TITLE 6 PRIMARY AND SECONDARY EDUCATION
CHAPTER 80 Alternative Education - Charter Schools
PART 4 Charter School Application and Appeal REQUIREMENTS
220.127.116.11 ISSUING AGENCY: Public Education Department
[18.104.22.168 NMAC - Rp, 22.214.171.124 NMAC, 6/29/2007]
126.96.36.199 SCOPE: This rule shall apply to applicants and operators of start-up charter schools and previously authorized conversion schools.
[188.8.131.52 NMAC - Rp, 184.108.40.206 NMAC, 6/29/2007]
220.127.116.11 STATUTORY AUTHORITY: Sections 22-2-1, 22-8-1 through 22-8-47 and 22-8B-1 through 22-8B-17 NMSA 1978.
[18.104.22.168 NMAC - Rp, 22.214.171.124 NMAC, 6/29/2007]
126.96.36.199 DURATION: Permanent
[188.8.131.52 NMAC - Rp, 184.108.40.206 NMAC, 6/29/2007]
220.127.116.11 EFFECTIVE DATE: June 29, 2007, unless a later date is cited at the end of a section.
[18.104.22.168 NMAC - Rp, 22.214.171.124 NMAC, 6/29/2007]
126.96.36.199 OBJECTIVE: To establish the initial application and renewal process for charter schools, whether locally or state chartered, the appeal process of charter schools to the secretary of education and the secretary of education’s review process.
[188.8.131.52 NMAC - Rp, 184.108.40.206 NMAC, 6/29/2007]
A. “Applicant” means one or more teachers, parents or community members or a public post-secondary educational institution or nonprofit organization who submits an initial or renewal application to a chartering authority.
B. “Authorizer” means either a local school board or the commission that permits the operation of a charter school.
C. “Charter school” means a conversion school or start-up school authorized by a chartering authority to operate as a public school.
D. “Chartering authority” means either a local school board or the commission that permits the operation of a charter school.
E. “Chief executive officer” means the person with duties similar to that of a superintendent as set forth in Section 22-5-14 NMSA 1978.
F. “Commission” means the public education commission.
G. “Conversion school” means an existing public school within a school district that was authorized by a local school board or the commission to become a charter school.
H. “Days” means, unless otherwise specified in a provision in this rule or applicable statute, business days when the period referenced is 10 days or less, and calendar days when the period referenced is 11 days or more. In computing the amount of days, exclude the day of the event that triggers the period, and include the last day of the period. If the last day is a day when the department is closed, the period continues to run until the end of the next business day that the department is not closed. Whenever a person or entity must act under this rule within a prescribed period after service of a notice or paper upon the person or entity, and the notice or paper is served by mail or courier service, three calendar days are added to the prescribed period.
I. “Department” means the public education department.
J. “Division” means the charter schools division of the department which maintains offices in both Santa Fe and Albuquerque.
K. “Governing body” means the governing body of a charter school as set forth in the school’s charter.
L. “Head administrator” means the duly licensed school administrator who is the chief executive officer of the charter school.
M. “Locally chartered charter school” means a charter school authorized by a local school board.
N. “MEM” means membership, which is the total enrollment of qualified students on the current roll of a class or school on a specified day.
O. “New Mexico coalition for charter schools” means the non-profit membership organization representing charter schools in New Mexico.
P. “New Mexico school boards association” means the organization consisting of the local public school boards and the governing bodies of charter schools in New Mexico.
Q. “Organizer” means one or more persons or entities who seek to arrange, form or otherwise put together a charter school.
R. “Prospective applicant” means one or more teachers, parents or community members or a public post-secondary educational institution or nonprofit organization who submits a notice of intent to a chartering authority.
S. “Secretary” means the New Mexico secretary of public education.
T. “Start-up charter school” means a public school developed by one or more parents, teachers or community members who applied to and were authorized by a chartering authority to become a charter school.
U. “Application for start-up charter school” means an application requesting the establishment of either a locally-chartered or state-chartered school.
V. “Special education plan” means a comprehensive written design, scheme or method that includes specific details on how the charter school shall:
(1) utilize state and federal funds to provide children with disabilities a free and appropriate public education, in accordance with applicable law;
(2) provide educational services, related services and supplementary aids and services to children with disabilities in accordance with each child’s individualized education program; and
(3) address a continuum of alternative educational placements to meet the needs of students with disabilities, in accordance with applicable law.
W. “State-chartered charter school” means a charter school authorized by the commission.
[220.127.116.11 NMAC - Rp, 18.104.22.168 NMAC, 6/29/2007; A, 6/30/2008; A, 6/30/2009; A, 12/31/2018]
22.214.171.124 NOTICE OF INTENT TO ESTABLISH A CHARTER SCHOOL:
A. The organizers of a proposed charter school shall provide a signed written notification to the commission and the school district in which the charter school is to be located of the organizers’ intent to establish a charter school. The date for submitting a notice shall be no later than the second Tuesday of January of the year in which the prospective applicant plans to submit an application.
B. Written notification to the commission shall be made to the division at its Albuquerque office; written notification to a local school board shall be made to the superintendent of that district who shall provide copies of the notification to the local school board during a duly noticed board meeting.
C. If the second Tuesday of January falls on a legal holiday, the notification shall be timely if personally delivered on the first day following the legal holiday that the division or office of the pertinent superintendent is open for business. Notice will also be considered timely if it is postmarked four calendar days prior to the second Tuesday of January, regardless of the date on which it is received. Failure to provide timely notification may result in an application being rejected unless the organizers can demonstrate good cause why timely notification was not given.
