0001| SENATE EDUCATION COMMITTEE SUBSTITUTE FOR | 0002| SENATE BILL 106 | 0003| 43rd legislature - STATE OF NEW MEXICO - first session, 1997 | 0004| | 0005| | 0006| | 0007| | 0008| | 0009| | 0010| | 0011| AN ACT | 0012| RELATING TO PUBLIC SCHOOLS; PROVIDING FOR BACKGROUND CHECKS OF | 0013| APPLICANTS FOR AN INITIAL CERTIFICATION; REQUIRING SCHOOL | 0014| DISTRICT SUPERINTENDENTS TO REPORT CONVICTIONS OF A FELONY OR A | 0015| MISDEMEANOR INVOLVING MORAL TURPITUDE; ALLOWING LOCAL SCHOOL | 0016| BOARDS TO RUN EMPLOYEE BACKGROUND CHECKS; AMENDING SECTIONS | 0017| 22-10-22 AND 28-2-4 NMSA 1978 (BEING LAWS 1967, CHAPTER 16, | 0018| SECTION 124 AND LAWS 1974, CHAPTER 78, SECTION 4, AS AMENDED); | 0019| ENACTING NEW SECTIONS OF THE PUBLIC SCHOOL CODE; MAKING AN | 0020| APPROPRIATION. | 0021| | 0022| BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO: | 0023| Section 1. A new section of the Public School Code is | 0024| enacted to read: | 0025| "[NEW MATERIAL] BACKGROUND CHECKS.-- | 0001| A. An applicant for initial certification shall be | 0002| fingerprinted and shall provide to the department of education | 0003| a copy of the applicant's federal bureau of investigation | 0004| record. The use of the federal bureau of investigation record | 0005| shall be limited to conviction of a felony or misdemeanor as | 0006| described in Sections 28-2-1 through 28-2-6 NMSA 1978; provided | 0007| that other information contained in the federal bureau of | 0008| investigation record, if supported by independent evidence, can | 0009| form the basis for the denial, suspension or revocation of a | 0010| certificate for good and just cause. Such records and any | 0011| related information shall be privileged and shall not be | 0012| disclosed to individuals not directly involved in the | 0013| certification or employment decisions affecting the specific | 0014| applicants or employees. The applicant shall pay for the cost | 0015| of obtaining the federal bureau of investigation record. The | 0016| department of education shall implement the provisions of this | 0017| section on or before July 1, 1998. | 0018| B. Local school boards shall develop policies and | 0019| procedures addressing employment background checks. Such | 0020| policies and procedures may include requiring applicants who | 0021| have been offered employment by the local school board to | 0022| provide the applicant's federal bureau of investigation record. | 0023| Applicants may be required to pay for the cost of obtaining a | 0024| background check. Local school boards may require that | 0025| contractors whose employees are in direct contact with students | 0001| ensure that the employees of such contractors provide their | 0002| federal bureau of investigation records to the employer. The | 0003| department of education is authorized to release copies of federal | 0004| bureau of investigation records on file with the department of | 0005| education to a local school board that requires that applicants | 0006| who have been offered employment provide such records. The use of | 0007| the federal bureau of investigation record shall be limited to | 0008| conviction of a felony or misdemeanor as described in Sections | 0009| 28-2-1 through 28-2-6 NMSA 1978; provided that other information | 0010| contained in the federal bureau of investigation record, if | 0011| supported by independent evidence, can form the basis for the | 0012| employment decisions for good and just cause. Such records and | 0013| any information related thereto shall be privileged and shall not | 0014| be disclosed to individuals not directly involved in the | 0015| certification or employment decisions affecting the specific | 0016| applicants or employees." | 0017| Section 2. A new section of the Public School Code is | 0018| enacted to read: | 0019| "[NEW MATERIAL] KNOWN CONVICTION--REPORTING REQUIREMENT-- | 0020| LIMITED IMMUNITY FROM LIABILITY--PENALTY FOR FAILURE TO REPORT.-- | 0021| A. A school district superintendent shall report to | 0022| the department of education any known conviction of a felony or | 0023| misdemeanor involving moral turpitude of a certified school | 0024| employee that results in any type of action against the school | 0025| employee. | 0001| B. The state board may suspend or revoke a certificate | 0002| held by a certified school administrator who fails to report a | 0003| criminal conviction involving moral turpitude of a certified | 0004| school employee in accordance with Subsection A of this section. | 0005| C. An individual who in good faith reports any known | 0006| conviction of a felony or misdemeanor involving moral turpitude of | 0007| a school employee shall not be held liable for civil damages as a | 0008| result of the report; provided that the person being accused shall | 0009| have the right to sue for any damages sustained as a result of | 0010| negligent or intentional reporting of inaccurate information or | 0011| the disclosure of any information to an unauthorized person." | 0012| Section 3. Section 22-10-22 NMSA 1978 (being Laws 1967, | 0013| Chapter 16, Section 124, as amended) is amended to read: | 0014| "22-10-22. SUSPENSION AND REVOCATION OF CERTIFICATES-- | 0015| APPEAL.