TITLE
6 PRIMARY AND SECONDARY
EDUCATION
CHAPTER
2 PUBLIC EDUCATION DEPARTMENT -
COMMISSIONS AND ADVISORY BOARDS
PART 9 PUBLIC EDUCATION COMMISSION STATE
CHARTER SCHOOL PROCEDURES
6.2.9.1 ISSUING AGENCY: New
Mexico Public Education Department, hereinafter the department.
[6.2.9.1 NMAC - N, 7/31/2023]
6.2.9.2 SCOPE: The rule
shall apply to all procedures, forms, and protocols of the public education
commission in relation to state-chartered charter schools.
[6.2.9.2 NMAC - N, 7/31/2023]
6.2.9.3 STATUTORY AUTHORITY: This
rule is being promulgated pursuant to Sections 9-24-8, 22-2-1, 22-2-2, and
22-8B-5.3 NMSA 1978.
[6.2.9.3 NMAC - N, 7/31/2023]
6.2.9.4 DURATION:
Permanent.
[6.2.9.4 NMAC - N, 7/31/2023]
6.2.9.5 EFFECTIVE DATE: July 31,
2023, unless a later date is cited in the history note at the end of a section.
[6.2.9.5 NMAC - N, 7/31/2023]
6.2.9.6 OBJECTIVE: The
department promulgates this rule acted upon by the public education commission
for its procedures, forms, and protocols in relation to state-chartered charter
schools.
[6.2.9.6 NMAC - N, 7/31/2023]
6.2.9.7 DEFINITIONS:
A. “Act”
means the Charter Schools Act Sections 22-8B-1 through 22-8B-17.1 NMSA 1978, as may be
amended.
B. “Annual report notice” means any of the following notices, or combination thereof, issued by the commission
that may result from a review of the annual report:
(1) Notice of exemplary performance;
(2) Notice of satisfactory performance;
(3) Notice of unsatisfactory performance;
(4) Notice of uncorrected unsatisfactory
performance; or
(5) Notice of action to be initiated
under the intervention ladder.
C. “Applicant” means one or more teachers, parents, or community members or a
public postsecondary educational institution or nonprofit organization who
submits an initial or renewal application to a chartering authority.
D. “Commission” means the public education commission.
E. “Condition”
means a requirement imposed by the commission on a state charter school as part
of the approval of a new school application or renewal application that is
appealable to the secretary, and, if not appealed or not overturned on appeal,
becomes a material term of the charter contract.
F. “Corrective action plan” consistent with Subsection F of Section 22-8B-12 NMSA 1978
means a plan proposed by a state charter school and approved by the commission
to correct identified uncorrected unsatisfactory performance as contemplated by
the intervention ladder.
G. “Days” means, unless otherwise specified in a provision in this rule or
applicable statute, business days when the period referenced is 10 days or
less, and calendar days when the period referenced is 11 days or more. In
computing the number of days, exclude the day of the event that triggers the
period, and include the last day of the period. If the last day is a day when
the department is closed, the period continues to run until the end of the next
business day that the department is not closed. Whenever a person or entity
acts under this rule within a prescribed period after service of a notice or
paper upon the person or entity, and the notice or paper is served by mail or
courier service, three calendar days are added to the prescribed period.
H. “Department” means the New Mexico Public Education Department.
I. “Division” means the charter schools division of the department statutorily
required pursuant to Section 22-8B-17 NMSA 1978 to provide staff support
to the commission, make recommendations to the commission regarding the
approval, denial, or revocation of the charter of a state charter school, review and approve state charter school budget
matters, and provide technical
support to all charter schools.
J. “Final annual report” means the annual report presented by the division that is accepted
by the commission at a public meeting which contains the final findings of the division
regarding the performance of the state charter school, recommendation for
commission action, and any unresolved response from the state charter school to
the division’s phase 2 annual report.
K. “Final annual report completed in part” means a final annual report completed as to
certain sections only when data necessary to complete other sections are
delayed, and which indicates which sections of the annual report are being
completed and which are being reserved.
L. “Good standing” means a designation for
a state charter school indicating that the state charter school does not have
action pending under the intervention ladder or a current annual report notice
that identifies uncorrected unsatisfactory performance.
M. “Governing body” means the governing structure of a charter school as set forth in
the charter school’s charter.
N. “Head administrator” means the duly licensed school administrator who is the director
of the charter school and the person with duties similar to
those of a superintendent.
O. “High stakes decision” means action of
the commission that results in approval of a new charter application, approval
of a new charter application with conditions or denial of a new charter
school’s application, a state charter school’s renewal, renewal with
conditions, non-renewal, or revocation. High stakes decisions are governed by
law, rule, and the charter school contract.