[126.96.36.199 NMAC - N, 6/29/2007; A, 6/30/2008; A, 6/30/2009]
188.8.131.52 CONTENTS OF APPLICATION FOR START-UP CHARTER SCHOOL: A charter school application shall be a proposed agreement between the chartering authority and the charter school and shall include the following assurances, descriptions, outlines and plans.
A. The mission statement of the charter school. The mission statement must answer the following questions: “Who do you serve?”, “What do you seek to accomplish?”, “What methods will you use?”, and “How will we know if you are achieving your mission?”
B. The goals, objectives and student performance standards to be achieved by the charter school which address how the charter school will comply with the department’s required content standards, benchmarks, and performance standards, state accreditation, standardized testing and school report card in accordance with Sections 22-2C-1 et seq. NMSA 1978. The goals and objectives must be measurable and student-centered.
C. A description of the charter school’s educational program and curriculum that meets or exceeds the department’s educational standards and must be designed to enable each student to achieve those standards and addresses the following:
(1) documentation, research or rationale that supports a particular curricular approach;
(2) a description of the curriculum including scope and sequence and student performance standards;
(3) a timeline for alignment of the curriculum with the department’s content standards, benchmarks and performance standards, if alignment has not been completed at the time the application is submitted;
(4) strategies and methods to be used in delivering the curriculum and how the curriculum will address students’ needs and assist each student in reaching those standards;
(5) length of school day and school year;
(6) total number of grades the charter school proposes to provide, either immediately or in phases, class size and total projected student enrollment and, if the charter school will be located in a school district that has a total enrollment of not more than 1,300 students, a statement that the proposed charter school’s proposed enrollment for all grades, in combination with any other charter school’s enrollment for all grades, will neither equal nor exceed ten percent of the total MEM of that school district;
(7) proposed requirements for graduation, if applicable.
D. A description of the way a charter school’s educational program will meet the individual needs of students, including those students determined to be at risk, and which will address the following:
(1) suggested modifications to the proposed educational program to meet individual student needs, such as bilingual, limited English proficient, and special education;
(2) an outline of a special education plan, the final plan of which must be completed and submitted to the charter authorizer by the end of the planning year;
(3) how the charter school will provide access to other services including but not limited to counseling and health.
E. A description or outline of a plan the charter school considers adopting for evaluating student performance, the types of assessments that will be used to measure student progress toward achievement of the state’s standards and the school’s student performance standards, the timeline for achievement of the standards, and the procedures for taking corrective action in the event that student performance falls below the standards, and which description or outline addresses the following:
(1) remediation for students not achieving standards, including a timeline for implementation of the remediation plan;
(2) assessments that might be considered in addition to the statewide mandated testing;
(3) documentation and reporting of student data.
F. Assurances that the charter school will be economically sound, including the submission of a proposed budget for the term of the charter and a description of the manner in which the annual audit of the financial and administrative operations of the charter school is to be conducted, and addresses the following:
(1) a proposed budget for year one and the following four years based on the current unit value;
(2) a description of the administrative operations of the charter school.
G. An assurance that the fiscal management of the charter school will comply with all applicable federal and state laws, regulations and rules relative to fiscal procedures. In addition to this basic assurance, the applicant shall clearly state in its assurance that the following information will be provided to the chartering authority by the end of the planning year or within 10 days of receipt of any federal or state stimulus funds:
(1) a detailed plan indicating how the charter school will manage its fiscal responsibilities;
(2) a description of its internal control procedures that the charter school will utilize to safeguard assets, segregate its payroll and other check disbursement duties, provide reliable financial information, promote operational efficiency, and ensure compliance with all applicable federal statutes and regulations and state statutes and rules relative to fiscal procedures.
H. The names of the members of the governing body and a description of the operation of the charter school, including:
(1) the method of selecting the governing body;
(2) the qualifications and terms of members, the filling of vacancies, and the procedures for changing governing body membership;
(3) an assurance that the governing body will meet and conduct its meetings in accordance with the Open Meetings Act, Sections 10-15-1 et seq., NMSA 1978;
(4) the nature and extent of parental, professional educator and community involvement in the governance and the operation of the school;
(5) an assurance that the charter school will adopt policies and procedures of the governing body, that address governance, relationship to staff, professional development, the role of the governing body in policy-making, personnel decisions, budgeting, and operation of the charter school, including how decisions will be made;
(6) for locally chartered charter schools, an assurance that it will amend its charter within one (1) year of approval to include procedures agreed upon with its chartering authority for the resolution of disputes between them;
(7) a description of how the charter school proposes to account to the chartering authority with respect to the charter school’s compliance with applicable statutes, regulations, rules and charter provisions;
(8) an assurance by each governing body member that they have read the application and agree to its submission to the chartering authority.
I. An explanation of the relationship that will exist between the proposed charter school and its employees, including evidence that the terms and conditions of employment will be addressed with affected employees and their recognized representatives, if any, and which address the following:
(1) personnel policies and procedures that comply with all applicable federal statutes and regulations, the School Personnel Act, Sections 22-10-1 et seq., NMSA 1978, and the Charter Schools Act, Sections 22-8B-1 et seq. NMSA 1978 or, if personnel policies and procedures have not been developed at the time of the application, a statement that the policies and procedures developed will comply with applicable federal and state labor laws, regulations and rules implementing them;
(2) a description of the evaluation process for staff which shall include evaluation of teachers by a licensed school administrator;
(3) the discipline process for staff, that provides for due process and demonstrates an understanding of applicable state and federal laws, regulations and rules;
(4) an assurance that the governing body or head administrator will recognize and work with employee labor representatives, if any;
(5) a proposed salary schedule;
(6) proposed job descriptions of staff;
(7) a proposed pupil-teacher ratio.
J. The student discipline policy of the proposed charter school that complies with the department’s rule on students’ rights and responsibilities.
