3) contracts for less than one school year are permitted to staff summer school programs and to staff federally funded programs in which the federally approved programs are specified to be conducted for less than one school year;

(4) contracts not to exceed three years are permitted for [certified] licensed school administrators in public schools who are engaged in administrative functions for more than one-half of their employment time; and

(5) contracts not to exceed three years are permitted at the discretion of the [local] school [board] districts for [certified school instructors] licensed school employees in public schools who have been employed in the school district for three consecutive school years.

C. Persons employed under contracts for periods of less than one school year as provided in Paragraphs (1) and (2) of Subsection B of this section shall be accorded all the duties, rights and privileges of the [Certified] School Personnel Act.

D. In determination of eligibility for unemployment compensation rights and benefits for [certified school instructors] licensed school employees where those rights and benefits are claimed to arise from the employment relationship between school districts or governing authorities of state agencies [or local school boards] and [certified school instructors] licensed school employees, that period of a year not covered by a school year shall not be considered an unemployment period.

E. Except as provided in Section [22-10-12] 22-10A-22 NMSA 1978, a person employed by contract pursuant to this section has no legitimate objective expectancy of reemployment, and no contract entered into pursuant to this section shall be construed as an implied promise of continued employment pursuant to a subsequent contract."

Section 2. Section 22-10A-22 NMSA 1978 (being Laws 1967, Chapter 16, Section 114, as amended) is amended to read:

"22-10A-22. NOTICE OF REEMPLOYMENT--TERMINATION.--On or before the last day of the school year of the existing employment contract, the local [school board] superintendent or the governing authority of the state agency shall serve written notice of reemployment or termination on each [certified school instructor] licensed school employee employed by the school district or state agency. A notice of reemployment shall be an offer of employment for the ensuing school year. A notice of termination shall be a notice of intention not to reemploy for the ensuing school year. Failure of the local [school board] superintendent or the governing authority of the state agency to serve a written notice of reemployment or termination on a [certified school instructor] licensed school employee shall be construed to mean that a notice of reemployment has been served upon the person for the ensuing school year according to the terms of the existing employment contract [but] and subject to any additional compensation allowed other [certified school instructors] licensed school employees of like qualifications and experience employed by the school district or state agency. Nothing in this section shall be construed to mean that failure of a local [school board] superintendent or the governing authority of the state agency to serve a written notice of reemployment or termination shall automatically extend a [certified school instructor's] licensed school employee's employment contract for a period in excess of one school year."

Section 3. Section 22-10A-23 NMSA 1978 (being Laws 1967, Chapter 16, Section 115, as amended) is amended to read:

"22-10A-23. REEMPLOYMENT--ACCEPTANCE--REJECTION--BINDING CONTRACT.--

A. Each [certified school instructor] licensed school employee shall deliver to the local [school board of the school district] superintendent or to the governing authority of the state agency in which the [person] licensed school employee is employed a written acceptance or rejection of reemployment for the ensuing school year within fifteen days from the following:

(1) the date written notice of reemployment is served upon the person; or

(2) the last day of the school year when no written notice of reemployment or termination is served upon the person on or before the last day of the school year.

B. Delivery of the written acceptance of reemployment by a [certified school instructor] licensed school employee creates a binding employment contract between the [certified school instructor] licensed school employee and the [local] school [board] district or the [governing authority of the] state agency until the parties enter into a formal written employment contract. Written employment contracts between [local] school [boards] districts or [governing authorities of] state agencies and [certified school instructors] licensed school employees shall be executed by the parties not later than ten days before the first day of a school year."

