SB0315

SENATE BILL 315

50th legislature - STATE OF NEW MEXICO - second session, 2012

INTRODUCED BY

Howie Morales

AN ACT

RELATING TO SCHOOL PERSONNEL; CREATING A COUNCIL TO MAKE RECOMMENDATIONS FOR A STATE TEACHER EVALUATION FRAMEWORK; REQUIRING THE PUBLIC EDUCATION DEPARTMENT TO USE THE STATE TEACHER EVALUATION FRAMEWORK TO DEVELOP A STATE TEACHER EVALUATION PROGRAM; REQUIRING SCHOOL DISTRICTS AND CHARTER SCHOOLS TO USE THE STATE TEACHER EVALUATION PROGRAM TO EVALUATE EFFECTIVENESS IN TEACHING AND TO GIVE TEACHERS A PERFORMANCE RATING; REQUIRING TEACHERS EARNING THE LOWEST PERFORMANCE RATING AFTER PARTICIPATING IN A PEER INTERVENTION PROGRAM TO BE TERMINATED.

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

SECTION 1. A new section of the School Personnel Act is enacted to read:

"[NEW MATERIAL] STATE TEACHER EVALUATION FRAMEWORK AND PROGRAM.--

A. By June 1, 2012, the department shall convene a council to develop recommendations for a state teacher evaluation framework for the department to consider in adopting a state teacher evaluation program. The council shall work in accordance with this section from June 1, 2012 through December 31, 2015. The department shall provide staff to assist the council as needed.

B. Council members shall include:

(1) the secretary or the secretary's designee; and

(2) geographically diverse members appointed by the secretary as follows:

(a) two teachers, nominated by public school teacher organizations to serve on the council, who have a level II license and currently teach an elementary school class on a full-time basis;

(b) two teachers, nominated by public school teacher organizations to serve on the council, who have a level II license and currently teach a middle school class on a full-time basis;

(c) two teachers, nominated by public school teacher organizations to serve on the council, who have a level II license and currently teach a high school class on a full-time basis;

(d) two teachers, nominated by public school teacher organizations to serve on the council, who have a level III license and currently teach an elementary school class on a full-time basis;

(e) two teachers, nominated by public school teacher organizations to serve on the council, who have a level III license and currently teach a middle school class on a full-time basis;

(f) two teachers, nominated by public school teacher organizations to serve on the council, who have a level III license and currently teach a high school class on a full-time basis;

(g) two representatives of a public school parent organization who are nominated by that organization;

(h) four representatives of an organization of school administrators who are nominated by that organization; and

(i) one representative of the New Mexico business community.

C. If the department has sufficient funds in its budget, the members of the council and any work groups of the council may be reimbursed for travel expenses pursuant to the Per Diem and Mileage Act and shall receive no other compensation, perquisite or allowance.

D. The council may:

(1) convene temporary work groups, which may include non-council members with appropriate expertise, to study and make recommendations on the evaluation framework; and

(2) consult with state, regional and national experts.

E. By December 31, 2012, the council shall make specific and comprehensive recommendations for a state teacher evaluation framework appropriate for evaluating each licensure level of licensed teachers and determining effectiveness in teaching, including:

(1) a research-based evaluation protocol;

(2) criteria for selecting, certifying and training a team of certified evaluators;

(3) the sequence and schedule for teacher evaluations by a team of certified evaluators and the school principal or head administrator;

(4) criteria for assessing school progress on the educational plan for student success;

(5) criteria and guidelines for student learning objectives;

(6) criteria for publishing, collecting and using surveys from students;

(7) criteria and training for establishing and implementing peer assistance, review and intervention programs for teachers; and

(8) four or more performance ratings to indicate a teacher's level of effectiveness in teaching, which shall include at least:

(a) distinguished;

(b) proficient;

(d) unsatisfactory.