P. “Intervention concern” means
unsatisfactory performance or a contract violation that may cause the division
to recommend or the commission to begin an action under the intervention
ladder.
Q. “Intervention ladder” means procedures
adopted by the commission to impose interventions intended to address a state
charter school’s unsatisfactory performance or non-compliance with the
contract.
R. “Notice of possible non-renewal” means a written notice provided by the
commission to a state charter school during the final two years of the charter
contract term stating that there is sufficient uncorrected unsatisfactory
performance, serious unsatisfactory performance, or contract violations by the
state charter school to put the state charter school on notice that it may not
be renewed for another charter term.
S. “Notice of possible renewal with conditions” means a notice issued by the commission to a
state charter school during the final two years of the charter term stating
that there is sufficient uncorrected unsatisfactory performance, serious
unsatisfactory performance, or contract violations by the state charter school
to put the state charter school on notice that it may be renewed for another
charter term with a condition placed on the state charter school to correct the
unsatisfactory performance in the new charter term.
T. “Notice of uncorrected unsatisfactory performance” means a notice by the commission, issued after
acceptance of a final annual report, to a state charter school that
unsatisfactory performance by the state charter school has not been corrected
by the date set forth in the notice to correct unsatisfactory performance, that
unsatisfactory performance is identified as unsatisfactory performance in two
consecutive annual reports, or that any specific indicator in the performance
framework has been rated as “does not meet” for two or more years during the charter
term including the current year assessed.
U. “Notice of unsatisfactory performance” means a notice issued by the commission to a
state charter school that the division has identified unsatisfactory
performance by the state charter school in the assessment of the performance
framework.
V. “Performance framework” means the performance provisions incorporated as a material term
to the charter contract between the school and the commission negotiated using
a commission-approved framework that:
(1) is approved by the commission
following the protocols in 6.2.9.8 NMAC through 6.2.9.10 NMAC;
(2) clearly sets forth the academic,
organizational, or financial performance indicators and performance targets
that will guide the commission’s evaluation of each charter school; and
(3) contains all elements required by Section 22-8B-9.1
NMSA 1978 as amended.
W. “Phase 1 annual report” means a draft annual report prepared by the division for each state
charter school following the annual site visit that begins the documentation
process of the state charter school’s
performance of or compliance with (1) the charter contract terms, including any
conditions, (2) the performance framework, and (3) outstanding corrective action plans or as issued by an
agency with jurisdiction, if any, and reports or information on previously
identified unsatisfactory performance all of which is uploaded to a data
platform accessible by the state charter school to be updated as more
information is received by the division or provided by the state charter
school.
X. “Phase 2 annual report” means the annual report document subsequent to the phase 1 annual report that is finalized by the division from
the phase 1 annual report and provided to the state charter school for comment
prior to submission to the commission as final report or a final report
completed in part.
Y. “Procedure”
or “Procedures” means
directives, instructions, templates and forms, and timelines adopted by
commission that are consistent with the act and the state charter schools’
contracts, and which are implemented by the division or commission pursuant to
which the commission provides state charter school oversight, including:
(1) new charter school applications;
(2) evaluation criteria for new charter
applications adopted by the commission to be applied by the division prior to
making a recommendation;
(3) implementation year checklist;
(4) form of annual report;
(5) form for commission acceptance of
annual reports and notification to a state charter school of an annual report
notice;
(6) renewing charter school applications;
(7) evaluation criteria for renewal
charter applications adopted by the commission and applied by division prior to
making a recommendation and description of the assessment of the application by
the division;
(8) charter school contract and
performance framework templates consistent with the requirements of the act;
(9) amendment and notification forms and
procedures as referenced in the charter contract;
(10) closure protocols for state charter
schools;
(11) consultation process to obtain input
from state charter schools on procedures; and
(12) such other forms and procedures adopted
by the commission that are administrative in nature and that facilitate the
commission’s implementation of the commission’s legal duties as defined by the
act and applicable regulations.
Z. “Secretary” means the New Mexico secretary of public
education.
AA. “State charter school” means
a charter school authorized by the commission to operate as a public school.
AB. “Technical support” means
guidance which may be provided by the division relating to its authority under
the act.
AC. “Uncorrected unsatisfactory performance” means failure to correct unsatisfactory performance for which a
state charter school has been given notice and opportunity to correct as
reflected in two or more consecutive final annual reports accepted during the
charter contract term.
AD. “Unsatisfactory performance” means a designation by the division in the final annual
report or final annual report completed in part that is neither “exceeds” nor
“meets” the standard.
