HOUSE BILL 354

51st legislature - STATE OF NEW MEXICO - first session, 2013

INTRODUCED BY

Jim R. Trujillo

FOR THE PUBLIC SCHOOL CAPITAL OUTLAY OVERSIGHT TASK FORCE

AN ACT

RELATING TO CHARTER SCHOOL FACILITIES; AMENDING THE PUBLIC SCHOOL CODE TO ALLOW THE PUBLIC SCHOOL CAPITAL OUTLAY COUNCIL TO RECOMMEND SUSPENSION, NONRENEWAL OR REVOCATION OF A CHARTER BASED ON THE CHARTER SCHOOL'S FACILITY CONDITION.

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

     SECTION 1. Section 22-8B-4.2 NMSA 1978 (being Laws 2005, Chapter 221, Section 3 and Laws 2005, Chapter 274, Section 2, as amended) is amended to read:

     "22-8B-4.2. CHARTER SCHOOL FACILITIES--STANDARDS.--

          A. The facilities of a charter school that is approved on or after July 1, 2005 and before July 1, 2015 shall meet educational occupancy standards required by applicable New Mexico construction codes.

          B. The facilities of a charter school whose charter has been renewed at least once shall be evaluated, prioritized and eligible for grants pursuant to the Public School Capital Outlay Act in the same manner as all other public schools in the state; provided that for charter school facilities in leased facilities, grants may be used to provide additional lease payments for leasehold improvements made by the lessor.

          C. On or after July 1, 2011, a new charter school shall not open and an existing charter school shall not relocate unless the facilities of the new or relocated charter school, as measured by the New Mexico condition index, receive a condition rating equal to or better than the average condition for all New Mexico public schools for that year or the charter school [demonstrates] submits, within eighteen months of occupancy or relocation of the charter, [the way in] a plan by which the facilities will achieve a rating equal to or better than the average New Mexico condition index.

          D. On or after July 1, 2015, a new charter school shall not open and an existing charter shall not be renewed unless the charter school:

                (1) is housed in a building that is:

                     (a) owned by the charter school, the school district, the state, an institution of the state, another political subdivision of the state, the federal government or one of its agencies or a tribal government; or

                     (b) subject to a lease-purchase arrangement that has been entered into and approved pursuant to the Public School Lease Purchase Act; or

                (2) if it is not housed in a building described in Paragraph (1) of this subsection, demonstrates that:

                     (a) the facility in which the charter school is housed meets the statewide adequacy standards developed pursuant to the Public School Capital Outlay Act and the owner of the facility is contractually obligated to maintain those standards at no additional cost to the charter school or the state; and

                     (b) either: 1) public buildings are not available or adequate for the educational program of the charter school; or 2) the owner of the facility is a nonprofit entity specifically organized for the purpose of providing the facility for the charter school.

          E. Without the approval of the public school facilities authority pursuant to Section 22-20-1 NMSA 1978, a charter school shall not enter into a lease-purchase agreement.

          F. The public school capital outlay council:

                (1) shall determine whether facilities of a charter school meet the educational occupancy standards pursuant to the requirements of Subsection A of this section

or the requirements of Subsections B, C and D of this section, as applicable; and

                (2) upon a determination that specific requirements are not appropriate or reasonable for a charter school, may grant a variance from those requirements for that charter school."

     SECTION 2. Section 22-8B-5.3 NMSA 1978 (being Laws 2011, Chapter 14, Section 8) is amended to read:

     "22-8B-5.3. CHARTERING AUTHORITY--POWERS--DUTIES--LIABILITY.--A chartering authority shall:

          A. evaluate charter applications;

          B. actively pursue the utilization of charter schools to satisfy identified education needs and promote a diversity of educational choices;

          C. approve charter applications that meet the requirements of the Charter Schools Act and the provisions of Section 22-8B-4.2 NMSA 1978;

          D. decline to approve charter applications that fail to meet the requirements of the Charter Schools Act and the provisions of Section 22-8B-4.2 NMSA 1978 or that are otherwise inadequate;

          E. negotiate and execute, in good faith, charter contracts that meet the requirements of the Charter Schools Act and the provisions of Section 22-8B-4.2 NMSA 1978 with each approved charter school;

          F. monitor, in accordance with the requirements of the Charter Schools Act and the provisions of Section 22-8B-4.2 NMSA 1978, the terms of the charter [contract] contracts and the performance and legal compliance of charter schools under their authority;

          G. determine whether a charter school merits suspension, revocation or nonrenewal; and

          H. develop and maintain chartering policies and practices consistent with nationally recognized principles and standards for quality charter authorizing in all major areas of authorizing, including:

                (1) organizational capacity and infrastructure;

                (2) evaluating charter applications;

                (3) performance contracting;

                (4) charter school oversight and evaluation; and

                (5) charter school suspension, revocation and renewal processes."