Section 4. Section 22-10A-24 NMSA 1978 (being Laws 1986, Chapter 33, Section 22, as amended) is amended to read:

"22-10A-24. TERMINATION DECISIONS--LOCAL [SCHOOL BOARD] SUPERINTENDENT--GOVERNING AUTHORITY OF A STATE AGENCY--PROCEDURES.--

A. A local [school board] superintendent or governing authority of a state agency may terminate an employee with fewer than three years of consecutive service for any reason it deems sufficient. Upon request of the employee, the local superintendent or state agency administrator shall provide written reasons for the decision to terminate. The reasons shall be provided within ten working days of the request. The reasons shall not be publicly disclosed by the superintendent, administrator, local school board or governing authority. The reasons shall not provide a basis for contesting the decision under the School Personnel Act.

B. Before terminating [a noncertified] an unlicensed school employee, the local [school board] superintendent or governing authority shall serve the unlicensed employee with a written notice of termination.

C. An employee who has been employed by a school district or state agency for three consecutive years and who receives a notice of termination pursuant to either Section [22-10-12] 22-10A-22 NMSA 1978 or this section may request an opportunity to [make a statement to] be heard by the local [school board] superintendent or governing authority on the decision to terminate [him] the employee by submitting a written request to the local superintendent or state agency administrator within five working days from the date written notice of termination is served upon [him] the employee. The employee may also request in writing the reasons for the termination action [to terminate him]. The local superintendent or state agency administrator shall provide written reasons for the notice of termination to the employee within five working days from the date the written request for a [meeting] hearing and the written request for the reasons were received by the local superintendent or state agency administrator. Neither the local superintendent or state agency administrator nor the local school board or governing authority shall publicly disclose [its] the reasons for termination.

D. A local [school board] superintendent or governing authority may not terminate an employee who has been employed by a school district or state agency for three consecutive years without just cause.

E. The employee's request pursuant to Subsection C of this section shall be granted if [he] the employee responds to the local superintendent's or state agency administrator's written reasons as provided in Subsection C of this section by submitting in writing to the local superintendent or state agency administrator a contention that the decision to terminate [him] was made without just cause. The written contention shall specify the grounds on which it is contended that the decision was without just cause and shall include a statement of the facts that the employee believes support [his] the employee's contention. This written statement shall be submitted within ten working days from the date the employee receives the written reasons from the local superintendent or administrator. The submission of this statement constitutes a representation on the part of the employee that [he] the employee can support [his] the employee's contentions and an acknowledgment that the local school board or governing authority may offer the causes for its decision and any relevant data in its possession in rebuttal of [his] the employee's contentions.

F. A local [school board] superintendent or governing authority shall meet to hear the employee's statement in no less than five or more than fifteen working days after the local [school board] superintendent or governing authority receives the statement. The hearing shall be conducted informally in accordance with the provisions of the Open Meetings Act.

G. For a hearing before the governing authority of a state agency, the employee and the [local superintendent or] state agency administrator may each be accompanied by a person of [his] choice. First, the [superintendent] state agency administrator shall present the factual basis for [his] the determination that just cause exists for the termination of the employee, limited to those reasons provided to the employee pursuant to Subsection C of this section. Then, the employee shall present [his] the employee's contentions, limited to those grounds specified in Subsection E of this section. The [local school board or] governing authority may offer such rebuttal testimony as it deems relevant. All witnesses may be questioned by the [local school board or] governing authority, the employee or [his] the employee's representative and the [local superintendent or] administrator or [his] the administrator's representative. The [local school board or] governing authority may consider only such evidence as is presented at the hearing and need consider only such evidence as it considers reliable. No record shall be made of the proceeding. The [local school board or] governing authority shall notify the employee and the [local superintendent or] administrator of its decision in writing within five working days from the conclusion of the meeting.

H. For a hearing before the local superintendent, the school employee may be accompanied by a person of the employee's choice. First, the school principal or other person responsible for supervising the school employee shall present the factual basis for the determination that just cause exists for the termination of the school employee, limited to those reasons provided to the school employee pursuant to Subsection C of this section. Second, the school employee shall present the school employee's contentions, limited to those grounds specified in Subsection E of this section. The school principal or other person responsible for supervising the school employee may offer such rebuttal testimony as the local superintendent deems relevant. All witnesses may be questioned by the school employee or the employee's representative, the school principal or other person responsible for supervising the school employee or the local superintendent. The local superintendent may consider only such evidence as is presented at the hearing and need consider only such evidence as the superintendent deems reliable. No record shall be made of the proceeding. The local superintendent shall notify the school employee of the decision in writing within five working days from the conclusion of the hearing.