[6.2.9.7 NMAC - N, 7/31/2023]
6.2.9.8 SCHEDULE FOR STATE CHARTER SCHOOL
PROCEDURE-MAKING:
A. In support
of high-stakes decisions made by the commission, the commission shall create
procedures related to its ministerial responsibilities of oversight and
monitoring state charter schools that will be used by the commission and
division consistent with their authority under the act. The commission’s
procedures may be modified following the procedures adopted in this rule. The
commission shall post all procedures in a central location on the commission’s
website or in an authorizing manual available to the public on the commission’s
website.
B. In
adopting changes to procedures, the commission shall:
(1) provide public notice to those who
request notice of commission action that procedure changes are being considered
by the commission pursuant to this rule;
(2) provide written notice on commission
meeting agendas of the two working sessions at which the commission will review
each draft procedure and accept written and oral comments;
(3) accept public written comments up to
the start of the second working session and in-person or virtual comments
during the two working sessions;
(4) provide written notice on a
commission meeting agenda indicating when the commission will consider adoption
of each procedure; and
(5) post the adopted forms and procedures
on the commission website where all procedures are located.
[6.2.9.8 NMAC - N, 7/31/2023]
6.2.9.9 PROCEDURE REVIEW:
A. The
procedures of the commission are
effective until amended or repealed; will only be revised as determined by the
commission to be necessary, in a manner consistent with national best practices
and conforming to legislative changes; will follow the schedule set forth here
and are applicable prospectively.
B. Any new or revised commission procedures shall be effective
as of July 1 of the following fiscal year unless the commission identifies an
exceptional circumstance requiring an immediate change or implementation.
If a new or revised renewal application form is approved effective as of July
1, it will be used by schools that are scheduled to submit a renewal
application fourteen months or later from the effective date. Schools that will
be submitting a renewal application the next September, or two months from the
effective date of the new or revised renewal application form, will use the
form that was in effect prior to July 1 unless otherwise agreed to between the
renewing schools and the commission.
C. A new procedure or revisions to
an existing procedure may be proposed by a member of the commission, or the
division director on behalf of the division or another division of the
department. All procedure revisions contemplated by this section shall comply
with the notice and comment procedures as set forth in 6.2.9.8 NMAC.
D. This section does not apply to changes in
scheduling dates, inclusion of legislative changes or the inclusion of minor
changes that do not change the required provisions of the existing procedure
such as corrective typographical errors or providing clarification. Such
changes may be adopted by the commission at its discretion, with reasonable
notice to those affected by the change(s) and posted to the website as set
forth in 6.2.9.8
NMAC.
[6.2.9.9 NMAC - N, 7/31/2023]
6.2.9.10 OUT-OF-CYCLE
PROCEDURE-MAKING; EXCEPTIONAL CIRCUMSTANCES:
Exceptional circumstances for implementing a procedure
immediately, or with an effective date other than those described in 6.2.9.9
NMAC shall be found when needed to:
A. protect
the immediate heath, welfare, or education of state charter school employees,
students and others doing business at state charter schools;
B. address
new case law affecting the commission or state charter schools;
C. address
statutory changes;
D. address
changes to public education department rules; or
E. address
other exceptional or emergency circumstances as determined by the commission.
[6.2.9.10 NMAC - N, 7/31/2023]
6.2.9.11 RECORD OF STATE CHARTER SCHOOL
PERFORMANCE AND STATE CHARTER SCHOOL EVALUATION:
A. During the term
of the charter contract, the state charter school, commission, and division
will develop a record of the state charter school performance. This will
include:
(1) the charter contract between the
commission and the state charter school;
(2) all final annual reports prepared by
the division and accepted by the commission;
(3) all annual report notices issued by
the commission;
(4) documentation provided by the state
charter school to the division and commission or identified by the division of
corrected or uncorrected unsatisfactory performance identified in a previous
final annual report or commission notice;
(5) documentation of actions taken by the
commission under the intervention ladder and the results of the corrective
action imposed, including a return to good standing by the commission, if
provided;
(6) the state charter school’s complete
initial or renewal application to the commission;
(7) the division’s written analysis of the
initial or renewal application, the division’s recommendation regarding
approval or renewal of the application to the commission, and the response of
the applicant for a new charter school or an existing renewing state charter
school to the division’s analysis and recommendation(s); and
(8) other documents, notices, or
recommendations that are created pursuant to the processes set forth in this
rule and provided by the commission or division to the state charter school
regarding school performance.
B. The
record
as established under this section
shall not be deemed the complete record for purposes of appeal by a renewing
charter school pursuant to Section 22-8B-7 NMSA 1978.
[6.2.9.11 NMAC - N, 7/31/2023]
6.2.9.12 ANNUAL
SITE VISIT AND ANNUAL REPORT:
A. The
division will conduct an annual site visit to provide technical assistance to
the state charter school, and to evaluate the school’s annual progress toward
the performance framework goals and compliance with the charter contract. The
division will prioritize completing the annual site visits and presentation of
final annual reports for those state charter schools that have submitted a
renewal application and those state charter schools that have an unresolved
annual report notice showing unsatisfactory performance or a corrective action
plan in place.