     SECTION 3. Section 22-24-5.1 NMSA 1978 (being Laws 2001, Chapter 338, Section 9) is amended to read:

     "22-24-5.1. COUNCIL ASSISTANCE AND OVERSIGHT.--In providing grant assistance pursuant to Section 22-24-5 NMSA 1978, the council shall:

          A. assist school districts in identifying critical capital outlay needs and in preparing grant applications;

          B. take such actions as are necessary to assist school districts in implementing the projects for which grants are made, including assistance with the preparation of requests for bids or proposals, contract negotiations and contract implementation;

          C. take such actions as are necessary to ensure cost savings and efficiencies for those school districts that are not large enough to maintain their own construction management staff; [and]

          D. include such reporting requirements and conditions and take such actions as are necessary to ensure that the grants are expended in the most prudent manner possible and consistent with the original purpose for which they were made. In order to ensure compliance with the intent of this subsection, the council may:

                (1) access the premises of a project and review any documentation relating to a project;

                (2) withhold all or part of the amount of grant assistance available for a project for grounds established by rule of the council; and

                (3) if it determines that a project is repeatedly in substantial noncompliance with any reporting requirement or condition, take over the direct administration of the project until the project is completed; and

          E. recommend to a chartering authority the suspension, nonrenewal or revocation of a new or relocating charter school based upon the charter school's New Mexico condition index ranking pursuant to Section 22-8B-4.2 NMSA 1978."

     SECTION 4. Section 22-24-9 NMSA 1978 (being Laws 2003, Chapter 147, Section 1, as amended) is amended to read:

     "22-24-9. PUBLIC SCHOOL FACILITIES AUTHORITY--

CREATION--POWERS AND DUTIES.--

          A. The "public school facilities authority" is created under the council. The authority shall be headed by a director, selected by the council, who shall be versed in construction, architecture or project management. The director may hire no more than two deputies with the approval of the council, and, subject to budgetary constraints set out in Subsection G of Section 22-24-4 NMSA 1978, shall employ or contract with such technical and administrative personnel as are necessary to carry out the provisions of this section. The director, deputies and all other employees of the authority shall be exempt from the provisions of the Personnel Act.

          B. The authority shall:

                (1) serve as staff to the council;

                (2) as directed by the council, provide those assistance and oversight functions required of the council by Section 22-24-5.1 NMSA 1978;

                (3) assist school districts with:

                     (a) the development and implementation of five-year facilities plans and preventive maintenance plans;

                     (b) procurement of architectural and engineering services;

                     (c) management and oversight of construction activities; and

                     (d) training programs;

                (4) conduct ongoing reviews of five-year facilities plans, preventive maintenance plans and performance pursuant to those plans;

                (5) as directed by the council, assist school districts in analyzing and assessing their space utilization options;

                (6) ensure that public school capital outlay projects are in compliance with applicable building codes;

                (7) conduct on-site inspections as necessary to ensure that the construction specifications are being met and periodically inspect all of the documents related to projects;

                (8) require the use of standardized construction documents and the use of a standardized process for change orders;

                (9) have access to the premises of a project and any documentation relating to the project;

                (10) after consulting with the department, recommend building standards for public school facilities to the council and ensure compliance with building standards adopted by the council;

                (11) notwithstanding the provisions of Subsection D of Section 22-24-6 NMSA 1978, account for all distributions of grant assistance from the fund for which the initial award was made after July 1, 2004, and make annual reports to the department, the governor, the legislative education study committee, the legislative finance committee and the legislature;

                (12) maintain a database of the condition of school facilities and maintenance schedules;

                (13) advise the council regarding the New Mexico condition index ranking of a new or renewing charter school; and

                [(13)] (14) as a central purchasing office pursuant to the Procurement Code and as directed by the council, select contractors and enter into and administer contracts for certain emergency projects funded pursuant to Subparagraph (b) of Paragraph (2) of Subsection B of Section 22-24-5 NMSA 1978 [and

                (14) ensure that outstanding deficiencies are corrected pursuant to Section 22-24-4.1 NMSA 1978. In the performance of this duty, the authority:

                     (a) shall work with school districts to validate the assessment of the outstanding deficiencies and the projected costs to correct the deficiencies;

                     (b) shall work with school districts to provide direct oversight of the management and construction of the projects that will correct the outstanding deficiencies;

                     (c) shall oversee all aspects of the contracts entered into by the council to correct the outstanding deficiencies;

                     (d) may conduct on-site inspections while the deficiencies correction work is being done to ensure that the construction specifications are being met and may periodically inspect all of the documents relating to the projects;

                     (e) may require the use of standardized construction documents and the use of a standardized process for change orders;

                     (f) may access the premises of a project and any documentation relating to the project; and

                     (g) shall maintain, track and account for deficiency correction projects separately from other capital outlay projects funded pursuant to the Public School Capital Outlay Act].

          C. All actions taken by the authority shall be consistent with educational programs conducted pursuant to the Public School Code. In the event of any potential or perceived conflict between a proposed action of the authority and an educational program, the authority shall consult with the secretary.

          D. A school district, aggrieved by a decision or recommendation of the authority, may appeal the matter to the council by filing a notice of appeal with the council within thirty days of the authority's decision or recommendation. Upon filing of the notice:

                (1) the decision or recommendation of the authority shall be suspended until the matter is decided by the council;

                (2) the council shall hear the matter at its next regularly scheduled hearing or at a special hearing called by the chair for that purpose;

                (3) at the hearing, the school district, the authority and other interested parties may make informal presentations to the council; and

                (4) the council shall finally decide the matter within ten days after the hearing."

     SECTION 5. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2013.

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