A. A local school board or governing authority of a state agency may terminate an employee with fewer than three years of consecutive service for any reason it deems sufficient. Upon request of the employee, the superintendent or administrator shall provide written reasons for the decision to terminate. The reasons shall be provided within ten working days of the request. The reasons shall not be publicly disclosed by the superintendent, administrator, local school board or governing authority. The reasons shall not provide a basis for contesting the decision under the School Personnel Act [22-10A-1 NMSA 1978].
B. Before terminating a non-certified school employee, the local school board or governing authority shall serve the employee with a written notice of termination.
C. An employee who has been employed by a school district or state agency for three consecutive years and who receives a notice of termination pursuant to either Section 22-10-12 NMSA 1978 [recompiled] or this section, may request an opportunity to make a statement to the local school board or governing authority on the decision to terminate him by submitting a written request to the local superintendent or administrator within five working days from the date written notice of termination is served upon him. The employee may also request in writing the reasons for the action to terminate him. The local superintendent or administrator shall provide written reasons for the notice of termination to the employee within five working days from the date the written request for a meeting and the written request for the reasons were received by the local superintendent or administrator. Neither the local superintendent or administrator nor the local school board or governing authority shall publicly disclose its reasons for termination.
D. A local school board or governing authority may not terminate an employee who has been employed by a school district or state agency for three consecutive years without just cause.
E. The employee’s request pursuant to Subsection C of this section shall be granted if he responds to the local superintendent’s or administrator’s written reasons as provided in Subsection C of this section by submitting in writing to the local superintendent or administrator a contention that the decision to terminate him was made without just cause. The written contention shall specify the grounds on which it is contended that the decision was without just cause and shall include a statement of the facts that the employee believes support his contention. This written statement shall be submitted within ten working days from the date the employee receives the written reasons from the local superintendent or administrator. The submission of this statement constitutes a representation on the part of the employee that he can support his contentions and an acknowledgment that the local school board or governing authority may offer the causes for its decision and any relevant data in its possession in rebuttal of his contentions.
F. A local school board or governing authority shall meet to hear the employee’s statement in no less than five or more than fifteen working days after the local school board or governing authority receives the statement. The hearing shall be conducted informally in accordance with the provisions of the Open Meetings Act [10-15-1.1 NMSA 1978]. The employee and the local superintendent or administrator may each be accompanied by a person of his choice. First, the superintendent shall present the factual basis for his determination that just cause exists for the termination of the employee, limited to those reasons provided to the employee pursuant to Subsection C of this section. Then, the employee shall present his contentions, limited to those grounds specified in Subsection E of this section. The local school board or governing authority may offer such rebuttal testimony as it deems relevant. All witnesses may be questioned by the local school board or governing authority, the employee or his representative and the local superintendent or administrator or his representative. The local school board or governing authority may consider only such evidence as is presented at the hearing and need consider only such evidence as it considers reliable. No record shall be made of the proceeding. The local school board or governing authority shall notify the employee and the local superintendent or administrator of its decision in writing within five working days from the conclusion of the meeting.
HISTORY:
1953 77-8-11, enacted by Laws 1967, ch. 16, § 116; 1975, ch. 306, § 10; 1979, ch. 86, § 1; 1983, ch. 103, § 1; reenacted by Laws 1986, ch. 33, § 22; 1987, ch. 320, § 5; 1990, ch. 90, § 2; 1991, ch. 187, § 4; 1993, ch. 226, § 27; 1994, ch. 110, § 2; 1978 22-10-14, recompiled as 1978 22-10A-24 by Laws 2003, ch. 153, § 72.
Editor’s notes.
Laws 2003, ch. 153, § 72 recompiles former 22-10-14 NMSA 1978, as 22-10A-24 NMSA 1978, effective April 4, 2003.
Former Section 22-10-12 NMSA 1978, referred to in Subsection C, was recompiled by Laws 2003, ch. 153, § 72 as 22-10A-22 NMSA 1978, effective April 4, 2003.
Notes to Decisions
Discharge compared to termination.
Administrators.
The legislature purposely excluded certified school administrators from the protections afforded certified school instructors regarding termination of employment. Naranjo v. Board of Educ. of the Espanola Pub. Sch., 1995-NMSC-015, 119 N.M. 401, 891 P.2d 542, 1995 N.M. LEXIS 79 (N.M. 1995).
A certified instructor that had acquired tenure rights as a certified instructor with a public school district lost those tenure rights upon reemployment for the next consecutive school year as a certified administrator. Atencio v. Board of Educ., 1982-NMSC-140, 99 N.M. 168, 655 P.2d 1012, 1982 N.M. LEXIS 2972 (N.M. 1982), superseded by statute as stated in Naranjo v. Board of Educ. of the Espanola Pub. Sch., 1995-NMSC-015, 119 N.M. 401, 891 P.2d 542, 1995 N.M. LEXIS 79 (N.M. 1995).
