New Mexico Register / Volume XXXIII,
Issue 10 / May 24, 2022
TITLE 6 PRIMARY AND SECONDARY EDUCATION
CHAPTER 30 EDUCATIONAL STANDARDS - GENERAL REQUIREMENTS
PART 6 SUSPENSION
OF AUTHORITY OF A LOCAL SCHOOL BOARD
6.30.6.1 ISSUING AGENCY: Public
Education Department, hereinafter the department.
[6.30.6.1 NMAC - Rp. 6.30.6.1
NMAC, 5/24/2022]
6.30.6.2 SCOPE: This rule
shall apply to all local school boards.
[6.30.6.2 NMAC - Rp. 6.30.6.2
NMAC, 5/24/2022]
6.30.6.3 STATUTORY AUTHORITY: Sections
9-24-8, 22-2-1, 22-2-2, and 22-2-14 NMSA 1978.
[6.30.6.3 NMAC - Rp. 6.30.6.3
NMAC, 5/24/2022]
6.30.6.4 DURATION: Permanent.
[6.30.6.4 NMAC - Rp. 6.30.6.4
NMAC, 5/24/2022]
6.30.6.5 EFFECTIVE DATE: May 24, 2022,
unless a later date is cited at the end of a section.
[6.30.6.5 NMAC - Rp. 6.30.6.5
NMAC, 5/24/2022]
6.30.6.6 OBJECTIVE: This rule
establishes the process for suspending the authority of local school boards for
failing to attain and maintain the requirements of law, standards, or rules of
the department as a final step following notice from the department of
disapproval or failure to meet requirements and attempts to resolve in
accordance with 6.30.6 NMAC.
[6.30.6.6 NMAC - Rp. 6.30.6.6
NMAC, 5/24/2022]
6.30.6.7 DEFINITIONS:
A. “Emergency suspension” means a suspension imposed by the secretary when
there is sufficient
reason to believe the
educational process in the school district or public school has been severely
impaired or halted as a result of severe deficiencies.
B. “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 or remotely administered
program generally recognized as either an elementary, middle, junior high, or
high school or any combination of those and includes a charter school; and
C. “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.
[6.30.6.7 NMAC - Rp. 6.30.6.7
NMAC, 5/24/2022]
6.30.6.8 FACTORS IN DETERMINING
SUSPENSION BY THE SECRETARY:
A. Suspending the authority of local school boards is
warranted whenever there has been a failure to meet requirements of law,
standards, or rules of the department, relating to any part of the school
district under their respective control.
Whether or not to commence the suspension process under this rule shall
be at the discretion of the secretary who will make this determination on a
case by case basis.
B. The secretary, after
consultation with the commission, shall suspend from authority and
responsibility a local school board that has had notice of disapproval and
fails to comply with the requirements or procedures of Subsection B of 6.30.6.9
NMAC.
C. To determine a failure to meet the
requirements of law, department standards, or department rules, the secretary shall
consider the following factors, including but not limited to:
(1) the
existence of a pattern of noncompliance with requirements of any applicable
law, department standards, state or federal rules, or department directives;
(2) the
nature and severity of any identified area or areas of noncompliance with
requirements of any applicable law, department standards, state or federal
rules, or department directives;
(3) the
nature and type of notice given by the department to the applicable local
school board regarding the area or areas of noncompliance with requirements of
law, department standards, or department directives;
(4) the
opportunity to correct the area or areas of noncompliance, if correction is
possible under the circumstances;
(5) the
extent of any efforts to correct the area or areas of noncompliance; and
(6) the reasons given by the local school
board for failing to comply with Subsection B of Section 22-2-14 NMSA 1978 or
with other requirements of law, department standards, and department
directives, leading to the proposed suspension.
D. If suspension is ordered, the
department shall act in lieu of the suspended local school board, provided that
any expenses or payments associated with the authority delegated by the
secretary to act in lieu of the suspended local school board shall be the
responsibility of the local school board as part of its operational funds.
E. Money budgeted by a local school
board shall be spent first to attain and maintain the requirements for a school
district as prescribed by law and by standards and rules as prescribed by the
department. The department may
disapprove instructional units or administrative functions that it determines
to be detrimental to the educational process.
[6.30.6.8 NMAC - Rp. 6.30.6.8
NMAC, 5/24/2022]
6.30.6.9 PROCEDURES FOR NON-EMERGENCY
SUSPENSION:
A. Before
suspending a local school board, the department shall deliver written notification
to a local school board of its failure to meet requirements of laws, rules, or
standards. The notice shall describe the
deficiency or deficiencies.
