N.M. Stat. § 22-10A-5 — NM_STATUTES Code / Chapter 22 / Article 10A / Section 22-10A-5
§ 22-10A-5. Criminal history record check; known convictions; confidentiality; alleged ethical misconduct; reporting required; penalty for failure to report
Status: in_force

A. To investigate the suitability of an applicant for licensure from the department, the department shall have access to criminal history record information furnished by the department of public safety and the federal bureau of investigation, subject to any restrictions imposed by federal law.

B. An applicant for licensure from the department shall undergo a state and federal criminal history record check, and the applicant shall submit two fingerprint cards or the equivalent electronic set of fingerprints to the department of public safety for that purpose. The department of public safety shall conduct a check of state records and forward the fingerprints to the federal bureau of investigation for a national criminal history record check to determine the existence and content of a record of convictions in this state or other law enforcement jurisdictions and to generate a criminal history record check in accordance with rules of the department of public safety and regulations of the federal bureau of investigation. The department of public safety shall review the information obtained from the criminal history record check and shall compile and provide that information to the department. The department shall use the information resulting from the fingerprint-based criminal history record check to inform department decisions relating to the issuance or continuation of licensure. The applicant for initial licensure shall pay for the cost of obtaining the criminal history record check.

C. Governing authorities shall develop policies and procedures to require criminal history record checks on an applicant who has been offered employment or who applies to be a school volunteer or works for the public school as a contractor or a contractor's employee and who may have unsupervised contact with children or students on school premises. Nothing in this section shall preclude governing authorities from developing and implementing policies or procedures requiring or affecting other or additional background or criminal history record checks of personnel or applicants for employment.

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 department of public safety to obtain the applicant's, school volunteer's, contractor's or contractor's employee's criminal history record check pursuant to Subsection B of this section. The public school shall pay for the criminal history record check for an applicant who has been offered employment. A school volunteer, contractor or contractor's employee may be required to pay for the cost of obtaining a criminal history record check.

E. Convictions of felonies or misdemeanors contained in the criminal history record check shall be used in accordance with the Criminal Offender Employment Act; provided that other information contained in the criminal history record check, if supported by independent evidence, may form the basis for the employment decisions for just cause. The department shall not exclude an otherwise qualified person from licensure on the sole basis that the person has been previously arrested or convicted of a crime, unless that person has a disqualifying criminal conviction, pursuant to Section 61-1-36 NMSA 1978 .

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, school volunteer, contractor or contractor's employee who has been offered employment, a school volunteer position or a contract and will have unsupervised contact with children or students on school premises. Criminal history information received from the department of public safety or the federal bureau of investigation shall be confidential and shall not be considered a public record pursuant to the Inspection of Public Records Act. The department shall not authorize the receipt of criminal history information by a private entity pursuant to this section. Nothing in this subsection shall apply to compliance with discovery requests or subpoenas that are issued by a court of competent jurisdiction.

G. A superintendent shall report immediately to the department any known conviction of any felony or misdemeanor involving moral turpitude of school district personnel, a school employee, a school volunteer, a contractor or a contractor's employee.

H. A superintendent may appoint a designated representative to act on the superintendent's behalf. The superintendent or the designated representative shall investigate all allegations of ethical misconduct about any school district personnel, school employee, school volunteer, contractor or contractor's 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 or the superintendent's designated representative 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 the finding of ethical misconduct is sexual misconduct with an adult or child. The superintendent or the superintendent's designated representative shall also report allegations of sexual assault or sexual abuse involving any school district personnel, school employee, school 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 within sixty days of receipt of the form.

J. The department shall maintain a list of the names of persons reported to the department, as required by Subsection G of this section, who have been convicted of a felony or misdemeanor involving moral turpitude and, as required by Subsection H of this section and Section 22-10A-5.1 NMSA 1978 , who have been found to have committed ethical misconduct. The department shall update that list each month. The department shall provide that list to a governing authority upon request.

K. The secretary may initiate action to suspend, revoke or refuse to renew the license of:

(1) a superintendent who fails to report as required by Subsections G and H of this section or Section 22-10A-5.1 NMSA 1978;

(2) any licensed school district personnel or licensed school employee who fails to report child abuse or neglect pursuant to Section 32A-4-3 NMSA 1978; or

(3) any licensed school district personnel or school employee who fails to report ethical misconduct pursuant to Subsection H of this section or Section 22-10A-5.1 NMSA 1978 .

L. As used in this section, “ designated representative ” means a representative chosen by a superintendent and may include the staff of a regional education cooperative.