SENATE EDUCATION COMMITTEE SUBSTITUTE FOR
SENATE BILL 2
50th legislature - STATE OF NEW MEXICO - first session, 2011
AN ACT
RELATING TO PUBLIC SCHOOLS; AMENDING THE PUBLIC SCHOOL CAPITAL OUTLAY ACT TO ESTABLISH OPTIONAL PROCEDURES FOR CONSTRUCTION OR RENOVATION PROJECTS FOR PUBLIC SCHOOLS; REQUIRING CERTAIN ADDITIONAL INFORMATION TO ACCOMPANY GRANT APPLICATIONS RELATED TO THE USE OF EXISTING COMMUNITY EDUCATIONAL FACILITIES; PROVIDING A CREDIT; PROVIDING PROCEDURES FOR THE CLOSURE OR CONSOLIDATION OF SCHOOL FACILITIES; ENACTING A NEW SECTION OF THE PUBLIC SCHOOL CODE TO PROVIDE FOR SCHOOL DISTRICTS TO OFFER EXTRACURRICULAR ACTIVITY PARTICIPATION BY STUDENTS ENROLLED IN HIGH SCHOOLS OF NINE HUNDRED OR FEWER STUDENTS THAT DO NOT OFFER THOSE ACTIVITIES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. Section 22-24-5 NMSA 1978 (being Laws 1975, Chapter 235, Section 5, as amended) is amended to read:
"22-24-5. PUBLIC SCHOOL CAPITAL OUTLAY PROJECTS--APPLICATION--GRANT ASSISTANCE.--
A. Applications for grant assistance, approval of applications, prioritization of projects and grant awards shall be conducted pursuant to the provisions of this section.
B. Except as provided in Sections 22-24-4.3, 22-24-5.4 and 22-24-5.6 NMSA 1978, the following provisions govern grant assistance from the fund for a public school capital outlay project not wholly funded pursuant to Section 22-24-4.1 NMSA 1978:
(1) all school districts are eligible to apply for funding from the fund, regardless of percentage of indebtedness;
(2) priorities for funding shall be determined by using the statewide adequacy standards developed pursuant to Subsection C of this section; provided that:
(a) the council shall apply the standards to charter schools to the same extent that they are applied to other public schools; and
(b) in an emergency in which the health or safety of students or school personnel is at immediate risk or in which there is a threat of significant property damage, the council may award grant assistance for a project using criteria other than the statewide adequacy standards;
(3) the council shall establish criteria to be used in public school capital outlay projects that receive grant assistance pursuant to the Public School Capital Outlay Act. In establishing the criteria, the council shall consider:
(a) the feasibility of using design, build and finance arrangements for public school capital outlay projects;
(b) the potential use of more durable construction materials that may reduce long-term operating costs;
(c) concepts that promote efficient but flexible utilization of space, including joint use of reasonably accessible community educational facilities; and
(d) any other financing or construction concept that may maximize the dollar effect of the state grant assistance on future student performance, including the construction or renovation of elementary and middle or junior high schools that would accommodate no more than four hundred students and high schools that would accommodate no more than nine hundred students;
(4) no more than ten percent of the combined total of grants in a funding cycle shall be used for retrofitting existing facilities for technology infrastructure;
(5) except as provided in Paragraph (6), (8) or (9) of this subsection, the state share of a project approved and ranked by the council shall be funded within available resources pursuant to the provisions of this paragraph. No later than May 1 of each calendar year, a value shall be calculated for each school district in accordance with the following procedure:
(a) the final prior year net taxable value for a school district divided by the MEM for that school district is calculated for each school district;
(b) the final prior year net taxable value for the whole state divided by the MEM for the state is calculated;
(c) excluding any school district for which the result calculated pursuant to Subparagraph (a) of this paragraph is more than twice the result calculated pursuant to Subparagraph (b) of this paragraph, the results calculated pursuant to Subparagraph (a) of this paragraph are listed from highest to lowest;
(d) the lowest value listed pursuant to Subparagraph (c) of this paragraph is subtracted from the highest value listed pursuant to that subparagraph;
(e) the value calculated pursuant to Subparagraph (a) of this paragraph for the subject school district is subtracted from the highest value listed in Subparagraph (c) of this paragraph;
(f) the result calculated pursuant to Subparagraph (e) of this paragraph is divided by the result calculated pursuant to Subparagraph (d) of this paragraph;
(g) the sum of the property tax mill levies for the prior tax year imposed by each school district on residential property pursuant to Chapter 22, Article 18 NMSA 1978, the Public School Capital Improvements Act, the Public School Buildings Act, the Education Technology Equipment Act and Paragraph (2) of Subsection B of Section 7-37-7 NMSA 1978 is calculated for each school district;
(h) the lowest value calculated pursuant to Subparagraph (g) of this paragraph is subtracted from the highest value calculated pursuant to that subparagraph;
(i) the lowest value calculated pursuant to Subparagraph (g) of this paragraph is subtracted from the value calculated pursuant to that subparagraph for the subject school district;
(j) the value calculated pursuant to Subparagraph (i) of this paragraph is divided by the value calculated pursuant to Subparagraph (h) of this paragraph;
(k) if the value calculated for a subject school district pursuant to Subparagraph (j) of this paragraph is less than five-tenths, then, except as provided in Subparagraph (n) or (o) of this paragraph, the value for that school district equals the value calculated pursuant to Subparagraph (f) of this paragraph;
