2005 House Bill text for HB0084

HOUSE BILL 84

47th legislature - STATE OF NEW MEXICO - first session, 2005

INTRODUCED BY

Mimi Stewart

FOR THE LEGISLATIVE EDUCATION STUDY COMMITTEE

AN ACT

RELATING TO EDUCATION; CLARIFYING, CORRECTING AND RECONCILING SECTIONS OF THE PUBLIC SCHOOL CODE TO COMPLY WITH THE EDUCATION REFORM OF 2003; DEFINING "TEACHER"; PROVIDING FOR A RESEARCH-BASED READING ASSESSMENT FOR KINDERGARTEN THROUGH GRADE TWO; CLARIFYING THAT SCHOOL BOARDS APPROVE ANNUAL BUDGETS; CLARIFYING THE CHAIN OF COMMAND FOR TERMINATION AND DISCHARGE OF SCHOOL PERSONNEL; ALLOWING HEALTH EDUCATION AS AN ELECTIVE; DECLARING AN EMERGENCY.

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

Section 1. Section 22-1-2 NMSA 1978 (being Laws 2003, Chapter 153, Section 3, as amended) is amended to read:

"22-1-2. DEFINITIONS.--As used in the Public School Code:

A. "adequate yearly progress" means the measure adopted by the department based on federal requirements to assess the progress that a student, a public school or school district or the state makes toward improving student achievement;

B. "commission" means the public education commission;

C. "department" means the public education department;

D. "forty-day report" means the report of qualified student membership of each school district and of those eligible to be qualified students but enrolled in a private school or a home school for the first forty days of school;

E. "home school" means the operation by the parent of a school-age person of a home study program of instruction that provides a basic academic educational program, including reading, language arts, mathematics, social studies and science;

F. "instructional support provider" means a person who is employed to support the instructional program of a school district, including educational assistant, school counselor, social worker, school nurse, speech-language pathologist, psychologist, physical therapist, occupational therapist, recreational therapist, interpreter for the deaf and diagnostician;

G. "licensed school employee" means teachers, school administrators and instructional support providers;

H. "local school board" means the policy-setting body of a school district;

I. "local superintendent" means the chief executive officer of a school district;

J. "parent" includes a guardian or other person having custody and control of a school-age person;

K. "private school" means a school, other than a home school, that offers on-site programs of instruction and that is not under the control, supervision or management of a local school board;

L. "public school" means that part of a school district that is a single attendance center in which instruction is offered by one or more teachers and is discernible as a building or group of buildings generally recognized as either an elementary, middle, junior high or high school or any combination of those and includes a charter school;

M. "school" means a supervised program of instruction designed to educate a student in a particular place, manner and subject area;

N. "school administrator" means a person licensed to administer in a school district and includes school principals and central district administrators;

O. "school-age person" means a person who is at least five years of age prior to 12:01 a.m. on September 1 of the school year and who has not received a high school diploma or its equivalent. A maximum age of twenty-one shall be used for a person who is classified as special education membership as defined in Section [22-8-2] 22-8-21 NMSA 1978 or as a resident of a state institution;

P. "school building" means a public school, an administration building and related school structures or facilities, including teacher housing, that is owned, acquired or constructed by the school district as necessary to carry out the functions of the school district;

Q. "school bus private owner" means a person, other than a school district, the department, the state or any other political subdivision of the state, that owns a school bus;

R. "school district" means an area of land established as a political subdivision of the state for the administration of public schools and segregated geographically for taxation and bonding purposes;

S. "school employee" includes licensed and nonlicensed employees of a school district;

T. "school principal" means the chief instructional leader and administrative head of a public school;

U. "school year" means the total number of contract days offered by public schools in a school district during a period of twelve consecutive months;

V. "secretary" means the secretary of public education;

W. "state agency" or "state institution" means the New Mexico military institute, New Mexico school for the [visually handicapped] blind and visually impaired, New Mexico school for the deaf, New Mexico boys' school, girls' welfare home, New Mexico youth diagnostic and development center, Sequoyah adolescent treatment center, Carrie Tingley crippled children's hospital, Las Vegas medical center and any other state agency responsible for educating resident children;

X. "state educational institution" means an institution enumerated in Article 12, Section 11 of the constitution of New Mexico;

Y. "substitute teacher" means a person who holds a certificate to substitute for a teacher in the classroom;

Z. "teacher" means a person who holds a level one, two or three-A license and whose primary duty is classroom instruction or the supervision, below the school principal level, of an instructional program or whose duties include curriculum development, peer intervention, peer coaching or mentoring or serving as a resource teacher for other teachers;

AA. "certified school instructor" means a teacher or instructional support provider; and

BB. "certified school employee" or "certified school personnel" means a licensed school employee."

