A. As used in this section, "ethical misconduct" means unacceptable behavior or conduct engaged in by a school employee, school volunteer, contractor or contractor's employee and includes unlawful discriminatory practice; sexual harassment, sexual assault or sexual abuse involving an adult or child, regardless of a child's enrollment status; and behavior intended to induce a child into engaging in illegal, immoral or other prohibited behavior.

B. An applicant for initial licensure shall be fingerprinted only upon initial licensure and shall provide two fingerprint cards or the equivalent electronic fingerprints to the department or superintendent to obtain the applicant's federal bureau of investigation record. Convictions of felonies or misdemeanors contained in the federal bureau of investigation record shall be used in accordance with the Criminal Offender Employment Act [28-2-1 to 28-2-6 NMSA 1978]. Other information contained in the federal bureau of investigation record, if supported by independent evidence, may form the basis for the denial, suspension or revocation of a license for just cause. Records and related information shall be privileged and shall not be disclosed to a person not directly involved in the licensure or employment decisions affecting the specific applicant. The applicant for initial licensure shall pay for the cost of obtaining the federal bureau of investigation record.

C. Governing authorities shall develop policies and procedures to require background checks on an applicant who has been offered employment or who applies to be a volunteer or works for the public school as a contractor or a contractor's employee and who may have unsupervised access to students on school premises.

D. An applicant who has been offered employment or a school volunteer, contractor or contractor's employee shall provide two fingerprint cards or the equivalent electronic fingerprints to the superintendent to obtain the applicant's, school volunteer's, contractor's or contractor's employee's federal bureau of investigation record. The public school shall pay for an applicant's background check. A school volunteer, contractor or contractor's employee may be required to pay for the cost of obtaining a background check.

E. Convictions of felonies or misdemeanors contained in the federal bureau of investigation record shall be used in accordance with the Criminal Offender Employment Act; provided that other information contained in the federal bureau of investigation record, if supported by independent evidence, may form the basis for the employment decisions for just cause.

F. Records and related information shall be privileged and shall not be disclosed to a person not directly involved in the employment, volunteering or contracting decision affecting the specific applicant, volunteer, contractor or contractor's employee who has been offered employment, a volunteer position or a contract and will have unsupervised access to students on school premises.

G. A superintendent shall report to the department any known conviction of a felony or misdemeanor involving moral turpitude of a licensed school employee that results in any type of action against the licensed school employee.

H. A superintendent or the superintendent's designated representative shall investigate all allegations of ethical misconduct about any school employee who resigns, is being discharged or terminated or otherwise leaves employment after an allegation has been made. If the investigation results in a finding of ethical misconduct by a licensed school employee, the superintendent shall report the identity of the licensed school employee and attendant circumstances of the ethical misconduct on a standardized form to the department and the licensed school employee within thirty days following the separation from employment or immediately if knowledge of the ethical misconduct is sexual harassment or sexual abuse of an adult or child. Copies of that form shall not be maintained in the school employee's personnel file. The superintendent shall also report allegations of sexual assault or sexual abuse involving any school employee, volunteer, contractor or a contractor's employee to the appropriate law enforcement agency. No agreement between a departing school employee and the governing authority or superintendent shall diminish or eliminate the responsibility of investigating and reporting the alleged ethical misconduct to the department or, if legally mandated, to law enforcement, and any such agreement to the contrary is void.

I. Unless the department has commenced its own investigation of a licensed school employee prior to receipt of the form, the department shall serve the licensed school employee with a notice of investigation and a notice of contemplated action pursuant to the Uniform Licensing Act [61-1-1 to 61-1-31 NMSA 1978] within sixty days of receipt of the form. If a notice of contemplated action is not served on the licensed school employee within ninety days of receipt of the form, the form, together with any documents related to the alleged ethical misconduct, shall be expunged from the licensed school employee's records.

J. The secretary may initiate action to suspend, revoke or refuse to renew the license of a superintendent who fails to report as required by Subsections G and H of this section.

History: Laws 1997, ch. 238, § 1; 1998, ch. 60, § 1; 1999, ch. 281, § 24; 2001, ch. 293, § 6; 1978 Comp., § 22-10-3.3, recompiled and amended as § 22-10A-5 by Laws 2003, ch. 153, § 36; 2007, ch. 263, § 1; 2019, ch. 209, § 2; 2019, ch. 238, § 3.

Recompilations. — Laws 2003, ch. 153, § 36 recompiled and amended former 22-10-3.3 NMSA 1978 as 22-10A-5 NMSA 1978, effective April 4, 2003.

Cross references. — For transfer of powers and duties of former state board of education, see 9-24-15 NMSA 1978.

2019 Multiple Amendments. — Laws 2019, ch. 209, § 2, effective July 1, 2020, and Laws 2019, ch. 238, § 3, effective June 14, 2019, enacted different amendments to this section that can be reconciled. Pursuant to 12-1-8 NMSA 1978, Laws 2019, ch. 238, § 3, as the last act signed by the governor, is set out above and incorporates both amendments. The amendments enacted by Laws 2019, ch. 209, § 2 and Laws 2019, ch. 238, § 3 are described below. To view the session laws in their entirety, see the 2019 session laws on NMOneSource.com.

