SENATE BILL 406

55th legislature - STATE OF NEW MEXICO - first session, 2021

INTRODUCED BY

Mimi Stewart

 

 

 

 

 

AN ACT

RELATING TO PUBLIC SCHOOLS; LIMITING MANAGEMENT CONTRACTS FOR PUBLIC SCHOOLS.

 

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

     SECTION 1. Section 22-1-2 NMSA 1978 (being Laws 2003, Chapter 153, Section 3, as amended by Laws 2019, Chapter 206, Section 1 and by Laws 2019, Chapter 207, Section 1) is amended to read:

     "22-1-2. DEFINITIONS.--As used in the Public School Code:

          A. "academic proficiency" means mastery of the subject-matter knowledge and skills specified in state academic content and performance standards for a student's grade level;

          B. "charter school" means a school authorized by a chartering authority to operate as a public school;

          C. "commission" means the public education commission;

          D. "department" means the public education department;

          E. "home school" means the operation by the parent of a school-age person of a home study program of instruction that provides a basic academic educational program, including reading, language arts, mathematics, social studies and science;

          F. "instructional support provider" means a person who is employed to support the instructional program of a school district, including educational assistant, school counselor, social worker, school nurse, speech-language pathologist, psychologist, physical therapist, occupational therapist, recreational therapist, marriage and family therapist, interpreter for the deaf and diagnostician;

          G. "licensed school employee" means teachers, school administrators and instructional support providers;

          H. "local school board" means the policy-setting body of a school district;

          I. "local superintendent" means the chief executive officer of a school district;

          J. "management of a public school or school program" means receiving compensation from a school district in an amount equivalent to fifty percent or more of the state equalization guarantee distribution for a public school or school program and engaging in one or more of the following:

                (1) the provision of fifty percent or more of a public school's or school program's curricula;

                (2) decision making regarding the selection of a public school's or school program's curricula or extracurricular activities;

                (3) the planning, operation, supervision or evaluation of the educational program or education-related activities;

                (4) instructional leadership for a public school or school program;

                (5) decision making regarding the instruction or assessment of students;

                (6) decision making regarding the discipline of students;

                (7) decision making regarding the operations of a public school or school program;

                (8) decision making regarding the finances of a public school or school program;

                (9) decision making regarding the administration or leadership of a public school or school program;

                (10) day-to-day supervision or direction of the public school's or school program's employees, contractors, subcontractors or volunteers;

                (11) employing, evaluating, promoting, disciplining, discharging, terminating, recruiting, training or assigning public school or school program employees, contractors or subcontractors;

                (12) developing the professional development plans or professional improvement plans of the public school's or school program's employees, contractors or subcontractors;

                (13) direction or direct facilitation of relationships between students' families and school faculty and administration;

                (14) sole creation of any improvement plan or corrective action plan for the public school, or any grade or student subgroup of the public school, whether academic, financial or operational;

                (15) sole creation of any performance framework for the public school, or any grade or student subgroup of the public school, whether academic, financial or operational;

                (16) acting as a representative of the public school in any legal, administrative or contractual capacity;

                (17) active recruitment of students to the public school via any medium of communication;

                (18) decision making regarding information presented to the local school board or governing body of a charter school; or

                (19) developing any form of budget or budget proposal for a public school or school program;

          [J.] K. "parent" includes a guardian or other person having custody and control of a school-age person;

          [K.] L. "private school" means a school, other than a home school, that offers on-site programs of instruction and that is not under the control, supervision or management of a local school board;

          [L.] M. "public school" means that part of a school district that is a single attendance center in which instruction is offered by one or more teachers and is discernible as a building or group of buildings generally recognized as either an elementary, middle, junior high or high school or any combination of those and includes a charter school;

          [M.] N. "school" means a supervised program of instruction designed to educate a student in a particular place, manner and subject area;

          [N.] O. "school administrator" means a person licensed to administer in a school district and includes school principals, central district administrators and charter school head administrators;

          [O.] P. "school-age person" means a person who is at least five years of age prior to 12:01 a.m. on September 1 of the school year, who has not received a high school diploma or its equivalent and who has not reached the person's twenty-second birthday on the first day of the school year and meets other criteria provided in the Public School Finance Act;

