A. A local school board or the governing authority of a state agency may discharge a certified school employee only for just cause according to the following procedure:
(1) the superintendent shall serve a written notice of his intent to recommend discharge on the certified school employee in accordance with the law for service of process in civil actions; and
(2) the superintendent shall state in the notice of his intent to recommend discharge the cause for his recommendation and shall advise the certified school employee of his right to a discharge hearing before the local school board or governing authority as provided in this section.
B. A certified school employee who receives a notice of intent to recommend discharge pursuant to Subsection A of this section may exercise his right to a hearing before the local school board or governing authority by giving the local superintendent or administrator written notice of that election within five working days of his receipt of the notice to recommend discharge.
C. The local school board or governing authority shall hold a discharge hearing no less than twenty and no more than forty working days after the local superintendent or administrator receives the written election from the certified school employee and shall give the certified school employee at least ten days written notice of the date, time and place of the discharge hearing.
D. Each party, the local superintendent or administrator and the certified school employee, may be accompanied by a person of his choice.
E. The parties shall complete and respond to discovery by deposition and production of documents prior to the discharge hearing.
F. The local school board or governing authority shall have the authority to issue subpoenas for the attendance of witnesses and to produce books, records, documents and other evidence at the request of either party and shall have the power to administer oaths.
G. The local superintendent or administrator shall have the burden of proving by a preponderance of the evidence that, at the time of the notice of intent to recommend discharge, he had just cause to discharge the certified school employee.
H. The local superintendent or administrator shall present his evidence first, with the certified school employee presenting his evidence thereafter. The local school board or governing authority shall permit either party to call, examine and cross-examine witnesses and to introduce documentary evidence.
I. An official record shall be made of the hearing. Either party may have one copy of the record at the expense of the local school board or governing authority.
J. The local school board shall render its written decision within twenty days of the conclusion of the discharge hearing.
HISTORY:
1953 77-8-14, enacted by Laws 1967, ch. 16, § 119; 1975, ch. 306, § 12; reenacted by Laws 1986, ch. 33, § 24; 1989, ch. 281, § 1; 1990, ch. 90, § 4; 1991, ch. 187, § 7; 1978 22-10-17, recompiled as 1978 22-10A-27 by Laws 2003, ch. 153, § 72.
Editor’s notes.
Laws 2003, ch. 153, § 72 recompiles former 22-10-17 NMSA 1978, as 22-10A-27 NMSA 1978, effective April 4, 2003.
Notes to Decisions
Discharge compared to termination.
Unsatisfactory work performance.
Administrators.
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).
Discharge.
“Discharge” refers to removal of certified school instructors during the term of written employment contracts, and includes removing the teacher either temporarily or permanently from employment. 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).
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).
Discovery.
Lack of a timely hearing required reversal of school board’s decision to dismiss teacher for writing anonymous letters accusing school officials of misconduct. School board failed to show good cause as to why hearing was repeatedly delayed for the purpose of completing discovery. Redman v. Board of Regents, 1984-NMCA-117, 102 N.M. 234, 693 P.2d 1266, 1984 N.M. App. LEXIS 738 (N.M. Ct. App. 1984).
Evidence.
Technical rules of evidence did not apply to state board hearing regarding the discharge of a principal for insubordination. Although four exhibits admitted in the hearing allegedly contained hearsay, the principal was not denied a fair hearing thereby. McAlister v. New Mexico State Bd. of Educ., 1971-NMCA-088, 82 N.M. 731, 487 P.2d 159, 1971 N.M. App. LEXIS 718 (N.M. Ct. App. 1971).
Hearing.
Issuance of a writ of mandamus was appropriate because a school employee, who was given a notice of discharge, was entitled to a hearing before the local school board in that a harmless error presumption applied to allow the late filing by the employee of a notice requesting a hearing. Additionally, the school board had a mandatory duty to hold a hearing, because the superintendent failed to demonstrate prejudice from the employee's untimely hearing request, while the employee had no other adequate, speedy remedy at law. Nat'l Educ. Ass'n of N.M. v. Santa Fe Pub. Schs, 2016-NMCA-009, 365 P.3d 1, 2015 N.M. App. LEXIS 95 (N.M. Ct. App. 2015).
