A. Except as provided in Subsection C or G of this section, the secretary shall distribute to any school district that has imposed a tax under the Public School Capital Improvements Act an amount from the public school capital improvements fund that is equal to the amount by which the revenue estimated to be received from the imposed tax, using prior year valuations, at the rate certified by the department of finance and administration in accordance with Section 22-25-7 NMSA 1978, assuming a one hundred percent collection rate, is less than an amount calculated by multiplying an average of the school district's prior year second and third reporting dates' total program units by the amount specified in Subsection B of this section and further multiplying the product obtained by the tax rate approved by the qualified electors in the most recent election on the question of imposing a tax under the Public School Capital Improvements Act. The distribution shall be made each year that the tax is imposed in accordance with Section 22-25-7 NMSA 1978; provided that no state distribution from the public school capital improvements fund may be used for capital improvements to any administration building of a school district. In the event that sufficient funds are not available in the public school capital improvements fund to make the state distribution provided for in this section, the dollar per program unit figure shall be reduced as necessary.

B. In calculating the state distribution pursuant to Subsection A of this section, the following amounts shall be used:

(1) the amount calculated pursuant to Subsection D of this section per program unit; and

(2) an additional amount certified to the secretary by the public school capital outlay council. No later than June 1 of each year, the council shall determine the amount needed in the next fiscal year for public school capital outlay projects pursuant to the Public School Capital Outlay Act [Chapter 22, Article 24 NMSA 1978] and the amount of revenue, from all sources, available for the projects. If, in the sole discretion of the council, the amount available exceeds the amount needed, the council may certify an additional amount pursuant to this paragraph; provided that the sum of the amount calculated pursuant to this paragraph plus the amount in Paragraph (1) of this subsection shall not result in a total statewide distribution that, in the opinion of the council, exceeds one-half of the total revenue estimated to be received from taxes imposed pursuant to the Public School Capital Improvements Act.

C. For any fiscal year notwithstanding the amount calculated to be distributed pursuant to Subsections A and B of this section, except as provided in Subsection G of this section, a school district, the voters of which have approved a tax pursuant to Section 22-25-3 NMSA 1978, shall not receive a distribution less than the amount calculated pursuant to Subsection E of this section multiplied by the average of the school district's prior year second and third reporting dates' total program units and further multiplying the product obtained by the approved tax rate.

D. For purposes of calculating the distribution pursuant to Subsection B of this section, the amount used in Paragraph (1) of that subsection shall equal seventy dollars ($70.00) in fiscal year 2008 and in each subsequent fiscal year shall equal the amount for the previous fiscal year adjusted by the percentage increase between the next preceding calendar year and the preceding calendar year of the consumer price index for the United States, all items, as published by the United States department of labor.

E. For purposes of calculating the minimum distribution pursuant to Subsection C of this section, the amount used in that subsection shall equal five dollars ($5.00) through fiscal year 2005 and in each subsequent fiscal year shall equal the amount for the previous fiscal year adjusted by the percentage increase between the next preceding calendar year and the preceding calendar year of the consumer price index for the United States, all items, as published by the United States department of labor.

F. In expending distributions made pursuant to this section, school districts and charter schools shall give priority to maintenance projects, including payments under contracts with regional education cooperatives for maintenance support services. In addition, distributions made pursuant to this section may be expended by school districts and charter schools as follows:

(1) for the school district portion of the total project cost for roof repair or replacement required by Section 22-24-4.3 NMSA 1978; or

(2) for the school district portion of payments made under a financing agreement entered into by a school district or a charter school for the leasing of a building or other real property with an option to purchase for a price that is reduced according to the payments made, if the school district has received a grant for the state share of the payments pursuant to Subsection D of Section 22-24-5 NMSA 1978.

G. If a serious deficiency in a roof of a public school facility has been corrected pursuant to Section 22-24-4.4 NMSA 1978 and the school district has refused to pay its share of the cost as determined by that section, until the public school capital outlay fund is reimbursed in full for the share attributed to the district, the distribution calculated pursuant to this section shall not be made to the school district but shall be made to the public school capital outlay fund.

H. A portion of each distribution made by the state pursuant to this section on or after July 1, 2009 shall be further distributed by the school district to each locally chartered or state-chartered charter school located within the school district. The amount to be distributed to each charter school shall be in the same proportion as the average full-time-equivalent enrollment of the charter school on the second and third reporting dates of the prior school year is to the total such enrollment in the school district; provided that no distribution shall be made to an approved charter school that had not commenced classroom instruction in the prior school year. Each year, the department shall certify to the school district the amount to be distributed to each charter school. Distributions received by a charter school pursuant to this subsection shall be expended pursuant to the provisions of the Public School Capital Improvements Act; except that if capital improvements for the charter school were not identified in a resolution approved by the electors, the charter school may expend the distribution for any capital improvements, including those specified in Subsection F of this section.

I. In determining a school district's total program units pursuant to Subsections A and C of this section and a school district's total enrollment pursuant to Subsection H of this section, students attending a state-chartered charter school within the school district shall be included.

J. In making distributions pursuant to this section, the secretary shall include such reporting requirements and conditions as are required by rule of the public school capital outlay council. The council shall adopt such requirements and conditions as are necessary to ensure that the distributions are expended in the most prudent manner possible and are consistent with the original purpose as specified in the authorizing resolution. Copies of reports or other information received by the secretary in response to the requirements and conditions shall be forwarded to the council.

