PG10 Ethical Misconduct Reporting Requirements and Ethical Misconduct/Work History Check

Ethical Misconduct Involving Children or Students: Reporting and Investigation Requirements

APS personnel, employees, contractors or a contractor's employees who know or have a reasonable suspicion that a child or student has been subject to ethical misconduct by APS personnel, an APS employee, a school volunteer, an APS contractor or a contractor's employee shall report the matter immediately to:

1. the Superintendent; or
2. the Public Education Department (PED)

The Superintendent may appoint a designated representative to act on the Superintendent's behalf. If the Superintendent receives a report of ethical misconduct involving a child or student, the Superintendent, or the Superintendent’s designee(s), shall immediately transmit to the PED by telephone the facts of the report and the name, address and telephone number of the reporter. The Superintendent, or the Superintendent’s designee(s), shall transmit the same information in writing to the PED within forty-eight hours.

A written report shall contain: the name, address and age of the child or student; the child's or student's parents, guardians or custodians; the APS person (APS personnel, school employee, school  volunteer, APS contractor or contractor's employee) who is alleged to have committed ethical misconduct; and any evidence of ethical misconduct, including the nature and extent of any injuries and other information that the maker of the report believes might be helpful to investigate a report of ethical misconduct. The Superintendent or designee shall submit a written report upon a standardized form developed by the PED.

Investigation of Ethical Misconduct

After receiving a report of ethical misconduct involving a student, the Superintendent, or the Superintendent’s designee(s), shall take immediate steps to ensure prompt investigation of the report. The investigation shall ensure immediate steps are taken to protect the health or welfare of a student or child who is the subject of a report.  A school shall take immediate steps to ensure the safety of enrolled students.

After receiving a report of ethical misconduct involving a student or child, the Superintendent shall notify the person making the report within five (5) business days after the report was made that the office receiving the report is investigating the matter. Mailing a notice within five days satisfies this paragraph.

If any school district personnel, school employee, school volunteer, contractor or contractor's employee resigns, is being discharged or terminated or otherwise leaves employment after an allegation has been made, the Superintendent or the Superintendent’s designee(s) shall investigate all those allegations of ethical misconduct. If the investigation results in a finding of ethical misconduct involving a student by a licensed school employee, school volunteer, contractor or contractor's employee the Superintendent or the Superintendent's designee(s), shall report the identity of the licensed school employee school volunteer, contractor or contractor's employee and attendant circumstances of the ethical misconduct on a standardized form to the PED. The Superintendent or designee must submit this report regarding ethical misconduct for any licensed school employee within thirty days following the employee’s 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 designee(s) shall also report allegations of sexual assault or sexual abuse involving any student, 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 district can diminish or eliminate the responsibility of investigating and reporting the alleged ethical misconduct.

Ethical Misconduct Not Involving Students or Children: Reporting and Investigation Requirements

APS personnel, employees, contractors or a contractor's employees who know or have a reasonable suspicion of ethical misconduct, must report such ethical misconduct to the Office of Equal Opportunity Services, even if the misconduct does not involve a student or child. The Office of Equal Opportunity Services 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.

The Office of Equal Opportunity Services shall investigate  all such 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 such an investigation results in a finding of ethical misconduct by a licensed school employee, the Superintendent or the Superintendent's designee(s), shall report the identity of the licensed school employee and attendant circumstances of the ethical misconduct on a standardized form to the PED and the licensed school employee within thirty days following the separation from employment or immediately, as required by this procedural directive, if the finding of ethical misconduct is sexual misconduct with an adult or child

No agreement between a departing school employee and the district can diminish or eliminate the responsibility of investigating and reporting the alleged ethical misconduct.

Coordination and Internal Tracking of Reports

The Superintendent will identify the APS department and person(s) responsible for coordinating the reporting and investigating of any reports of ethical misconduct, and tracking the same. Access to reports of ethical misconduct will be restricted to only those APS employees and outside agencies entitled to, or in need of, such reports to comply with the law or as otherwise required by law. Further, except as necessary to comply with APS reporting requirements or as otherwise required by law, APS personnel should utilize initials or other forms of tracking to refer to any alleged victims in any documents, rather than utilizing the victim’s full name or other personal identifying information.