B. Within 30
calendar days after the receipt of the notice of failure to meet requirements,
the local school board shall:
(1) comply
with the specific and attendant requirements in order to remove the cause for
disapproval; or
(2) submit
plans satisfactory to the department to meet the requirements and remove the
cause for disapproval.
C. At any time
prior to the entry of a permanent order of suspension, the secretary shall
consult with the public education commission at a public meeting to discuss the
reasons for and purpose of the proposed suspension. The commission may recommend other alternatives
to suspension, which the secretary may consider in rendering a final decision
in the process.
D. If after 30
calendar days from receipt of a notice of failure to meet requirements, the
local school board has failed or refused to comply with the specific and
attendant requirements set forth in the notice, including submitting a
satisfactory plan of compliance to the department, the secretary shall issue an
alternative order of suspension that states the cause(s) for the suspension,
the effective date and time the suspension will begin, and any other
information the secretary deems relevant.
The alternative order of suspension shall be delivered to the local
school board by physical or electronic mail.
E. The alternative
order shall also contain notice of a time, date, and place for a public
hearing, prior to the beginning of suspension, to be conducted by the secretary
or their designated hearing officer, at which the local school board may appear
and show cause why the suspension should not be put into effect.
F. Members of the suspended local
school board shall notify the department in writing of the suspended local
school board members’ intent to appear and show cause regarding why the
suspension should not be put into effect.
[6.30.6.9
NMAC - Rp. 6.30.6.9 NMAC, 5/24/2022]
6.30.6.10 PROCEDURES FOR EMERGENCY
SUSPENSION:
A. The secretary
may suspend a local school board when the local school board has been notified
of disapproval and when the department has sufficient reason to believe that
the educational process in the school district has been severely impaired or
halted as a result of deficiencies so severe as to warrant disapproved status
before a public hearing can be held.
B. An emergency suspension may occur
before a hearing. As soon as practicable after the secretary suspends a local
school board, a public hearing shall be held in accordance with the procedures
outlined in 6.30.6.12 NMAC.
C. The secretary shall include in the
written notice of disapproval status the following:
(1) a description of the laws, rules,
or standards that have not been followed; and
(2) summary of the reasons why the
educational process in a local school district has been deemed to be so
severely impaired or halted as a result of such severe deficiencies to warrant
disapproval status before a public hearing can be held.
D. The notice shall provide the
method by which the suspended local
school board members may declare their intent to appear for a hearing to show
cause why the suspension should not be made permanent.
E. If suspension is ordered before a
public hearing can be held, the department shall immediately take control and
act in the place of the local school board.
The department shall act in lieu of the suspended local school board and
shall execute all the legal authority of the local school board until such
suspension is removed.
F. The secretary may delegate authority
to an individual or individuals to act in lieu of the suspended local school
board, provided that any expenses associated with such actions shall be the
responsibility of the school district.
[6.30.6.10
NMAC - N, 5/24/2022]
6.30.6.11 DURATION OF SUSPENSION: Suspension of
a local school board shall continue until and the secretary removes the
suspension. Nothing in this rule shall limit the
term of office, membership, election, re-election, or recall of a local school
board.
[6.30.6.11
NMAC - Rp. 6.30.6.10 NMAC, 5/24/2022]
6.30.6.12 HEARING
PROCEDURES:
A. A
hearing shall be held:
(1) within
30 calendar days of the date the secretary issues the alternative order of
suspension; or
(2) within
60 days after the secretary issues an emergency order of suspension, which may
be extended by the secretary upon good cause shown.
B. The local school
board subject to an order of suspension, within 25 calendar days of the date an
order of suspension is issued, may submit to the secretary a written statement
explaining why the secretary should not issue an order of suspension.
(1) The
written statement shall address only the cause(s) for suspension specified in
the order of suspension and the reasons for opposing the suspension, which
shall address the factors outlined in Subsection C of 6.30.6.8 NMAC.
(2) The
written statement shall be submitted to the department’s office of general
counsel.
C. Only matters
relevant to the contents of the order of suspension and the statement from the
local school board required by this section may be raised at the hearing.
D. The secretary or
hearing officer may have the department’s legal counsel and other department
staff present at the hearing and may seek their advice at any time.