New Mexico state board of education [public education department] was not required to conduct a second hearing after one had already been held by a local hearing officer. Further, appellant Local Board had a fair opportunity to present its case, and there was no indication that its presentation would be any different at another hearing; to require an additional hearing would unnecessarily burden the administrative scheme created by the legislature. Board of Educ. v. Jennings, 1982-NMCA-135, 98 N.M. 602, 651 P.2d 1037, 1982 N.M. App. LEXIS 922 (N.M. Ct. App. 1982), abrogated in part as stated in Skowronski v. N.M. Pub. Educ. Dep't, 2013-NMCA-034, 298 P.3d 469, 2012 N.M. App. LEXIS 125 (N.M. Ct. App. 2012).
Just cause.
Where a school board was forced to reduce its teaching staff by way of a reduction in force due to a financial shortfall, it had to show that there was no other position for which the dismissed teacher was qualified consistent with the academic necessities of the district, and failing to do so, it was without just cause for the dismissal. Aguilera v. Bd. of Educ., 2006-NMSC-015, 139 N.M. 330, 132 P.3d 587, 2006 N.M. LEXIS 188 (N.M. 2006).
Notice.
Discharged teacher was entitled to reinstatement where local board failed to serve upon the teacher a notice of his discharge fixing a date for a hearing and containing a statement of the cause for such discharge as required by law. Evaluation reports made by teachers to the local board were insufficient to constitute a statement by the board of the causes for dismissal. Belen Mun. Bd. of Educ. v. Sanchez, 1965-NMSC-088, 75 N.M. 386, 405 P.2d 229, 1965 N.M. LEXIS 1579 (N.M. 1965).
Under this section and U.S. Const. amends. XIV, the teacher was given notice of the arbitrator’s intention to recommend discharge as he was able to defend the student’s allegations, and the difference between language in notice and arbitrator’s decision did not infringe upon the teacher’s due process rights; the notice was sufficient to apprise the teacher of the charges so as to afford him the opportunity to present his evidence contravening the charges, and the teacher did so. Larsen v. Bd. of Educ., 2010-NMCA-093, 148 N.M. 920, 242 P.3d 487, 2010 N.M. App. LEXIS 91 (N.M. Ct. App.), cert. denied, 149 N.M. 49, 243 P.3d 753, 2010 N.M. LEXIS 458 (N.M. 2010).
Reduction in force.
Reduction in force did not consititute just cause for discharge of teacher prior to the expiration of her employment contract. 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).
Superintendants.
Statutory discharge procedures are applicable to superintendants. Stanley v. Raton Bd. of Educ., 1994-NMSC-059, 117 N.M. 717, 876 P.2d 232, 1994 N.M. LEXIS 223 (N.M. 1994).
Suspension.
Former superintendant was not entitled to due process afforded by statutory discharge procedures, since he was not actually discharged, but rather suspended at full pay for the duration of his employment contract. Black v. Board of Educ., 1974-NMSC-095, 87 N.M. 45, 529 P.2d 271, 1974 N.M. LEXIS 1474 (N.M. 1974).
Unsatisfactory work performance.
Discharge of teacher for violating school policies regarding the physical punishment of students was reversed where the local board failed to follow proper statutory procedures. Discpline of students was clearly part of teacher’s work duties, and by failing to follow procedures, local board denied teacher an opportunity to correct his unsatisfactory work performance. Morgan v. New Mexico State Bd. of Educ., 1971-NMCA-102, 83 N.M. 106, 488 P.2d 1210, 1971 N.M. App. LEXIS 810 (N.M. Ct. App.), cert. denied, 83 N.M. 105, 488 P.2d 1209, 1971 N.M. LEXIS 1638 (N.M. 1971).
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.