K. For charter schools, a proposed agreement between the charter school and the authorizer regarding their respective legal liability and applicable insurance coverage.
L. A description of how the charter school plans to meet the transportation and food service needs of its students. The description shall address whether the applicant intends to contract with a school district or other party for the provision of transportation and food services; the identity of the school district or that other party, if known, with whom the applicant proposes to contract; a description of the proposed terms of any contract; and for these services a description of the status of any preliminary negotiations with any school districts or other parties regarding the provision of transportation or food service.
M. A description of the waivers that the charter school is requesting from either the local school board or the department or both and the charter school’s plan for addressing these waiver requests that:
(1) lists the specific policy by number and title for which waivers are requested from local school board policy;
(2) lists the specific waivers that are requested from the department’s requirements, rules, and provisions of the Public School Code, Sections 22-1-1 et seq., NMSA 1978, pertaining to individual class load, teaching load, length of the school day, staffing patterns, subject areas, purchase of instructional material, evaluation standards for school personnel, school principal duties, driver education and graduation requirements.
N. A description of the facilities the charter school plans to use, taking phase-in and availability into account. The charter school shall provide a detailed description of its proposed capital outlay needs, including projected requests for capital outlay assistance for the charter school. Additionally, the charter school shall provide an assurance that:
(1) the facility it seeks to use is safe and suitable for use as a school;
(2) it will develop and maintain a plan for addressing code, accessibility requirements and any other health and safety requirements, if necessary;
(3) it will develop and maintain a plan for operation, maintenance and repair of a facility;
(4) it will produce a certificate of occupancy for use of the facility; and
(5) prior to opening that the facility to be used meets all applicable federal and state health, safety and code requirements.
O. A description of the enrollment procedures to be used by the charter school that complies with Section 22-8B-4.1 NMSA, 1978 and Subsection D of 184.108.40.206 NMAC.
P. An explanation of how approval of the charter school would be in the best interest of students, school district and community where it intends to locate, and serves a purpose in that community.
[220.127.116.11 NMAC - Rp, 18.104.22.168 NMAC, 6/29/2007; A, 6/30/2008]
22.214.171.124 TERM OF A CHARTER:
A. A charter may be approved for an initial term of six years, provided that the first year shall be used exclusively for planning and not for completing the application. The planning year shall be the fiscal year in which the charter is authorized, beginning on the July 1 date on which applications were due and ending on June 30, regardless of the number of months that may be available to a charter school for planning activities.
B. A charter may be renewed for successive periods of five years each unless a lesser period is agreed to in writing by the charter school and its authorizer. The five years of the charter will commence on July 1 of the fiscal year after the charter was approved by its authorizer and shall align with the dates of the fiscal year.
[126.96.36.199 NMAC - N, 6/29/2007]
188.8.131.52 REQUIREMENTS DURING THE PLANNING YEAR:
A. For charter schools approved prior to July 1, 2010, prior to the end of its planning year, a newly authorized charter school shall demonstrate to the authorizer that its facilities meet the educational occupancy standards required by applicable New Mexico construction codes. For charters approved on or after July 1, 2015, prior to the end of its planning year, the charter school shall demonstrate to its authorizer that its facilities meet the relevant requirements for schools as set forth in Subsection C of Section 22-8B-4.2 NMSA 1978.
B. A charter school shall simultaneously notify the public school capital outlay council and its authorizer in writing of its readiness to demonstrate that its facilities meet the referenced educational occupancy standards.
C. The public school capital outlay council shall determine whether a charter school’s facilities meet established educational occupancy standards, and if not, whether specific requirements are inappropriate or unreasonable for a charter school. If the public school capital outlay council determines that specific requirements of the referenced educational occupancy standards are inappropriate or unreasonable for a charter school, it may grant a variance. The public school capital outlay council shall provide written notification of its decision and the reasons thereto simultaneously to the charter school and its authorizer.
D. Prior to the end of its planning year, a state chartered charter school shall demonstrate that it has qualified as a board of finance and that it has satisfied any conditions imposed by the commission before commencing full operation for the remainder of its charter term.
E. Prior to the end of its planning year, the state-chartered charter schools shall apply to the commission for authorization to commence full operations. If the commission refuses to issue the authorization to commence full operation, it shall provide its reasons in writing which shall be limited to the reasons set forth in Subsection D of 184.108.40.206 NMAC.
[220.127.116.11 NMAC - N, 6/29/2007; A, 6/30/2008; A, 6/30/2009]
18.104.22.168 INITIAL REQUIREMENTS AND REVIEW PROCESS FOR START-UP SCHOOLS:
A. Local school boards may approve the establishment of charter schools to be located in their respective districts. The commission may approve the establishment of a charter school to be located anywhere in the state.
B. An applicant shall apply to only one chartering authority at a time. An applicant whose application has been denied by a chartering authority or approved with amendments unacceptable to the applicant may file the same application the following fiscal year with a different chartering authority.
C. Applications for start-up schools shall be submitted between June 1 and July 1 to be eligible for consideration for the following fiscal year. If July 1 falls on a Saturday or a Sunday, the deadline for filing applications shall be extended to the close of business of the very next Monday, even in the case of a school district closed for summer break. Applications will also be considered timely if they are postmarked four calendar days prior to July 1, regardless of the date on which they are received. Failure to submit a timely application shall result in an application being rejected by the authorizer, unless the parties agree to waive the filing deadline in accordance with Section 22-8B-6 NMSA 1978. Any such waiver shall be in writing and signed by persons authorized to take such action by the applicant and the chartering authority.
D. Enrollment in a start-up charter school shall be guided by the following.
(1) A charter applicant must enroll students on a first-come, first-served basis or through a lottery selection process if the total number of applicants exceeds the number of spaces available.
