SENATE BILL 157

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

INTRODUCED BY

Jacob Candelaria

AN ACT

RELATING TO RULES; AMENDING THE PUBLIC EDUCATION DEPARTMENT ACT TO CREATE NOTICE AND HEARING REQUIREMENTS FOR PROPOSING, ADOPTING, AMENDING OR REPEALING RULES.

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

     SECTION 1. Section 9-24-3 NMSA 1978 (being Laws 2004, Chapter 27, Section 3) is amended to read:

     "9-24-3. DEFINITIONS.--As used in the Public Education Department Act:

          A. "commission" means the public education commission;

          B. "department" means the public education department; [and]

          C. "proceeding" means a formal or informal department process or procedure that is commenced or conducted by the department;

          D. "provide to the public" means for the department to distribute rulemaking information in ways designed to notify members of the public of the rulemaking action, particularly those who may be affected by the subject of the rulemaking; provided that:

                (1) "provide to the public" includes distribution of rulemaking information in English and Spanish by:

                     (a) posting it on the department web site, if any;

                     (b) posting it on the sunshine portal;

                     (c) posting it in a conspicuous location in every public school with accompanying text in Spanish and English requesting student comments and input;

                     (d) making it available in the department's district, field and regional offices and in government offices of Indian nations, tribes or pueblos;

                     (e) sending it by mail or electronic mail to persons who have made a written request, including current contact information, for notice from the department of announcements addressing the subject of the rulemaking proceeding; and

                     (f) providing it to the New Mexico legislative council for distribution to appropriate interim and standing legislative committees; and

                (2) where appropriate, feasible or required by law, "provide to the public" may include distribution of rulemaking information:

                     (a) in languages other than English and Spanish;

                     (b) to agencies of local governments;

                     (c) to community, interest group and trade publications;

                     (d) to public facilities, such as community centers and libraries, for display in each county in which the subject of the announcement will have significant impacts and in which there is not a department office;

                     (e) to radio and television outlets for use in public service announcements, particularly in areas in which there are no printed media and in which the language or languages used by a significant percentage of the population are not written; and

                     (f) for publication in a newspaper of general circulation, if any, in each county in which the subject of the announcement will have significant impacts;

          E. "rulemaking" means the process for adoption of a new rule or the amendment or repeal of an existing rule; and

          [C.] F. "secretary" means the secretary of public education."

     SECTION 2. Section 9-24-8 NMSA 1978 (being Laws 2004, Chapter 27, Section 8) is amended to read:

     "9-24-8. SECRETARY--DUTIES AND GENERAL POWERS.--

          A. The secretary is responsible to the governor for the operation of the department. It is the secretary's duty to manage all operations of the department and to administer and enforce the laws with which [he] the secretary or the department is charged.

          B. To perform [his] the secretary's duties, the secretary has every power expressly enumerated in the law, whether granted to the secretary, the department or any division of the department, except when any division is explicitly exempted from the secretary's power by statute. In accordance with these provisions, the secretary shall:

                (1) except as otherwise provided in the Public Education Department Act or the Public School Code, exercise general supervisory and appointing power over all department employees, subject to applicable personnel laws and rules;

                (2) delegate power to subordinates as [he] the secretary deems necessary and appropriate, clearly delineating such delegated power and the limitations to that power;

                (3) organize the department into organizational units as necessary to enable it to function most efficiently, subject to any provisions of law requiring or establishing specific organizational units;

                (4) within the limitations of available appropriations and applicable laws, employ and fix the compensation of those persons necessary to discharge [his] the secretary's duties;

                (5) take administrative action by issuing orders and instructions, not inconsistent with law, to ensure implementation of and compliance with the provisions of law for which administration or execution [he] the secretary is responsible and to enforce those orders and instructions by appropriate administrative action in the courts;

                (6) conduct research and studies that will improve the operation of the department and the provision of services to the [citizens] residents of the state;

                (7) provide courses of instruction and practical training for employees of the department and other persons involved in the administration of programs with the objectives of improving the operations and efficiency of administration and of promoting comprehensive, coordinated and culturally sensitive services that address the education of the whole child;

                (8) prepare an annual budget for the department; and

                (9) provide cooperation, at the request of administratively attached agencies and adjunct agencies, in order to:

                     (a) minimize or eliminate duplication of services and jurisdictional conflicts;

                     (b) coordinate activities and resolve problems of mutual concern; and

                     (c) resolve by agreement the manner and extent to which the department shall provide budgeting, recordkeeping and related clerical assistance to administratively attached agencies.

