2021 New Mexico Statutes
Chapter 22 - Public Schools
Article 10A - School Personnel
Section 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;

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;

D. "discharge" means the act of severing the employment relationship with a licensed school employee prior to the expiration of the current employment contract;

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 school district personnel, school employees, school volunteers, contractors or contractors' employees:

(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 6A or 9 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;

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;

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;

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. "military service member" means a person who is:

(1) serving in the armed forces of the United States as an active duty member or in an active reserve component of the armed forces of the United States, including the national guard;

(2) the spouse of a person who is serving in the armed forces of the United States as an active duty member or in an active reserve component of the armed forces of the United States, including the national guard; or a surviving spouse of a member who at the time of death was serving on active duty; or

(3) the child of a person who is serving in the armed forces of the United States as an active duty member or in an active reserve component of the armed forces of the United States, including the national guard; provided that child is also a dependent of that person for federal income tax purposes;

K. "moral turpitude" means an act or behavior that gravely violates the accepted standards of moral conduct, justice or honesty and may include ethical misconduct;

L. "public school" means a school district, charter school, constitutional special school, regional education cooperative or the educational program of another state agency;

M. "responsibility factor" means a value of 1.20 for an elementary school principal, 1.40 for a middle school or junior high school principal, 1.60 for a high school principal, 1.10 for an assistant elementary school principal, 1.15 for an assistant middle school or assistant junior high school principal and 1.25 for an assistant high school principal;

N. "sabbatical leave" means leave of absence with pay as approved by the governing authority during all or part of a regular school term for purposes of study or travel related to a licensed school employee's duties and of direct benefit to the instructional program;

O. "school administrator" means a person licensed to administer in a school district, charter school, constitutional special school or regional education cooperative or a person employed with another state agency who administers an educational program and includes local superintendents, school principals, central district administrators, business managers, charter school head administrators and state agency education supervisors;

P. "school employee" includes licensed and unlicensed employees of a public school;

Q. "school premises" means:

(1) the buildings and grounds, including playgrounds, playing fields and parking areas and a school bus of a public school, in or on which school or school-related activities are being operated under the supervision of a local school board, charter school or state agency; or

(2) any other public buildings or grounds, including playing fields and parking areas that are not public school property, in or on which public school-related and -sanctioned activities are being performed;

R. "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;

S. "state agency" means a regional education cooperative or state institution;

T. "state institution" means the New Mexico boys' school, girls' welfare home, New Mexico youth diagnostic and development center, Sequoyah adolescent treatment center, Carrie Tingley crippled children's hospital, New Mexico behavioral health institute at Las Vegas and any other state agency responsible for educating resident children;

U. "substitute teacher" means a person who holds a certificate to substitute for a teacher in the classroom;

V. "superintendent" means a local superintendent, head administrator of a charter school or regional education cooperative, superintendent or commandant of a special school or head administrator of the educational program of a state agency;

W. "teacher" means a person who holds a level one, level two or level three-A license and whose primary job is classroom instruction or the supervision, below the school principal level, of an instructional program or whose duties include curriculum development, peer intervention, peer coaching or mentoring or serving as a resource teacher for other teachers;

X. "terminate" means the act of severing the employment relationship with a school employee;

Y. "unsupervised contact with children or students" means access to or contact with, or the opportunity to have access to or contact with, a child or student for any length of time in the absence of:

(1) a licensed staff person from the same school or institution;

(2) a school volunteer who has undergone a background check pursuant to Section 22-10A-5 NMSA 1978; or

(3) any adult relative or guardian of the child or student;

Z. "veteran" means a person who has received an honorable discharge or separation from military service in the armed forces of the United States or in an active reserve component of the armed forces of the United States, including the national guard; and

AA. "working day" means every school calendar day, excluding Saturdays, Sundays and legal holidays.

History: 1953 Comp., § 77-8-1.1, enacted by Laws 1975, ch. 306, § 2; 1990, ch. 90, § 1; 1991, ch. 187, § 3; 1994, ch. 110, § 1; 1978 Comp., § 22-10-2, recompiled as § 22-10A-2 by Laws 2003, ch. 153, § 72; 2007, ch. 304, § 1; repealed and reenacted by Laws 2019, ch. 238, §1; 2021, ch. 92, § 1; 2021, ch. 94, § 4.