B. The
division’s site
visit will include review of whether the state charter school is:
(1) complying with the terms of the charter contract, including any
conditions;
(2) meeting the indicators and targets as set forth in the performance
framework;
(3) correcting or has corrected unsatisfactory performance;
(4) correcting or has corrected uncorrected unsatisfactory performance
identified in an annual report notice; and
(5) completing or has completed actions that cure intervention imposed
by the commission pursuant to 6.2.9.13 NMAC.
C. Phase
1, phase 2 and final annual reports will be completed by the division according
to the following procedures and deadlines:
(1) The division and state charter school may extend or revise
deadlines in the process for phase 1 by documenting an agreement as to a new
deadline in writing. If the
school does not offer an appropriate deadline for purposes of providing the
division with the missing information, the division director will impose a
deadline with which the school shall comply.
(2) To create a phase 1 annual report, the division will include
demographic and other information on the state charter school available to the
division from the department and conduct an annual site visit.
(a) The division will provide at least 30
days prior written notice of each state charter school’s annual site visit and
include a copy of, or a hyperlink to, the approved site visit protocol in the
notice. Site visits will not be scheduled if a state charter school notifies
the division that critical testing is scheduled for the date of the proposed
site visit. If the division does not provide 30 days advance notice, the annual
site visit will be rescheduled upon written request of the state charter
school. If the annual site visit needs to be rescheduled for any reason, it may
be rescheduled at any time after the initial 30-day period, and an additional
30-day notice is not required.
(b) The division and the state charter school will conduct an exit
meeting at the end of the annual site visit outlining the initial results of
the division’s findings. If the division determines that the state charter
school did not provide information necessary for the division to complete its
annual site visit evaluation, the parties will memorialize a list of missing
information and the time frame for providing the information to the division
during the exit meeting.
(c) Within 30 days following the exit meeting, the division will
upload a phase 1 annual report based on the annual site visit findings to a
data platform available for the state charter school to review at any time. The
state charter school will provide missing information or correct the
information to the division within the time frame agreed to by the division and
the school.
(3) In order to complete the final annual report, the following
actions will take place:
(a) No later than 45 days prior to a commission
meeting to consider the final annual reports, the division will provide to the
state charter school for review and comment a phase 2 annual report reflecting performance,
including all information that has been made available. The division will
identify in the phase 2 annual report unsatisfactory performance, uncorrected
unsatisfactory performance, the facts in support of unsatisfactory performance,
and the division’s recommendation to the commission. The phase 2 annual report
shall contain the division’s initial assessment as to school’s performance
according to the rating set forth in each completed section of the performance
framework, and may contain the division’s recommendation to the commission
regarding the commission’s annual report notice, including the specific type of
notice that the division is recommending be issued, its factual basis for that
recommendation, and the recommended time frame for completion of the corrective
action.
(b) The state charter school may provide
a written response to the division’s phase 2 annual report within 20 days of receipt
from the division, including the state charter school’s response to the
division’s assessment regarding correction of unsatisfactory performance if the
state charter school received an annual report notice from the commission for
the previous school year. The response shall include documents or other
evidence to support the state charter school’s response.
(c) The division will consider the state
charter school response and create a final annual report
or a final annual report completed in part and include all unresolved state
charter school’s responses, if any, to the phase 2 annual report. The division
will provide the final annual report to the school and the commission seven days prior to the
commission meeting at which the final annual report or the final annual report
completed in part will be considered by the commission. The division may move
presentation of an annual report to the next meeting of the commission if it
needs more time to consider changes proposed by a state charter school.
(d) The division will present its final
annual report or the final annual report completed in
part to the commission at a public meeting, and the state charter school may
attend the commission meeting at which the final annual report will be
discussed.
(4) If a final report has been completed
in part, when the reserved sections can be completed, the annual report may be reopened and those reserved sections may be completed using
the phase 2 process set forth above related to the reserved sections; however
no sections other than those reserved may be reopened.
D. The commission shall take the following steps after consideration
of the final annual report or final annual report completed in part.
(1) The commission will:
(a) accept the final annual report or final
annual report completed in part at a public meeting of the commission;
(b) issue an annual report notice; or
(c) if circumstances exist to support revocation,
take action to start a revocation process pursuant to this rule.
(2) If the commission votes to issue an
annual report notice other than notice of exemplary or satisfactory
performance, or to commence action under the intervention ladder when the
division recommended the issuance of a notice of exemplary or satisfactory
performance, the commission’s notice shall include a notice to the state
charter school that it may, within 10 days of receipt of the notice, present a
written response to the commission’s action(s) to be included in the record of
performance of the charter school. The state charter school may also request an
opportunity to be heard at the next meeting of the commission and request
reconsideration of the commission’s decision to impose corrective action.