          [P.] Q. "school building" means a public school, an administration building and related school structures or facilities, including teacher housing, that is owned, acquired or constructed by the school district as necessary to carry out the functions of the school district;

          [Q.] R. "school bus private owner" means a person, other than a school district, the department, the state or any other political subdivision of the state, that owns a school bus;

          [R.] S. "school district" means an area of land established as a political subdivision of the state for the administration of public schools and segregated geographically for taxation and bonding purposes;

          [S.] T. "school employee" includes licensed and nonlicensed employees of a school district;

          [T.] U. "school principal" means the chief instructional leader and administrative head of a public school;

          [U.] V. "school year" means the total number of contract days offered by public schools in a school district during a period of twelve consecutive months;

          [V.] W. "secretary" means the secretary of public education;

          [W.] X. "state agency" or "state institution" means the New Mexico military institute, New Mexico school for the blind and visually impaired, New Mexico school for the deaf, New Mexico boys' school, girls' welfare home, New Mexico youth diagnostic and development center, Sequoyah adolescent treatment center, Carrie Tingley crippled children's hospital, New Mexico behavioral health institute at Las Vegas and any other state agency responsible for educating resident children;

          [X.] Y. "state educational institution" means an institution enumerated in Article 12, Section 11 of the constitution of New Mexico;

          [Y.] Z. "substitute teacher" means a person who holds a certificate to substitute for a teacher in the classroom;

          [Z.] AA. "teacher" means a person who holds a level one, two or three-A license and whose primary duty is classroom instruction or the supervision, below the school principal level, of an instructional program or whose duties include curriculum development, peer intervention, peer coaching or mentoring or serving as a resource teacher for other teachers;

          [AA.] BB. "certified school instructor" means a licensed school employee; and

          [BB.] CC. "certified school employee" or "certified school personnel" means a licensed school employee."

     SECTION 2. Section 22-5-4 NMSA 1978 (being Laws 1967, Chapter 16, Section 28, as amended) is amended to read:

     "22-5-4. LOCAL SCHOOL BOARDS--POWERS--DUTIES.--

          A. A local school board shall have the following powers or duties:

                [A.] (1) subject to the rules of the department, develop educational policies for the school district;

                [B.] (2) employ a local superintendent for the school district and fix the superintendent's salary;

                [C.] (3) review and approve the annual school district budget;

                [D.] (4) acquire, lease and dispose of property;

                [E.] (5) have the capacity to sue and be sued;

                [F.] (6) acquire property by eminent domain pursuant to the procedures provided in the Eminent Domain Code;

                [G.] (7) issue general obligation bonds of the school district;

                [H.] (8) provide for the repair of and maintain all property belonging to the school district;

                [I.] (9) for good cause and upon order of the district court, subpoena witnesses and documents in connection with a hearing concerning any powers or duties of the local school board;

                [J.] (10) except for expenditures for salaries, contract for the expenditure of money according to the provisions of the Procurement Code;

                [K.] (11) adopt rules pertaining to the administration of all powers or duties of the local school board;

                [L.] (12) accept or reject any charitable gift, grant, devise or bequest. The particular gift, grant, devise or bequest accepted shall be considered an asset of the school district or the public school to which it is given;

                [M.] (13) offer and, upon compliance with the conditions of such offer, pay rewards for information leading to the arrest and conviction or other appropriate disciplinary disposition by the courts or juvenile authorities of offenders in case of theft, defacement or destruction of school district property. All such rewards shall be paid from school district funds in accordance with rules promulgated by the department; and

                [N.] (14) give prior approval for any educational program in a public school in the school district that is to be conducted, sponsored, carried on or caused to be carried on by a private organization or agency.

          B. A local school board shall not contract or otherwise form an agreement with a nongovernmental entity for the management of a public school or school program."

     SECTION 3. Section 22-5-14 NMSA 1978 (being Laws 2003, Chapter 153, Section 25) is amended to read:

     "22-5-14. LOCAL SUPERINTENDENT--POWERS AND DUTIES.--

          A. The local superintendent is the chief executive officer of the school district.

          B. The local superintendent shall:

                (1) carry out the educational policies and rules of the [state board] department and local school board;

                (2) administer and supervise the school district;

                (3) employ, fix the salaries of and assign, terminate or discharge all employees of the school district;

                (4) prepare the school district budget based on public schools' recommendations for review and approval by the local school board and the department. The local superintendent shall tell each school principal the approximate amount of money that may be available for [his] the principal's school and provide a school budget template to use in making school budget recommendations; and

                (5) perform other duties as required by law, the department or the local school board.