Repeals and reenactments. — Laws 2019, ch. 238, § 1 repealed and reenacted 22-10A-2 NMSA 1978, effective June 14, 2019.

Recompilations. — Laws 2003, ch. 153, § 72 recompiled former 22-10-2 NMSA 1978, as 22-10A-2 NMSA 1978, effective April 4, 2003.

Cross references. — For sabbatical leave programs generally, see 22-10A-35 NMSA 1978.

2021 Multiple Amendments. — Laws 2021, ch. 94, § 4 and Laws 2021, ch. 92, § 1, both effective June 18, 2021, enacted different amendments to this section that can be reconciled. Pursuant to 12-1-8 NMSA 1978, Laws 2021, ch. 94, § 4 as the last act signed by the governor is set out above and incorporates both amendments. The amendments enacted by Laws 2021, ch. 92, § 1 and Laws 2021, ch. 94, § 4 are described below. To view the session laws in their entirety, see the 2021 session laws on NMOneSource.com.

The nature of the difference between the amendments is that Laws 2021, ch. 92, § 1, defined "military service member" and "veteran", as used in the School Personnel Act, and Laws 2021, ch. 94, § 4, defined "child abuse", "contractor", "ethical misconduct", "moral turpitude", "school volunteer", and "unsupervised contact with children or students", as used in the School Personnel Act.

Laws 2021, ch. 92, § 1, effective June 18, 2021, defined "military service member" and "veteran", as used in the School Personnel Act; added a new Subsection G and redesignated former Subsections G through R as Subsections H through S, respectively; and added a new Subsection T and redesignated former Subsection S as Subsection U.

Laws 2021, ch. 94, § 4, effective June 18, 2021, defined "child abuse", "contractor", "ethical misconduct", "moral turpitude", "school volunteer", and "unsupervised contact with children or students", as used in the School Personnel Act; added a new Subsection A and redesignated former Subsection A as Subsection B; added a new Subsection C and redesignated former Subsections B and C as Subsections D and E, respectively; added a new Subsection F and redesignated former Subsections D through F as Subsections G through I, respectively; added a new Subsection J and redesignated former Subsections G through L as Subsections K through P, respectively; added a new Subsection Q and redesignated former Subsections M through R as Subsections R through W, respectively; and added a new Subsection X and redesignated former Subsection S as Subsection Y.

The 2007 amendment, effective June 15, 2007, added Subsection B.

The 1994 amendment, effective May 18, 1994, substituted "with a certified school employee" for "with an employee" in Subsection A, and rewrote Subsection D, which read "'terminate' the act of not reemploying an employee for the ensuing school year."

The 1991 amendment, effective June 14, 1991, deleted "Certified" preceding "School Personnel Act" in the introductory phrase; added Subsection F; and made a related stylistic change.

The 1990 amendment, effective May 16, 1990, added present Subsections A, D and E, redesignated former Subsections A and B as present Subsections B and C, and made a minor stylistic change.

Definition of "just cause". — Legislature intended to codify and incorporate the rule in Swisher v. Darden when it defined "just cause" in 1991 amendment. Aguilera v. Hatch Valley Schs., 2006-NMSC-015, 139 N.M. 330, 132 P.3d 587.

Reduction in force as just cause. — Statutory "just cause" allows for discharge of a teacher when exigent fiscal circumstances justify a reduction in force, but the teacher's competence, turpitude and performance do not. Aguilera v. Hatch Valley Schs., 2006-NMSC-015, 139 N.M. 330, 132 P.3d 587.

"Just cause" for termination. — Evidence of teacher's arrest for driving under the influence and charges of resisting an officer and battery did not show conduct that had any relationship to his competence as an employee or to the proper performance of his duties. Kibbe v. Elida Sch. Dist., 2000-NMSC-006, 128 N.M. 629, 996 P.2d 419.