(3) Within 10 days after the commission
meeting the commission shall provide a written notice to the school if the
commission has accepted the final annual report or final annual report
completed in part, identify the annual report notice issued by the commission,
and reference the annual report which identifies the unsatisfactory performance
requiring corrective action with sufficient specificity such that the state
charter school can take appropriate measures to correct its performance.
(4) The final annual report or final
annual report completed in part and the action of the commission shall be made
part of the record of the state charter school
performance. If a state charter school later corrects unsatisfactory
performance, the final annual report or final annual
report completed in part shall not be reopened and the rating changed;
instead, the corrected unsatisfactory performance shall be noted in the final
annual report for the next year or in the assessment of a renewal application,
if the state charter school is submitting a renewal application that year.
(5) Any action to revoke or not renew a
state charter school’s charter contract will be in accordance with the state charter school’s charter
contract, and applicable laws and rules.
E. Acceptance of an annual report shall be by action taken by
the commission at a public meeting that acknowledges receipt of an annual
report from the division as part of the record of performance during the
contract term.
[6.2.9.12 NMAC - N, 7/31/2023]
6.2.9.13 CORRECTIVE
ACTION:
A. The
following actions are to be taken regarding the unsatisfactory performance by
the state charter school or in response to an annual report notice.
(1) If the performance framework reflects unsatisfactory performance
on one or more indicator, but the commission did not find that an annual report
notice for unsatisfactory performance or uncorrected unsatisfactory performance
was warranted, the state charter school shall take action to improve its performance
on the specific indicators and shall provide information to the division of
improvements made no later than the next annual site visit unless otherwise
indicated by the commission in the notification provided for in Subsection D of
6.2.9.12 NMAC. The division will provide an assessment of the improvement
during the next annual report cycle, or earlier if the division deems it
necessary to recommend action under the intervention ladder.
(2) If an annual report notice for unsatisfactory performance or
uncorrected unsatisfactory performance has been issued by the commission, the
state charter school shall take action to correct unsatisfactory performance by
providing information to the division of the corrected performance within the
timeframe set in the commission’s notice. The division will provide updates to
the commission at intervals as set forth in the annual report notice, and
report to the commission if the unsatisfactory performance has been corrected.
The division may recommend that a notice of uncorrected unsatisfactory
performance be issued on the next final annual report or recommend at any time
that action be taken under the intervention ladder if there is a lack of
progress by the state charter school as contemplated by the annual report notice.
(3) During the third or fourth year of the charter term, a governing
body with renewal concerns based on unsatisfactory performance in the record of
performance may request an informal pre-renewal review meeting. If the request
is made, a group of the governing body for the state charter school making up
less than a quorum of the governing body, staff from the state charter school,
the division, and a group of commissioners making up less than a quorum of the
commission identified by the executive committee of the commission will meet to
provide input to the state charter school on suggested areas of improvement
before submitting the renewal application.
The meetings and
discussions will be considered technical assistance and will not be made part
of the record of performance.
B. Throughout
the term of the charter contract, the commission may take
action when appropriate under the intervention ladder.
(1) If the division is the entity that
identifies an intervention concern:
(a) the division will
notify the school. Information establishing unsatisfactory performance giving
rise to possible action under the intervention ladder may be obtained from sources
such as other divisions and bureaus of the department or other state or federal
agencies.
(b) unless the division finds that the
unsatisfactory performance requires immediate action by the commission, the
division will provide the state charter school with an opportunity to remedy
the unsatisfactory performance without commission intervention under the
intervention ladder.
(c) if the division determines that the intervention
concern may require immediate intervention by the commission or that the state
charter school has failed to remedy the intervention concern after notice from
the division, the division will present information of the intervention concern
to the commission at a public meeting.
(2) If the commission
decides to issue a notice of intent to commence action under intervention
ladder, whether the intervention concern is presented by the division or the
commission determines that it will commence action based on an intervention
concern presented at a commission meeting, the commission will provide written
notice to the state charter school’s representatives of the date and time of
the meeting at which the commission will consider whether to impose
interventions pursuant to this section. The meeting shall be scheduled for the next regular meeting, no sooner than 10 days from the date of the commission’s
notice to the state charter school, except in exigent circumstances implicating
health, safety, or financial impropriety, that could jeopardize the ongoing
operations of the state charter school.
(3) At the commission
meeting where it will consider commencing action under the intervention ladder,
the division will present information supporting the position that commission
intervention pursuant to this section is warranted. The state charter school
may present written and oral rebuttal information to the commission prior to a
commission decision to impose interventions.