(2) A charter applicant shall advertise its enrollment process using newspapers, bulletin boards and other methods designed to disseminate its availability to seek student enrollment and to ensure that there is equal opportunity for all parents and students to learn about the school and apply.
(3) A charter school shall not charge tuition or have admission requirements, except as otherwise provided in the Public School Code, Sections 22-1-1 et seq., NMSA 1978.
(4) In subsequent years of its operation, a charter school will give enrollment preference to previously properly admitted students who remain in attendance and siblings of students already admitted to or attending the school.
E. Any revision or amendment to the terms of the charter contract may be made only with the written approval of the authorizer.
F. A charter school shall be a nonsectarian, nonreligious, and non-home-based public school that operates within the geographic boundaries of a public school district.
G. A charter school shall comply with the Age Discrimination Act of 1975, Title VI of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, Section 504 of the Rehabilitation Act of 1973, and Part B of the Individuals with Disabilities Education Act.
H. A charter school shall comply with the same federal and state audit requirements as do other public schools in the state.
I. A charter school shall meet all applicable federal, state, and local health and safety requirements.
J. A charter school shall operate in accordance with and under authority of state law.
K. A charter school shall provide equitable access to, and participation in, its federally assisted program for students, teachers, and other program beneficiaries with special needs.
L. A charter school shall have an admissions process that does not discriminate against anyone on the basis of race, gender, national origin, color, disability, or age.
M. A charter school’s head administrator or governing body shall not employ or approve the employment in any capacity of a person who is the spouse, father, father-in-law, mother, mother-in-law, son, son-in-in-law, daughter, daughter-in-law, brother, brother-in-law, sister or sister-in-law of a member of the governing body or the head administrator. The governing body may waive the nepotism rule for family members of a head administrator.
N. Applications to the commission for establishment of a state chartered charter school shall be made to the division at its Albuquerque office. Applications to a local school board for establishment of a locally chartered charter school shall be made to the superintendent of that district.
O. An application for a start-up school may be made by one or more teachers, parents, community members, by a public post-secondary educational institution or a nonprofit organization.
P. The chartering authority shall be responsible for reviewing all applications for charter schools. Prior to the submission of the applications, the division shall provide at least three technical assistance workshops for prospective applicants on preparing a start-up application. The chartering authority shall not charge application fees.
Q. A review coordinator shall be used by the chartering authority to assist prospective applicants in the preparation of proposed charters. The assistant secretary for the division shall designate a review coordinator in the division for the commission. The superintendent shall appoint a review coordinator for the local school board, unless the superintendent of a school district performs this duty. Prior to the deadline for submission of applications established by the chartering authority, the review coordinator or superintendent and any prospective applicants shall confer in an attempt to identify:
(1) any concerns regarding noncompliance with requirements of the Charter Schools Act (Sections 22-8B-1 et seq., NMSA 1978), this rule or other applicable state or federal laws or regulations which would arise from the establishment or operation of the proposed charter school;
(2) any licensure, curriculum, or other educational concerns which would arise from the establishment or operation of the proposed charter school;
(3) any interests of the students, the school district or the community which would be adversely affected by the establishment or operation of the proposed charter school and describe the apparent adverse effects.
R. Prospective applicants are to direct any request for technical assistance and information through the authorizer’s designated review coordinator. The review coordinator or superintendent shall ensure that the appropriate staff members respond to requests from prospective applicants for information on school operations, policies or practices which prospective applicants regard as necessary to enable them to present an approvable application. Prospective applicants may request information using the Inspection of Public Records Act (Chapter 14, Article 2 NMSA 1978). A review coordinator may require that requests for information not made pursuant to the Inspection of Public Records Act be in a format or directed to a specific person or office in the school district or department. Prospective applicants should not contact school district or department employees directly to obtain information.
S. Prior to the public meeting at which the decision is made, the chartering authority shall hold at least one public hearing to obtain information and community input to assist it in its decision whether to grant a charter school application. At any such hearing, which shall be duly noticed and held pursuant to the Open Meetings Act (Chapter 10, Article 15 NMSA 1978) and the requirements contained in the Laws 2009 Chapter 12, members of the chartering authority may ask questions of the charter applicant and that applicant shall have an opportunity, subject to reasonable time limitations, to respond to any questions or concerns raised by any members of the chartering authority, and present to the chartering authority information that clarifies and verifies the information in the application that the applicant believes will assist the chartering authority in making its decision. Community input may include written or oral comments in favor of or in opposition to the application by the applicant, members of the local community and other interested individuals. Community input shall be provided within a time limit established by the chartering authority.
T. A charter applicant shall respond to requests for information that the chartering authority regards as necessary to verify and clarify issues identified in the charter application; each shall communicate in good faith in an attempt to verify and clarify issues identified in the charter application.
U. No earlier than three days after the public hearing to obtain information and community input, the chartering authority shall rule on the application in a public meeting. The public meeting at which the decision is made shall be held by September 1. The charter applicant and the chartering authority may, however, jointly waive the September 1 deadline provided they do so in a signed written statement. If not ruled upon by September 1, or the stipulated deadline, the charter application will be automatically reviewed by the secretary pursuant to the applicable provisions of Section 22-8B-7 NMSA 1978 and 22.214.171.124 NMAC.
