HOUSE BILL 436
49th legislature - STATE OF NEW MEXICO - first session, 2009
INTRODUCED BY
Keith J. Gardner
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-2 NMSA 1978 (being Laws 1975, Chapter 306, Section 2, as amended) is amended to read:
"22-10A-2. DEFINITIONS.--As used in the School Personnel Act:
A. "discharge" means the act of severing the employment relationship with a [certified] licensed school employee prior to the expiration of the current employment contract or severing the employment relationship of an unlicensed school employee at any time after the unlicensed school employee's probationary period;
B. "responsibility factor" means a value of 1.20 for an elementary school principal, 1.40 for a middle school or junior high school principal, 1.60 for a high school principal, 1.10 for an assistant elementary school principal, 1.15 for an assistant middle school or assistant junior high school principal and 1.25 for an assistant high school principal;
C. "state agency" means any state institution or state agency providing an educational program requiring the employment of [certified] licensed school instructors;
D. "sabbatical leave" means leave of absence with pay as set by the local school board or governing authority of a state agency during all or part of a regular school term for purposes of study or travel related to the staff member's duties and of direct benefit to the instructional program;
E. "terminate" means [in the case of a certified school employee] the act of not reemploying [an] a licensed school employee for the ensuing school year [and, in the case of a noncertified school employee, the act of severing the employment relationship with the employee];
F. "working day" means every calendar day, excluding Saturday, Sunday or legal holiday; and
G. "just cause" means a reason that is rationally related to [an] a school employee's competence or turpitude or the proper performance of the employee's duties and that is not in violation of the school employee's civil or constitutional rights."
Section 2. 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] a school [boards] district or state agency and [certified] licensed school [personnel and between governing authorities of state agencies and certified school instructors] employees shall be in writing on forms approved by the [state board] department. 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.
B. All employment contracts between [local] a school [boards] district or state agency and [certified] licensed school [personnel and between governing authorities of state agencies and certified school instructors] 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] 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] superintendent for [certified] licensed school [instructors] employees in public schools or state agencies 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] licensed school [instructors] employees where those rights and benefits are claimed to arise from the employment relationship [between governing authorities of state agencies or local school boards and certified school instructors], 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-23 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 3. Section 22-10A-22 NMSA 1978 (being Laws 1967, Chapter 16, Section 114, as amended) is repealed and a new Section 22-10A-22 NMSA 1978 is enacted to read:
"22-10A-22. [NEW MATERIAL] DEFINITIONS--STATE AGENCY COVERAGE.--
A. As used in Sections 22-10A-21 through 22-10A-30 NMSA 1978:
(1) "local superintendent" includes the governing authority of a state agency; and
(2) "school principal" includes other school district personnel who have authority to supervise school employees and to correct their performance and recommend termination or discharge; "school principal" also includes the personnel of a state agency who have authority to supervise licensed school employees of the state agency.
B. Licensed school employees in state agencies are subject to the School Personnel Act. Employees of state agencies who are not covered by the Personnel Act and who were covered by the provisions of the School Personnel Act prior to the effective date of this 2009 act shall continue to be covered by the provisions of the School Personnel Act."
Section 4. Section 22-10A-23 NMSA 1978 (being Laws 1967, Chapter 16, Section 115, as amended) is repealed and a new Section 22-10A-23 NMSA 1978 is enacted to read:
"22-10A-23. [NEW MATERIAL] LICENSED SCHOOL EMPLOYEES--REEMPLOYMENT.--
A. Each school principal shall recommend to the local superintendent the reemployment or termination of each licensed school employee under the principal's supervision.
B. Twenty working days before the last day of the school year of the existing employment contract, the school principal shall serve written notice on each licensed school employee the school principal supervises of the school principal's intention to recommend reemployment or termination. The local superintendent may accept or reject the school principal's recommendation and shall notify the licensed school employee on or before the last day of the school year.
C. A notice of reemployment issued by a local superintendent is an offer of employment for the ensuing year. Each licensed school employee shall deliver to the local superintendent by whom the licensed school employee is employed a written acceptance or rejection of reemployment for the ensuing school year within fifteen days from the date written notice of reemployment is served upon the licensed school employee.
D. Delivery of the written acceptance of reemployment by a licensed school employee creates a binding employment contract between the licensed school employee and the school district or state agency until the parties enter into a formal written employment contract. Written contracts between school districts or state agencies and licensed school employees shall be executed by the parties not later than ten days before the first day of a school year.