F. By December 31, 2012, the council shall make additional specific and comprehensive recommendations for:

(1) training materials and guidelines for performing teacher evaluations;

(2) the sequence and schedule of measures to be taken in response to teacher evaluations;

(3) aligning the department's state teacher evaluation program with the three-tiered licensure and compensation system;

(4) any changes to department rules or laws, if necessary, for teacher evaluation results to be used for personnel decisions in areas such as compensation, promotion, retention, termination and professional development; and

(5) developing a state principal evaluation framework upon which the department shall adopt a state principal evaluation program that aligns with the state teacher evaluation program.

G. By April 30, 2013, the department shall adopt a state teacher evaluation program that:

(1) shall be used to evaluate each licensed teacher according to standards appropriate for the teacher's level of licensure;

(2) is based on the council's state teacher evaluation framework and recommendations;

(3) is based on a set of standards of practice that takes into account the complexities of teaching;

(4) includes formative and summative evaluation criteria;

(5) includes evidence of teaching ability and student learning from multiple sources;

(6) includes and is subject to continuous updating of instruments and processes as research on practices leading to valued student outcomes becomes available;

(7) provides continuous opportunities for professional development and growth for teachers by addressing their professional needs according to the teachers' experience, knowledge and skills;

(8) provides clear and objective standards for determining effectiveness in teaching and assigning a performance rating in one of four or more performance levels recommended by the council, based on the competencies specific to each teacher licensure level and judged by multiple appropriate measures;

(9) provides evaluation instruments, rubrics or other tools recommended by the council as fair, transparent, rigorous and valid and specific to each teacher licensure level;

(10) provides evaluation procedures for each teacher licensure level that are conducted with sufficient time and specified frequency to gather adequate data to justify the performance ratings contained in the evaluation;

(11) provides a connection between the professional development plan required in Section 22-10A-19 NMSA 1978 and the teacher evaluations;

(12) establishes the frequency of teacher evaluations to be performed by a team of certified evaluators, the school principal or the head administrator for each teacher based on the teacher's licensure level;

(13) establishes the sequence and schedule of measures to be taken, if any, in response to teacher evaluations, including a professional improvement plan that includes peer assistance, review and intervention if sufficient improvement does not occur within the prescribed time and possible termination of a teacher who receives an unsatisfactory performance rating on one or more occasions resulting from a teacher evaluation;

(14) establishes the process by which a teacher may appeal adverse performance ratings;

(15) establishes procedures for maintaining the confidentiality of personally identifiable student information in performing evaluations;

(16) establishes whether individual teacher performance ratings resulting from a teacher evaluation are a confidential personnel matter or a matter of public record; and

(17) provides support to school districts and charter schools for implementing the state teacher evaluation program, including:

(a) ongoing training and collaboration time to ensure that teachers understand student data and have the resources to provide instruction that responds appropriately to student data;

(b) ongoing training in the implementation and use of the state teacher evaluation program sufficient for all teachers; and

(c) ongoing training in the implementation and use of the state teacher evaluation program for the certified evaluators and regular calibration of an evaluation tool agreed upon by the certified evaluators.

H. By May 1, 2013, the department shall make available to school districts and charter schools:

(1) the state teacher evaluation program;

(2) its rules on the state teacher evaluation program; and

(3) related materials from evidence-based sources that may assist school principals, head administrators and certified evaluators in implementing and using the state teacher evaluation program.

I. Starting with the 2013-2014 school year, each licensed teacher shall be evaluated by a team of certified evaluators and the teacher's school principal or head administrator using the state teacher evaluation program and the following methods and criteria to evaluate teachers in a rigorous, fair and transparent way in the following percentages:

(1) formative classroom observations of teachers by a team of certified evaluators using a research-based protocol, performed twice during each school year, and comprising twenty percent of the total evaluation;

(2) summative classroom observations of teachers by a school principal or head administrator using a research-based protocol, performed twice during the school year every three years, comprising twenty percent of the total evaluation;

(3) student learning measured by student learning objectives, comprising thirty percent of the total evaluation;

(4) school progress as measured by meeting the educational plan for student success goals, comprising ten percent of the total observation; and

(5) student feedback compiled from student surveys, comprising twenty percent of the total evaluation.

