2023 New Mexico Statutes › Chapter 22 - Public Schools › Article 10A - School Personnel › Section 22-10A-5 - Criminal history record check; known convictions; confidentiality; alleged ethical misconduct; reporting required; penalty for failure to report.

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 [Chapter 28, Article 2 NMSA 1978]; 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 [Chapter 14, Article 2 NMSA 1978]. 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 [Chapter 61, Article 1 NMSA 1978] 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.
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; 2021, ch. 94, § 5; 2023, ch. 177, § 3.
ANNOTATIONS
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.
The 2023 amendment,
effective July 1, 2023, revised the process for criminal history record checks, and provided that the criminal history record check information shall be confidential; in the section heading, deleted "Background checks", and added "Criminal history record check", and "confidentiality"; deleted former Subsection A and added a new Subsection A; added a new subsection designation "B." and redesignated former Subsections B through K as Subsections C and L, respectively; in Subsection B, added "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.", and after "obtaining the", deleted "federal bureau of investigation record" and added "criminal history record check"; in Subsection C, after "procedures to require", deleted "background" and added "criminal history record", and after "on school premises", added "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"; in Subsection D, after "equivalent electronic fingerprints to the", deleted "superintendent" and added "department of public safety", and after "contractor's employee's", deleted "federal bureau of investigation record. The public school shall pay for an applicant's background check" and added "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.", and after "cost of obtaining a", deleted "background" and added "criminal history record"; in Subsection E, after each occurrence of "contained in the", deleted "federal bureau of investigation record" and added "criminal history record check", and added "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."; in Subsection F, added "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."; in Subsection J, after the first occurrence of "Subsection", deleted "F" and added "G", after the second occurrence of "Subsection", deleted "G" and added "H", and after "Section", deleted "1 of this 2021 act" and added "22-10A-5.1 NMSA 1978"; in Subsection K, Paragraph K(1), after "Subsections", deleted "F" and added "G", after "and", deleted "G" and added "H", and after "Section", deleted "1 of this 2021 act" and added "22-10A-5.1 NMSA 1978"; and in Paragraph K(3), after "Subsection", deleted "G" and added "H", and after "Section", deleted "1 of this 2021 act" and added "22-10A-5.1 NMSA 1978".
The 2021 amendment,
effective June 18, 2021, revised duties of school personnel related to reports of ethical misconduct, required the public education department to maintain a list of reports involving child abuse or ethical misconduct, and made conforming changes due to newly enacted definitions of terms used in the School Personnel Act; deleted former Subsection A and redesignated former Subsections B through I as Subsections A through H, respectively; in Subsection B, after "unsupervised", deleted "access to students" and added "contact with children or students"; in Subsection E, after "unsupervised", deleted "access to students" and added "contact with children or students"; in Subsection F, after "report", added "immediately", after "moral turpitude of", deleted "school district personnel", after "school employee", deleted "that results in any type of action against the licensed school employee" and added "a school volunteer, a contractor or a contractor's employee"; in Subsection G, after "misconduct about any", added "school district personnel", after "school employee", added "school volunteer, contractor or contractor's employee", after "misconduct with an adult or child", deleted "Copies of that form shall not be maintained in the school employee's personnel file", after "involving any", added "school district personnel"; in Subsection H, deleted "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"; added a new Subsection I; in Subsection J, Paragraph J(1), after "Subsections", added "F and", after "G", deleted "and H", and after "section", added "or Section 1 of this 2021 act", and added Paragraphs J(2) and J(3); and added Subsection K.
2019 Amendments.
— 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".
The 2007 amendment,
effective June 15, 2007, deleted former subsections and added new Subsections A, F and G.
The 2003 amendment,
effective April 4, 2003, in Subsection A, substituted "licensure" for "certification" three times, deleted "of education" following "the department" near the beginning, and substituted "license" for "certificate" near the middle; divided former Subsection B into present Subsections B and C and deleted former Subsection C; deleted "including a charter school" at the end of present Subsection B; in present Subsection C substituted "licensed" for "certified" following "been initially" near the beginning of the first sentence, substituted "twenty-four" for "twelve" following "within" near the beginning of the first sentence, deleted "of education" following "the department" near the end of the first sentence, deleted "including a charter school" near the middle of the second sentence, inserted "or charter school" following "education cooperative" near the end of the second sentence, deleted "including a charter school" following "public school" near the middle of the third sentence, deleted "of education" following "the department" twice in the fourth sentence, substituted "twenty-four" for "twelve" following "not more than" near the end of the fourth sentence, and deleted "including a charter school" at the end; and added present Subsections D, E and F.
The 2001 amendment,
effective June 15, 2001, in Subsection B, added "regional education cooperative" to each of the first five sentences and added "contractor or contractor's employee" to the fourth sentence.
The 1999 amendment,
effective June 18, 1999, inserted "at a public school, including a charter school" and "or a charter school" throughout Subsection B.
The 1998 amendment,
effective May 20, 1998, rewrote this section to the extent that a detailed comparison is impracticable.
Liability of licensing officials.
— Student who allegedly suffered inappropriate touching by a teacher established no cause of action against a state licensing official for injury inflicted by the teacher based on the theory that the license-related investigation of the teacher was recklessly deficient.
B.T. v. Davis
, 557 F. Supp.2d 1262 (D.N.M. 2007).