E. Failure of a local superintendent to serve a written notice of reemployment or termination on a licensed school employee shall be construed to mean that a notice of reemployment was served on the licensed school employee for the ensuing school year according to the terms of the existing employment contract, but subject to any additional compensation allowed other licensed school employees of like qualifications and experience employed by the school district or state agency. Nothing in this subsection shall be construed to mean that failure of a local superintendent to serve a written notice of reemployment or termination automatically extends a licensed school employee's employment contract for a period in excess of one school year."
Section 5. Section 22-10A-24 NMSA 1978 (being Laws 1986, Chapter 33, Section 22, as amended) is repealed and a new Section 22-10A-24 NMSA 1978 is enacted to read:
"22-10A-24. [NEW MATERIAL] LICENSED SCHOOL EMPLOYEES--TERMINATION.--
A. The written notice of the school principal's intention to recommend termination or the local superintendent's decision to terminate shall include the reasons for the recommendation or decision. The reasons shall not be publicly disclosed by the school principal or local superintendent.
B. If a local superintendent rejects a school principal's recommendation for reemployment of a licensed school employee, the local superintendent shall serve notice on the licensed school employee on or before the last day of the school year, stating the local superintendent's reasons for rejecting the recommendation. The reasons shall not be publicly disclosed by the local superintendent.
C. If the licensed school employee has worked for the school district or state agency for fewer than three consecutive years, including the current school year, the reason for recommending or deciding to terminate may be that which the school principal or local superintendent deems sufficient, and the reason shall not provide a basis for contesting the decision under the School Personnel Act. The licensed school employee may submit a written statement to the school principal and the local superintendent contesting the reason given for termination, which statement shall be made a part of the licensed school employee's personnel file in the school district or state agency.
D. If the school principal recommends termination and the local superintendent accepts the recommendation or if the local superintendent rejects a school principal's recommendation for reemployment of a licensed school employee who has worked for the school district or state agency for at least three consecutive years, including the current school year, the licensed school employee may contest the licensed school employee's termination as provided in this section. A local superintendent may not terminate a licensed school employee who has been employed by a school district or state agency for at least three consecutive years, including the current school year, without just cause.
E. Within five days of receiving written notice of the school principal's intention to recommend termination or of receiving written notice of the local superintendent's rejection of the school principal's recommendation for reemployment, the licensed school employee may request a hearing. The local superintendent shall not issue a decision on the school principal's recommendation for termination until after the five days provided to the licensed school employee to request a hearing.
F. A hearing requested by a licensed school employee shall take place within fifteen days of the request for hearing, unless the parties agree to a later date. The hearing shall be conducted by the local superintendent in the case of a recommendation to terminate by a school principal. The hearing shall be conducted by a qualified independent arbitrator appointed in the same manner as one provided for appeals in Section 22-10A-25 NMSA 1978 when the local superintendent rejects the school principal's recommendation to reemploy. The school district shall bear the costs of a hearing before an arbitrator provided pursuant to this subsection.
G. If the local superintendent is unable by reason of a conflict to hold the hearing, an independent arbitrator shall be appointed in the same manner as provided in Subsection F of this section.
H. The local superintendent or 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 shall be served and enforced in the manner provided by law for the service and enforcement of subpoenas in a civil action.
I. The licensed school employee shall submit in writing to the local superintendent or arbitrator a contention that the recommendation or decision to terminate was made without just cause. The written contention shall specify the grounds on which it is contended that the recommendation or decision was without just cause and shall include a statement of the facts that the licensed school employee believes support the licensed school employee's contention. This written statement shall be submitted within ten working days from the date the licensed school employee requested the hearing.
J. The submission of the written contention constitutes:
(1) a representation on the part of the licensed school employee that the licensed school employee can support the licensed school employee's contention; and
(2) an acknowledgment that the school principal or local superintendent may offer the causes for the school principal's or local superintendent's recommendation or decision and any relevant data in the school principal's or local superintendent's possession in rebuttal of the licensed school employee's contentions.
K. The local superintendent or arbitrator shall meet to hear the licensed school employee's statement in no fewer than five or more than fifteen working days after the local superintendent or arbitrator receives the statement. The licensed school employee and the school principal, or the licensed school employee and the local superintendent if the hearing is before an arbitrator, may each be accompanied by a representative of the licensed school employee's, school principal's or local superintendent's choice. First the school principal or local superintendent shall present the factual basis for the recommendation or decision that just cause exists for the termination of the licensed school employee, limited to those reasons provided to the employee. The licensed school employee shall then present the licensed school employee's contentions, limited to those grounds specified in Subsection I of this section. The school principal or local superintendent may offer such rebuttal testimony as the school principal or local superintendent deems relevant. All witnesses may be questioned by the licensed school employee or the licensed school employee's representative and the school principal or the local superintendent or the school principal's or local superintendent's representative, as applicable. The local superintendent or arbitrator may consider only such evidence as is presented at the hearing and need consider only such evidence as the local superintendent or arbitrator considers reliable. No record shall be made of the proceeding.
