G-6100 © GCQF
DISCIPLINE, SUSPENSION, TERMINATION
AND DISCHARGE OF
PROFESSIONAL STAFF MEMBERS

Unless limited by the provisions of a collective bargaining agreement or by other statutory provision, a public employer may:

• direct the work of, hire, promote, assign, transfer, demote, suspend, discharge or terminate public employees;

• determine qualifications for employment and the nature and content of personnel examinations;

• take actions as may be necessary to carry out the mission of the public employer in emergencies; and

• retain all rights not specifically limited by a collective bargaining agreement or by the Public Employee Bargaining Act.

For purposes of this policy:

• "Discharge" means the act of severing the employment relationship with a licensed school employee prior to the expiration of the current employment contract.

• "Terminate" means, in the case of a licensed school employee, the act of not reemploying an employee for the ensuing school year.

• "Working day" means every school calendar day, excluding Saturday, Sunday or legal holiday.

• "Just cause" means a reason that is rationally related to an employee's competence or turpitude or the proper performance of assigned duties and that is not in violation of the employee's civil or constitutional rights.

• "Administrative leave" means the assignment of an employee to the employee's home to await further instructions pending the outcome of an investigation or inquiry into the actions of the employee in order to avoid interference in the inquiry. The use of "administrative leave" is not a disciplinary action.

Categories of Misconduct

Licensed staff members may be disciplined for infractions that include, but are not limited to, the following categories:

• Engaging in unprofessional conduct.

• Committing fraud in securing appointment.

• Exhibiting incompetency in their work.

• Exhibiting inefficiency in their work.

• Exhibiting improper attitudes.

• Neglecting their duties.

• Engaging in acts of insubordination.

• Engaging in acts of child abuse or child molestation.

• Engaging in acts of dishonesty.

• Being under the influence of alcohol while on duty.

• Engaging in the use, possession, or distribution of narcotics or habit-forming drugs.

• Being absent without leave.

• Engaging in discourteous treatment of the public.

• Engaging in improper political activity.

• Engaging in willful disobedience.

• Being involved in misuse or unauthorized use of school property.

• Being involved in excessive absenteeism.

• Possessing alcohol on school-owned property.

• Carrying or possessing a weapon on school grounds unless they have obtained specific authorization from the appropriate school administrator.

• Engaging in ethical misconduct by inappropriate touching, sexual harassment, discrimination or intended behavior to induce a child into engaging in illegal, immoral or other prohibited behavior.

• Racialized aggression defined as any aggressive act which can be characterized, categorized or which appears as such to be racial in nature. Such aggression is prohibited. A link to a state-wide hotline for reporting such incidents is provided on the District Website located at www.ruidososchools.org.

General Provisions for Discipline

General provisions for discipline are as follows:

• Informal consultation. Nothing contained herein will limit a supervising administrator's prerogative to engage in informal consultation with a licensed employee to discuss matters of concern related to the employee's performance, conduct, et cetera.

• Persons authorized to impose discipline. Any supervising licensed administrator who is the immediate or primary supervisor of a staff member is authorized to impose a penalty or penalties, short of termination.

• Administrative discretion. In adopting these policies/procedures, it is the intention of the District that they be interpreted and applied in a reasonable fashion. The policies are not intended to restrict or eliminate the discretion traditionally afforded to supervising administrators to determine whether discipline is appropriate. Administrators are therefore directed to continue to use reasonable discretion in determining whether a particular alleged violation merits discipline.

• Right not to impose discipline. The District reserves the right not to discipline a staff member for conduct that violates this policy.

• Additional reasons for discipline. A staff member may be disciplined for conduct that has occurred but that, at or near the time of misconduct, was not the subject of or identified as a reason for a specific proceeding under this policy.

• Amendments. The District reserves the right to amend this policy in any way at any time. Any amendment shall have prospective application only.

• Severability. If any provision of this policy is held to be invalid for any reason, such action shall not invalidate the remainder of this policy. If any provision of this policy conflicts with any provisions in any other policies adopted by the District, the provisions of this policy shall prevail.

Minor Discipline

Minor disciplinary action includes, without limitation thereto, removal from grounds, written warning, written reprimand, or suspension. Minor disciplinary action shall be imposed by the staff member's administrative supervisor upon informing the employee of any violations of state or federal statutes, policies, rules or the New Mexico code of ethics and offering a minimum due process hearing and opportunity to express the employee's side of the issue before implementing the disciplinary action. The disciplinary action shall be confirmed in writing to the employee. The discipline may only be appealed to the next level of administration. The hearing procedure shall be as follows.

Step 1 - Notice:

• Upon the supervising administrator's determination of the existence of cause to impose discipline, the supervising administrator shall notify the staff member of intent to impose discipline. The notice shall be in writing and shall be delivered in person or by first-class mail. The notice shall include the following:

§ The conduct or omission on the part of the staff member that constitutes the reason for discipline.