I. The school employee may appeal the final decision of the local superintendent to the local school board. The local school board shall hold a hearing within fifteen working days of receiving a notice of appeal from the school employee.

J. At the appeal hearing, both the local superintendent and the school employee may be represented by counsel and may call, examine and cross-examine witnesses. The local school board may consider only such evidence as is presented at the hearing and need consider only such evidence as it considers reliable. No record shall be kept of the proceeding. The local school board shall notify the employee and the local superintendent of its decision within five working days from the conclusion of the hearing."

Section 5. Section 22-10A-25 NMSA 1978 (being Laws 1986, Chapter 33, Section 23, as amended) is amended to read:

"22-10A-25. APPEALS--INDEPENDENT ARBITRATOR--QUALIFICATIONS--PROCEDURE--BINDING DECISION.--

A. An employee who is [still] aggrieved by a decision of a local school board or governing authority rendered pursuant to Section [22-10-14] 22-10A-24 NMSA 1978 may appeal the decision to an independent arbitrator. A written appeal shall be submitted to the local superintendent or state agency administrator within five working days from the receipt of the local school board's or governing authority's written decision [or the refusal of the board or authority to grant a hearing]. The appeal shall be accompanied by a statement of particulars specifying the grounds on which it is contended that the decision was impermissible pursuant to Subsection [E] H of Section [22-10-14] 22-10A-24 NMSA 1978 and including a statement of facts supporting the contentions. Failure of the employee to submit a timely appeal or a statement of particulars with the appeal shall disqualify [him] the employee for any appeal and render the local school board's or governing authority's decision final.

B. The local school board or governing authority and the employee shall meet within ten working days from the receipt of the request for an appeal and select an independent arbitrator to conduct the appeal. If the parties fail to agree on an independent arbitrator, they shall request the presiding judge in the judicial district in which the employee's public school or state agency is located to select one. The presiding judge shall select the independent arbitrator within five working days from the date of the parties' request.

C. A qualified independent arbitrator shall be appointed who is versed in employment practices and school procedures and who preferably has experience in the practice of law. No person shall be appointed to serve as the independent arbitrator who has any direct or indirect financial interest in the outcome of the proceeding, has any relationship to any party in the proceeding, is employed by the [local] school [board or governing authority] district or state agency or is a member of or employed by any professional or labor organization of which the school employee is a member.

D. Appeals from the decision of the local school board or governing authority shall be decided after a de novo hearing before the independent arbitrator. The issue to be decided by the independent arbitrator is whether there was just cause for the decision of the local school board or governing authority to terminate the employee.

E. The de novo hearing shall be held within thirty working days from the selection of the independent arbitrator. The arbitrator shall give written notice of the date, time and place of the hearing, and such notice shall be sent to the employee and the local school board or governing authority.

F. Each party has the right to be represented by counsel at the hearing before the independent arbitrator.

G. Discovery shall be limited to depositions and requests for production of documents on a time schedule to be established by the independent arbitrator.

H. The independent arbitrator may issue subpoenas for the attendance of witnesses and for the production of books, records, documents and other evidence and shall have the power to administer oaths. Subpoenas so issued shall be served and enforced in the manner provided by law for the service and enforcement of subpoenas in a civil action.

I. The rules of civil procedure shall not apply to the de novo hearing, but it shall be conducted so that both contentions and responses are amply and fairly presented. To this end, the independent arbitrator shall permit either party to call and examine witnesses, cross-examine witnesses and introduce exhibits. The technical rules of evidence shall not apply, but, in ruling on the admissibility of evidence, the independent arbitrator shall require reasonable substantiation of statements or records tendered, the accuracy or truth of which is in reasonable doubt.