V. A chartering authority may approve, approve with conditions or deny an application. A chartering authority may deny an application where:
(1) the application is incomplete or inadequate;
(2) the application does not propose to offer an educational program consistent with the requirements and purposes of the Charter Schools Act (Chapter 22, Article 8B NMSA 1978);
(3) the proposed head administrator or other administrative or fiscal persons were involved with another charter school whose charter was denied or revoked for fiscal mismanagement or the proposed head administrator or other administrative or fiscal member was discharged from a public school for fiscal mismanagement;
(4) the public school capital outlay council has determined that the facilities do not meet the standards required in Section 22-8B-4.2 NMSA 1978;
(5) for a proposed state-chartered charter school, it does not request the governing body to be designated as a board of finance, or the governing body does not qualify as a board of finance; or
(6) the application is otherwise contrary to the best interests of the charter school’s projected students, the local community or the school district in whose geographic boundaries the applicant seeks to operate.
W. If the chartering authority denies a charter school application or approves the application with conditions, it shall state its reasons for the denial or imposition of conditions in writing within 14 days of the meeting. The written decision must be based upon the vote that was taken at the public meeting and reflect the stated reasons for the vote of the chartering authority to deny a charter school application or approve the application with conditions. If the chartering authority grants a charter, it shall deliver the approved charter to the applicant. The time within which to file notice of appeal shall commence upon receipt of the written denial. The chartering authority shall maintain a copy of the charter for its files.
X. If the approved charter contains a waiver request for release from department rules or the Public School Code the applicant must follow the procedures on requesting waivers from the department. The department shall notify the authorizer and the charter school whether the request is granted or denied and, if denied, the reasons thereto.
Y. If the authorizer denies a charter school application or imposes conditions for approval that are unacceptable to the charter applicant, the applicant may appeal the decision to the secretary pursuant to Section 22-8B-7 NMSA 1978 and Section 126.96.36.199 NMAC.
[188.8.131.52 NMAC - Rp, 184.108.40.206 NMAC, 6/29/2007; A, 6/30/2008; A, 6/30/2009]
220.127.116.11 CHARTER SCHOOL RENEWAL PROCESS AND RENEWAL APPLICATIONS:
A. The governing body of a charter school seeking to renew its charter shall file its renewal application with a chartering authority no earlier than 270 days prior to the date the charter expires. Commencing with any charters that are due to expire at any time after January 1, 2008, all applications for renewal shall be submitted no later than October 1 of the fiscal year prior to the expiration of the school’s charter. The chartering authority shall rule in a public meeting on the renewal application no later than January 1 of the fiscal year in which the charter expires.
B. The governing body may submit its charter renewal application to either the commission or to the local school board of the district in which the charter school is located, but may not submit the renewal application to both authorizers simultaneously.
C. The application shall contain:
(1) a report on the progress of the charter school in achieving the goals, objectives, student performance standards, state minimum educational standards and other terms of the initial approved charter application, including the accountability requirements set forth in the Assessment and Accountability Act (Section 22-2C-1 et seq., NMSA, 1978);
(2) a financial statement that discloses the costs of administration, instruction and other spending categories for the charter school that is understandable to the general public, that will allow comparison of costs to other schools or comparable organizations and that is in a format required by the department;
(3) any changes to the original charter the governing board is requesting and any amendment to the initial charter, which were previously approved;
(4) a certified petition in support of the charter school renewing its charter status signed by not less than 65 percent of the employees in the charter school;
(5) a certified petition in support of the charter school renewing its charter status signed by at least 75 percent of the households whose children are enrolled in the charter school as identified in the school’s 120-day report of the fiscal year prior to the expiration of the charter;
(6) a description of the charter school facilities and assurances that the facilities are in compliance with the requirements of Section 22-8B-4.2 NMSA 1978; and
(7) a statement of the term of the renewal requested, if less than five years; if a charter school renewal application does not include a statement of the term of the renewal, it will be assumed that renewal is sought for a term of five years.
D. A chartering authority may refuse to renew a charter if it determines that:
(1) the charter school committed a material violation of any of the conditions, standards or procedures set forth in the charter contract;
(2) the charter school failed to meet or make substantial progress toward achievement of the department’s minimum educational standards or student performance standards. Failure to meet or make substantial progress toward achievement of the department’s standards of excellence or student performance standards identified in the charter contract and defined by the following criteria:
(a) charter school earns a tier four rating as defined in the charter school academic performance framework, developed and approved by the public education commission, in the charter contract for the most recent two consecutive years or for three of the last four years; or
(b) charter school earns an F rating pursuant to Section 22-2E-1 NMSA 1978 for the most recent two consecutive years or any combination of D ratings or F ratings over the last three years;
(3) the charter school failed to meet generally accepted standards of fiscal management;
(4) the charter school violated any provision of law from which the charter school was not specifically exempted; or
(5) the public school capital outlay council has determined that the facilities do not meet the standards required in Section 22-8B-4.2 NMSA 1978.
E. If the chartering authority refuses to approve a charter school renewal application or approves the renewal application with conditions, it shall state its reasons for the non-renewal or imposition of conditions in writing within 14 days of the public meeting at which the vote was taken. The written decision must restate the motion that was voted on in the public meeting and must restate the reasons that were voted on in the public meeting during which the vote was taken.
F. If the chartering authority grants renewal of a charter, it shall deliver the approved charter to the applicant and a copy to the chartering authority.
G. If the approved charter contains a waiver request for release from department rules or the Public School Code, the department shall notify the authorizer and the charter school whether the request is granted or denied and, if denied, the reasons thereto.
H. If the authorizer refuses to approve a charter school renewal application or imposes conditions for renewal that are unacceptable to the charter applicant, the applicant may appeal the decision to the secretary pursuant to Sections 22-8B-7 NMSA 1978 and 18.104.22.168 NMAC.
