HOUSE JUDICIARY COMMITTEE SUBSTITUTE FOR
HOUSE BILL 128
55th legislature - STATE OF NEW MEXICO - first session, 2021
AN ACT
RELATING TO SCHOOL PERSONNEL; REQUIRING APPLICANTS FOR SCHOOL EMPLOYMENT OR SCHOOL VOLUNTEER POSITIONS TO DISCLOSE PAST ETHICAL MISCONDUCT; REQUIRING LOCAL SCHOOL BOARDS TO ADOPT POLICIES TRACKING CHILD ABUSE ALLEGATIONS; PROVIDING DEFINITIONS; REQUIRING THE PUBLIC EDUCATION DEPARTMENT TO MAINTAIN A LIST OF REPORTS INVOLVING CHILD ABUSE OR ETHICAL MISCONDUCT; ALLOWING TERMINATION OF SCHOOL EMPLOYMENT OR SCHOOL VOLUNTEER POSITION DECISIONS TO BE PUBLIC; ADDING ETHICAL MISCONDUCT TO SCHOOL TRAINING PROGRAMS; REQUIRING SCHOOL VOLUNTEERS TO COMPLETE SCHOOL TRAINING PROGRAMS; REQUIRING REPORTS OF CHILD ABUSE BY SCHOOL PERSONNEL, SCHOOL VOLUNTEERS, CONTRACTORS OR CONTRACTOR'S EMPLOYEES TO BE REPORTED TO THE PUBLIC EDUCATION DEPARTMENT; REQUIRING CHILD ABUSE BY OTHER ADULTS, IN ADDITION TO CHILD ABUSE BY A PARENT, CUSTODIAN OR GUARDIAN, TO BE REPORTED.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. A new section of the School Personnel Act is enacted to read:
"[NEW MATERIAL] APPLICANTS FOR SCHOOL EMPLOYMENT--REQUIREMENTS FOR WORK HISTORY AND OTHER INFORMATION.--
A. A public school shall require any applicant for employment, including a school volunteer, a contractor or a contractor's employee, to provide:
(1) a list of the applicant's current and former employers that were schools or that employed the applicant in a position involving unsupervised contact with children or students. The list shall include the name, address, telephone number and other relevant contact information for each of the applicant's listed employers;
(2) a written statement describing whether the applicant:
(a) has ever been under investigation for, or has been found to have violated, any state or federal statute relating to child abuse or neglect, sexual misconduct or any sexual offense, including those offenses prohibited in Chapter 30, Article 3, 3A, 4, 6, 6A, 9, 37, 37A or 52 NMSA 1978, unless the allegations were false or unsubstantiated;
(b) has ever been under investigation for, or found to have violated, any ethical rule or policy approved by a former employer that previously employed the applicant, unless the allegations were false or unsubstantiated; or
(c) has ever had a professional license or certificate denied, suspended, surrendered or revoked due to a finding of child abuse or ethical misconduct or while allegations of child abuse or ethical misconduct were pending or under investigation; and
(3) a written authorization that authorizes disclosure of information requested under Subsection B or D of this section and the release of related records by the applicant's previous employers, releasing the applicant's previous employers from any liability related to the disclosure or release of records.
B. A public school shall conduct a review of the applicant's employment history and contact the applicant's current and former employers listed under Subsection A of this section and request:
(1) the applicant's dates of employment; and
(2) a written a statement describing whether the applicant:
(a) has ever been under investigation for, or has been found to have violated, any state or federal statute relating to child abuse or neglect, sexual misconduct or any sexual offense, including those offenses prohibited in Chapter 30, Article 3, 3A, 4, 6, 6A, 9, 37, 37A or 52 NMSA 1978, unless the allegations were false or unsubstantiated;
(b) has ever been under investigation for, or found to have violated, any ethical rule or policy approved by a former employer that previously employed the applicant, unless the allegations were false or unsubstantiated; or
(c) has ever had a professional license or certificate denied, suspended, surrendered or revoked due to a finding of child abuse or ethical misconduct or while allegations of child abuse or ethical misconduct were pending or under investigation.
C. An applicant's current or former employer shall disclose the information requested under Subsection B of this section within thirty days of receiving the request.
D. During the course of a public school's review of the applicant's employment history, an applicant's current or former employer may disclose any other information the applicant's current or former employer deems pertinent and substantive to the prospective employee's suitability for employment in a position that includes unsupervised contact with children or students.
E. A public school shall make and document efforts to:
(1) verify the information provided under Subsections A and B of this section; and
(2) obtain from an applicant's current or former out-of-state employer the information required under Subsection B of this section.
F. A public school may terminate an individual's employment or rescind an applicant's offer of employment if the applicant is offered or commences employment with a public school after the effective date of this 2021 act and information regarding the applicant's history of child abuse or ethical misconduct that is determined to disqualify the applicant from employment is subsequently obtained by the public school.