(l) if the value calculated for a subject school district pursuant to Subparagraph (j) of this paragraph is five-tenths or greater, then that value is multiplied by five-hundredths;
(m) if the value calculated for a subject school district pursuant to Subparagraph (j) of this paragraph is five-tenths or greater, then the value calculated pursuant to Subparagraph (l) of this paragraph is added to the value calculated pursuant to Subparagraph (f) of this paragraph. Except as provided in Subparagraph (n) or (o) of this paragraph, the sum equals the value for that school district;
(n) in those instances in which the calculation pursuant to Subparagraph (k) or (m) of this paragraph yields a value less than one-tenth, one-tenth shall be used as the value for the subject school district;
(o) in those instances in which the calculation pursuant to Subparagraph (k) or (m) of this paragraph yields a value greater than one, one shall be used as the value for the subject school district;
(p) except as provided in Section
22-24-5.7 NMSA 1978 and except as adjusted pursuant to Paragraph (6), (8) or (9) of this subsection, the amount to be distributed from the fund for an approved project shall equal the total project cost multiplied by a fraction the numerator of which is the value calculated for the subject school district in the current year plus the value calculated for that school district in each of the two preceding years and the denominator of which is three; and
(q) as used in this paragraph: 1) "MEM" means the average full-time-equivalent enrollment of students attending public school in a school district on the eightieth and one hundred twentieth days of the prior school year; 2) "total project cost" means the total amount necessary to complete the public school capital outlay project less any insurance reimbursement received by the school district for the project; and 3) in the case of a state-chartered charter school that has submitted an application for grant assistance pursuant to this section, the "value calculated for the subject school district" means the value calculated for the school district in which the state-chartered charter school is physically located;
(6) the amount calculated pursuant to Subparagraph (p) of Paragraph (5) of this subsection shall be reduced by the following procedure:
(a) the total of all legislative appropriations made after January 1, 2003 for nonoperating purposes either directly to the subject school district or to another governmental entity for the purpose of passing the money through directly to the subject school district, and not rejected by the subject school district, is calculated; provided that: 1) an appropriation made in a fiscal year shall be deemed to be accepted by a school district unless, prior to June 1 of that fiscal year, the school district notifies the department of finance and administration and the public education department that the district is rejecting the appropriation; 2) the total shall exclude any educational technology appropriation made prior to January 1, 2005 unless the appropriation was on or after January 1, 2003 and not previously used to offset distributions pursuant to the Technology for Education Act; 3) the total shall exclude any appropriation previously made to the subject school district that is reauthorized for expenditure by another recipient; 4) the total shall exclude one-half of the amount of any appropriation made or reauthorized after January 1, 2007 if the purpose of the appropriation or reauthorization is to fund, in whole or in part, a capital outlay project that, when prioritized by the council pursuant to this section either in the immediately preceding funding cycle or in the current funding cycle, ranked in the top one hundred fifty projects statewide; 5) the total shall exclude the proportionate share of any appropriation made or reauthorized after January 1, 2008 for a capital project that will be jointly used by a governmental entity other than the subject school district. Pursuant to criteria adopted by rule of the council and based upon the proposed use of the capital project, the council shall determine the proportionate share to be used by the governmental entity and excluded from the total; and 6) unless the grant award is made to the state-chartered charter school or unless the appropriation was previously used to calculate a reduction pursuant to this paragraph, the total shall exclude appropriations made after January 1, 2007 for nonoperating purposes of a specific state-chartered charter school, regardless of whether the charter school is a state-chartered charter school at the time of the appropriation or later opts to become a state-chartered charter school;
(b) the total of all federal money received by the subject school district for nonoperating purposes pursuant to Title [XIV] 14 of the American Recovery and Reinvestment Act of 2009 is calculated; provided that: 1) unless the grant award is made to the state-chartered charter school or unless the federal money received was previously used to calculate a reduction pursuant to this paragraph, before the charter school became a state-chartered charter school, the total shall exclude federal money received for nonoperating purposes of a specific state-chartered charter school, regardless of whether the charter school is a state-chartered charter school at the time of receiving the federal money or later opts to become a state-chartered charter school; and 2) the total shall exclude federal money distributed through the fund as grant awards pursuant to the Public School Capital Outlay Act;
(c) the value calculated pursuant to Subparagraph (a) of this paragraph is added to the value calculated pursuant to Subparagraph (b) of this paragraph;
(d) the applicable fraction used for the subject school district and the current calendar year for the calculation in Subparagraph (p) of Paragraph (5) of this subsection is subtracted from one;