Section 2. Section 22-2C-4 NMSA 1978 (being Laws 2003, Chapter 153, Section 13, as amended) is amended to read:

"22-2C-4. STATEWIDE ASSESSMENT AND ACCOUNTABILITY SYSTEM--INDICATORS--REQUIRED TESTS--ALTERNATIVE TESTS--LIMITS ON ALTERNATIVES TO ENGLISH LANGUAGE READING TEST.--

A. The department shall establish a statewide assessment and accountability system that is aligned with the state academic content and performance standards and that measures adequate yearly progress for each student, public school and school district. Adequate yearly progress shall be determined primarily by student academic achievement, as demonstrated by statewide standards-based academic performance tests; however, the department may include other indicators of adequate yearly progress, including graduation rates for high schools and attendance for elementary and middle schools.

B. The academic assessment program for adequate yearly progress shall test student achievement as follows by the school year indicated:

(1) for grades kindergarten through two, [diagnostic and] standards-based tests on reading that include phonemic awareness, phonics and comprehension by the

2003-2004 school year;

(2) for grades three through nine and for grade eleven, standards-based academic performance tests in mathematics, reading and language arts and social studies by the 2005-2006 school year; provided that testing in ninth grade and testing in social studies shall not occur until the legislature has provided funding for test development and implementation;

(3) for grades three through nine, standards-based academic performance writing assessment with the writing assessment scoring criteria applied to the extended response writing portions of the language arts criterion-referenced tests by the 2005-2006 school year; and

(4) for one of grades three through five and six through nine and for grade eleven, standards-based academic performance tests in science by the 2007-2008 school year.

C. The department shall involve appropriate licensed school employees in the development of the standards-based academic performance tests.

D. All students shall participate in the academic assessment program. The department shall adopt standards for reasonable accommodations in academic testing for students with disabilities and limited English proficiency, including when and how accommodations may be applied. The legislative education study committee shall review the standards prior to adoption by the department.

E. Students who have been determined to be limited English proficient may be allowed to take the standards-based academic performance test in their primary language. A student who has attended school for three consecutive years in the United States shall participate in the English language reading test unless granted a waiver by the department based on criteria established by the department. An English language reading test waiver may be granted only for a maximum of two additional years and only on a case-by-case basis."

Section 3. Section 22-5-4 NMSA 1978 (being Laws 1967, Chapter 16, Section 28, as amended) is amended to read:

"22-5-4. LOCAL SCHOOL BOARDS--POWERS--DUTIES.--A local school board shall have the following powers or duties:

A. subject to the rules of the department, develop educational policies for the school district;

B. employ a local superintendent for the school district and fix [his] the superintendent's salary;

C. review and approve the annual school district budget;

D. acquire, lease and dispose of property;

E. have the capacity to sue and be sued;

F. acquire property by eminent domain pursuant to the procedures provided in the Eminent Domain Code;

G. issue general obligation bonds of the school district;

H. provide for the repair of and maintain all property belonging to the school district;

I. for good cause and upon order of the district court, subpoena witnesses and documents in connection with a hearing concerning any powers or duties of the local school board;

J. except for expenditures for salaries, contract for the expenditure of money according to the provisions of the Procurement Code;

K. adopt rules pertaining to the administration of all powers or duties of the local school board;

L. accept or reject any charitable gift, grant, devise or bequest. The particular gift, grant, devise or bequest accepted shall be considered an asset of the school district or the public school to which it is given;

M. offer and, upon compliance with the conditions of such offer, pay rewards for information leading to the arrest and conviction or other appropriate disciplinary disposition by the courts or juvenile authorities of offenders in case of theft, defacement or destruction of school district property. All such rewards shall be paid from school district funds in accordance with rules promulgated by the department; and

N. give prior approval for any educational program in a public school in the school district that is to be conducted, sponsored, carried on or caused to be carried on by a private organization or agency."

Section 4. 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-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 5. A new section of the School Personnel Act, Section 22-10A-21.1 NMSA 1978, is enacted to read:

"22-10A-21.1. [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 2005 act shall continue to be covered by the provisions of the School Personnel Act."

Section 6. 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.--

A. Each school principal shall recommend to the local superintendent the reemployment or termination of each licensed school employee under the principal's supervision. On or before the last day of the school year of the existing employment contract, the local [school board or the governing authority of the state agency] superintendent shall serve written notice of reemployment or termination on each [certified] licensed school [instructor] 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.