(4) The commission may decide whether to impose
appropriate interventions, after considering the information provided by the
division and the state charter school.
(5) The
commission may impose the following interventions related to an intervention
concern:
(a) issue a notice of concern identifying
the uncorrected unsatisfactory performance that includes expected outcomes and
deadlines for addressing all issues and a deadline by which the school shall
present the division with a corrective action plan to address the identified
issues;
(b) issue a notice of breach of the state
charter school’s charter contract for a state charter school’s failure to
correct a notice of concern according to its terms if said failure constitutes
a breach of contract, or for violating any material terms of the contract that
are serious enough to justify a heightened response by the commission. If the
commission issues a notice of breach, the written notice of breach shall
include the specific contract sections the commission alleges have been
violated, the evidence upon which the commission contends a breach of the
charter contract has occurred, and a deadline by which the school shall present
the division with a corrective action plan to address the identified contract
violations; or
(c) issue a notice of potential
non-renewal or potential renewal
with conditions, if the state charter school is in the last two years of its
charter term and the commission finds that the facts warrant the issuance of
the notice. The commission shall identify the legal basis for the possible
nonrenewal or renewal with conditions, and shall include in its notice of
possible non-renewal or renewal with conditions, a summary of the evidence
supporting that conclusion; the required action by the state charter school to
remedy the unsatisfactory performance giving rise to the notice of potential
non-renewal or potential renewal with conditions; and the timeline for
satisfying the requirements.
(6) Any corrective action plan required
by this section shall be created and implemented as follows:
(a) The state charter school shall
develop a corrective action plan by the date specified in the notice that
addresses the identified intervention concern and that aligns with the expected
outcomes and deadlines set forth in the notice and provide the document to the
division for comments and suggested clarifications. The plan shall be due no
sooner than 10 days
from the state charter school’s receipt of the
notice of concern. An approved
corrective action plan shall contain the following elements:
(i) name
of state charter school representative responsible for ensuring completion of
the corrective action plan and reporting to the division and commission;
(ii) specific actions to be taken by the
state charter school and the staff positions anticipated to complete the
actions to address the unsatisfactory performance; and
(iii) date(s) by which the state charter
school is to submit report(s) to the commission and division on progress of or
completion of the actions identified in the corrective action plan.
(b) The division, as part of its
recommendation to the commission, will present its assessment of the adequacy
of the plan and provide the division’s plan to monitor the school’s compliance.
The division will create a corrective action monitoring tool to monitor and
provide written progress reports periodically to the commission and state
charter school and to be provided to the commission as part of the commission-approved corrective
action plan.
(c) The commission, or
a subcommittee of the commission if designated by the commission, shall
consider the state charter school’s proposed corrective action plan by a date
specified in the notice of concern and, if the plan is found to be inadequate, may require the state
charter school to improve the corrective action plan or take further action
under the intervention ladder.
(d) The time for completing an accepted
corrective action plan shall commence from the date the commission approves the
plan.
(e) The
state charter school may request amendment of the corrective action plan by
providing notice to the division of the proposed changes. Non-substantive,
minor changes to the commission-approved plan may be approved by the division
in writing. Substantive changes shall be approved by the commission at a public
meeting.
C. Nothing
herein shall preclude the commission from commencing revocation proceedings as
set forth in 6.2.9.17 NMAC if ongoing monitoring activities reveal
circumstances that warrant revocation.
D. The
commission shall vote to reinstate a state charter school’s good standing upon
the division providing information that the state charter school has corrected
the concerns that gave rise to a notice of concern or notice of breach.
Reinstatement of the school’s good standing shall be evidenced in writing, made
a part of the record of performance for the state charter school, and the state
charter school’s corrective actions may be used to support renewal or renewal
with conditions.
E. Action taken by the commission pursuant to this section
shall be made part of the record of
the state charter school performance.
[6.2.9.13 NMAC - N, 7/31/2023]
6.2.9.14 TRIBAL
CONSULTATION:
A. If
a state charter school applicant wants to open a charter school on tribal land,
it shall negotiate with and receive the tribal government's approval for the
public school before the commission acts on the application. The applicant shall adhere to requirements
for tribal consultation in Section 22-8B-12.2 NMSA 1978.
B. When the commission is
contemplating closing a state charter school located on tribal land, for any
reason, suspension, revocation, or
non-renewal, it shall consult with tribal leaders and members and families of
students attending the charter school, and shall adhere to the requirements of
Section 22-8B-12.2 NMSA 1978.
[6.2.9.14 NMAC - N, 7/31/2023]
6.2.9.15 NEW SCHOOL APPLICATION
REVIEW:
A. The division will analyze each new state charter school
application, consider information and analysis provided in accordance
with the act, and
prepare a preliminary renewal analysis. The preliminary renewal analysis may
include the division’s preliminary recommendation to the commission whether to
approve, approve with conditions, or to not approve the school’s charter
contract in addition to other information as directed by the commission.
