N.M. Admin. Code § 6.80.4.14 - 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.
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 copy plus four
copies of the notice of appeal and argument in support of appeal together with
the required attachments shall be fled 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 fled using compact disks,
floppy disks, or email; instead, paper documents shall be fled 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 fled with
the secretary at the department's main office in Santa Fe. Each party shall
simultaneously serve a copy of all documents fled 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
6.80.4.14 NMAC, 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 fled. 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 shall 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
6.80.4.14 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 the chartering
authority denied the application, as set forth in Subsection M of Section
22-8B-6 NMSA 1978 or the grounds
for non-renewal or revocation as set forth in Subsection K of Section
22-8B-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 copy 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) 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
refled.
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 shall 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 M of Section
22-8B-6; Subsections B, C, or E of
Section 22-8B-7; and Subsection K 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.
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