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AN ACT

RELATING TO PUBLIC SCHOOLS; REQUIRING REPORTS OF SCHOOL

EMPLOYEE MISCONDUCT; PROVIDING THAT SETTLEMENT AGREEMENT

CONFIDENTIALITY PROVISIONS DO NOT RELIEVE RESPONSIBILITY FOR

REPORTING.

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

Section 1. Section 22-10A-5 NMSA 1978 (being Laws 1997,

Chapter 238, Section 1, as amended) is amended to read:

"22-10A-5. BACKGROUND CHECKS--KNOWN CONVICTIONS--

ALLEGED ETHICAL MISCONDUCT--REPORTING REQUIRED--LIMITED

IMMUNITY--PENALTY FOR FAILURE TO REPORT.--

A. As used in this section, "ethical misconduct"

means unacceptable behavior or conduct engaged in by a

licensed school employee and includes inappropriate touching,

sexual harassment, discrimination and behavior intended to

induce a child into engaging in illegal, immoral or other

prohibited behavior.

B. An applicant for initial licensure shall be

fingerprinted and shall provide two fingerprint cards or the

equivalent electronic fingerprints to the department to

obtain the applicant's federal bureau of investigation

record. Convictions of felonies or misdemeanors contained in

the federal bureau of investigation record shall be used in

accordance with the Criminal Offender Employment Act. Other

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information contained in the federal bureau of investigation

record, if supported by independent evidence, may form the

basis for the denial, suspension or revocation of a license

for good and just cause. Records and related information

shall be privileged and shall not be disclosed to a person

not directly involved in the licensure or employment

decisions affecting the specific applicant. The applicant

for initial licensure shall pay for the cost of obtaining the

federal bureau of investigation record.

C. Local school boards and regional education

cooperatives shall develop policies and procedures to require

background checks on an applicant who has been offered

employment, a contractor or a contractor's employee with

unsupervised access to students at a public school.

D. An applicant for employment who has been

initially licensed within twenty-four months of applying for

employment with a local school board, regional education

cooperative or a charter school shall not be required to

submit to another background check if the department has

copies of the applicant's federal bureau of investigation

records on file. An applicant who has been offered

employment, a contractor or a contractor's employee with

unsupervised access to students at a public school shall

provide two fingerprint cards or the equivalent electronic

fingerprints to the local school board, regional education

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cooperative or charter school to obtain the applicant's

federal bureau of investigation record. The applicant,

contractor or contractor's employee who has been offered

employment by a regional education cooperative or at a public

school may be required to pay for the cost of obtaining a

background check. At the request of a local school board,

regional education cooperative or charter school, the

department is authorized to release copies of federal bureau

of investigation records that are on file with the department

and that are not more than twenty-four months old.

Convictions of felonies or misdemeanors contained in the

federal bureau of investigation record shall be used in

accordance with the Criminal Offender Employment Act;

provided that other information contained in the federal

bureau of investigation record, if supported by independent

evidence, may form the basis for the employment decisions for

good and just cause. Records and related information shall

be privileged and shall not be disclosed to a person not

directly involved in the employment decision affecting the

specific applicant who has been offered employment,

contractor or contractor's employee with unsupervised access

to students at a public school.

E. A local superintendent, charter school

administrator or regional education cooperative shall report

to the department any known conviction of a felony or

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misdemeanor involving moral turpitude of a licensed school

employee that results in any type of action against the

licensed school employee.

F. A local superintendent, charter school

administrator or director of a regional education cooperative

or their respective designees shall investigate all

allegations of ethical misconduct about any licensed school

employee who resigns, is being discharged or terminated or

otherwise leaves employment after an allegation has been

made. If the investigation results in a finding of

wrongdoing, the local superintendent, charter school

administrator or director of a regional education cooperative

shall report the identity of the licensed school employee and

attendant circumstances of the ethical misconduct on a

standardized form to the department and the licensed school

employee within thirty days following the separation from

employment. Copies of that form shall not be maintained in

public school, school district or regional education

cooperative records. No agreement between a departing

licensed school employee and the local school board, school

district, charter school or regional education cooperative

shall diminish or eliminate the responsibility of

investigating and reporting the alleged ethical misconduct,

and any such agreement to the contrary is void. Unless the

department has commenced its own investigation of the

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licensed school employee prior to receipt of the form, the

department shall serve the licensed school employee with a

notice of contemplated action involving that employee's

license within ninety days of receipt of the form. If that

notice of contemplated action is not served on the licensed

school employee within ninety days of receipt of the form,

the form, together with any documents related to the alleged

ethical misconduct, shall be expunged from the licensed

school employee's records with the department and shall not

be subject to public inspection.

G. The secretary may suspend, revoke or refuse to

renew the license of a local superintendent, charter school

administrator or regional education cooperative director who

fails to report as required by Subsections E and F of this

section.

H. A person who in good faith reports as provided

in Subsections E and F of this section shall not be held

liable for civil damages as a result of the report. The

person being accused shall have the right to sue for any

damages sustained as a result of negligent or intentional

reporting of inaccurate information or the disclosure of any

information to an unauthorized person."