I. The provisions of this section shall apply to conversion schools.
[22.214.171.124 NMAC - Rp, 126.96.36.199 NMAC, 6/29/2007; A, 6/30/2008; A, 6/30/2009; A, 12/31/2018]
188.8.131.52 APPEALS TO THE SECRETARY:
A. Right of appeal. A charter applicant may appeal to the secretary from any chartering authority decision denying a charter school application, revoking or refusing to renew a previously approved charter, or imposing conditions for approval or renewal that are unacceptable to the applicant. Appeals from suspension of governing bodies and head administrators by the secretary shall be governed by the procedures set forth in 6.30.6 NMAC (“Suspension of Authority of a Local School Board, Superintendent or Principal”).
B. Notice of appeal and appellant’s argument in support of appeal.
(1) Filing and service of notice and argument in support of appeal. A charter applicant or governing body of a charter school that wishes to appeal a decision of a chartering authority concerning the denial, nonrenewal or revocation of a charter, or the imposition of conditions for approval or renewal that are unacceptable to the charter school or charter school applicant shall file and serve a written notice of appeal and its argument in support of appeal within 30 days after service of the chartering authority’s decision. One original plus four copies of the notice of appeal and argument in support of appeal together with the required attachments shall be filed with the secretary at the department’s main office in Santa Fe. No notice of appeal or argument in support of appeal, including exhibits or required attachments, shall be filed using compact disks, floppy disks or email; instead, paper documents must be filed with the department.
(2) Appellant’s argument in support of appeal. The appellant’s argument in support of appeal shall include a statement of the reasons and argument in support of why the appellant contends the chartering authority’s decision was in error with reference to the standards set forth in Subsection B of Section 22-8B-7 NMSA 1978 that the authorizer acted arbitrarily or capriciously, rendered a decision not supported by substantial evidence, or did not act in accordance with law. The appellant shall limit the grounds of its appeal to the authorizer’s written reasons for denial, nonrenewal, revocation or imposition of conditions.
(3) Required attachments. The appellant shall attach to each copy of the notice of appeal:
(a) a copy of the chartering authority’s written decision, together with a copy of the authorizer’s minutes or draft minutes of the meeting if available; and
(b) a copy of the charter or proposed charter in question.
C. Filing and service of other documents. An original document shall be filed with the secretary at the department’s main office in Santa Fe. Each party shall simultaneously serve a copy of all documents filed with the secretary including any attachments upon the other party at that party’s address of record on appeal. A party may file documents other than a notice of appeal and required documents referenced at Paragraph (5) of Subsection D of 184.108.40.206 NMAC below, by email to the secretary provided that the email includes any attachments, as well as the sender’s name and mailing address. Filings with the secretary shall reflect by certification of the sender that a copy of all documents being submitted is simultaneously being served on the other party, the method of service, and the address where filed. Filing or service by mail is not complete until the documents are received.
D. Pre-hearing procedures.
(1) Within 10 days after receipt of the notice of appeal, the secretary shall inform the parties by letter of the date, time and location for the appeal hearing.
(2) Except for brief inquiries about scheduling, logistics, procedure or similar questions that do not address the merits of the case, neither party shall communicate with or encourage others to communicate with any employee of the department about a pending appeal unless the other party is simultaneously served with a copy of any written communication or has an opportunity to participate in any conversation by meeting or conference call. Nor shall any employee of the department initiate such prohibited communications. The secretary must disqualify himself or herself from hearing an appeal if the secretary determines, after learning of a prohibited communication, that the secretary is unable to render an unbiased decision. Appellants will be provided a point of contact in the letter referenced in Paragraph (1) of Subsection D of 220.127.116.11 NMAC.
(3) All submissions to the secretary on appeal shall focus on the factual and legal correctness of the chartering authority’s decision in light of the grounds upon which a chartering authority may deny an application set forth in Subsection K of Section 22-8B-6 NMSA 1978 or the grounds for non-renewal or revocation as set forth in Subsection F of Section 22-8-12 NMSA 1978, and the standards for affirmance or reversal that the chartering authority’s decision was arbitrary, capricious, not supported by substantial evidence or otherwise not in accordance with the law.
(4) Within 15 days of the mailing date of the appellant’s notice of appeal and reasons to the chartering authority, the chartering authority shall file one original and four copies with the secretary and serve upon the appellant one copy of the chartering authority’s response to the appellant’s arguments.
(5) The division shall review each party’s submissions and prepare a report for the secretary which:
(a) analyzes and outlines the parties’ contentions on appeal with reference to the standards of Subsection K of Section 22-8B-6 and Subsections B and E of Section 22-8B-7 NMSA 1978;
(b) sets forth the staff’s recommendations for the secretary to affirm or reverse the chartering authority’s decision, with or without reasonable conditions or changes to the charter, and the reasons for those recommendations.
(6) At least five days before the hearing date, the division shall deliver its report and recommendations to the secretary and shall simultaneously serve a copy upon each party.
(7) While an appeal is pending, the parties are strongly encouraged to continue discussions and negotiations in an effort to resolve the matter by agreement and reestablish productive working relations. An appellant may withdraw an appeal at any time before the secretary reaches a final decision. If an appeal is withdrawn, the secretary shall approve an appropriate order of dismissal. The secretary’s decision and order may incorporate the terms of any agreement reached by the parties. An appeal which has been withdrawn may not be refiled.
E. Secretary hearing and decision.
(1) Within 60 days after receipt of the notice of appeal, the secretary, after a public hearing that may be held in Santa Fe or in the school district where the proposed charter school has applied for a charter, shall review the decision of the chartering authority and make written findings.
(2) Participants at the hearing before the secretary shall be the designated representatives of the appellant, the chartering authority and the division and other department staff as appropriate.