J. The local school board or governing authority has the burden of proof and shall prove by a preponderance of the evidence that, at the time the notice of termination was served on the employee, the local [school board or governing authority] superintendent or state agency administrator had just cause to terminate the employee. If the local school board or governing authority proves by a preponderance of the evidence that there was just cause for [its] the action, then the burden shifts to the school employee to rebut the evidence presented by the local school board or governing authority.

K. The independent arbitrator shall uphold the local school board's or governing authority's decision only if it proves by a preponderance of the evidence that, at the time the notice of termination was served on the employee, the local [school board] superintendent or [governing authority] state agency administrator had just cause to terminate the employee. If the local school board or governing authority fails to meet its burden of proof or if the school employee rebuts the proof offered by the local school board or governing authority, the arbitrator shall reverse the decision of the local school board or governing authority.

L. No official record shall be made of the hearing. Either party desiring a record of the arbitration proceedings may, at [his] the party's own expense, record or otherwise provide for a transcript of the proceedings; provided, however, that the record so provided shall not be deemed an official transcript of the proceedings nor shall it imply any right of automatic appeal or review.

M. The independent arbitrator shall render a written decision affirming or reversing the action of the local school board or governing authority. The decision shall contain findings of fact and conclusions of law. The parties shall receive actual written notice of the decision of the independent arbitrator within ten working days from the conclusion of the de novo hearing.

N. The sole remedies available under this section shall be reinstatement or payment of compensation reinstated in full but subject to any additional compensation allowed other employees of like qualifications and experience employed by the school district or state agency and including reimbursement for compensation during the entire period for which compensation was terminated, or both, less an offset for any compensation received by the employee during the period the compensation was terminated.

O. Unless a party can demonstrate prejudice arising from a departure from the procedures established in this section and in Section [22-10-14] 22-10A-24 NMSA 1978, such departure shall be presumed to be harmless error.

P. The decision of the independent arbitrator shall be binding on both parties and shall be final and nonappealable except where the decision was procured by corruption, fraud, deception or collusion, in which case it shall be appealed to the district court in the judicial district in which the public school or state agency is located.

Q. Each party shall bear its own costs and expenses. The independent arbitrator's fees and other expenses incurred in the conduct of the arbitration shall be assigned at the discretion of the independent arbitrator.

R. [Local] School districts shall file a record with the department [of education] of all terminations and all actions arising from terminations annually."

Section 6. Section 22-10A-26 NMSA 1978 (being Laws 1967, Chapter 16, Section 118, as amended) is amended to read:

"22-10A-26. EXCEPTED FROM PROVISIONS.--Sections [22-10-12 through 22-10-14.1] 22-10A-22 through 22-10A-25 NMSA 1978 do not apply to the following:

A. a [certified school instructor] licensed school employee employed to fill the position of a [certified school instructor] licensed school employee entering military service;

B. a person who is employed as a [certified] licensed school administrator; or

C. [a non-certified] an unlicensed school employee employed to perform primarily district-wide management functions."

Section 7. Section 22-10A-27 NMSA 1978 (being Laws 1986, Chapter 33, Section 24, as amended) is amended to read:

"22-10A-27. DISCHARGE HEARING--LICENSED SCHOOL EMPLOYEES PROCEDURES.--

A. A local [school board] superintendent or the governing authority of a state agency may discharge a [certified] licensed school employee only for just cause according to the following procedure:

(1) the local superintendent or governing authority shall serve a written notice of [his intent to recommend] discharge on the [certified] licensed school employee in accordance with the law for service of process in civil actions; and

(2) the local superintendent or governing authority shall state in the notice of [his intent to recommend] discharge the cause for [his recommendation] the discharge and shall advise the [certified] licensed school employee of [his] the licensed school employee's right to a discharge appeal hearing before the local school board or governing authority as provided in this section.