§ A scheduled meeting time between the supervising administrator and the staff member. Such meeting shall be scheduled not more than ten (10) working days after the date the licensed staff member receives the notice.

§ A statement of the disciplinary action the supervising administrator intends to impose.

§ Copies of any available relevant documentation, at the discretion of the supervising administrator.

Step 2 - Hearing:

• At the hearing, the supervising administrator shall discuss with the staff member the conduct that warrants disciplinary action and shall provide the staff member with any appropriate evidence and a copy of relevant documentation if not previously provided.

• The supervising administrator shall conduct the hearing in an informal manner, without adherence to the rules of evidence and procedure required in judicial proceedings.

• A record of the hearing shall be made by electronic recordation.

Step 3 - Decision (in writing):

• At the hearing, or within seven (7) working days following the hearing, the supervising administrator shall, in writing, inform the licensed staff member of the decision. If the decision is to impose discipline, written notice of the discipline shall be enclosed.

Appeal of Minor Discipline

A staff member who wishes to object to a minor disciplinary action shall submit a written complaint to the supervisor's superior within five (5) work days of receiving notice of the disciplinary action. Failure to request the hearing in the time frame indicated will be considered acceptance of the discipline imposed. The appeal shall specifically describe the part of the determination with which the staff member disagrees, such as:

• Determination was founded upon error of construction or application of any pertinent regulations or policies.

• Determination was unsupported by any evidence as disclosed by the entire record.

• Determination was materially affected by unlawful procedure.

• Determination was based on violation of any statutory or constitutional right.

• Determination was arbitrary and capricious.

• The penalty was excessive.

The appeal shall be based on the record of the hearing. The supervising administrator, the Superintendent, or, when appropriate, the Governing Authority may, at the conclusion of the appeal, uphold the discipline, modify the decision, or refer the matter back to the level from which it was appealed for rehearing and additional information. Such decision, along with specific direction as to the effective date of any discipline, shall be communicated to the staff member within a reasonable amount of time following the appeal, not to exceed seven (7) working days. The decision upon appeal is final for all minor disciplinary actions.

Termination Pursuant to
22-10A-24 NMSA (1978)

The following procedures will be used to impose any termination permitted under 22-10A-24 NMSA (1978) except that it does not apply to:

• A licensed school employee employed to fill the position of a licensed school employee entering military service;

• A licensed school employee who is employed as a licensed school administrator; or

• An unlicensed school employee employed to perform primarily District-wide management functions; or

• A person who does not hold a valid license or has not submitted a complete application for licensure within the first three (3) months from beginning employment duties.

Step 1 - Notice:

• Upon the Superintendent's determination of the existence of cause to terminate, and on or before fifteen (15) working days prior to the last day of the school year, the Superintendent shall notify the staff member of intent to terminate. The notice shall be in writing and shall be delivered in person or by first-class mail to the last address provided for personnel records. The notice shall include the following:

§ The statement that the employee has the right to request written reasons for the decision to terminate and such reasons shall be provided within ten (10) working days of such request.

• For a licensed employee who has not been offered and accepted a third-year contract for services and licensed educational assistants with less than one (1) year of employment the decision to terminate is not contestable under the School Personnel Act.

§ For licensed employees who have been offered and accepted a third-year contract for service and licensed educational assistants employed for more than one (1) year the following appeal procedure shall apply.

Step 2 - Appeal Requirements and Content:

• Termination may be appealed to the Governing Authority by a professional staff employee who has been employed for more than two (2) consecutive years and licensed educational assistants employed for more than one (1) year by making a request to the Superintendent within five (5) working days of the date of receipt of the notice of termination requesting a meeting with the Governing Authority.

§ The appeal shall be granted if the employee responds to the Superintendent in writing within ten (10) working days of receiving the reasons for termination with the following information:

Step 3 - Appeal Procedure:

• The Governing Authority shall meet to hear the employee's statement in no less than five (5) or more than fifteen (15) working days after receipt of the statement.

• The hearing shall be conducted informally in accordance with the provisions of the Open Meeting Act.

§ Hearing Procedure:

§ The Governing Authority shall take such action as is necessary in accordance with the Open Meeting Act to uphold or deny the recommendation to terminate. The Governing Authority shall notify the employee and the Superintendent of its decision in writing within five (5) working days from the conclusion of the meeting.

Termination - Arbitration Appeal Pursuant
to 22-10A-25 NMSA (1978)

An employee still aggrieved by a decision of the Governing Authority may appeal the decision to an arbitrator by doing the following:

• Submitting a written appeal to the Superintendent within five (5) working days from receipt of the Governing Authority's written decision or refusal to grant a hearing on the issue of termination.