          C. The local superintendent may apply to the [state board] department for a waiver of certain provisions of the Public School Code relating to length of school day, staffing patterns, subject area or the purchase of instructional materials for the purpose of implementing a collaborative school improvement program for an individual public school.

          D. A local superintendent shall not contract or otherwise form an agreement with a nongovernmental entity for the management of a public school or school program."

     SECTION 4. Section 22-8B-2 NMSA 1978 (being Laws 1999, Chapter 281, Section 2, as amended) is amended to read:

     "22-8B-2. DEFINITIONS.--As used in the Charter Schools Act:

          A. "charter school" means a conversion school or start-up school authorized by the chartering authority to operate as a public school;

          B. "chartering authority" means either a local school board or the commission;

          C. "commission" means the public education commission;

          D. "conversion school" means an existing public school within a school district that was authorized by a local school board to become a charter school prior to July 1, 2007;

          E. "division" means the charter schools division of the department;

          F. "enrollment preference" means filling a charter school's openings with students, or siblings of students, who have already been admitted to the school through an appropriate admission process or are continuing through subsequent grades;

          G. "governing body" means the governing structure of a charter school as set forth in the school's charter;

          H. "governing body training" means the training required pursuant to Section 22-8B-5.1 NMSA 1978 to educate governing body members and ensure compliance with all applicable laws, which training may be obtained from any source, individual or entity that has been approved by the department;

          [I. "management" means authority over the hiring, termination and day-to-day direction of a school's employees or contractors, whether they are licensed or not;

          J.] I. "material violation" means the act of failing to accomplish a requirement of a law, rule or contract or a charter school's bylaws that substantially affects the charter school's employees' or students' rights or privileges;

          [K.] J. "nondiscretionary waiver" means a waiver of requirements or rules and the provisions of the Public School Code that the department shall grant pursuant to Section 22-8B-5 NMSA 1978 and for which a charter school shall not require separate approval by the department;

          [L.] K. "performance indicator" means a measurement tool that enables selected issues or conditions to be monitored over time for the purposes of evaluating progress toward or away from a desired direction;

          [M.] L. "performance target" means the specific rating to which the data from a school's performance indicators shall be compared to determine whether the school exceeds, meets, does not meet or falls far below that rating;

          [N.] M. "siblings" means:

                (1) students living in the same residence at least fifty percent of the time in a permanent or semipermanent situation, such as long-term foster care placements; or

                (2) students related to each other by blood, marriage or cohabitation; and

          [O.] N. "start-up school" means a public school developed by one or more parents, teachers or community members authorized by the chartering authority to become a charter school."

     SECTION 5. Section 22-8B-4 NMSA 1978 (being Laws 1999, Chapter 281, Section 4, as amended) is amended to read:

     "22-8B-4. CHARTER SCHOOLS' RIGHTS AND RESPONSIBILITIES--OPERATION.--

          A. A charter school shall be subject to all federal and state laws and constitutional provisions prohibiting discrimination on the basis of disability, physical or mental handicap, serious medical condition, race, creed, color, sex, gender identity, sexual orientation, spousal affiliation, national origin, religion, ancestry or need for special education services.

          B. A charter school shall be governed by a governing body in the manner set forth in the charter contract; provided that a governing body shall have at least five members; and provided further that no member of a governing body for a charter school that is initially approved on or after July 1, 2005 or whose charter is renewed on or after July 1, 2005 shall serve on the governing body of another charter school. No member of a local school board shall be a member of a governing body for a charter school or employed in any capacity by a locally chartered charter school located within the local school board's school district during the term of office for which the member was elected or appointed.

          C. A charter school shall be responsible for:                   (1) its own operation, including preparation of a budget, subject to audits pursuant to the Audit Act; and

                (2) contracting for services and personnel matters.