B. A [certified] licensed school employee who receives a notice of [intent to recommend] discharge pursuant to Subsection A of this section may exercise [his] the right to [a] an appeal hearing before the local school board or governing authority by giving the local superintendent or state agency administrator written notice of that election within five working days of [his] the licensed school employee's receipt of the notice [to recommend] of discharge.

C. The local school board or governing authority shall hold a discharge appeal hearing no less than twenty and no more than forty working days after the local superintendent or state agency administrator receives the written election from the [certified] licensed school employee and shall give the [certified] licensed school employee at least ten days written notice of the date, time and place of the discharge appeal hearing.

D. [Each party] The local superintendent or state agency administrator and the [certified] licensed school employee may be accompanied by a person of [his] the party's choice.

E. The parties shall complete and respond to discovery by deposition and production of documents prior to the discharge appeal hearing.

F. The local school board or governing authority shall have the authority to issue subpoenas for the attendance of witnesses and to produce books, records, documents and other evidence at the request of either party and shall have the power to administer oaths.

G. The local superintendent or state agency administrator shall have the burden of proving by a preponderance of the evidence that, at the time of the notice of [intent to recommend] discharge, [he] the local superintendent or state agency administrator had just cause to discharge the [certified] licensed school employee.

H. The local superintendent or state agency administrator shall present [his] evidence first, with the [certified] licensed school employee presenting [his] evidence [thereafter] after. The local school board or governing authority shall permit either party to call, examine and cross-examine witnesses and to introduce documentary evidence.

I. An official record shall be made of the hearing. Either party may have one copy of the record at the expense of the local school board or governing authority.

J. The local school board shall render its written decision within twenty days of the conclusion of the discharge appeal hearing."

Section 8. Section 22-10A-28 NMSA 1978 (being Laws 1986, Chapter 33, Section 25, as amended) is amended to read:

"22-10A-28. APPEALS--INDEPENDENT ARBITRATOR--QUALIFICATIONS--PROCEDURE--BINDING DECISION.--

A. A [certified] licensed school employee aggrieved by a decision of a local school board or governing authority to discharge [him] the employee after a discharge appeals hearing held pursuant to Section [22-10-17] 22-10A-27 NMSA 1978 may appeal the decision to an independent arbitrator. A written notice of appeal shall be submitted to the local superintendent or state agency administrator within five working days from the receipt of the copy of the written decision of the local school board or governing authority.

B. The local school board or governing authority and the [certified] licensed school employee shall meet within ten calendar days from the receipt of the notice of appeal and select an independent arbitrator to conduct the appeal, or, in the event the parties fail to agree on an independent arbitrator, they shall request the presiding judge in the judicial district in which the public school or state agency is located to select the independent arbitrator. The presiding judge shall select the independent arbitrator within five working days from the date of the parties' request.

C. A qualified independent arbitrator shall be appointed who is versed in employment practices and school procedures. No person shall be appointed to serve as the independent arbitrator who has any direct or indirect financial interest in the outcome of the proceeding, has any relationship to any party in the proceeding, is employed by the [local] school [board] district or governing authority or is a member of or employed by any professional organization of which the [certified] licensed school employee is a member.

D. Appeals from the decision of the local school board or governing authority shall be decided after a de novo hearing before the independent arbitrator. The local school board or governing authority shall have the burden of proving by a preponderance of the evidence that, at the time of the notice of [intent to recommend] discharge, the local superintendent or state agency administrator had just cause to discharge the [certified] licensed school employee. The local school board or governing authority shall present [its] evidence first, with the [certified] licensed school employee presenting [his] evidence [thereafter] after.

E. The hearing shall be held within thirty working days from the selection of the independent arbitrator. The independent arbitrator shall give written notice of the date, time and place of the hearing, and such notice shall be sent to the [certified] licensed school employee and the local school board or governing authority.

F. Each party has the right to be represented by counsel at the hearing before the independent arbitrator.

G. Discovery shall be limited to depositions and requests for production of documents on a time schedule to be established by the independent arbitrator.