J. The results of each teacher evaluation shall be provided to the teacher in a timely manner. School districts and charter schools shall document and use the results of teacher evaluations to tailor individual teacher professional development plans as needed. The department shall monitor each school district's and charter school's administration of the teacher evaluation program.

K. By March 1 of 2014 and 2015, the council and the department shall prepare a draft status report on the effectiveness of the implemented state teacher evaluation program and distribute the draft status report to all school districts, charter schools and public post-secondary educational institutions for comments. By June 1 of 2014 and 2015, the council and the department shall provide to the governor and the legislative education study committee a final status report that references submitted comments. Each draft and final status report shall include:

(1) data that show the aggregate number of teachers at each level of performance rating across the state and for each school district and charter school;

(2) results of surveys of teachers and parents regarding confidence in and satisfaction with the effectiveness of the state teacher evaluation framework in the purposes of the state teacher evaluation program; and

(3) recommendations of the council, based on the outcomes of the state teacher evaluation program, surveys and any other information the council or department deems relevant, for changes or improvements to the system through amendments to the law or changes to department rule.

L. As used in this section:

(1) "certified evaluator" means a licensed level 3 educator selected, trained and certified by the department to accurately assess teacher practice and conduct formative evaluations of licensed teachers based on the teachers' licensure level;

(2) "educational plan for student success" means a student-centered tool developed to define the role of the academic improvement plan within the school district and charter school that addresses methods to improve a student's learning and success in school and that identifies specific measures of a student's progress;

(3) "formative evaluation" means an evaluation during the school year by a team of certified evaluators that creates ongoing opportunities for feedback to enable a teacher's instruction to be fine-tuned to:

(a) achieve good performance that meets or exceeds goals, criteria and expected standards;

(b) address and develop teaching practices in areas of weakness; and

(4) "head administrator" means the administrative and instructional leader of a charter school;

(5) "student learning objectives" means teacher-designed and -created clear and specific goals that are aligned to the standards; and

(6) "summative evaluation" means a teacher evaluation conducted by a school principal or head administrator that uses identical criteria for each level of licensure and includes the results of formative evaluations to uniformly measure teacher performance within each licensure level."

SECTION 2. Section 22-8B-5 NMSA 1978 (being Laws 1999, Chapter 281, Section 5, as amended) is amended to read:

"22-8B-5. CHARTER SCHOOLS--STATUS--LOCAL SCHOOL BOARD AUTHORITY.--

A. The local school board may waive only locally imposed school district requirements for locally chartered charter schools.

B. A state-chartered charter school is exempt from school district requirements. A state-chartered charter school is responsible for developing its own written policies and procedures in accordance with this section.

C. The department shall waive requirements or rules and provisions of the Public School Code pertaining to individual class load, teaching load, length of the school day, staffing patterns, subject areas, purchase of instructional material, evaluation standards for school personnel, school principal duties and driver education; provided, however, that each charter school shall implement the state teacher evaluation program as provided in the School Personnel Act. The department may waive requirements or rules and provisions of the Public School Code pertaining to graduation requirements. Any waivers granted pursuant to this section shall be for the term of the charter granted but may be suspended or revoked earlier by the department.

D. A charter school shall be a public school accredited by the department and shall be accountable to the chartering authority for purposes of ensuring compliance with applicable laws, rules and charter provisions.

E. A local school board shall not require any employee of the school district to be employed in a charter school.

F. A local school board shall not require any student residing within the geographic boundary of its district to enroll in a charter school.

G. A student who is suspended or expelled from a charter school shall be deemed to be suspended or expelled from the school district in which the student resides."