(e) the value calculated pursuant to Subparagraph (c) of this paragraph for the subject school district is multiplied by the amount calculated pursuant to Subparagraph (d) of this paragraph for that school district;
(f) the total amount of reductions for the subject school district previously made pursuant to Subparagraph (g) of this paragraph for other approved public school capital outlay projects is subtracted from the amount calculated pursuant to Subparagraph (e) of this paragraph; and
(g) the amount calculated pursuant to Subparagraph (p) of Paragraph (5) of this subsection shall be reduced by the amount calculated pursuant to Subparagraph (f) of this paragraph;
(7) as used in this subsection:
(a) "community educational facilities" means any non-classroom space designed to support educational programs, including physical education facilities, sports fields, gymnasiums, swimming pools, performing arts facilities, fine arts facilities, libraries and media centers;
[(a)] (b) "governmental entity" includes an Indian nation, tribe or pueblo; and
[(b)] (c) "subject school district" means the school district that has submitted the application for funding and in which the approved public school capital outlay project will be located;
(8) the amount calculated pursuant to Subparagraph (p) of Paragraph (5) of this subsection, after any reduction pursuant to Paragraph (6) of this subsection, may be increased by an additional five percent if the council finds that the subject school district has been exemplary in implementing and maintaining a preventive maintenance program; or the construction project for a new school will include in its design the joint use of reasonably accessible community educational facilities. The council shall adopt such rules as are necessary to implement the provisions of this paragraph;
(9) the council may adjust the amount of local share otherwise required if it determines that a school district has used all of its local resources. Before making any adjustment to the local share, the council shall consider whether:
(a) the school district has insufficient bonding capacity over the next four years to provide the local match necessary to complete the project and, for all educational purposes, has a residential property tax rate of at least ten dollars ($10.00) on each one thousand dollars ($1,000) of taxable value, as measured by the sum of all rates imposed by resolution of the local school board plus rates set to pay interest and principal on outstanding school district general obligation bonds;
(b) the school district: 1) has fewer than an average of eight hundred full-time-equivalent students on the eightieth and one hundred twentieth days of the prior school year; 2) has at least seventy percent of its students eligible for free or reduced-fee lunch; 3) has a share of the total project cost, as calculated pursuant to provisions of this section, that would be greater than fifty percent; and 4) for all educational purposes, has a residential property tax rate of at least seven dollars ($7.00) on each one thousand dollars ($1,000) of taxable value, as measured by the sum of all rates imposed by resolution of the local school board plus rates set to pay interest and principal on outstanding school district general obligation bonds; or
(c) the school district: 1) has an enrollment growth rate over the previous school year of at least two and one-half percent; 2) pursuant to its five-year facilities plan, will be building a new school within the next two years; and 3) for all educational purposes, has a residential property tax rate of at least ten dollars ($10.00) on each one thousand dollars ($1,000) of taxable value, as measured by the sum of all rates imposed by resolution of the local school board plus rates set to pay interest and principal on outstanding school district general obligation bonds;
(10) the council shall provide a credit of ten percent of the total project cost against the required local share, as long as the state share does not exceed the total project cost, if the new or replacement school construction project:
(a) is for an elementary school or a middle or junior high school that is designed to accommodate no fewer than two hundred and no more than four hundred students and any portion of the project receiving state share funds has a maximum building gross square footage no larger than that established under the adequacy standards for a school of eight hundred students; or
(b) is for a high school that is designed to accommodate no fewer than four hundred and no more than nine hundred students and any portion of the project receiving state share funds has a maximum building gross square footage no larger than that established under the adequacy standards for a school of one thousand students;
(11) if a school renovation project is designed to renovate an existing elementary or middle or junior high school that is larger than four hundred students into multiple smaller schools, each of which is designed to accommodate no more than four hundred students and no fewer than two hundred students, then the council shall provide an additional credit of ten percent of the total project cost against the required local share, as long as the state share does not exceed the total project cost;
(12) if a school renovation project is designed to renovate an existing high school that is larger than nine hundred students into multiple smaller schools, each of which is designed to accommodate no more than nine hundred students and no fewer than four hundred students, then the council shall provide an additional credit of ten percent of the total project cost against the required local share, as long as the state share does not exceed the total project cost; and
[(10)] (13) no application for grant assistance from the fund shall be approved unless the council determines that:
(a) the public school capital outlay project is needed and included in the school district's
five-year facilities plan among its top priorities;
(b) the school district has used its capital resources in a prudent manner;
(c) the school district has provided insurance for buildings of the school district in accordance with the provisions of Section 13-5-3 NMSA 1978;
(d) the school district has submitted a five-year facilities plan that includes: 1) enrollment projections; 2) a current preventive maintenance plan that has been approved by the council pursuant to Section 22-24-5.3 NMSA 1978 and that is followed by each public school in the district; 3) the capital needs of charter schools located in the school district; and 4) projections for the facilities needed in order to maintain a full-day kindergarten program;
(e) the school district is willing and able to pay any portion of the total cost of the public school capital outlay project that, according to Paragraph (5), (6), (8) or (9) of this subsection, is not funded with grant assistance from the fund; provided that school district funds used for a project that was initiated after September 1, 2002 when the statewide adequacy standards were adopted, but before September 1, 2004 when the standards were first used as the basis for determining the state and school district share of a project, may be applied to the school district portion required for that project;
(f) the application includes the capital needs of any charter school located in the school district or the school district has shown that the facilities of the charter school have a smaller deviation from the statewide adequacy standards than other district facilities included in the application; [and]
(g) the school district has agreed, in writing, to comply with any reporting requirements or conditions imposed by the council pursuant to Section 22-24-5.1 NMSA 1978; and
(h) if the application is for a new school, the application includes: 1) an analysis of the number, type, location and capacity of community educational facilities reasonably accessible to the proposed school; 2) a plan for how the new school will use the community educational facilities identified in Item 1) of this subparagraph; and 3) if the new school will not be using any of the identified community educational facilities, an explanation of why it will not be using them.
C. After consulting with the public school capital outlay oversight task force and other experts, the council shall regularly review and update statewide adequacy standards applicable to all school districts. The standards shall establish the acceptable level for the physical condition and capacity of buildings, the educational suitability of facilities and the need for technological infrastructure. Except as otherwise provided in the Public School Capital Outlay Act, the amount of outstanding deviation from the standards shall be used by the council in evaluating and prioritizing public school capital outlay projects.
D. The acquisition of a facility by a school district or charter school pursuant to a financing agreement that provides for lease payments with an option to purchase for a price that is reduced according to lease payments made may be considered a public school capital outlay project and eligible for grant assistance under this section pursuant to the following criteria:
(1) no grant shall be awarded unless the council determines that, at the time of exercising the option to purchase the facility by the school district or charter school, the facility will equal or exceed the statewide adequacy standards and the building standards for public school facilities;
(2) no grant shall be awarded unless the school district and the need for the facility meet all of the requirements for grant assistance pursuant to the Public School Capital Outlay Act;
(3) the total project cost shall equal the total payments that would be due under the agreement if the school district or charter school would eventually acquire title to the facility;
(4) the portion of the total project cost to be paid from the fund may be awarded as one grant, but disbursements from the fund shall be made from time to time as lease payments become due;
(5) the portion of the total project cost to be paid by the school district or charter school may be paid from time to time as lease payments become due; and
(6) neither a grant award nor any provision of the Public School Capital Outlay Act creates a legal obligation for the school district or charter school to continue the lease from year to year or to purchase the facility.
E. In order to encourage private capital investment in the construction of public school facilities, the purchase of a privately owned school facility that is, at the time of application, in use by a school district may be considered a public school capital outlay project and eligible for grant assistance pursuant to this section if the council finds that:
(1) at the time of the initial use by the school district, the facility to be purchased equaled or exceeded the statewide adequacy standards and the building standards for public school facilities;
(2) at the time of application, attendance at the facility to be purchased is at seventy-five percent or greater of design capacity and the attendance at other schools in the school district that the students at the facility would otherwise attend is at eighty-five percent or greater of design capacity; and
(3) the school district and the capital outlay project meet all of the requirements for grant assistance pursuant to the Public School Capital Outlay Act; provided that, when determining the deviation from the statewide adequacy standards for the purposes of evaluating and prioritizing the project, the students using the facility shall be deemed to be attending other schools in the school district.