Administrators have no tenure rights, and are not entitled to procedural due process regarding termination decisions. Swinney v. Deming Bd. of Educ., 1994-NMSC-039, 117 N.M. 492, 873 P.2d 238, 1994 N.M. LEXIS 158 (N.M. 1994).
Discharge compared to termination.
In contrast to a discharge, a termination is in the case of a certified school employee, the act of not reemploying an employee for the ensuing school year and, in the case of a non-certified school employee, the act of severing the employment relationship with the employee. Aguilera v. Bd. of Educ., 2005-NMCA-069, 137 N.M. 642, 114 P.3d 322, 2005 N.M. App. LEXIS 55 (N.M. Ct. App. 2005), aff'd, 2006-NMSC-015, 139 N.M. 330, 132 P.3d 587, 2006 N.M. LEXIS 188 (N.M. 2006).
Where a wrestling coach’s employment relationship with a school district was severed before his current annual contract expired, discharge provisions applied rather than termination provisions. Santa Fe Pub. Sch. v. Romero, 2001-NMCA-103, 131 N.M. 383, 37 P.3d 100, 2001 N.M. App. LEXIS 102 (N.M. Ct. App. 2001).
Due process.
Although a school board could discharge an administrator during the term of an employment contract only for good and just cause, the school board did not violate a principal’s right to due process when it chose not to renew the principal’s contract because the principal did not have a property right in the renewal of her contract. Cole v. Ruidoso Mun. Sch., 947 F.2d 903, 1991 U.S. App. LEXIS 25159 (10th Cir. N.M. 1991).
Exhaustion of remedies.
Terminated custodian was not required to exhaust his administrative remedies before bringing an action in the trial court because the school district failed to appropriately inform the custodian of his right to due process; giving the illiterate custodian a copy of the applicable statute was not sufficient. Franco v. Carlsbad Mun. Sch., 2001-NMCA-042, 130 N.M. 543, 28 P.3d 531, 2001 N.M. App. LEXIS 38 (N.M. Ct. App. 2001).
Mandamus was not a proper remedy in a teacher’s action to enforce a contract for her continued employment because the teacher did not exhaust her administrative remedies by seeking a hearing before the local board of education and appealing to the state board of education. Shepard v. Board of Educ., 1970-NMSC-067, 81 N.M. 585, 470 P.2d 306, 1970 N.M. LEXIS 1408 (N.M. 1970).
Teacher’s complaint seeking damages for breach of claimed tenure rights, or, in the alternative, for an award of the claimed statutory extension of the teaching contract, was dismissed becuase the teacher failed to exhaust her administrative remedies. Brown v. Romero, 77 N.M. 547, 425 P.2d 310, 1967 N.M. LEXIS 2668 (N.M. 1967).
Teacher’s suit seeking a declaration of his tenure rights was properly dismissed because the teacher failed to exhaust administrative remedies and a contract that contravened the law could not be enforced. Jones v. Board of Sch. Directors of Indep. Sch. Dist., 1951-NMSC-025, 55 N.M. 195, 230 P.2d 231, 1951 N.M. LEXIS 725 (N.M. 1951).
Insubordination.
Unsatisfactory work performance does not include insubordination or conduct deemed to be outside the normal scope of duties of licensed school personnel; where the school board found that the allegations against a superintendent were based on her insubordination and willful misconduct, no conferences were required prior to her termination. West v. San Jon Bd. of Educ., 2003-NMCA-130, 134 N.M. 498, 79 P.3d 842, 2003 N.M. App. LEXIS 88 (N.M. Ct. App. 2003).
Just cause.
Evidence that teacher had driven while under the influence of alcohol, and had not cooperated with arresting police officers was unrelated to his competence as a teacher and coach, and thus was not just cause for his termination. Kibbe v. Elida Sch. Dist. (In re Kibbe), 2000-NMSC-006, 2000-NMSC-006, 128 N.M. 629, 996 P.2d 419, 1999 N.M. LEXIS 380 (N.M. 1999).
School board’s decision to terminate teacher’s employment for being pregnant and unmarried was arbitrary and unreasonable. By previously accepting and retaining five unwed mothers as certified teachers in the schools, the board had excluded the status of unwed mother as a just cause for dismissal. New Mexico State Bd. of Educ. v. Stoudt, 1977-NMSC-099, 91 N.M. 183, 571 P.2d 1186, 1977 N.M. LEXIS 1106 (N.M. 1977).
School board improperly terminated tenured teacher, citing a lack of positions for which he was qualified, as they had hired a similarly unqualified untenured teacher for a special education class. Neither teacher held certification for special education, but both were willing to take classes to obtain it over the summer. Penasco Indep. Sch. Dist. v. Lucero, 1974-NMCA-099, 86 N.M. 683, 526 P.2d 825, 1974 N.M. App. LEXIS 715 (N.M. Ct. App. 1974).
