44TH LEGISLATURE - STATE OF NEW MEXICO - FIRST SESSION, 1999

RELATING TO PUBLIC SCHOOLS; PROVIDING FOR A SECRETARY OF EDUCATION; SPECIFYING POWERS AND DUTIES; ABOLISHING THE STATE BOARD OF EDUCATION; AMENDING, REPEALING AND ENACTING SECTIONS OF THE NMSA 1978.

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

Section 1. [NEW MATERIAL] SECRETARY OF EDUCATION--APPOINTMENT.--

A. The chief executive and administrative officer of the state department of public education is the "secretary of education". The secretary shall be appointed by the governor with the advice and consent of the senate. The secretary shall hold office at the pleasure of the governor and shall serve in the executive cabinet.

B. A person appointed as secretary shall serve and have all the duties, responsibilities and authority of that office during the period of time prior to the final action by the senate confirming or rejecting his appointment.

Section 2. [NEW MATERIAL] SECRETARY OF EDUCATION--GENERAL POWERS AND DUTIES.--

A. The secretary of education is responsible to the governor for the operation of the state department of public education and to administer and enforce the laws with which the department is charged.

B. The secretary shall exercise general supervisory and appointive power over the state department of public education employees, subject to applicable personnel and other laws and rules.

Section 3. [NEW MATERIAL] STATE BOARD OF EDUCATION ABOLISHED.--On the effective date of this act, the state board of education is abolished.

Section 4. A new section of the Public School Code is enacted to read:

"[NEW MATERIAL] CREATION OF ADVISORY STATE BOARD OF EDUCATION--COMPOSITION.--

A. The "advisory state board of education" is created.

B. The advisory state board of education shall be composed of fifteen members. The members shall be representatives of the different geographical areas of the state and reflective of the diverse population of the state.

C. The president pro tempore of the senate shall appoint three members from the senate, and the speaker of the house shall appoint three members from the house of representatives for terms of two years or less to coincide with their terms of office.

D. Nine members shall be appointed as follows:

(1) the secretary of education shall appoint three members for two-year terms and one member for a four-year term; and

(2) the governor shall appoint three members for two-year terms and two members for four-year terms.

E. After the initial appointments, members who are not legislators shall be appointed for four-year terms, and members who are legislators shall be appointed for terms of two years or less to coincide with their terms of office.

F. Each member of the advisory state board of education shall be entitled to receive per diem and mileage as provided in the Per Diem and Mileage Act and shall receive no other compensation, perquisite or allowance.

G. Per diem and mileage shall be paid to members of the advisory state board of education by the department out of funds appropriated and budgeted for that purpose."

Section 5. A new section of the Public School Code is enacted to read:

"[NEW MATERIAL] DUTIES.--The advisory state board of education shall make biannual recommendations to the secretary and the legislature on the issues and needs of public schools throughout the state."

Section 6. Section 22-1-2 NMSA 1978 (being Laws 1967, Chapter 16, Section 2, as amended) is amended to read:

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

A. "state board" means the [state board of education] department;

B. "state superintendent" means the [superintendent of public instruction] secretary;

C. "department [of education]" means the state department of public education or department of education;

D. "certified school instructor" means any person holding a valid certificate authorizing the person to teach, supervise an instructional program, counsel or provide special instructional services in the public schools of the state;

E. "certified school administrator" means any person holding a valid certificate authorizing the person to administer in the public schools of the state;

F. "certified school employee" or "certified school personnel" means any employee who is either a certified school instructor or a certified school administrator or both;

G. "non-certified school employee" means any employee who is not a certified school employee;

H. "certificate" means a certificate issued by the [state board] department authorizing a person to teach, supervise an instructional program, counsel, provide special instructional services or administer in the public schools of the state;

I. "chief" or "director" means the [state superintendent] secretary or his designee unless the context clearly indicates otherwise;

J. "private school" means a school offering on-site programs of instruction not under the control, supervision or management of a local school board, exclusive of home instruction offered by the parent, guardian or one having custody of the student;

K. "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;

L. "local school board" means the governing body of a school district;

M. "public school" means that part of a school district that is a single attendance center where instruction is offered by a certified school instructor or a group of certified school instructors and is discernible as a building or group of buildings generally recognized as either an elementary, secondary, junior high or high school or any combination thereof;

N. "school year" means the total number of teaching days offered by public schools in a school district during a period of twelve consecutive months;

O. "consolidation" means the combination of part or all of the geographical area of an existing school district with part or all of the geographical area of one or more contiguous existing school districts;