F. It is the intent of the legislature that grant assistance made pursuant to this section allows every school district to meet the standards developed pursuant to Subsection C of this section; provided, however, that nothing in the Public School Capital Outlay Act or the development of standards pursuant to that act prohibits a school district from using other funds available to the district to exceed the statewide adequacy standards.
G. Upon request, the council shall work with, and provide assistance and information to, the public school capital outlay oversight task force.
H. The council may establish committees or task forces, not necessarily consisting of council members, and may use the committees or task forces, as well as existing agencies or organizations, to conduct studies, conduct surveys, submit recommendations or otherwise contribute expertise from the public schools, programs, interest groups and segments of society most concerned with a particular aspect of the council's work.
I. Upon the recommendation of the public school facilities authority, the council shall develop building standards for public school facilities and shall promulgate
other such rules as are necessary to carry out the provisions of the Public School Capital Outlay Act.
J. No later than December 15 of each year, the council shall prepare a report summarizing its activities during the previous fiscal year. The report shall describe in detail all projects funded, the progress of projects previously funded but not completed, the criteria used to prioritize and fund projects and all other council actions. The report shall be submitted to the public education commission, the governor, the legislative finance committee, the legislative education study committee and the legislature."
SECTION 2. A new section of Chapter 22, Article 5 NMSA 1978 is enacted to read:
"[NEW MATERIAL] SCHOOL FACILITIES CLOSURE OR CONSOLIDATION--PROCEDURES--APPROVAL OF SECRETARY.--
A. A local school board may close a school or may consolidate two or more schools within a school district only if it determines, pursuant to the provisions of this section, that the closure or consolidation is in the best interest of students served by any school to be affected by the closure or consolidation.
B. The local school board shall prepare a feasibility study examining the likely effects of the closure or consolidation on the education of students in the school district and on the community in which the schools are located, including effects on student achievement, student participation in co-curricular activities, student safety, student commuting time and patterns, parental participation in school activities and student learning, annual cost per pupil and total cost per graduate, other costs related to the closure or consolidation and other factors related to the educational performance of the school or schools and the students.
C. After the preparation of the feasibility study, the local school board shall hold a public hearing in each of the schools to be affected by closure or consolidation in order to receive input from members of the community. Notice of each hearing shall be given by the local school board at least thirty days prior to the hearing date. Notice of each hearing shall be posted at every school affected by the proposed closure or consolidation and mailed to all legal guardians of children attending a school affected by the proposed closure or consolidation. The notice shall provide:
(1) the subject of the hearing;
(2) the time and place of the hearing;
(3) where interested parties may obtain copies of the feasibility study; and
(4) the manner in which interested persons may present their views at the hearing.
D. At the public hearings, the local school board shall allow all interested persons a reasonable opportunity to submit data, views or arguments, orally or in writing, and to examine witnesses testifying at the hearing, including the superintendent, members of the local school board and any witnesses brought by the superintendent or local school board.
E. Within twenty-one days of the last required public hearing, the local school board, after considering the conclusions of the feasibility study and all input received at the hearings, shall, in writing, decide whether or not to proceed with the proposed school closure or consolidation. If the local school board decides to proceed with the closure or consolidation, it shall forward its decision, the feasibility study and the record of each public hearing to the secretary.
F. No school closure or consolidation shall be carried out without the approval of the secretary. The secretary shall only approve the closure or consolidation if the secretary determines that the local school board's decision is reasonably supported by the feasibility study and the public input and is otherwise in accordance with applicable laws and rules."
SECTION 3. A new section of the Public School Code is enacted to read:
"[NEW MATERIAL] SCHOOL DISTRICT EXTRACURRICULAR
ACTIVITIES--STUDENTS ENROLLED IN HIGH SCHOOL OF FEWER THAN NINE HUNDRED STUDENTS NOT OFFERING THOSE ACTIVITIES.--
A. The New Mexico activities association and the local school board in which a high school enrolling fewer than nine hundred students is located shall allow students at that school to participate in school district extracurricular activities sanctioned by the New Mexico activities association or other association if those students meet eligibility requirements and if the school enrolling fewer than nine hundred students does not offer such activities.
B. A student at a high school enrolling fewer than nine hundred students who is otherwise eligible to participate in an extracurricular activity shall participate in the extracurricular activities at the public school closest to the attendance zone in which the student lives; provided, however, that the student may choose only one public school in which to participate."
- 23 -