-- | 0016| A. The state board may suspend or revoke a certificate | 0017| held by a certified school instructor or administrator for | 0018| incompetency, immorality or [for] any other good and just cause. | 0019| B. A certificate may be suspended or revoked only | 0020| according to the following procedure: | 0021| (1) the state board serving written notice of | 0022| the suspension or revocation on the person holding the certificate | 0023| in accordance with the law for service of process in civil | 0024| actions. The notice of the suspension or revocation shall state | 0025| the grounds for the suspension or revocation of the certificate. | 0001| The notice of the suspension or revocation shall [also designate a | 0002| place, time and date, not less than thirty days from the date of | 0003| the service of the notice of the suspension or revocation, for a | 0004| hearing] describe the rights of the person holding the certificate | 0005| and include instructions for requesting a hearing before the state | 0006| board. Such hearing shall be requested within thirty days of | 0007| receipt of the notice of suspension or revocation. If a hearing | 0008| is requested, the hearing shall be held not less than thirty and | 0009| not more than ninety days from the date of the request for the | 0010| hearing; | 0011| (2) the state board or its designated hearing | 0012| officer conducting a hearing which provides the person holding the | 0013| certificate, or his attorney, an opportunity to present evidence | 0014| or arguments on all pertinent issues. A transcript shall be made | 0015| of the entire hearing conducted by the state board or its | 0016| designated hearing officer; and | 0017| (3) the state board rendering a written decision | 0018| in accordance with the law and based upon evidence presented and | 0019| admitted at the hearing. The written decision shall include | 0020| findings of fact and conclusions of law and shall be based upon | 0021| the findings of fact and the conclusions of law. A written copy | 0022| of the decision of the state board shall be served upon the person | 0023| holding the certificate within sixty days from the date of the | 0024| hearing. Service of the written copy of the decision shall be in | 0025| accordance with the law for service of process in civil actions or | 0001| by certified mail to the person's address of record. | 0002| C. The secretary of the state board or its designated | 0003| hearing officer may subpoena witnesses, require their attendance | 0004| and giving of testimony and require the production of books, | 0005| papers and records in connection with a hearing held pursuant to | 0006| the provisions of Subsection B of this section. Also, the state | 0007| board may apply to the district court for the issuance of | 0008| subpoenas and subpoenas duces tecum in the name of and on behalf | 0009| of the state board. | 0010| [C.] D. Any person aggrieved by a decision of the | 0011| state board after a hearing pursuant to this section may appeal | 0012| the decision to the court of appeals by filing a notice of appeal | 0013| with the clerk of the court within thirty days after service of a | 0014| written copy of the decision of the state board on the person. | 0015| The cost of transcripts on appeal, including one copy for the use | 0016| of the state board, shall be borne by the appellant. Upon appeal, | 0017| the court of appeals shall affirm the decision of the state board | 0018| unless the decision is found to be: | 0019| (1) arbitrary, capricious or unreasonable; | 0020| (2) not supported by substantial evidence; or | 0021| (3) otherwise not in accordance with law." | 0022| Section 4. Section 28-2-4 NMSA 1978 (being Laws 1974, | 0023| Chapter 78, Section 4, as amended) is amended to read: | 0024| "28-2-4. POWER TO REFUSE, RENEW, SUSPEND OR REVOKE PUBLIC | 0025| EMPLOYMENT OR LICENSE.-- | 0001| A. Any board or other agency having jurisdiction over | 0002| employment by the state or any of its political subdivisions or | 0003| the practice of any trade, business or profession may refuse to | 0004| grant or renew or may suspend or revoke any public employment or | 0005| license or other authority to engage in the public employment, | 0006| trade, business or profession for any one or any combination of | 0007| the following causes: | 0008| (1) where the applicant, employee or licensee | 0009| has been convicted of a felony or a misdemeanor involving moral | 0010| turpitude and the criminal conviction directly relates to the | 0011| particular employment, trade, business or profession; | 0012| (2) where the applicant, employee or licensee | 0013| has been convicted of a felony or a misdemeanor involving moral | 0014| turpitude and the criminal conviction does not directly relate to | 0015| the particular employment, trade, business or profession, if the | 0016| board or other agency determines after investigation that the | 0017| person so convicted has not been sufficiently rehabilitated to | 0018| warrant the public trust; or | 0019| (3) where the applicant or employee has been | 0020| convicted of homicide, kidnapping, trafficking in controlled | 0021| substances, criminal sexual penetration or related sexual offenses | 0022| or child abuse and the applicant or employee has applied for | 0023| reinstatement, renewal or issuance of a teaching certificate, | 0024| regardless of rehabilitation. | 0025| B. The board or other agency shall explicitly state in | 0001| writing the reasons for a decision which prohibits the person from | 0002| engaging in the employment, trade, business or profession if the | 0003| decision is based in whole or in part on conviction of any crime | 0004| described in Paragraphs (1) and (3) of Subsection A of this | 0005| section. Completion of probation or parole supervision or | 0006| expiration of a period of three years after final discharge or | 0007| release from any term of imprisonment without any subsequent | 0008| conviction shall create a presumption of sufficient rehabilitation | 0009| for purposes of Paragraph (2) of Subsection A of this section." | 0010| Section 5. APPROPRIATION.--One hundred seventy-five | 0011| thousand dollars ($175,000) is appropriated from the general fund | 0012| to the state department of public education for expenditure in | 0013| fiscal year 1998 for the purpose of implementing a criminal | 0014| records background check program. Any unexpended or unencumbered | 0015| balance remaining at the end of fiscal year 1998 shall revert to | 0016| the general fund. | 0017|  |