History: 1953 Comp., § 77-25-9, enacted by Laws 1975 (S.S.), ch. 5, § 9; 1976 (S.S.), ch. 31, § 2; 1977, ch. 246, § 67; 1981, ch. 314, § 2; 1986, ch. 32, § 25; 1988, ch. 64, § 44; 1988, ch. 66, § 2; 2001, ch. 338, § 10; 2003, ch. 147, § 9; 2004, ch. 125, § 14; 2005, ch. 274, § 15; 2006, ch. 95, § 10; 2007, ch. 366, § 14; 2009, ch. 258, § 11; 2018, ch. 38, § 1.

The 2018 amendment, effective July 1, 2018, amended the Public School Capital Improvements Act to require the Public Education Department to use prior year data for determination of distribution amounts to school districts; in Subsection A, after "the imposed tax,", added "using prior year valuations", after "calculated by multiplying", added "an average of", and after "the school district's", deleted "first forty days'" and added "prior years second and third reporting dates'"; in Subsection C, after "multiplied by the", added "average of the", after "school district's", deleted "first forty days'" and added "prior year second and third reporting dates'"; and in Subsection H, after "charter school on the", deleted "fortieth day" and added "second and third reporting dates".

The 2009 amendment, effective April 8, 2009, in Subsection F, in the first sentence, after "school districts", added "and charter schools", and after "payments under contracts", added "with regional education cooperatives"; in the second sentence, deleted "for the school district portion of", and added "and charter schools as follows"; in Paragraphs (1) and (2) of Subsection F, at the beginning of each sentence, added "for the school district portion of"; and added Subsections H and I.

The 2007 amendment, effective July 1, 2007, changed the amount used in Paragraph (1) of Subsection B from sixty dollars ($60.00) in fiscal year 2006 to seventy dollars ($70.00) in fiscal year 2008 and added Paragraph (2) of Subsection F relating to payments made by a district for leases until an option to purchase.

The 2006 amendment, effective March 6, 2006, in Paragraph (2) of Subsection B, deleted "for fiscal year 2006 and thereafter" at the beginning of the sentence and changed "June 1, 2005 and each June thereafter" to "June 1 of each year"; in Subsection C, changed "fiscal year 2004 and thereafter" to "any fiscal year"; in Subsection D, deleted the amount of fifty dollars through fiscal year 2005; and in Subsection F, included payments under contracts for maintenance support services.

The 2005 amendment, effective April 6, 2005, added the exception in Subsection G in Subsection A; added the exception in Subsection G in Subsection C; added the amount of $60 for fiscal year 2006 in Subsection D; provided in Subsection F that distributions may be expended by school districts for the school district portion of the total project cost for roof repair or replacement; and added Subsection G to provide that if a roof deficiency has been corrected and the school district refuses to pay its share of the cost, until the school district reimbursed the capital outlay fund for its share of the cost, the distribution shall not be made to the school district but shall be made to the capital outlay fund.

The 2004 amendment, effective May 19, 2004, amended Subsection A to substitute "secretary of public education" for "state superintendent", amended Subsection B to substitute in Paragraph (1) "the amount calculated pursuant to Subsection D of this subsection" for "fifty dollars ($50.00)" and to substitute in Paragraph (2) "secretary of public education" for "state superintendent", amended Subsection C to substitute "an amount equal to five dollars ($5.00)" for "the amount calculated pursuant to Subsection E of this section", added new Subsections D through F, redesignated former Subsection C as Subsection G and substituted "secretary of public education" for "state superintendent" and "secretary" for "state superintendent".

The 2003 amendment, effective April 4, 2003, inserted Subsection C.

The 2001 amendment, effective April 5, 2001, redesignated the former section as Subsection A; inserted the exception at the beginning of Subsection A; substituted "by the dollar amount specified in Subsection B of this section" for "times thirty-five dollars"; and added Subsections B and D.

As vetoed by the governor April 5, 2001, Subsection C read: "Notwithstanding the amount calculated to be distributed pursuant to Subsections A and B of this section, no school district, the voters of which have approved a tax pursuant to Section 22-25-3 NMSA 1978, shall receive a distribution less than an amount equal to five dollars ($5.00) multiplied by the school district's first forty days' total program units and further multiplying the product obtained by the approved tax rate."

The 1988 amendments, effective March 8, 1988, substituted "approved by the qualified electors in the most recent election on the question of imposing a tax" for "imposed in the district" near the end of the first sentence; deleted "by December 1" preceding "of each year" in the second sentence; and inserted the proviso at the end of the second sentence.

The "tax rate imposed in the district" under the Public School Capital Improvements Act is that rate certified in accordance with Section 22-25-7 NMSA 1978 which incorporates Section 7-37-7.1 NMSA 1978. This certified rate must be that which the voters approve unless the operation of the rate limitation provisions of Section 7-37-7.1 NMSA 1978 requires a lower rate, in which case the lower rate must be certified. 1987 Op. Att'y Gen. No. 87-52.

Administrative charge not to be used to reduce revenue estimate. — The school district, not the state's public school capital improvements fund, must absorb the two percent (now one percent) administrative charge authorized by Section 7-38-38.1 NMSA 1978, and such fee may not be used to reduce the revenue estimate that this section requires. 1987 Op. Att'y Gen. No. 87-52 (rendered prior to 1988 amendment).