B. Failure of the local [school board or the governing authority of the state agency] superintendent to serve a written notice of reemployment or termination on a [certified] licensed school [instructor] employee shall be construed to mean that notice of reemployment has been served upon the [person] 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 [certified] licensed school [instructors] employees of like qualifications and experience employed by the school district or state agency.

C. Nothing in this section shall be construed to mean that failure of a local [school board or the governing authority of the state agency] superintendent to serve a written notice of reemployment or termination shall automatically extend a [certified] licensed school [instructor's] employee's employment contract for a period in excess of one school year."

Section 7. 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] licensed school [instructor] employee shall deliver to the local [school board of the school district or to the governing authority of the state agency in which] superintendent by whom the person 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] licensed school employee; or

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

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

Section 8. 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--GOVERNING AUTHORITY OF A STATE AGENCY--PROCEDURES.--

A. [A local school board 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.] A school principal may recommend the termination of a school employee under the principal's supervision who has worked for the school district or state agency for less than three consecutive years for any reason the principal deems sufficient. Based upon this recommendation, the local superintendent may terminate the school employee. Upon request of the employee, the local superintendent [or 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 or governing authority] superintendent shall serve the 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 the local [school board or governing authority] superintendent on the decision to terminate him by submitting a written request to the local superintendent [or administrator] within five working days from the date written notice of termination is served [upon him]. The employee may also request in writing the reasons for the termination action [to terminate him]. The local superintendent [or 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 and the written request for the reasons were received by the local superintendent [or administrator. Neither]. The local superintendent [or administrator nor the local school board or governing authority] shall not publicly disclose [its] the reasons for termination.

D. A local [school board or governing authority] superintendent 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 administrator's] written reasons as provided in Subsection C of this section by submitting in writing to the local superintendent [or 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 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:

(1) a representation on the part of the employee that he can support his contentions; and

(2) an acknowledgment that the [local school board or governing authority] school principal may offer the causes for [its] his decision and any relevant data in [its] the principal's possession in rebuttal of [his] the employee's contentions.

F. A local [school board or governing authority] superintendent shall meet to hear the employee's statement in no less than five or more than fifteen working days after the local [school board or governing authority] superintendent receives the statement. The hearing shall be conducted informally in accordance with the provisions of the Open Meetings Act. The employee and the [local superintendent or administrator] school principal may each be accompanied by a person of his choice. First, the [superintendent] school principal 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 contentions, limited to those grounds specified in Subsection E of this section. The [local] school [board or governing authority] principal may offer such rebuttal testimony as [it] he deems relevant. All witnesses may be questioned by the [local] school [board or governing authority] principal, the employee or his representative and the local superintendent [or administrator or his representative]. The local [school board or governing authority] superintendent may consider only such evidence as is presented at the hearing and need consider only such evidence as [it] he considers reliable. No record shall be made of the proceeding. The local [school board or governing authority] superintendent shall notify the employee and the [local superintendent or administrator] school principal of [its] the decision in writing within five working days from the conclusion of the meeting."

Section 9. 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] superintendent 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 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] superintendent's decision final.

B. The local [school board or governing authority] superintendent 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 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. 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 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] 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 employee, [the local school board or governing authority] the local 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] his action, then the burden shifts to the 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 employee, [the local school board or governing authority] the local 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 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 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 10. 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 11. Section 22-10A-27 NMSA 1978 (being Laws 1986, Chapter 33, Section 24, as amended) is amended to read:

"22-10A-27. 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 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 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 employee's receipt of the notice to recommend discharge.

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

D. [Each party, the local superintendent or administrator] The school principal and the [certified] school employee may each be accompanied by a person of his choice.

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

F. The local [school board or governing authority] superintendent 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 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. 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 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] district or state agency.

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

Section 12. 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] school employee aggrieved by a decision of a local [school board or governing authority] superintendent to discharge [him] the 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 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 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] 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. 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 13. 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 to discharge the person is served on the person. If the compensation of the [person] school employee 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] school employee 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] 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 14. 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."

Section 15. Section 22-13-1 NMSA 1978 (being Laws 2003, Chapter 153, Section 57) is amended to read:

"22-13-1. SUBJECT AREAS--MINIMUM INSTRUCTIONAL AREAS REQUIRED--ACCREDITATION.--

A. The [state board] department shall require public schools to address [state board-approved] department-approved academic content and performance standards when instructing in specific [state board-required] department-required subject areas as provided in this section. A public school or school district failing to meet these minimum requirements shall not be accredited by the [state board] department.

B. All first, second and third grade classes shall provide daily instruction in reading and language arts skills, including phonemic awareness, phonics and comprehension, and in mathematics.

C. All first, second and third grade classes shall provide instruction in art, music, [and] a language other than English and health education.

