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F I S C A L I M P A C T R E P O R T

SPONSOR Begaye

DATE TYPED 1/25/05

HB 125

SHORT TITLE Native American Staff Termination Requirement

SB

ANALYST Chabot

APPROPRIATION

Appropriation Contained Estimated Additional Impact Recurring

or Non-Rec

Fund

Affected

FY05

FY06

FY05

FY06

NFI

See Narrative

(Parenthesis ( ) Indicate Expenditure Decreases)

Relates to Appropriation in the General Appropriation Act

SOURCES OF INFORMATION

LFC Files

Responses Received From

Attorney General (AG)

Department of Indian Affairs (DIA)

Public Education Department (PED)

SUMMARY

Synopsis of Bill

House Bill 125 amends Section 22-5-4 NMSA 1978 (Local School Boards—Powers—Duties)

and requires school boards work with the Indian Education Advisory Council to improve an

identified inadequate staffing pattern of Native Americans. It amends Section 22-5-14 (Local

Superintendent—Powers and Duties) and Section 22-10A-27 (Discharge Hearing—Procedures)

to require school district superintendents of districts with a pattern of inadequate Native Ameri-

can staffing to notify the assistant superintendent of Indian Education five days in advance of

terminating or discharging a Native American administrator, teacher or licensed support staff

member. It amends Section 22-23A-5 (Indian Education Division—Created—Assistant Superin-

tendent—Duties) to require review of inadequate Native American staffing and oversee Native

American bilingual language programs. Finally, it amends Section 22-23A-6 (Advisory Coun-

cil) to request from PED on an annual bases a summary report of Native American staffing pat-

terns and in December of each year to make a report to the assistant superintendent for Indian

Education and the Legislative Indian Affairs Committee with recommendations to improve in-

adequate staffing patterns.

House Bill 125 -- Page 2

Significant Issues

PED has significant concerns about this bill. First, it would require the department to become

involved in what are school districts personnel actions. It would have to monitor school district

hiring and discharge actions, and require PED to become involved in corrective actions. In 1986,

the Legislature removed the former State Board of Education out of district employment deci-

sions. This bill would require PED to become involved if the case was about an individual iden-

tified as a Native American.

Second, the bill does not specify what the department is to do upon notification of a pending per-

sonnel action, and the Assistant Secretary’s involvement could be deemed to violate due process

requirements of the individual. It may also violate an individual’s right to privacy because per-

sonnel actions between an agency and the individual are confidential until finalized and the ac-

tion taken. The requirement to notify PED by a school district contemplating an action may vio-

late that confidentiality.

Third, requiring PED to provide the Indian Education Advisory Council information summariz-

ing school district staffing patterns implies PED has a right to collect this information. However,

the bill does not give the agency this authority. The agency states “To generate this data, PED

would be required to ask all applicants ethnicity questions, which would invariably implicate the

Fourteenth Amendment of the U.S. Constitution; Title VI of the Civil Rights Act of 1964, 42

U.S.C.

§

and the New Mexico Human Rights Act.

Fourth, “identified patterns of inadequate Native American staffing” is not defined. It would be

determined by the Indian Education Advisory Council without Legislative input or consultation

with school districts.

Fifth, the bill requires PED to implement corrective actions and it urges affirmative action as a

measure. This could lead to civil rights litigation because it is not clear a state agency can adopt

its own Indian preference procedures.

Lastly, the bill assigns oversight of the Native American bilingual language programs to PED’s

Indian Education Division. Under provision of the Public Education Department Act (Section 9-

24-4 NMSA 1978), the Secretary has assigned the responsibility to the Bilingual and Multicul-

tural Education Bureau which is not part of the Indian Education Division.

AG states the proposed language in Section 2 may conflict with the School Personnel Act (Sec-

tion 22-10A-24(C) which prohibits the local superintendent and school board from publicly dis-

closing its reasons for termination. In addition, Section 3 of the bill exceeds the scope of Section

22-10A-27(B) which applies to discharge hearings not terminations.

FISCAL IMPLICATIONS

PED estimates $233.5 thousand, plus undetermined costs to each affected school district, will be

required to implement the requirements of this bill.

House Bill 125 -- Page 3

ADMINISTRATIVE IMPLICATIONS

The Assistant Secretary of Indian Education will have to establish procedures to comply with

this statute.

TECHNICAL ISSUES

To align the statute with the PED organizational structure, the following changes are recom-

mended:

Page 2, Line 5, change “superintendent” to “secretary”.

Page 4, Line 17, change “superintendent” to “secretary”.

Page 5, Line 21, change “superintendent” to “secretary”.

Page 7, Line 20, change “SUPERINTENDENT” to “SECRETARY”.

Page 7, Line 24, change “superintendent” to “secretary”.

Page 11, Line 24, change “superintendent” to “secretary”.

AG recommends terminology in the act be aligned with the resulting organizational structure un-

der the Public Education Act to avoid confusion in titles.

OTHER SUBSTANTIVE ISSUES

DIA recommends the definition of the term “inadequate Native American staffing” be included

in the bill. It suggests staffing patterns should adequately reflect and population and diversity of

the district. LFC recommends the definition include percentage of students required before con-

siderations of “inadequate Native American staffing” are required to be reported.

LFC recommends the PED general counsel be available to discuss objections to this bill before

appropriate committees.

ALTERNATIVES

PED will continue to recruit Native American into teaching programs through the appropriation

for Indian Education in the General Appropriations Act.

WHAT WILL BE THE CONSEQUENCES OF NOT ENACTING THIS BILL.

DIA suggests concerned parents, lawmakers, public school personnel and other community

members will continue to question the equity disparities for Native American students in New

Mexico public schools, especially in areas where there are high numbers of Native American

Students.

POSSIBLE QUESTIONS

1.

What is the role of PED in collecting, reporting and taking action on the information re-

quired by this bill.

2.

Is there other means of obtaining this information.

GAC/yr