L. The local superintendent or arbitrator shall render a written decision within twenty days of the conclusion of the hearing and the local superintendent shall notify the licensed school employee and the school principal immediately in writing of the decision to reemploy or terminate. The decision may be appealed as provided in Section 22-10A-25 NMSA 1978."
Section 6. Section 22-10A-25 NMSA 1978 (being Laws 1986, Chapter 33, Section 23, as amended) is amended to read:
"22-10A-25. LICENSED SCHOOL EMPLOYEES--APPEALS--
INDEPENDENT ARBITRATOR--QUALIFICATIONS--PROCEDURE--BINDING DECISION.--
A. [An] A licensed school employee who is still aggrieved by a decision of a local [school board or governing authority] superintendent or independent arbitrator rendered pursuant to Section [22-10-14] 22-10A-24 NMSA 1978 may appeal the decision to an arbitrator. A written appeal shall be submitted to the local superintendent [or 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] D of Section [22-10-14] 22-10A-24 NMSA 1978 and including a statement of facts supporting the contentions. Failure of the licensed school employee to submit a timely appeal or a statement of particulars with the appeal shall disqualify [him] the licensed school employee for any appeal and render the local [school board's or governing authority's] superintendent's or arbitrator's decision final.
B. The local [school board or governing authority] superintendent and the licensed school 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 unless the parties agree to a later date. 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 an attorney 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 employee is a member.
D. Appeals from the decision of the local [school board or governing authority] superintendent 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] superintendent to terminate the employee.
E. The de novo hearing shall be held within thirty working days from the selection of the independent arbitrator unless the parties and the arbitrator agree to a later date. 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] superintendent.
F. Each party has the right to [be represented by counsel] have a representative of the party's choice 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] the contentions and responses of both parties are amply and fairly presented. To this end, the independent arbitrator shall permit either party or the party's representative 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] superintendent 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 licensed school employee, the local [school board or governing authority] superintendent had just cause to terminate the employee. If the local [school board or governing authority] superintendent proves by a preponderance of the evidence that there was just cause for [its] the local superintendent's action, then the burden shifts to the licensed school employee to rebut the evidence presented by the local [school board or governing authority] superintendent.
K. The independent arbitrator shall uphold the local [school board's or governing authority's] superintendent's decision only if [it] the local superintendent proves by a preponderance of the evidence that, at the time the notice of termination was served on the licensed school employee, the local [school board or governing authority] superintendent had just cause to terminate the employee. If the local [school board or governing authority] superintendent fails to meet [its] the burden of proof or if the licensed school employee rebuts the proof offered by the local [school board or governing authority] superintendent, the arbitrator shall reverse the decision of the local [school board or governing authority] superintendent.
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] superintendent. 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] reemployment and any additional compensation allowed other licensed school 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 licensed school 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 7. 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] licensed school [instructor] employee employed to fill the position of a [certified] licensed school [instructor] employee entering military service;
B. a person who is employed as a [certified] school administrator; or
C. [a non-certified] an unlicensed school employee employed to perform primarily district-wide management functions."
Section 8. Section 22-10A-27 NMSA 1978 (being Laws 1986, Chapter 33, Section 24, as amended) is amended to read:
"22-10A-27. SCHOOL EMPLOYEES--DISCHARGE HEARING--PROCEDURES.--
A. A local [school board or the governing authority of a state agency] superintendent may discharge a [certified] school employee only for just cause according to the following procedure:
(1) the [superintendent] school principal shall serve a written notice of [his] intent to recommend discharge on the [certified] school employee in accordance with the law for service of process in civil actions; and
(2) the [superintendent] school principal shall state in the notice of [his] intent to recommend discharge, the cause for [his] the recommendation and shall advise the [certified] school employee of [his] the school employee's right to a discharge hearing before the local [school board or governing authority] superintendent as provided in this section.
B. A [certified] school employee who receives a notice of intent to [recommend] discharge pursuant to Subsection A of this section may exercise [his] the school employee's right to a hearing before the local [school board or governing authority] superintendent by giving the local superintendent [or administrator] written notice of that election within five working days of [his] the school employee's receipt of the notice to recommend discharge.
C. If the local superintendent is unable by reason of a conflict to hold the hearing, an independent arbitrator shall be appointed in the same manner as one provided for appeals in Section 22-10A-28 NMSA 1978. The school district shall bear the costs of a hearing before an arbitrator provided for in this subsection.