P. "consolidated school district" means a school district created by order of the [state board] department by combining part or all of the geographical area of an existing school district with part or all of the geographical area of one or more contiguous existing school districts;

Q. "state institution" means the New Mexico military institute, the New Mexico school for the visually handicapped, the New Mexico school for the deaf, the New Mexico boys' school, the New Mexico youth diagnostic and development center, the Los Lunas medical center, the Fort Stanton hospital, the Las Vegas medical center or the Carrie Tingley crippled children's hospital;

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

S. "forty-day report" means the report of qualified student membership of each school district and of those eligible to be qualified students but enrolled in a private school or a home school for the first forty days of school;

T. "school" means any supervised program of instruction designed to educate a person in a particular place, manner and subject area;

U. "school-age person" means any person who is at least five years of age prior to 12:01 a.m. on September 1 of the school year and who has not received a high school diploma or its equivalent. A maximum age of twenty-one shall be used for persons who are classified as special education membership as defined in Section 22-8-2 NMSA 1978 or as residents of state institutions;

V. "home school" means the operation by a parent, guardian or other person having custody of a school-age person who instructs a home study program that provides a basic academic educational program, including [but not limited to] reading, language arts, mathematics, social studies and science;

W. "school building" means a public school, an administration building and related school structure or facilities, including teacher housing, as may be owned, acquired or constructed by the local school board and as necessary to carry out the powers and duties of the local school board;

X. "commercial advertiser" means a person who advertises a product or service for profit or not for profit and has a permitted advertisement; [and]

Y. "school bus private owner" means a person who owns a school bus, other than a [local] school district, the department [of education], the state or any other political subdivision of the state; and

Z. "secretary" means the secretary of education."

Section 7. Section 22-2-1 NMSA 1978 (being Laws 1990 (1st S.S.), Chapter 9, Section 10, as amended) is amended to read:

"22-2-1. [STATE BOARD] DEPARTMENT--POWERS.--

A. The [state board] department is the governing authority and shall have control, management and direction of all public schools, except as otherwise provided by law.

B. The [state board] department may promulgate, publish and enforce [regulations] rules to exercise its authority granted pursuant to the Public School Code.

C. The [state board] department may apply to the district court for an injunction, writ of mandamus or other appropriate relief to enforce the provisions of the Public School Code or any of its [regulations] rules promulgated pursuant to the Public School Code.

D. The [state board] department may waive provisions of the Public School Code as authorized by law."

Section 8. Section 22-2-2 NMSA 1978 (being Laws 1967, Chapter 16, Section 5, as amended) is amended to read:

"22-2-2. [STATE BOARD] DEPARTMENT--DUTIES.--Without limiting those powers granted to the [state board] department pursuant to Section 22-2-1 NMSA 1978, the [state board] department under the supervision and direction of the secretary shall perform the following duties:

A. properly and uniformly enforce the provisions of the Public School Code;

B. [determine] administer policy for the operation of all public schools and vocational education programs in the state;

[C. appoint a state superintendent;

D.] C. purchase and loan instructional material to students pursuant to the Instructional Material Law and adopt [regulations] rules relating to the use and operation of instructional material depositories in the instructional material distribution process;

[E.] D. designate courses of instruction to be taught in all public schools in the state;

[F.] E. assess and evaluate all state institutions and those private schools that desire state accreditation;

[G.] F. determine the qualifications for and issue a certificate to [any] a person teaching, assisting teachers, supervising an instructional program, counseling, providing special instructional services or administering in public schools, according to law and according to a system of classification adopted and published by the [state board] department;

[H.] G. suspend or revoke a certificate held by a certified school instructor or certified school administrator, according to law, for incompetency, immorality or for [any] other good and just [cause] causes;

[I.] H. make full and complete reports on consolidation of school districts to the legislature;

[J.] I. prescribe courses of instruction, requirements for graduation and standards for all public schools, for private schools seeking state accreditation and for the educational programs conducted in state institutions other than the New Mexico military institute;

[K.] J. adopt [regulations] rules for the administration of all public schools and bylaws for its own administration;

[L.] K. require periodic reports on forms prescribed by it from all public schools and attendance reports from private schools;

[M.] L. authorize adult educational programs to be conducted in schools under its jurisdiction and adopt and promulgate [regulations] rules governing all such adult educational programs;

[N.] M. require any school under its jurisdiction that sponsors athletic programs involving sports to mandate that the participating student obtain catastrophic health and accident insurance coverage, such coverage to be offered through the school and issued by an insurance company duly licensed pursuant to the laws of New Mexico;

[O.] N. require all accrediting agencies for public schools in the state to act with its approval;