G. When a reference on a former or current employee is requested, the employer shall respond and provide the requested information pursuant to Subsection B of this section.
H. An applicant who provides false information or willfully neglects to disclose information required under this section shall be subject to discipline including termination or denial of employment or action to deny, suspend or revoke a license."
SECTION 2. Section 22-5-4.2 NMSA 1978 (being Laws 1985, Chapter 94, Section 1) is amended to read:
"22-5-4.2. CHILD ABUSE--REPORT COORDINATION--CONFIRMATION.--
A. A local school board [may] shall adopt policies providing for the coordination and internal tracking of reports made by school district personnel, school volunteers, contractors and contractor's employees pursuant to Section [32-1-15] 32A-4-3 NMSA 1978. Such policies, however, shall not require any notification to school district personnel, school volunteers, contractors or contractor's employees before the report is made to [one of] the offices listed in Subsection A of [that] Section 32A-4-3 NMSA 1978. Such policies shall include measures to protect the identity of victims of abuse. No policy shall purport to relieve any person having a duty to report under [that] Section 32A-4-3 NMSA 1978 from that duty.
B. After a report is made to [a county social services office of the human services department] the children, youth and families department or a law enforcement agency pursuant to Section [32-1-15] 32A-4-3 NMSA 1978 by any school district personnel, school volunteer, contractor or contractor's employee, that office shall notify the person making the report within five days after the report was made that the office is investigating the matter. Mailing a notice within five days shall constitute compliance with this subsection.
C. As used in this section:
(1) "contractor" means an individual who is under contract with a public school and is hired to provide services to the public school, but does not include a general contractor or a building or maintenance contractor who is supervised and has no access to students at the public school; and
(2) "school volunteer" means a person, including a relative of a student, who commits to serve on a regular basis at a school district, charter school or other educational entity without compensation."
SECTION 3. Section 22-10A-2 NMSA 1978 (being Laws 2019, Chapter 238, Section 1) is amended to read:
"22-10A-2. DEFINITIONS.--As used in the School Personnel Act:
A. "child abuse" means a child:
(1) who has suffered or who is at risk of suffering serious harm because of the action or inaction of the child's parent, guardian, custodian or other adult;
(2) who has suffered physical abuse, emotional abuse or psychological abuse inflicted or caused by the child's parent, guardian, custodian or other adult;
(3) who has suffered sexual abuse or sexual exploitation inflicted by the child's parent, guardian, custodian or other adult;
(4) whose parent, guardian, custodian or other adult has knowingly, intentionally or negligently placed the child in a situation that may endanger the child's life or health; or
(5) whose parent, guardian, custodian or other adult has knowingly or intentionally tortured, cruelly confined or cruelly punished the child;
[A.] B. "constitutional special school" means the New Mexico military institute, New Mexico school for the deaf and New Mexico school for the blind and visually impaired;
C. "contractor" means an individual who is under contract with a public school and is hired to provide services to the public school, but does not include a general contractor or a building or maintenance contractor who is supervised and has no access to students at the public school;
[B.] D. "discharge" means the act of severing the employment relationship with a licensed school employee prior to the expiration of the current employment contract;
[C.] E. "employed for three consecutive school years" means a licensed school employee has been offered and accepted in writing a notice of reemployment for the third consecutive school year;
F. "ethical misconduct" means the following behavior or conduct by a school employee, school volunteer, contractor or contractor's employee:
(1) discriminatory practice based on race, age, color, national origin, ethnicity, sex, pregnancy, sexual orientation, gender identity, mental or physical disability, marital status, religion, citizenship, domestic abuse reporting status or serious medical condition;
(2) sexual misconduct or any sexual offense prohibited by Chapter 30, Article 9 or Chapter 30, Article 6A NMSA 1978 involving an adult or child, regardless of a child's enrollment status;
(3) fondling a child or student, including touching private body parts, such as breasts, buttocks, genitals, inner thighs, groin or anus; or
(4) any other behavior, including licentious, enticing or solicitous behavior, that is reasonably apparent to result in inappropriate sexual contact with a child or student or to induce a child or student into engaging in illegal, immoral or other prohibited behavior;
[D.] G. "governing authority" means the policy setting body of a school district, charter school, constitutional special school or regional education cooperative, or the final decision maker of another state agency;
[E.] H. "instructional support provider" means a person who is employed to support the instructional program of a public school, 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;
[F.] I. "just cause" means a reason that is rationally related to a school employee's competence or turpitude or the proper performance of the school employee's duties and that is not in violation of the school employee's civil or constitutional rights;
J. "moral turpitude" means an act or behavior that gravely violates the accepted standards of moral conduct, justice or honesty and may include ethical misconduct;
[G.] K. "public school" means a school district, charter school, constitutional special school, regional education cooperative or the educational program of another state agency;
[H.] L. "responsibility factor" means a value of 1.20 for