          C. The secretary may apply for and receive, with the governor's approval, in the name of the department, any public or private funds, including United States government funds, available to the department to carry out its programs, duties or services.

          D. The secretary may make and adopt such reasonable and procedural rules as may be necessary to carry out the duties of the department and its divisions. No rule promulgated by the director of any division in carrying out the functions and duties of the division shall be effective until approved by the secretary. [Unless otherwise provided by statute, no rule affecting any person or agency outside the department shall be adopted, amended or repealed without a public hearing on the proposed action before the secretary or a hearing officer designated by the secretary. The final public hearing on adoption, amendment or repeal of a rule shall be held in Santa Fe unless otherwise permitted by statute. Notice of the subject matter of the rule, the action proposed to be taken, the time and place of the hearing, the manner in which interested persons may present their views and the method by which copies of the proposed rule or proposed amendment or repeal of an existing rule may be obtained shall be published once at least thirty days prior to the hearing date in a newspaper of general circulation and mailed at least thirty days prior to the hearing date to all persons who have made a written request for advance notice of hearing.] All rules shall be filed in accordance with the State Rules Act."

     SECTION 3. A new section of the Public Education Department Act is enacted to read:  

     "[NEW MATERIAL] NOTICE OF PROPOSED RULEMAKING.--

          A. Unless otherwise provided by statute, no rule affecting any person or agency outside the department shall be adopted, amended or repealed without:

                (1) providing to the public notice of the proposed adoption, amendment or repeal of the rule; and

                (2) holding three public rule hearings in geographically dispersed areas of the state.

          B. Not later than thirty days before the first public rule hearing, the department shall provide to the public and publish in the New Mexico register a notice of the proposed rulemaking. The notice shall include:

                (1) a summary of the full text of the proposed rule;

                (2) a short explanation of the purpose of the proposed rule;

                (3) a citation to the specific legal authority authorizing the proposed rule and the adoption of the rule;

                (4) information on how a copy of the full text of the proposed rule may be obtained;

                (5) information on how a person may comment on the proposed rule, where comments will be received and when comments are due;

                (6) information on where and when the public rule hearings will be held and how a person may participate in the hearings;

                (7) an internet link to the notice and an internet link to the full text of the proposed rule; and

                (8) a citation to technical information, if any, that served as a basis for the proposed rule and information on how the full text of the technical information may be obtained.

          C. The department may charge a reasonable fee for providing any written material requested by a person pursuant to this section.

          D. If the department changes the date of the public rule hearing or the deadline for submitting comments as stated in the notice, the department shall provide notice to the public of the change."

     SECTION 4. A new section of the Public Education Department Act is enacted to read:

     "[NEW MATERIAL] PUBLIC PARTICIPATION, COMMENTS AND RULE HEARINGS.--

          A. The notice required pursuant to Section 3 of this 2013 act shall specify a public comment period of at least thirty days after publication in the New Mexico register during which a person may submit information and comment on the proposed rule. The information or comment may be submitted in an electronic or written format or at a public rule hearing pursuant to Subsection B of this section. The department shall consider all information and comments on a proposed rule that are submitted within the comment period.

          B. At each public rule hearing, members of the public shall be given a reasonable opportunity to submit data, views or arguments orally or in writing. Except as otherwise provided by law, a department representative or hearing officer shall preside over a public rule hearing.

          C. Each public rule hearing shall be open to the public and shall be recorded."

     SECTION 5. A new section of the Public Education Department Act is enacted to read:

     "[NEW MATERIAL] VARIANCE BETWEEN PROPOSED AND FINAL ACTION.--The department shall not take action on a proposed rule that differs from the action proposed in the notice of proposed rulemaking on which the rule is based unless the action is a logical outgrowth of the action proposed in the notice."

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