• Accompanying the written appeal shall be a statement of particulars specifying the grounds on which it is contended that the decision was impermissible pursuant to subsection E of Section 22-10A-24 NMSA (1978).

• Including in the contentions a statement of facts supporting the contentions.

Failure of the employee to submit a timely appeal or a statement of particulars with the appeal shall disqualify the employee for any appeal and render the Governing Authority's decision on termination final.

If the arbitration appeal is timely and complete, the Governing Authority and the employee shall meet within ten (10) working days from the receipt of the request for an appeal and select an independent arbitrator, qualified in accord with the applicable statute, to conduct the appeal. If the parties fail to agree on an arbitrator, they shall request the presiding judge in the judicial district in which the employee's public school is located to select an independent arbitrator within five (5) working days of the date of the request.

A de novo (new) hearing shall be conducted within thirty (30) working days of selection of the independent arbitrator. The arbitrator shall give written notice of the date, time and place of the hearing, sending such notice to the employee and Governing Authority.

The parties shall be provided a copy of the relevant portion of this policy which shall include:

• Discovery shall be limited to depositions and requests for production of documents on a time schedule to be established by the arbitrator.

� The arbitrator may issue subpoenas for the attendance of witnesses and to produce books, records, documents and other evidence at the request of either party and has the power to administer oaths. Subpoenas issued shall be served and enforced in the manner provided by law for the service and enforcement of subpoenas in a civil action or in the manner provided by the American Arbitration Association's voluntary labor arbitration rules if that entity is used by the parties.

• The Governing Authority shall be required to prove by a preponderance of the evidence that just cause to discharge the employee existed at the time of the notice of intent to discharge the employee by the administration.

• Hearing Procedure:

§ The employee and the Governing Authority may each be accompanied by counsel.

§ The Governing Authority shall present the basis for determination that just cause exists for the discharge.

§ The employee shall present reason(s) why the recommendation is without just cause.

§ Either party shall be permitted to call witnesses and to introduce documentary evidence.

§ Witnesses called may be questioned by the Governing Authority or a representative, and the employee or a representative.

§ Technical rules of evidence shall not apply, but, in ruling on the admissibility of evidence, the independent arbitrator may require reasonable substantiation of the statements or records tendered, the accuracy of truth of which is in reasonable doubt.

§ A record shall be made of the hearing and each party may order the record at the expense of the party.

• The arbitrator shall notify the employee and the Governing Authority of the decision in writing within ten (10) working days from the conclusion of the arbitration hearing. The decision shall contain findings of fact and conclusions of law affirming or reversing the action of the Governing Authority.

The parties shall be guided by the statute and arbitrator as to the conduct of the hearing, each party bearing its own costs. The arbiter's fees and other expenses in the conduct of the arbitration shall be assigned at the discretion of the independent arbitrator.

No official record shall be made of the proceeding but the party desiring a record may arrange for a record, paying the expense.

Discharge per 22-10A-27 NMSA (1978)

A licensed school employee may be discharged only for just cause following procedures as indicated below:

Notice:

• Upon the Superintendent's determination of the existence of cause to discharge, the Superintendent shall notify the licensed staff member of intent to recommend discharge. The notice shall state the cause for the recommendation and shall advise the employee of a right to a discharge hearing before the Governing Authority.

• The notice shall be in writing and shall be provided in accordance with the law for service of process in civil actions.

• If the licensed school employee does not exercise that right to hearing, the Superintendent shall discharge the licensed school employee.

Employee's Request for Hearing:

• An employee who receives notice of intent to recommend discharge may exercise the right to a hearing before the Governing Authority by giving the Superintendent written notice of that election within ten (10) working days of receipt of the notice of intent to recommend discharge.

• The Governing Authority shall hold a discharge hearing no less than twenty (20) and no more than forty (40) working days after the receipt of the staff member's election of a hearing.

Preliminary Information

• At least ten (10) days written notice of the date, time and place of the discharge hearing shall be provided to the employee with such notice in the same form as used in civil proceedings. The notice shall indicate the following:

§ Both the Superintendent and the licensed school employee may be accompanied by a person of their choice.

§ Each party is to complete and respond to discovery by deposition and production of documents prior to the hearing date established.

§ The Governing Authority may issue subpoenas for the attendance of witnesses and to produce books, records, documents and other evidence at the request of either party and has the power to administer oaths.

§ The Superintendent shall be required to prove by preponderance of the evidence that just cause to discharge the licensed school employee existed at the time of the notice of intent to discharge.

§ Procedure for the conduct of the hearing shall be as follows:

© The Superintendent shall present the factual basis for determination that just cause exists for the termination based upon information available at the time the employee was given notice of the intent to discharge.

§ The Governing Authority shall notify the employee and the Superintendent of its decision in writing within twenty (20) days from the conclusion of the hearing. The Governing Authority shall take such action as is necessary in accordance with the Open Meeting Act.