E. The rules of
evidence and rules of civil procedure shall not apply to the hearing.
F. The hearing
shall be presided over by the secretary or a hearing officer designed by the
secretary, and shall be open to the public.
A hearing officer shall, within two business days after the hearing, or
sooner if requested by the secretary, submit a recommended decision to the
secretary.
G. The secretary or
hearing officer shall open the hearing by presenting a summary of the reasons
for the alternative order or emergency suspension.
H. The
local school board shall then commence a presentation to show why the secretary
should not make permanent the alternative order or emergency suspension.
I. The
local school board may present witnesses and introduce documentary evidence to
rebut the department’s recommendation of the alternative order or imposition of
the emergency suspension. The local
school board’s presentation and witnesses may be subject to objection or
cross-examination. The department may also present witnesses and introduce
documentary evidence related to the alternative order or imposition of the
emergency suspension. The department’s presentation and witnesses may also be
subject to objection or cross-examination.
J. The secretary
or hearing officer may question department staff or the local school board
subject to the alternative order or suspension regarding the causes for the
alternative order or emergency suspension and the reasons stated by the
recipient for opposing the alternative order or emergency suspension. The local
school board may also question the department’s witnesses regarding the causes
for the alternative order or emergency suspension and the reasons stated by the
recipient for opposing the alternative order or emergency suspension.
K. The secretary or
hearing officer may question witnesses and rule on admission of testimony or
documentary evidence, including exercising discretion to exclude incompetent,
irrelevant, immaterial, or unduly repetitious evidence.
L. The secretary
shall make permanent, modify, or withdraw the alternative order or emergency
suspension within five business days after the hearing date.
(1) The secretary’s decision shall be in
writing and delivered to the local school board subject to the alternative
order or emergency suspension.
(2) The
secretary’s written decision shall address the requirements for removing the
suspension.
(3) The
decision may be delivered by physical or electronic mail at the address or
email with school district.
M. The local school
board subject to the alternative order or emergency suspension may waive the
timelines provided in this rule by submitting such waiver to the secretary in
writing and signed by a person with authority to make the submission.
N. An
administrative record shall be made, including a record of the proceedings,
which may be an audio recording. Payment
may be required for receipt of the administrative record.
O. The matter may
be settled by the parties at any time prior to the conclusion of the
hearing. Any such agreement shall
address the timelines provided in this rule.
P. The local school
board subject to the suspension that is aggrieved by the secretary’s decision
may appeal to the district court pursuant to the provisions of Section 39-3-1.1
NMSA 1978.
[6.30.6.12 NMAC - Rp.
6.30.6.12 NMAC, 5/24/2022]
6.30.6.13 IMPLEMENTATION:
A. The secretary
may employ or contract with consultants, contractors, or other individuals
determined to be appropriate by the secretary in executing their legal
authority over a suspended local school board, provided that any expenses or
payments associated with the use of these groups or individuals shall be the
responsibility of the local school board.
B. While it shall
not be the express purpose of a suspension under this rule to terminate,
discharge, or replace licensed or unlicensed school district employees, the
secretary shall possess and execute all the legal authority and responsibility
of the suspended local school board subject to the following restrictions:
(1) The
retention of existing school district administrators and employees shall be
considered.
(2) Any
termination or discharge of school district employees shall be conducted in
accordance with the applicable sections of the School Personnel Act, Section
22-10A-1 et seq. NMSA 1978.
(3) Any
adverse personnel action of any licensed or unlicensed school district employee
shall be limited to the authority set forth in the school district's policies
of the suspended local school board.
(4) The
secretary shall not be obligated to honor any school district employment plans
or letters of intent issued pursuant to Section 22-10A-14 NMSA 1978 that
involve the hiring of an individual holding or seeking a certificate of waiver.
[6.30.6.13 NMAC - Rp.
6.30.6.11 NMAC, 5/24/2022]
6.30.6.14 SEVERABILITY: If any
part or application of this rule is held invalid by a court of competent jurisdiction,
the remainder or its application to other situations shall not be affected.
[6.30.6.14 NMAC - Rp.
6.30.6.13 NMAC, 5/24/2022]
HISTORY OF 6.30.6 NMAC:
6.30.6
NMAC - Suspension of Authority of a Local
School Board, Superintendent or Principal, filed 10/17/2005. was repealed and
replaced by 6.30.6 - Suspension of Authority of a Local School Board, effective
5/24/2022.