          D. A charter school may contract with a school district, a university or college, the state, another political subdivision of the state, the federal government or one of its agencies, a tribal government or any other third party for the use of a facility, its operation and maintenance [and the provision of any service or activity that the charter school is required to perform in order] of which is necessary to carry out the educational program described in its charter contract. Facilities used by a charter school shall meet the standards required pursuant to Section 22-8B-4.2 NMSA 1978.

          E. A conversion school chartered before July 1, 2007 may choose to continue using the school district facilities and equipment it had been using prior to conversion, subject to the provisions of Subsection F of this section.

          F. The school district in which a charter school is geographically located shall provide a charter school with available facilities for the school's operations unless the facilities are currently used for other educational purposes. An agreement for the use of school district facilities by a charter school may provide for reasonable lease payments; provided that the payments do not exceed the sum of the lease reimbursement rate provided in Subparagraph (b) of Paragraph (1) of Subsection I of Section 22-24-4 NMSA 1978 plus any reimbursement for actual direct costs incurred by the school district in providing the facilities; and provided further that any lease payments received by a school district may be retained by the school district and shall not be considered to be cash balances in any calculation pursuant to Section 22-8-41 NMSA 1978. The available facilities provided by a school district to a charter school shall meet all occupancy standards as specified by the public school capital outlay council. As used in this subsection, "other educational purposes" includes health clinics, daycare centers, teacher training centers, school district administration functions and other ancillary services related to a school district's functions and operations.

          G. A locally chartered charter school may pay the costs of operation and maintenance of its facilities or may contract with the school district to provide facility operation and maintenance services.

          H. Locally chartered charter school facilities are eligible for state and local capital outlay funds and shall be included in the school district's five-year facilities plan.

          I. A locally chartered charter school shall negotiate with a school district to provide transportation to students eligible for transportation under the provisions of the Public School Code. The school district, in conjunction with the charter school, may establish a limit for student transportation to and from the charter school site not to extend beyond the school district boundary.

          J. A charter school shall be a nonsectarian, nonreligious and non-home-based public school.

          K. Except as otherwise provided in the Public School Code, a charter school shall not charge tuition or have admission requirements.

          L. With the approval of the chartering authority, a single charter school may maintain separate facilities at two or more locations within the same school district; but, for purposes of calculating program units pursuant to the Public School Finance Act, the separate facilities shall be treated together as one school.

          M. A charter school shall be subject to the provisions of Section 22-2-8 NMSA 1978 and the Assessment and Accountability Act.

          N. Within constitutional and statutory limits, a charter school may acquire and dispose of property; provided that, upon termination of the charter, all assets of the locally chartered charter school shall revert to the local school board and all assets of the state-chartered charter school shall revert to the state, except that, if all or any portion of a state-chartered charter school facility is financed with the proceeds of general obligation bonds issued by a local school board, the facility shall revert to the local school board.

          O. The governing body of a charter school may accept or reject any charitable gift, grant, devise or bequest; provided that no such gift, grant, devise or bequest shall be accepted if subject to any condition contrary to law or to the terms of the charter. The particular gift, grant, devise or bequest shall be considered an asset of the charter school to which it is given.

          P. The governing body may contract and sue and be sued. A local school board shall not be liable for any acts or omissions of the charter school.

          Q. A charter school shall comply with all state and federal health and safety requirements applicable to public schools, including those health and safety codes relating to educational building occupancy.

          R. A charter school is a public school that may contract with a school district or other party for provision of financial management, food services, transportation, facilities, education-related services or other services. The governing body shall not contract with a [for-profit] nongovernmental entity for the management of the charter school or charter school program.

          S. To enable state-chartered charter schools to submit required data to the department, an accountability data system shall be maintained by the department.

          T. A charter school shall comply with all applicable state and federal laws and rules related to providing special education services. Charter school students with disabilities and their parents retain all rights under the federal Individuals with Disabilities Education Act and its implementing state and federal rules. Each charter school is responsible for identifying, evaluating and offering a free appropriate public education to all eligible children who are accepted for enrollment in that charter school. The state-chartered charter school, as a local educational agency, shall assume responsibility for determining students' needs for special education and related services. The [division] department may promulgate rules to implement the requirements of this subsection."

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