(3) The time allotment for a hearing shall be three hours. Both parties shall be allowed up to 30 minutes for their presentations. Department staff shall be allowed 20 minutes for their presentation. The appellant may reserve part of its 30 minutes for rebuttal if desired. The order of presentations will be department staff, appellant, chartering authority and rebuttal by the appellant if time has been reserved. The parties may present remarks from whomever they wish in their 30 minutes but must include any comments they wish to make on the staff recommendations within their allotted time. Presentations, questions or discussions that exceed these limits may be ruled out of order by the secretary. The secretary may ask questions of the staff, the parties or the secretary’s counsel at any time and may take up to one hour after the staff's and the parties' presentations for further questions, discussion and a decision. Unless stricken during the hearing for good cause or withdrawn, the parties can assume that the department staff and the secretary have reviewed their written submissions, which shall be deemed evidentiary submissions subject to be given increased or diminished weight based upon the oral presentations.
(4) All presentations and discussion before the secretary shall focus on the factual and legal correctness of the chartering authority’s decision in light of the standards and grounds set forth in Subsection K of Section 22-8B-6, Subsections B, C or E of Section 22-8B-7 and Subsection F of Section 22-8B-12 NMSA 1978.
(5) The secretary may reverse the decision of the chartering authority, with or without the imposition of reasonable conditions, if the secretary finds that the chartering authority:
(a) acted arbitrarily or capriciously;
(b) rendered a decision not supported by substantial evidence; or
(c) did not act in accordance with the law.
(6) The secretary shall reverse a decision of the chartering authority denying an application, refusing to renew an application or revoking a charter if the secretary finds that the decision was based upon a determination by the public school capital outlay council that the facilities of the proposed or existing charter school did not meet the standards required by Section 22-8B-4.2 NMSA 1978 and that the decision was:
(a) arbitrary or capricious;
(b) not supported by substantial evidence; or
(c) otherwise not in accordance with the law.
(7) The department shall promptly serve a formal notice of the secretary’s decision upon the parties to the appeal.
(8) A person aggrieved by a final decision of the secretary may appeal the decision to the district court pursuant to the provisions of Section 39-3-1.1 NMSA 1978.
F. The provisions of this section shall apply to conversion schools.
[18.104.22.168 NMAC - Rp, 22.214.171.124 NMAC, 6/29/2007; A, 6/30/2008; A, 10/15/2013; A, 12/31/2018]
126.96.36.199 review on the SECRETARY’S own motion:
A. The secretary, on the secretary’s own motion, may review a chartering authority’s decision to grant a charter.
B. Within 10 days after the secretary moves to review, the secretary shall issue an appropriate order establishing procedures for the chartering authority and the charter applicant to submit information and arguments for review by the secretary and division staff.
C. Within 60 days after the secretary moves to review, the secretary, at a public hearing that may be held in Santa Fe or in the district in which the proposed charter school applied for a charter, shall review the decision of the chartering authority and determine whether the decision was arbitrary and capricious or whether the establishment or operation of the proposed charter school would violate any standard in Subsection C of Section 22-8B-7 NMSA 1978.
D. If the secretary determines that the charter would violate any standard in Subsection C of Section 22-8B-7 NMSA 1978, the secretary shall reverse the chartering authority’s decision and remand the decision to the chartering authority with instructions to deny the charter application, suspend or revoke the charter.
E. The timelines in 188.8.131.52 NMAC may be extended by the secretary for good cause. Good cause may include but shall not be limited to an agreement between the parties, a reasonable request from either party or reasonable consideration of the secretary’s previously established meeting schedule.
F. A person aggrieved by a final decision of the secretary may appeal the decision to the district court pursuant to the provisions of Section 39-3-1.1 NMSA 1978.
G. The secretary shall promptly serve a copy of the decision on the parties to the proceeding.
[184.108.40.206 NMAC - Rp, 220.127.116.11 NMAC, 6/29/2007; A, 6/30/2008; A, 10/15/2013]
18.104.22.168 QUALIFICATION FOR Board OF FINANCE DESIGNATION:
A. Within 90 days of approval of its charter application, the governing body of a state-chartered charter school shall file a separate application with the commission seeking approval as a board of finance. This deadline may be extended by the commission for good cause shown.
B. The application shall include:
(1) an affidavit or affidavits, signed by the personnel who will be given the responsibility of keeping the financial records of the charter school, describing the training completed, professional licensure held and degrees earned by them;
(2) a statement signed by every member of the governing body that the governing body agrees to consult with the department on any matter not covered by the manual of accounting and budgeting before taking any action relating to funds held as a board of finance;
(3) a copy of a certificate of insurance that indicates that the person who will be entrusted with handling the funds of the charter school is adequately bonded;
(4) a signed affidavit from each governing body member declaring that the member is not a governing body member of any other charter school and that the member was not a governing body member of another charter school that was suspended or failed to receive or maintain their board of finance designation.
C. Within 30 days of filing of the application to qualify as a board of finance, the commission shall issue a decision approving or denying the application. A copy of the decision will be provided to the governing body and the commission.
[22.214.171.124 NMAC - N, 6/29/2007; A, 6/30/2008]
126.96.36.199 NEW MEXICO SCHOOL FOR THE ARTS:
A. Upon approval by the commission, a state chartered charter school may operate as the New Mexico school for the arts (“the school”), which shall be a statewide residential charter school for grades nine through 12 offering intensive preprofessional instruction in the performing and visual arts combined with a strong academic program that leads to a New Mexico diploma of excellence.