[C.] D. The local [school board or governing authority] superintendent or arbitrator shall hold a discharge hearing, no [less] fewer than twenty and no more than forty working days after the local superintendent [or administrator] receives the written election from the [certified] school employee, and shall give the [certified] school employee at least ten [days] days' written notice of the date, time and place of the discharge hearing.
[D. Each party, the local superintendent or administrator] E. The school principal and the [certified] school employee may each be accompanied by a [person] representative of [his] the school principal's or school employee's choice.
[E.] F. The parties shall complete and respond to discovery by deposition and production of documents prior to the discharge hearing.
[F.] G. The local [school board or governing authority] superintendent or arbitrator 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. Subpoenas shall be served and enforced in the manner provided by law for the service and enforcement of subpoenas in a civil action.
[G.] H. The [local superintendent or administrator] school principal 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 had] there was just cause to discharge the [certified] school employee.
[H.] I. The [local superintendent or administrator] school principal shall present [his] evidence first, with the [certified] school employee presenting [his] evidence thereafter. The local [school board or governing authority] superintendent or arbitrator shall permit either party or the party's representative to call, examine and cross-examine witnesses and to introduce documentary evidence.
[I.] J. 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] district or state agency.
[J.] K. The local [school board] superintendent or arbitrator shall render [its] a written decision within twenty days of the conclusion of the discharge hearing. The local superintendent shall notify the school employee and the school principal in writing of the decision to discharge. A school employee may appeal the local superintendent's or arbitrator's decision as provided in Section 22-10A-28 NMSA 1978."
Section 9. Section 22-10A-28 NMSA 1978 (being Laws 1986, Chapter 33, Section 25, as amended) is amended to read:
"22-10A-28. SCHOOL EMPLOYEE DISCHARGE--APPEALS--INDEPENDENT ARBITRATOR--QUALIFICATIONS--PROCEDURE--BINDING DECISION.--
A. A [certified] school employee aggrieved by a decision of a local [school board or governing authority] superintendent to discharge [him] the school employee after a discharge 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 administrator] within five working days from the receipt of the copy of the written decision of the local [school board or governing authority] superintendent.
B. The local [school board or governing authority] superintendent and the [certified] 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 an attorney 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 or governing authority] district or state agency or is a member of or employed by any professional organization of which the [certified] school employee is a member.
D. Appeals from the decision of the local [school board or governing authority] superintendent shall be decided after a de novo hearing before the independent arbitrator. The local [school board or governing authority] superintendent shall have the burden of proving by a preponderance of the evidence that, at the time of the [notice of intent to recommend] decision to discharge, the local superintendent [or administrator] had just cause to discharge the [certified] school employee. The local [school board or governing authority] superintendent shall present [its] evidence first, with the [certified] school employee presenting [his] evidence thereafter.
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] school employee and the local [school board or governing authority] superintendent.
F. Each party has the right to [be represented by counsel] have a representative of the party's choice 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 [or in the manner provided by the American arbitration association's voluntary labor arbitration rules if that entity is used by the parties].
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 of both parties are amply and fairly presented. To this end, the independent arbitrator shall permit either party or the party's representative 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. The local superintendent has the burden of proof and shall prove by a preponderance of the evidence that, at the time the notice of discharge was served on the school employee, the local superintendent had just cause to discharge the employee. If the local superintendent proves by a preponderance of the evidence that there was just cause for the local superintendent's action, then the burden shifts to the school employee to rebut the evidence presented by the local superintendent.
K. The independent arbitrator shall uphold the local superintendent's decision only if the local superintendent proves by a preponderance of the evidence that, at the time the notice of discharge was served on the school employee, the local superintendent had just cause to discharge the employee. If the local school superintendent fails to meet the burden of proof or the school employee rebuts the proof offered by the local superintendent, the arbitrator shall reverse the decision of the local superintendent.
[J.] L. 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.] M. The independent arbitrator shall render a written decision affirming or reversing the action of the local [school board or governing authority] superintendent. 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.] N. 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.] O. 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] district court in the judicial district in which the public school or state agency is located.
[N.] P. 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 10. 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] 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] superintendent notifies the 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] school employee as provided in Subsection L of Section 22-10A-27 NMSA 1978.
B. In the event the action of the local [school board] superintendent in discharging a [certified] school [instructor or administrator or the action of the governing authority of a state agency in discharging a certified school instructor] employee is reversed on appeal, payment of compensation to the person shall be reinstated in full but subject to any additional compensation allowed other [certified] 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] school employee from a school district or state agency during the period the compensation was terminated."
Section 11. 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.--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] 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]. 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] a school employee's unsatisfactory work performance and all improvements made in [the person's] that employee's work performance. These written records shall be introduced as evidence at any hearing for the [person] school employee conducted by the [local] school [board or the governing authority of the] district or state agency."
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