B. The
applicant may provide a written response to the preliminary renewal analysis
within 10 days of receipt of the analysis. If the division agrees with the
applicant’s response, the division will modify the final analysis before
submitting it to the commission and provide an updated analysis to the
applicant. If the division disagrees with the applicant’s response in whole or
in part, it will provide reasons why it disagrees with the applicant’s response
in its final analysis and include the applicant’s response in the division’s
final analysis submitted to the commission.
C. No
later than 30 days prior to the new application hearing, the commission shall
identify in writing for each applicant preliminary issues of concerns or
requests for further information to allow the applicant to prepare for the
hearing.
D. The
division will submit its final analysis as described in this section to the
commission, seven days prior to the new application hearing.
E. The
commission shall determine if an application is approved, approved with
conditions, or not approved in accordance with law and this rule.
F. An applicant may appeal the
decision to the secretary in accordance with Section 22-8B-7 NMSA 1978 and
provisions of 6.80.4.13 NMAC.
[6.2.9.15 NMAC - N, 7/31/2023]
6.2.9.16 RENEWAL:
A. The
division will analyze each renewal application according to the criteria
established by the commission and the act and will prepare a preliminary
renewal analysis. The preliminary renewal analysis shall include the division’s
preliminary recommendation to the commission whether to renew, renew with
conditions, or to not renew.
B. The school
seeking to renew its charter as a state charter school may provide a written
response to the preliminary renewal analysis within 10 days of receipt. If the
division agrees with the school’s response, the division will modify the final
renewal analysis before submitting it to the commission and provide an updated
analysis to the state charter school. If the division disagrees with the
school’s response in whole or in part, it will provide reasons why it disagrees
with the school’s response in its final renewal analysis and include the
school’s response in the division’s final renewal analysis submitted to the
commission.
C. No later than 30
days prior to the renewal hearing, for each renewing school seeking to renew
its charter as a state charter school, the commission shall identify in writing
preliminary issues of concern, an indication of possible non-renewal if identified by the
commission, and request for further information to
allow the school to prepare for the renewal hearing.
D. The division
will submit its final renewal analysis as described in this section to the
commission by no later than 10 days prior to the commission hearings on the
renewal applications.
E. Unless a
non-renewal hearing is requested as set forth below, for each
renewing charter, the commission shall hold a renewal
hearing according to an approved renewal process, allow public input, and allow oral presentations by the division and the school. The commission will then be
allowed to ask questions of the division and the school related to the renewal
application and oral presentations prior to making a decision
regarding renewal.
F. If the
division provides a recommendation of non-renewal, if
the commission has indicated to the school that it may consider
non-renewal, or if the record of performance contains sufficient grounds for
non-renewal, the school may request to invoke the
non-renewal hearing procedure described in Subsection G of this section. A
state charter school’s request for the commission to follow the non-renewal
hearing procedure shall be provided to the commission chair and division
director by no later than 10 days after issuance of the division’s preliminary
renewal analysis.
G. If the school
seeking to renew its charter as a state charter school timely requests that the
commission follow the non-renewal hearing procedure, the commission shall
provide the school with the following minimum process before voting on the
division’s recommendation for nonrenewal.
(1) Upon receipt of the school’s request
for the commission to follow the non-renewal hearing procedure, the commission
shall provide notice of the date and time of the possible non-renewal hearing
no later than 10 days prior to the hearing,
or indicate that the commission will utilize the same date and time set
previously identified for a renewal hearing for the school. The full record of
performance, renewal application, and analysis by the division will be
considered as part of the record without further evidentiary foundation needed. Within five days, the chairperson of the
commission, with counsel, shall meet with the parties and their counsel to
confirm anticipated witnesses and documents to be presented, including how to
address any new information that the parties may wish to present, and to
memorialize the anticipated witnesses, documents, process and timelines as
established in the meeting.
(2) If the commission has indicated to
the school that it may consider non-renewal, the
division or commission counsel may rely on the grounds provided to the school
in the record of performance, the reasons provided in the division’s final
renewal analysis that were previously disclosed to the school through the
process contemplated under this rule, or in the written letter of concern from
the commission provided to the school during the charter contract term.
(3) The
non-renewal hearing shall be conducted as follows:
(a) If the commission has indicated to
the school that it may consider non-renewal, the division will have one hour in total to present its recommendation and
supporting evidence to the commission, which may be through its counsel or
commission counsel. The presenting party may
present witness testimony or documentary evidence, and shall have the
opportunity to question the state charter school representatives in appearance,
excluding legal counsel.