[P.] O. accept and receive all grants of money from the federal government or [any] other agency for public school purposes and disburse the money in the manner and for the purpose specified in the grant;

[Q.] P. require prior approval for [any] an educational program in a public school that is to be conducted, sponsored, carried on or caused to be carried on by a private organization or agency;

[R.] Q. approve or disapprove all rules [or regulations] promulgated by [any] an association or organization attempting to regulate [any] a public school activity and invalidate [any] a rule [or regulation] in conflict with [any regulation] a rule promulgated by the [state board] department. The [state board] department shall require [any] an association or organization attempting to regulate [any] a public school activity to comply with the provisions of the Open Meetings Act and be subject to the inspection of the Public Records Act. The [state board] department may require performance and financial audits of [any] an association or organization attempting to regulate [any] a public school activity. The [state board] department shall have no power or control over the rules [or regulations] or the bylaws governing the administration of the internal organization of the association or organization;

[S.] R. review decisions made by the governing board or officials of [any] an organization or association regulating any public school activity, and [any] a decision of the [state board] department shall be final in respect thereto;

[T.] S. accept or reject [any] a charitable gift, grant, devise or bequest. The particular gift, grant, devise or bequest accepted shall be considered an asset of the state;

[U.] T. establish and maintain regional centers, at its discretion, for conducting cooperative services between public schools and school districts within and among those regions and to facilitate regulation and evaluation of school programs;

[V.] U. assess and evaluate for accreditation purposes at least one-third of all public schools each year through visits by department of education personnel to investigate the adequacy of pupil gain in standard required subject matter, adequacy of pupil activities, functional feasibility of public school and school district organization, adequacy of staff preparation and other matters bearing upon the education of the students;

[W.] V. provide for management and other necessary personnel to operate [any] a public school or school district that has failed to meet requirements of law, [state board] department standards or [state board regulations] department rules; provided that the operation of the public school or school district shall not include [any] a consolidation or reorganization without the approval of the local board of that school district. Until [such time as] the requirements of law, standards or [regulations] rules have been met and compliance is assured, the powers and duties of the local school board shall be suspended;

[X.] W. establish and implement a plan that provides for technical assistance to local school boards through workshops and other in-service training methods; provided [however] that no plan shall require mandatory attendance by [any] a member of a local school board;

[Y.] X. submit a plan applying for funds available under Public Law 94-142 and disburse these funds in the manner and for the purposes specified in the plan; and

[Z.] Y. enforce requirements for home schools. Upon finding that a home school is not in compliance with law, the [state board shall have] department has authority to order that a student attend a public school or a private school."

Section 9. Section 22-2-6 NMSA 1978 (being Laws 1967, Chapter 16, Section 9, as amended) is amended to read:

"22-2-6. DEPARTMENT [OF EDUCATION]--DUTIES.--Subject to the policies, [of the state board and the] supervision and direction of the [state superintendent] secretary, the department [of education] shall have the following duties:

A. supervise all schools and school officials coming under the jurisdiction of the [state board] department;

B. advise boards of regents of state educational institutions on matters concerning the Public School Code;

C. prescribe, print and distribute forms to carry out the duties of the [state board] department pursuant to the Public School Code;

D. annually, prior to December 1, prepare and publish a report on public and private education in the state and distribute the report to the governor and the legislature;

E. keep accurate records of all money received by the [state superintendent] secretary or the department [of education];

F. publish and distribute copies of the Public School Code and [regulations] rules promulgated by the [state board] department to local school boards in the state;

G. confer with local school boards and certified school personnel on matters concerning education in the state;

H. prepare and distribute patriotic material to schools in the state; and

I. evaluate all educational programs in state institutions [under the authority of the secretary of the health and environment department]."

Section 10. REPEAL.--Sections 22-2-3 through 22-2-5 and

22-3-37 through 22-3-54 NMSA 1978 (being Laws 1967, Chapter 16, Sections 6 through 8 and Laws 1991 (1st S.S.), Chapter 4, Sections 1 through 18, as amended) are repealed.

Section 11. EFFECTIVE DATE.--The provisions of this act shall become effective upon certification by the secretary of state that the constitution of New Mexico has been amended as proposed by a joint resolution of the first session of the forty-fourth legislature, entitled "A JOINT RESOLUTION PROPOSING AN AMENDMENT TO ARTICLE 12, SECTION 6 OF THE CONSTITUTION OF NEW MEXICO TO ABOLISH THE STATE BOARD OF EDUCATION AND CREATE A SECRETARY OF EDUCATION.".