The nature of the difference between the amendments is that Laws 2019, ch. 209, §2, provided that applicants for licensure shall be fingerprinted only upon initial licensure, and removed a provision that provided limited immunity for any person who in good faith makes reports pursuant to this section, and Laws 2019, ch. 238, § 3, revised the definition of "ethical misconduct" as used in this section, required governing authorities to require background checks on an applicant who applies to be a volunteer or works for the public school as a contractor or contractor employee and who may have unsupervised access to students on school premises, required school volunteers to provide two fingerprint cards to the superintendent, required a superintendent to report immediately to the department conduct constituting sexual harassment or sexual abuse, and required a superintendent to report allegations of sexual assault or sexual abuse involving any school employee, volunteer or contractor to the appropriate law enforcement agency.

Laws 2019, ch. 209, §2, effective July 1, 2020, provided that applicants for licensure shall be fingerprinted only upon initial licensure, and removed a provision that provided limited immunity for any person who in good faith makes reports pursuant to this section; in the section heading, deleted "limited immunity"; in Subsection B, after "fingerprinted", added "only upon initial licensure"; and deleted former Subsection H, which provided "A person who in good faith reports as provided in Subsections E and F of this section shall not be held liable for civil damages as a result of the report. The person being accused shall have the right to sue for any damages sustained as a result of negligent or intentional reporting of inaccurate information or the disclosure of any information to an unauthorized person."

Laws 2019, ch. 238, § 3, effective June 14, 2019, revised the definition of "ethical misconduct" as used in this section, required governing authorities to require background checks on an applicant who applies to be a volunteer or works for the public school as a contractor or contractor employee and who may have unsupervised access to students on school premises, required school volunteers to provide two fingerprint cards to the superintendent, required a superintendent to report immediately to the department conduct constituting sexual harassment or sexual abuse, and required a superintendent to report allegations of sexual assault or sexual abuse involving any school employee, volunteer or contractor to the appropriate law enforcement agency; in Subsection A, after "school employee", added "school volunteer, contractor or contractor's employee", and after "includes", deleted "inappropriate touching, sexual harassment, discrimination" and added "unlawful discriminatory practice; sexual harassment, sexual assault or sexual abuse involving an adult or child, regardless of a child's enrollment status"; in Subsection C, deleted "Local school boards and regional education cooperatives" and added "Governing authorities", after "offered employment", added "or who applies to be a volunteer or works for the public school as", and after "access to students", deleted "at a public school" and added "on school premises"; in Subsection D, deleted "An applicant for employment who has been initially licensed within twenty-four months of applying for employment with a local school board, regional education cooperative or a charter school shall not be required to submit to another background check if the department has copies of the applicant's federal bureau of investigation record on file.", after "offered employment", deleted "a" and added "or a school volunteer", after "contractor's employee", deleted "with unsupervised access to students at a public school", after "obtain the applicant's", added "school volunteer's, contractor's or contractor's employee's", after "The", deleted "applicant" and added "public school shall pay for an applicant's background check. A school volunteer", after "contractor's employee", deleted "who has been offered employment by a regional education cooperative or at a public school", and deleted the last sentence of the subsection, which related to releasing copies of FBI records that are on file with the department; added new subsection designations "E" and "F" and redesignated former Subsections E and F as Subsections G and H, respectively; in Subsection F, after "involved in employment", added "volunteering or contracting", after "specific applicant", added "volunteer, contractor or contractor's employee", after "offered employment", deleted "contractor or contractor's employee with" and added "a volunteer position or a contract and will have", after "access to students", deleted "at a public school" and added "on school premises"; in Subsection G, after "superintendent", deleted "charter school administrator or regional education cooperative"; in Subsection H, after "superintendent", deleted "charter school administrator or director of a regional education cooperative or their respective designee" and added "or the superintendent's designated representative", after "finding of", deleted "wrongdoing" and added "ethical misconduct by a licensed school employee", after "superintendent", deleted "charter school administrator or director of a regional education cooperative", after "separation from employment", added "or immediately if knowledge of the ethical misconduct is sexual harassment, or sexual abuse of an adult or child", after "maintained in", deleted "public school, school district or regional education cooperative records" and added "the school employee's personnel file. The superintendent shall also report allegations of sexual assault or sexual abuse involving any school employee, volunteer, contractor or a contractor's employee to the appropriate law enforcement agency", after "school employee and the", deleted "local school board school district, charter school or regional education cooperative" and added 'governing authority or superintendent", and after "alleged ethical misconduct", added 'to the department or, if legally mandated, to law enforcement"; in Subsection I, after "notice of", deleted "contemplated action involving that employee's license" and added "investigation and a notice of contemplated action pursuant to the Uniform Licensing Act", after "within", deleted "ninety" and added "sixty", and after "employee's records", deleted "with the department and shall not be subject to public inspection"; in Subsection J, after "superintendent", deleted "charter school administrator or regional education cooperative director", and after "Subsections", deleted "E" and added "G", and after "and", deleted "F" and added "H"; and in Subsection K, after "Subsections", deleted "E" and added "G", and after "and", deleted "F" and added "H".