Discharge - Arbitration Appeal Pursuant
to 22-10A-28 NMSA (1978)

An employee aggrieved by a decision of the Governing Authority to discharge may appeal the decision to an arbitrator by doing the following: Submitting a written appeal to the Governing Authority within ten (10) working days from receipt of the written decision of the Governing Authority.

The Governing Authority may delegate responsibility for the arbitration to the Superintendent.

If the arbitration appeal is timely the Governing Authority (or Superintendent as delegee) and the employee shall meet within ten (10) working days from the receipt of the request for an appeal and select an independent arbitrator, qualified in accord with the applicable statute, to conduct the appeal. If the parties fail to agree on an arbitrator, they shall request the presiding judge in the judicial district in which the public school is located to select an independent arbitrator within five (5) working days from the date of the request.

The hearing shall be conducted within thirty (30) working days of selection of the independent arbitrator. The arbitrator shall give written notice of the date, time and place of the hearing, sending such notice to the employee and Governing Authority.

The parties shall be provided a copy of the relevant portion of this policy which shall include:

• Discovery shall be limited to depositions and requests for production of documents on a time schedule to be established by the arbitrator.

• The arbitrator may issue subpoenas for the attendance of witnesses and to produce books, records, documents and other evidence at the request of either party and has the power to administer oaths. Subpoenas issued shall be served and enforced in the manner provided by law for the service and enforcement of subpoenas in a civil action or in the manner provided by the American Arbitration Association's voluntary labor arbitration rules if that entity is used by the parties.

• The Governing Authority shall be required to prove by preponderance of the evidence that just cause to discharge the certificated employee existed at the time of the notice of intent to discharge the employee by the administration.

• Hearing Procedure:

§ The employee and the Governing Authority may each be accompanied by counsel.

§ The Governing Authority shall present the basis for determination that just cause exists for the discharge.

§ The employee shall present reason(s) why the recommendation is without just cause.

§ Either party shall be permitted to call witnesses and to introduce documentary evidence.

§ Witnesses called may be questioned by the Governing Authority or a representative, and the employee or a representative.

§ Either party desiring a record of the arbitration proceedings may, at the party's own expense, record or otherwise provide for a transcript of the proceedings; provided, however, that the record so provided shall not imply any right of automatic appeal or review.

• The arbitrator shall notify the employee and the Governing Authority of the decision in writing within thirty (30) working days from the conclusion of the arbitration hearing. The decision shall contain findings of fact and conclusions of law affirming or reversing the action of the Governing Authority.

Each party shall bear its own costs and expenses.

Additional Provisions and Conditions

During the pendency of any hearing, neither the licensed staff member nor the supervising administrator shall contact the Superintendent or a Governing Authority member to discuss the merits of the supervising administrator's recommendation except as provided by this policy.

This policy addresses only discipline, termination or discharge and has no application to any of the following:

• Letters or memorandums directed to a licensed staff member containing directives or instructions for future conduct.

• Counseling of a licensed staff member concerning expectations of future conduct.

• Placing an employee on administrative leave with pay and assignment of the employee to home during work hours in order to conclude a review of the employee's actions or activities pending an administrative recommendation.

The Governing Authority shall file annually a record with the Secretary of Education of all terminations and discharges and all actions arising from terminations and discharges.

Adopted: August 10, 2021

LEGAL REF.: 10-7E-1 to 10-7E-26 NMSA (1978) Public Employee
Bargaining Act
10-15-1 NMSA (1978) Open Meeting Act
22-5-4.3 NMSA
22-10A-5 NMSA (1978)
22-10A-24 NMSA (1978)
22-10A-25 NMSA (1978)
22-10A-26 NMSA (1978)
22-10A-27 NMSA (1978) Discharge hearing; procedures
22-10A-28 NMSA (1978) Appeals; independent arbitrator;
qualifications; procedure; binding decision
22-10A-29 NMSA (1978) Compensation payments to
discharged personnel
22-10A-30 NMSA (1978) Supervision and correction
procedures
22-10A-31 NMSA (1978) Denial, suspension and revocation
of licenses
22-10A-32 NMSA (1978) Licensed school employees; required
training program
6.60.9.9 NMAC Standards of Professional Conduct
6.60.9.12 NMAC Reporting Requirements
6.67.2.8 NMAC Notice of reemployment or termination of
licensed personnel
School Personnel Act (new section 1&2)

CROSS REF.: DKA - Payroll Procedures/Schedules

GBEB - Staff Conduct
GCA - Professional Staff Positions

G-6100 © GCQF DISCIPLINE, SUSPENSION, TERMINATION AND DISCHARGE OF PROFESSIONAL STAFF MEMBERS

G-6100 © GCQF
DISCIPLINE, SUSPENSION, TERMINATION
AND DISCHARGE OF
PROFESSIONAL STAFF MEMBERS