SECTION 3. Section 22-10A-7 NMSA 1978 (being Laws 2003, Chapter 153, Section 38, as amended) is amended to read:

"22-10A-7. LEVEL ONE LICENSURE.--

A. A level one license is a provisional five-year license for beginning teachers that requires as a condition of licensure that the licensee undergo a formal mentorship program for at least one full school year and [an annual intensive performance evaluation by a school administrator] teacher evaluations pursuant to the state teacher evaluation program for at least three full school years before applying for a level two license.

B. Each school district, in accordance with department rules, shall provide for the mentorship and evaluation of level one teachers. At the end of each year and at the end of the license period, the level one teacher shall be evaluated for [competency] effectiveness in teaching pursuant to the state teacher evaluation program. If the teacher fails to demonstrate satisfactory progress [and competence annually] toward effectiveness in teaching, the teacher may be terminated as provided in Section 22-10A-24 NMSA 1978. If the teacher has not demonstrated satisfactory progress and [competence] effectiveness in teaching pursuant to the state teacher evaluation program by the end of the five-year period, the teacher shall not be granted a level two license.

C. Except in exigent circumstances defined by department rule, a level one license shall not be extended beyond the initial period.

D. The department shall issue a standard level one license to an applicant who is at least eighteen years of age who:

(1) holds a baccalaureate degree from an accredited educational institution;

(2) has successfully completed a department-approved teacher preparation program from a [nationally] regionally accredited or state-approved educational institution;

(3) has passed the New Mexico teacher assessments examination, including for elementary licensure beginning January 1, 2013, a rigorous assessment of the candidate's knowledge of the science of teaching reading; and

(4) meets other qualifications for level one licensure, including clearance of the required background check.

E. The department shall issue an alternative level one license to an applicant who meets the requirements of Section 22-10A-8 NMSA 1978.

F. The department shall establish competencies and qualifications for specific grade levels, types and subject areas of level one licensure, including early childhood, elementary, middle school, secondary, special [education] and vocational education.

G. Beginning with the 2003-2004 school year, [with the adoption by the department of a highly objective uniform statewide standard of evaluation for level one teachers] the minimum salary for a level one teacher shall be thirty thousand dollars ($30,000) for a standard nine and one-half month contract.

H. Teachers who hold level one licenses on the effective date of the 2003 act must be evaluated by the end of the 2006-2007 school year."

SECTION 4. Section 22-10A-10 NMSA 1978 (being Laws 2003, Chapter 153, Section 41, as amended by Laws 2005, Chapter 315, Section 7 and by Laws 2005, Chapter 316, Section 4) is amended to read:

"22-10A-10. LEVEL TWO LICENSURE.--

A. A level two license is a nine-year license granted to a teacher who meets the qualifications for that level and who annually demonstrates [essential competency to teach] effectiveness in teaching pursuant to the state teacher evaluation program. If a level two teacher does not demonstrate [essential competency] effectiveness in teaching in a given school year, the school district shall provide the teacher with additional professional development and peer intervention during the following school year. [If by the end of that school year the teacher fails to demonstrate essential competency, a school district may choose not to contract with the teacher to teach in the classroom.]

B. The department shall issue a level two license to an applicant who successfully completes the level one license or is granted reciprocity as provided by department rules; demonstrates [essential competency required by the department as verified by the local superintendent through the highly objective uniform statewide standard of evaluation] effectiveness in teaching pursuant to the state teacher evaluation program; and meets other qualifications as required by the department.

C. The department shall provide for qualifications for specific grade levels, types and subject areas of level two licensure, including early childhood, elementary, middle, secondary, special education and vocational education.

D. [With the adoption by the department of the statewide objective performance evaluation for level two teachers] The minimum salary for a level two teacher for a standard nine and one-half month contract shall be as follows:

(1) for the 2003-2004 school year,

thirty thousand dollars ($30,000);

(2) for the 2004-2005 school year,

thirty-five thousand dollars ($35,000); and

(3) for the 2005-2006 school year and subsequent school years, forty thousand dollars ($40,000)."