I. The rules of civil procedure shall not apply to the hearing, but it shall be conducted so that both contentions and responses are amply and fairly presented. To this end, the independent arbitrator shall permit either party to call and examine witnesses, cross-examine witnesses and introduce exhibits. The technical rules of evidence shall not apply, but, in ruling on the admissibility of evidence, the independent arbitrator may require reasonable substantiation of statements or records tendered, the accuracy or truth of which is in reasonable doubt.

J. An official record shall be made of the hearing. Either party may order a transcript of the record at [his] the party's own expense.

K. The independent arbitrator shall render a written decision affirming or reversing the action of the local school board or governing authority. The decision shall contain findings of fact and conclusions of law. The parties shall receive the written decision of the independent arbitrator within thirty working days from the conclusion of the hearing.

L. Unless a party can demonstrate prejudice arising from a departure from the procedures established in this section and in Section [22-10-17] 22-10A-27 NMSA 1978, such departure shall be presumed to be harmless error.

M. The decision of the independent arbitrator shall be final and binding on both parties and shall be nonappealable except where the decision was procured by corruption, fraud, deception or collusion, in which case it may be appealed to the court of appeals by filing a notice of appeal as provided by the New Mexico rules of appellate procedure.

N. Each party shall bear its own costs and expenses. The independent arbitrator's fees and other expenses incurred in the conduct of the arbitration shall be assigned at the discretion of the independent arbitrator."

Section 9. Section 22-10A-29 NMSA 1978 (being Laws 1967, Chapter 16, Section 120, as amended) is amended to read:

"22-10A-29. COMPENSATION PAYMENTS TO DISCHARGED PERSONNEL.--

A. Payment of compensation to any [certified] licensed school [instructor] employee employed by a [local school board or by the governing authority of a state agency and payment of compensation to any certified school administrator employed by a local school board] school district or state agency shall terminate as of the date [after a hearing, that a written copy of the decision of the local school board or the governing authority of the state agency to] that the local superintendent or state agency administrator notifies the licensed school employee of the decision to discharge [the person is served on the person. If the compensation of the person discharged during the term of a written employment contract is to be paid monthly during a twelve-month period for services to be performed during a period less than twelve months, the person shall be entitled to a pro rata share of the compensation payments due for the period during the twelve months in which no services were to be performed].

B. In the event the action of the local [school board] superintendent in discharging a [certified] licensed school [instructor or administrator] employee or the action of the governing authority of a state agency in discharging a [certified] licensed school [instructor] employee is reversed on final appeal, payment of compensation to the person shall be reinstated in full [but] and subject to any additional compensation allowed other [certified] licensed school [instructor or administrator] employees of like qualifications and experience employed by the school district or state agency and including reimbursement for compensation during the entire period the compensation was terminated less an offset for any compensation received by the person from a school district or state agency during the period the compensation was terminated."

Section 10. Section 22-10A-30 NMSA 1978 (being Laws 1967, Chapter 16, Section 123, as amended) is amended to read:

"22-10A-30. SUPERVISION AND CORRECTION PROCEDURES--ALL SCHOOL EMPLOYEES.--

A. The [state board] department shall prescribe by [regulations] rule procedures to be followed by a [local] school [board or the governing authority of a] district or state agency in supervising and correcting unsatisfactory work performance of [certified] licensed school [personnel] employees before notice of [intent to] discharge is served upon them [and by the governing authority of a state agency in supervising and correcting unsatisfactory work performance of certified school instructors before notice of intent to discharge is served upon them. These regulations].

B. The rules shall provide that written records shall be kept on all action taken by a [local] school [board or the governing authority of a] district or state agency to improve any [person's] school employee's unsatisfactory work performance and all improvements made in [the person's] that school employee's work performance. These written records shall be introduced as evidence at any hearing for the [person] school employee conducted by the local superintendent, local school board or [the] governing authority of [the] a state agency."

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