B. An application to the commission for approval of a charter shall contain assurances of compliance together with a plan for how the school will accomplish the following requirements contained in the New Mexico School for the Arts Act, being Laws 2008, Chapter 15, Sections 1 to 9:
(1) paying for all expenses associated with outreach activities and for room and board costs for students unable to pay all or part of the cost of room and board from a foundation or other private funding sources;
(2) working with a foundation or soliciting other private funding sources to obtain gifts, grants and donations to ensure that the school has adequate revenue to make the payments described in Paragraph (1) of Subsection B of 188.8.131.52 NMAC;
(3) not using money received from the state other than charter school stimulus funds to make the payments described in Paragraph (1) of Subsection B of 184.108.40.206 NMAC;
(4) admitting an equal number of students from each of the state’s congressional districts, to the greatest extent possible and without jeopardizing admissions standards;
(5) conducting its admissions process in a way that provides equal opportunity regardless of a student’s prior exposure to artistic training and to the student’s ability to pay for room and board; and
(6) conducting admissions criteria-free outreach activities throughout the state each year that acquaint potential students with the programs at the school, to include programs specifically for middle school students and workshops for teachers.
C. By July 1 after the first year the school has provided preprofessional instruction in the performing and visual arts and by July 1 every year thereafter, the school shall submit a report simultaneously to the division and the commission containing:
(1) non-personally identifiable demographic information about both applicants and students admitted to the school delineated by counties, congressional districts, socioeconomic status, gender and ethnicity; and
(2) the number of students who requested financial assistance for room and board, the total amount of financial assistance provided, and the amounts distributed delineated by the source of gifts, grants and donations received by the school.
D. During the planning year the school shall develop a sliding-fee scale subject to the following considerations:
(1) the purpose of the sliding-fee scale is to defray all or part of the costs of room and board for students whose parents or guardians are financially unable to pay these fees;
(2) in determining ability to pay, the school may use a variety of methods including but not limited to:
(a) self-disclosures in a financial aid application developed by the school;
(b) poverty thresholds as maintained by the United States census bureau;
(c) poverty guidelines as maintained by the United States department of health and human services;
(d) whether the public school that the student applicant most recently came from was a recipient of funds under Title I, Part A of the Elementary and Secondary Education Act of 1965, as amended;
(e) whether the student applicant for enrollment was eligible to receive free or reduced price school meals at the public school previously attended; and
(f) the amount or percentage of assistance an enrolled student received for room and board the prior school year from the school;
(3) the school shall submit its sliding-fee scale to the commission for initial approval during the planning year and may request changes at subsequent commission meetings for good cause shown.
E. It shall be the responsibility of the school to obtain adequate funding from private sources to pay annual outreach costs and to defray all or part of room and board fees for students financially unable to pay. No state funds except for charter school stimulus funds received and used during the planning year may be used for these purposes. Private funding sources available to the school shall include the use of a foundation or the soliciting and receipt of gifts, grants and donations. Failure to secure adequate funding for these purposes shall constitute grounds for denial or revocation of a charter.
F. Except for provisions of this rule related to admission of students by lottery, admission on a first-come first-serve basis, the ability to charge for residential fees, admissions criteria and location of the school anywhere in the state, all other provisions of this rule related to state-chartered charter schools shall apply to the school.
[220.127.116.11 NMAC - N, 6/30/2008; A, 12/31/2018]
18.104.22.168 DISTANCE LEARNING:
A. A charter school offering or seeking to offer distance learning courses to students shall comply with 6.30.8 NMAC.
B. Any charter school offering or seeking to offer distance learning courses in New Mexico pursuant to the Charter Schools Act, Chapter 22, Article 8B NMSA 1978 must be physically located in the state of New Mexico.
[22.214.171.124 NMAC - N, 6/30/2008]
126.96.36.199 Lottery WHEN CHARTER SCHOOL CAP IS EXCEEDED:
A. For purposes of compliance with Section 22-8B-11 NMSA 1978, the first five year period shall be deemed to have ended in 2003 and the successive five-year periods begin in 2003.
B. If by October first the chartering authorities have authorized more charter schools than permitted by Section 22-8B-11 NMSA 1978, the department shall notify all chartering authorities with newly authorized charter schools that those charter schools may not be established for operations until a lottery is held.
C. Within 45 days after determining that the cap for charter schools has been exceeded, the department shall conduct a lottery at a publicly noticed meeting to determine the available slots for charter schools. The department shall randomly draw the names of charter schools from the available pool of all charter schools that were authorized by October first. The schools whose names were drawn shall be given the available charter school slots until the maximum numbers of slots have been selected. The charter schools that are selected shall be approved for operation in the first fiscal year after the lottery. The charter schools whose names were not drawn shall be approved for operation in the second fiscal year after the lottery.
D. A charter school that was approved for operation in the second fiscal year after participation in a lottery shall not be subject to a second lottery in the event that in the second fiscal year more charter schools are authorized than permitted by Section 22-8B-11 NMSA 1978.
E. Any charter school authorized after October first in a year in which the department conducts a lottery pursuant to this rule, shall be approved for operation no earlier than the second fiscal year after the school was authorized.
[188.8.131.52 NMAC - Rn, 184.108.40.206 NMAC, 6/30/2008; 220.127.116.11 NMAC - N, 6/30/2009]
[18.104.22.168 NMAC - Rp, 22.214.171.124 NMAC, 07/25/2017]
126.96.36.199 SEVERABILITY: Any part of this rule found by adjudication before a competent tribunal to be contrary to law shall be stricken without affect to the remainder.
[188.8.131.52 NMAC - Rn, 184.108.40.206 NMAC, 6/30/2009]
HISTORY OF 6.80.4 NMAC:
Material in this part was derived from that previously filed with the Commission of Public Records - State Records Center and Archives:
6.80.4 NMAC, Charter School Application and Appeal Requirements, 12/3/2001
History of Repealed Material:
6.80.4 NMAC, Charter School Application and Appeal Requirements - Repealed, 6/29/2007
220.127.116.11 NMAC, Governing Body Training - Repealed, Repealed, 7/25/2017