SECTION 5. Section 22-10A-11 NMSA 1978 (being Laws 2003, Chapter 153, Section 42, as amended) is amended to read:

"22-10A-11. LEVEL THREE LICENSURE--TRACKS FOR TEACHERS, COUNSELORS AND SCHOOL ADMINISTRATORS.--

A. A level three-A license is a nine-year license granted to a teacher who meets the qualifications for that level and who annually demonstrates [instructional leader competencies] effectiveness in teaching pursuant to the state teacher evaluation program. If a level three-A teacher does not demonstrate [essential competency] effectiveness in teaching in a given school year, the school district shall provide the teacher with additional professional development and peer intervention during the following school year. [If by the end of that school year the teacher fails to demonstrate essential competency, a school district may choose not to contract with the teacher to teach in the classroom.]

B. The department shall grant a level three-A license to an applicant who has been a level two teacher for at least three years and holds a post-baccalaureate degree or national board for professional teaching standards certification; demonstrates instructional leader competence as required by the department and [verified by the local superintendent through the highly objective uniform statewide standard of] effectiveness in teaching pursuant to the state teacher evaluation program; and meets other qualifications for the license.

C. [With the adoption by the department of a highly objective uniform statewide standard of evaluation for level three-A teachers] The minimum salary for a level three-A teacher for a standard nine and one-half month contract shall be as follows:

(1) for the 2003-2004 school year, thirty thousand dollars ($30,000);

(2) for the 2004-2005 school year,

thirty-five thousand dollars ($35,000);

(3) for the 2005-2006 school year, forty thousand dollars ($40,000);

(4) for the 2006-2007 school year,

forty-five thousand dollars ($45,000); and

(5) for the 2007-2008 school year and subsequent school years, fifty thousand dollars ($50,000).

D. A level three-B license is a nine-year license granted to a school administrator who meets the qualifications for that level. Licenses may be renewed upon satisfactory annual demonstration of instructional leader and administrative competency.

E. The department shall grant a level three-B license to an applicant who:

(1) holds a level two license and meets the requirements for a level three-A license or who holds a current level two teacher's license and for at least four years, has held the highest-ranked counselor license as provided in Chapter 22, Article 10A NMSA 1978 and rules promulgated by the department;

(2) holds a post-baccalaureate degree or national board for professional teaching standards certification;

(3) has satisfactorily completed department-approved courses in administration and a department-approved administration apprenticeship program; and

(4) demonstrates instructional leader competence as required by the department [and verified by the local superintendent through the highly objective uniform statewide standard of evaluation].

F. Beginning with the 2007-2008 school year, the minimum annual salary for a level three-B school principal or assistant school principal shall be fifty thousand dollars ($50,000) multiplied by the applicable responsibility factor.

G. By the beginning of the 2008-2009 school year, the department shall adopt a highly objective uniform statewide standard of evaluation, which includes data sources linked to student achievement and educational plan for student success progress, for level three-B school principals and assistant school principals and rules for the implementation of that evaluation system linked to the level of responsibility at each school level."

SECTION 6. Section 22-10A-19 NMSA 1978 (being Laws 2003, Chapter 153, Section 50, as amended) is amended to read:

"22-10A-19. TEACHERS AND SCHOOL PRINCIPALS--ACCOUNTABILITY--EVALUATIONS--PROFESSIONAL DEVELOPMENT--PEER INTERVENTION [MENTORING].--

A. The department shall adopt criteria and minimum highly objective uniform statewide standards of evaluation for the annual performance evaluation of licensed school employees except licensed teachers. A licensed teacher shall be evaluated through each school district's or charter school's implementation of the state teacher evaluation program as provided in Section 1 of this 2012 act. The professional development plan for teachers shall include documentation on how a teacher who receives professional development that has been required or offered by the state or a school district or charter school incorporates the results of that professional development in the classroom.