Nepotism.
Tenured teacher, who was terminated on grounds of nepotism after her father was elected as a member of the local school board, was entitled to reinstatement. Statutory provision which prohibited school districts from employing relatives of school board members applied only to the initial hiring decision. New Mexico State Bd. of Educ. v. Board of Educ., 1981-NMSC-031, 95 N.M. 588, 624 P.2d 530, 1981 N.M. LEXIS 2267 (N.M. 1981).
Notice.
Although notice to a teacher two days prior to the end of the school year satisfied statutory requirements, it did not provide her with a fair opportunity to prepare and present her defense which would have been provided by the two week notice requirement provided for in tenure rules promulgated by the state board of education, and thus the decision of the local school board not to reemploy the teacher was reversed. Brininstool v. New Mexico State Bd. of Educ., 1970-NMCA-034, 81 N.M. 319, 466 P.2d 885, 1970 N.M. App. LEXIS 564 (N.M. Ct. App. 1970).
Procedures.
Local board of education is required to serve a tenured teacher with written notice stating the causes for refusing to re-employ the teacher and subsequent to service of the notice there must be a hearing, at which the local board must find “cause” for refusing to re-employ the teacher. Wickersham v. New Mexico State Bd. of Educ., 1970-NMCA-012, 81 N.M. 188, 464 P.2d 918, 1970 N.M. App. LEXIS 543 (N.M. Ct. App. 1970).
Reduction in force.
Local board had authority to reach the conclusion that good cause existed for terminating the employment of a tenured teacher, as a part of the necessary reduction of faculty, becuase the classes she was teaching could be cut without affecting the academic program adversely, whereas other subjects, to be taught by non-tenure teachers being re-hired, could not be cut without seriously affecting the academic program. Ft. Sumner Mun. Sch. Bd. v. Parsons, 1971-NMCA-066, 82 N.M. 610, 485 P.2d 366, 1971 N.M. App. LEXIS 701 (N.M. Ct. App. 1971), cert. denied, 82 N.M. 601, 485 P.2d 357, 1971 N.M. LEXIS 1664 (N.M. 1971), superseded by statute as stated in Board of Educ. v. New Mexico State Bd. of Educ., 1975-NMCA-057, 88 N.M. 10, 536 P.2d 274, 1975 N.M. App. LEXIS 657 (N.M. Ct. App. 1975).
Realignment ordered by court of appeals in order to avoid the dismissal of a teacher pursuant to a local board’s reduction in force plan was overturned, as it would have seriously affected the educational program both in social studies department and in the library. New Mexico State Bd. of Educ. v. Abeyta, 1988-NMSC-017, 107 N.M. 1, 751 P.2d 685, 1988 N.M. LEXIS 357 (N.M. 1988).
Retroactivity.
Amendment of statutory tenure provisions was not applicable to non-certified employee terminated pursuant to employment contract which pre-dated the amendment. Gadsden Fed'n. of Teachers v. Board of Educ., 1996-NMCA-069, 122 N.M. 98, 920 P.2d 1052, 1996 N.M. App. LEXIS 45 (N.M. Ct. App. 1996).
Statute providing for tenure rights for teachers after three consecutive years of employment was not being applied retroactively merely because two of teacher’s three years of employment occurred before the effective date of the statute, and thus writ of mandamus declaring teacher was tenured was properly issued. A statute is not being applied retroactively merely because it draws upon antecedent facts for its operation. Lucero v. Board of Regents, 1978-NMSC-054, 91 N.M. 770, 581 P.2d 458, 1978 N.M. LEXIS 940 (N.M. 1978).
Termination.
“Termination” means not to reemploy for the ensuing school year. Board of Educ. v. Singleton, 1985-NMCA-112, 103 N.M. 722, 712 P.2d 1384, 1985 N.M. App. LEXIS 626 (N.M. Ct. App. 1985).
Tenured teacher’s inability to obtain her certificate due to a processing delay by the state education department was an insufficient basis for termination. Board of Educ. v. Singleton, 1985-NMCA-112, 103 N.M. 722, 712 P.2d 1384, 1985 N.M. App. LEXIS 626 (N.M. Ct. App. 1985).
OPINIONS OF ATTORNEY GENERAL
Analysis
Constitutionality.
The hearing procedures for certified school personnel who are discharged or teminated contained in the prior version of this act satisfy due process requirements. 1988 N.M. Op. Att'y Gen. No. 88-05, 1988 N.M. AG LEXIS 5.
Tenure.
A school board does not have the authority to grant tenure to a teacher for three nonconsecutive years of service. 1968 N.M. Op. Att'y Gen. No. 68-70, 1968 N.M. AG LEXIS 795.
Research References and Practice Aids
Cross references.
Level one licensure, 22-10A-7 NMSA 1978.