(b) The school, through counsel if it
elects to have counsel, shall then have one hour in total to present evidence
to defend its application for renewal. The school may present witness testimony
or documentary evidence and shall have the opportunity to question division
representatives or other representatives in appearance about
information used to support a recommendation of nonrenewal.
(c) Commission members may ask questions
of the division, its attorney or witnesses, and the school representatives and
witnesses, during the presentations, which shall not be subtracted from the division’s or school’s time, and may take up to one hour
after the school and division finish their presentations to ask additional
questions that are related to the renewal applications and the previously
identified reasons given for possible nonrenewal.
I. Attorneys
may provide representation at the hearing, at each parties’ sole cost and
expense.
J. The hearing
shall be recorded by a licensed stenographer and a copy of the transcript shall
be presented to the parties within 10 days of the hearing unless additional
time can be extended without prejudice to the school’s right to appeal.
K. The hearing and
deliberations of the commission shall be conducted pursuant to the Open
Meetings Act.
L. The commission
shall vote on the state charter school’s renewal in a public meeting and
articulate the legal grounds and supporting evidence for its decision on the
record. The commission shall serve a written decision on the state charter
school’s representatives within 14 days of the hearing. If the commission decides
not to renew the charter contract, the decision shall include the legal basis
for non-renewal and the factual reasons supporting findings of legal
violations, required pursuant to Subsection K and Subsection M of Section
22-8B-12 NMSA 1978 during the public hearing.
M. A
school may appeal to the secretary pursuant to Section 22-8B-7 NMSA 1978 and provisions of 6.80.4.13 NMAC.
[6.2.9.16 NMAC - N,
7/31/2023]
6.2.9.17 REVOCATION:
A. The
commission may revoke the school’s charter contract if legal grounds exist
pursuant to the act. If immediate revocation is warranted, or if the state
charter school does not provide a corrective action plan accepted by
commission, or if the state charter school fails to timely cure the violation
as contemplated in the corrective action plan, the commission may vote to
proceed with revocation.
B. The commission
shall provide the school with a notice of intent to revoke that includes
the legal basis for revocation as contemplated in the act and a date, time, and
place for a revocation hearing. The hearing shall be in Santa Fe or the county
in which the school is located, as agreed upon between the parties. Unless a
need for emergency revocation or suspension is identified, the hearing shall be
held not more than 60 nor less than 30 days from the date of service of said
notice. The full record of performance, including any transcripts or commission
meetings relating to discussion of unsatisfactory performance, will be
considered as part of the record without further
evidentiary foundation needed. Within five days, the chairperson of the
commission, with counsel, will meet with the parties and counsel to confirm
anticipated witnesses and documents to be presented, including how to address
any new information that the parties may wish to present, and memorialize the
anticipated witnesses, documents, process, and timelines as established in the
meeting.
C. The revocation
hearing shall be conducted as follows:
(1) Counsel presenting the case for
revocation shall have one hour to present evidence for revocation to the
commission. The counsel presenting the case for revocation may present witness
testimony or documentary evidence, and may question the school representatives
in appearance, excluding legal counsel.
(2) After the commission’s counsel’s
presentation, the school shall have one hour to present evidence to defend
against the recommended revocation. The school may present witness testimony or
documentary evidence, and may present witness testimony or documentary
evidence, and may question the division representative in appearance or other
representatives in appearance to defend against the revocation.
(3) Commission
members may ask questions of the division, the commission’s counsel or
witnesses, the school, its attorney, and the school’s witnesses during the
presentations and may take up to one hour after the commission’s counsel and
the state charter school’s presentations to ask additional questions related to
grounds for revocation.
D. Attorneys may
provide representation at the hearing, at each parties’ sole cost and expense.
E. The hearing
shall be recorded by a licensed stenographer and a copy of the transcript shall
be presented to the parties within 10 days of the hearing unless additional
time can be extended without prejudice to the school’s right to appeal.
F. The hearing and
deliberations of the commission shall be conducted pursuant to the Open
Meetings Act.
G. The commission
shall vote on the state charter school’s revocation in a public meeting and
articulate the legal grounds and supporting evidence for its decision on the
record. The commission shall serve a written decision on the state charter
school’s representatives within 14 days of the hearing. If the
commission decides to revoke the charter contract, the decision shall include
the legal basis for revocation, and the factual reasons supporting findings of
legal violations, required pursuant to Subsection K and Subsection M of Section 22-8B-12 NMSA 1978 during
the public hearing.
H. Appeal. A school may appeal to the
secretary pursuant to Section 22-8B-7 NMSA 1978
and provisions of 6.80.4.14 NMAC.
[6.2.9.17 NMAC - N,
7/31/2023]
History of 6.2.9 NMAC: [RESERVED]