B. The local superintendent shall adopt policies, guidelines and procedures for the performance evaluation process. Evaluation by other school employees shall be one component of the evaluation tool for school administrators.

[C. As part of the highly objective uniform statewide standard of evaluation for teachers, the school principal shall observe each teacher's classroom practice to determine the teacher's ability to demonstrate state-adopted competencies.

D.] C. At the beginning of each school year, teachers and school principals shall devise professional development plans for the coming year, and performance evaluations shall be based in part on how well the professional development plan was carried out.

[E.] D. If a level two or three-A teacher's performance evaluation [indicates less than satisfactory] results in the lowest performance [and competency] rating for effectiveness in teaching, the school principal or head administrator may require the teacher to [undergo] participate in a peer intervention [including] program and receive mentoring for a period the school principal deems necessary. If the teacher is unable to demonstrate [satisfactory] effectiveness in teaching by earning a higher performance [and competency] rating by the end of the peer intervention period, [the peer interveners may recommend] termination of the teacher may result.

[F.] E. At least every two years, school principals shall attend a training program [approved by the department] to improve their evaluation, administrative and instructional leadership skills."

SECTION 7. 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 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 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; and

(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 for certified school instructors in public schools 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] school districts and the licensed school employees, 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 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 8. 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 OF LICENSED SCHOOL EMPLOYEES.--

A. 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. 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 school instructor shall be construed to mean that notice of reemployment has been served upon the person for the ensuing school year according to the terms of the existing employment contract but subject to any additional compensation allowed other certified school instructors of like qualifications and experience employed by the school district or state agency.

B. 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.

C. Beginning with the 2013-2014 school year and the implementation of the state teacher evaluation program, a teacher who earns the lowest performance rating for effectiveness in teaching after participating in a peer intervention program shall be terminated."

SECTION 9. 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; or

(2) the last day of the school year when no written notice of reemployment or termination is served upon the person 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 state agency] school district until the parties enter into a formal written employment contract. Written employment contracts between [local] school [boards] districts or [governing authorities of] 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 10. 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] SUPERINTENDENT--

PROCEDURES.--

A. A local [school board or governing authority of a state agency] superintendent may terminate an employee with fewer than three years of consecutive service for any reason [it] the local superintendent deems sufficient. Upon request of the school 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 local 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 unlicensed school employee with a written notice of termination.

C. [An] A school 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] on the decision to terminate [him] the school employee 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 school employee [may] also may 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 school 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 publicly disclose [its] the reasons for termination.

D. A local [school board or governing authority] superintendent may not terminate [an] a school employee who has been employed by a school district or state agency for three consecutive years without just cause.

E. The school employee's request pursuant to Subsection C of this section shall be granted if [he] the school 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 school employee believes support [his] the school employee's contention. This written statement shall be submitted within ten working days from the date the school 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 school employee that [he] the school employee can support [his] the school employee's contentions; and

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

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

SECTION 11. 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] A school employee who is still aggrieved by a decision of a local school board [or governing authority] 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 local school 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 school employee to submit a timely appeal or a statement of particulars with the appeal shall disqualify [him] the school employee for any appeal and render the local school board's [or governing authority's] decision final.

B. The local school board [or governing authority] and the school 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 school employee's public school 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] or is a member of or employed by any professional or labor organization of which the school employee is a member.

D. Appeals from the decision of the local school board [or governing authority] 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] to terminate the school 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 school employee and the local school board [or governing authority].

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] 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 school employee, the local school board [or governing authority] had just cause to terminate the school employee. If the local school board [or governing authority] proves by a preponderance of the evidence that there was just cause for [its] the action, then the burden shifts to the school employee to rebut the evidence presented by the local school board [or governing authority].