Additional Background and Work History Checks for Applicants

In addition to a Criminal Background Check, the district will require an applicant to provide the following:

1. a list of the applicant's current and former employers that were schools or that employed the applicant in a position involving unsupervised contact with children or students. The list shall include the name, address, telephone number and other relevant contact information for each of the applicant's listed employers;
2. a written statement describing whether the applicant:
   1. has ever been under investigation for, or has been found to have violated, any state or federal statute relating to child abuse or neglect, sexual misconduct or any sexual offense, including those offenses prohibited in Chapter 30, Article 3, 3A, 4, 6, 6A, 9, 37, 37A or 52 NMSA 1978, unless the allegations were false or unsubstantiated;
   2. has ever been under investigation for, or found to have violated, any ethical rule or policy approved by a former employer that previously employed the applicant, unless the allegations were false or unsubstantiated; or
   3. has ever had a professional license or certificate denied, suspended, surrendered or revoked due to a finding of child abuse or ethical misconduct or while allegations of child abuse or ethical misconduct were pending or under investigation; and
3. a written authorization that authorizes disclosure of information requested under the New Mexico School Personnel Act and the release of related records by the applicant's previous employers, releasing the applicant's previous employers from any liability related to the disclosure or release of records.

The district will conduct a review of the applicant's employment history and contact the applicant's current and former employers listed and request:

1. the applicant's dates of employment; and
2. a written statement describing whether the applicant:
   1. has ever been under investigation for, or has been found to have violated, any state or federal statute relating to child abuse or neglect, sexual misconduct or any sexual offense, including those offenses prohibited in Chapter 30, Article 3, 3A, 4, 6, 6A, 9, 37, 37A or 52 NMSA 1978, unless the allegations were false or unsubstantiated;
   2. has ever been under investigation for, or found to have violated, any ethical rule or policy approved by a former employer that previously employed the applicant, unless the allegations were false or unsubstantiated; or
   3. has ever had a professional license or certificate denied, suspended, surrendered or revoked due to a finding of child abuse or ethical misconduct or while allegations of child abuse or ethical misconduct were pending or under investigation.

During the course of a district or school’s review of the applicant's employment history, an applicant's current or former employer may disclose any other information the applicant's current or former employer deems pertinent and substantive to the prospective employee's suitability for employment in a position that includes unsupervised contact with children or students. Further, other information contained in a criminal background check, if supported by independent evidence, may form the basis for a denial.

The district will make and document efforts to review the applicant’s employment history pursuant to this procedural directive.

The district may terminate an individual's employment or contract or rescind an applicant's offer of employment or offer of a contract if the applicant is offered or commences employment with a public school and information regarding the applicant's history of child abuse or ethical misconduct that is determined to disqualify the applicant from employment or a contract is subsequently obtained by the district.  An applicant who provides false information or willfully neglects to disclose information required under this section shall be subject to discipline including termination or denial of employment or action to deny, suspend or revoke a license.

When another employer requests a reference on a former or current employee, contractor or volunteer, APS shall respond and provide the requested information pursuant to this procedural directive. Therefore, when APS employees leave the district to seek employment with other schools or districts and indicate APS as a former employer, APS must provide information to other schools and districts to verify the work employment of applicants, including any allegations of ethical misconduct that are under investigation or substantiated.

Definitions

The following definitions apply to this Procedural Directive:

“applicant” means an applicant for employment, an individual who is being considered as a contractor, a contractor's employee or an individual who wants to be a school volunteer.

“contractor” means an individual who is under contract with a public school or public school district and is hired to provide services to the public school and/or district, 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.

“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;

 “school volunteer” means a person, including a relative of a student, who commits to serve on a regular basis at or for any school or the District without compensation

“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 district employee who has undergone a background check; or
3. any adult relative or guardian of the child or student.

Administrative Position:

• Superintendent
• Chief Operations Officer
• Chief of Human Resources & Legal Support Services
• Chief of Schools

Department Director:

• APS Chief of Police 
• Director of Office of Equal Opportunity Services
• Executive Director of Student, Family, and Community Supports
• Director of Human Resources

References:

Legal Cross Ref.:

• Section 22-10A-5  NMSA 1978
• School Personnel Act
• Section 22-5-4.2 NMSA 1978

Board Policy Cross Ref.:

• GB1 Background Investigations

Procedural Directive Cross Ref:

• Background Checks and Fingerprinting
• Volunteer Programs

NSBA/NEPN Classification: GCF

Introduced: October 13, 2021
Adopted:  October 15, 2021

This page was last updated on: October 20, 2021.