D. In fourth through eighth grades, instruction that meets academic content and performance standards shall be provided in the following subject areas:

(1) reading and language arts skills, with an emphasis on writing and editing for at least one year and an emphasis on grammar and writing for at least one year;

(2) mathematics;

(3) language other than English;

(4) communication skills;

(5) science;

(6) art;

(7) music;

(8) social studies;

(9) New Mexico history;

(10) United States history;

(11) geography; and

(12) physical fitness.

E. In fourth through eighth grades, school districts shall offer electives that contribute to academic growth and skill development and provide career and technical education. Health education shall be offered as an elective."

Section 16. Section 22-13-1.1 NMSA 1978 (being Laws 1986, Chapter 33, Section 5, as amended) is amended to read:

"22-13-1.1. GRADUATION REQUIREMENTS.--

A. At the end of grades eight through eleven, each student shall prepare an interim next-step plan that sets forth the coursework for the grades remaining until high school graduation. Each year's plan shall explain any differences from previous interim next-step plans, shall be filed with the principal of the student's high school and shall be signed by the student, the student's parent [or guardian] and the student's guidance counselor or other school official charged with coursework planning for the student.

B. Each student must complete a final next-step plan during the senior year and prior to graduation. The plan shall be filed with the principal of the student's high school and shall be signed by the student, the student's parent [or guardian] and the student's guidance counselor or other school official charged with coursework planning for the student.

C. An individualized education program that meets the requirements of Subsections A and B of this section and that meets all applicable transition and procedural requirements of the federal Individuals with Disabilities Education Act for a student with a disability shall satisfy the next-step plan requirements of this section for that student.

D. A local school board shall ensure that each high school student has the opportunity to develop a next-step plan and is reasonably informed about:

(1) curricular and course options;

(2) opportunities available that lead to different post-high-school options; and

(3) alternative opportunities available if the student does not finish a planned curriculum.

E. The secretary [of public education] shall:

(1) establish specific accountability standards for administrators, counselors, teachers and school district staff to ensure that every student has the opportunity to develop a next-step plan;

(2) promulgate rules for accredited private schools in order to ensure substantial compliance with the provisions of this section;

(3) monitor compliance with the requirements of this section; and

(4) compile such information as is necessary to evaluate the success of next-step plans and report annually, by December 15, to the legislative education study committee and the governor.

F. Successful completion of a minimum of twenty-three units aligned to the state academic content and performance standards shall be required for graduation. These units shall be as follows:

(1) four units in English, with major emphasis on grammar and literature;

(2) three units in mathematics, at least one of which is equivalent to the algebra 1 level or higher;

(3) two units in science, one of which shall have a laboratory component; provided, however, that with students entering the ninth grade beginning in the 2005-2006 school year, three units in science shall be required, one of which shall have a laboratory component;

(4) three units in social science, which shall include United States history and geography, world history and geography and government and economics;

(5) one unit in physical education or other physical activity;

(6) one unit in communication skills or business education, with a major emphasis on writing and speaking and that may include a language other than English; and

(7) nine elective units and eight elective units for students entering the ninth grade in the 2005-2006 school year that meet [state board] department content and performance standards. Student service learning and health education shall be offered as [an elective] electives.

G. The department shall establish a procedure for students to be awarded credit through completion of specified career technical education courses for certain graduation requirements.

H. Final examinations shall be administered to all students in all classes offered for credit.

I. A student shall not receive a high school diploma who has not passed a state graduation examination in the subject areas of reading, English, [math] mathematics, writing, science and social science. The state graduation examination on social science shall include a section on the constitution of the United States and the constitution of New Mexico. If a student exits from the school system at the end of grade twelve without having passed a state graduation examination, [he] the student shall receive an appropriate state certificate indicating the number of credits earned and the grade completed. If within five years after a student exits from the school system [he] the student takes and passes the state graduation examination, [he] the student may receive a high school diploma.

J. As used in this section:

(1) "final next-step plan" means a next-step plan that shows that the student has committed or intends to commit in the near future to a four-year college or university, a two-year college, a trade or vocational program, an internship or apprenticeship, military service or a job;

(2) "interim next-step plan" means an annual next-step plan in which the student specifies post-high-school goals and sets forth the coursework that will allow the student to achieve those goals; and

(3) "next-step plan" means an annual personal written plan of studies developed by a student in a public school or other state-supported school or institution in consultation with the student's parent [or guardian] and school counselor or other school official charged with coursework planning for the student.

K. The secretary [of public education] may establish a policy to provide for administrative interpretations to clarify curricular and testing provisions of the Public School Code."

Section 17. EMERGENCY.--It is necessary for the public peace, health and safety that this act take effect immediately.

- 34 -