K. The independent arbitrator shall uphold the local school board's [or governing authority's] decision only if it proves by a preponderance of the evidence that, at the time the notice of termination was served on the school employee, the local school board [or governing authority] had just cause to terminate the school employee. If the local school board [or governing authority] fails to meet [its] the burden of proof or if the school employee rebuts the proof offered by the local school board [or governing authority], the arbitrator shall reverse the decision of the local school board [or governing authority].

L. No official record shall be made of the hearing. Either party desiring a record of the arbitration appeal 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]. 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 school 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 school 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 12. 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 13. 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] licensed 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] licensed 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

(3) the superintendent shall issue a notice of discharge to the licensed school employee and shall advise the [certified] licensed school employee of [his] the licensed school employee's right to a discharge hearing before the local school board [or governing authority] as provided in this section.

B. A [certified] licensed school employee who receives a notice of intent to recommend discharge [pursuant to Subsection A of this section] from the local superintendent may exercise [his] the licensed school employee's right to a hearing before the local school board [or governing authority] by giving the local superintendent [or administrator] written notice of that election within five working days of [his] the licensed school employee's receipt of the notice [to recommend] of discharge.

C. The local school board [or governing authority] shall hold a discharge hearing no less than twenty and no more than forty working days after the local superintendent [or administrator] receives the written election from the [certified] licensed school employee and shall give the [certified] licensed 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] and the [certified] licensed school employee may be accompanied by a person of [his] the party's 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] 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] 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] the local superintendent had just cause to discharge the [certified] licensed school employee.

H. The local superintendent [or administrator] shall present [his] evidence first, with the [certified] licensed school employee presenting [his] evidence thereafter. The local school board [or governing authority] 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] school district.

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

SECTION 14. 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] licensed school employee aggrieved by a decision of a local [school board or governing authority] superintendent to discharge [him] the licensed school 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].

B. The local [school board or governing authority] superintendent and the [certified] licensed 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 is located to select the independent arbitrator. The presiding judge shall select the independent 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 is a member of or employed by any professional organization of which the [certified] licensed school employee is a member.

D. Appeals from the decision of the local school board [or governing authority] shall be decided after a de novo hearing before the independent arbitrator. The local school board [or governing authority] shall have the burden of proving by a preponderance of the evidence that, at the time of the notice of [intent to recommend] discharge, the local superintendent [or administrator] had just cause to discharge the [certified] licensed school employee. The local school board [or governing authority] shall present [its] evidence first, with the [certified] licensed 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] licensed 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]. 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] when 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 15. 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] licensed school [instructor] employee employed by a [local school board or by the governing authority of a state agency] school district and payment of compensation to any [certified] school administrator employed by a [local] school [board] district 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] licensed school employee is served on the person. If the compensation of the person 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 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] licensed 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] licensed school [instructor] employees or [administrator] administrators 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 from a school district or state agency during the period the compensation was terminated."

SECTION 16. 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.--

A. The [state board] department shall prescribe by [regulations] rule procedures to be followed by a [local school board or the governing authority of a state agency] school district or state agency in supervising and correcting unsatisfactory work performance of [certified] licensed 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].

B. The department's rules shall provide that written records shall be kept on all action taken by a [local] school [board or the governing authority of a state agency] district to improve [any person's] a school employee's unsatisfactory work performance and all improvements made in the [person's] school employee's work performance. These written records shall be introduced as evidence at any hearing for termination or discharge of the [person] school employee conducted by the local school board [or the governing authority of the state agency]."

SECTION 17. Section 22-10A-31 NMSA 1978 (being Laws 1967, Chapter 16, Section 124, as amended) is amended to read:

"22-10A-31. DENIAL, SUSPENSION AND REVOCATION OF LICENSES.--In accordance with the procedures provided in the Uniform Licensing Act, the [state board] department may deny, suspend or revoke a department-issued license for incompetency, moral turpitude or any other good and just cause."

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