A. A certified school employee aggrieved by a decision of a local school board or governing authority to discharge him after a discharge hearing held pursuant to Section 22-10-17 NMSA 1978 [recompiled] may appeal the decision to an independent arbitrator. A written notice of appeal shall be submitted to the local superintendent or administrator within five working days from the receipt of the copy of the written decision of the local school board or governing authority.
B. The local school board or governing authority and the certified school employee shall meet within ten calendar days from the receipt of the notice of appeal and select an independent arbitrator to conduct the appeal, or, in the event the parties fail to agree on an independent arbitrator, they shall request the presiding judge in the judicial district in which the public school is located to select the independent arbitrator. The presiding judge shall select the independent arbitrator within five working days from the date of the parties’ request.
C. A qualified independent arbitrator shall be appointed who is versed in employment practices and school procedures. No person shall be appointed to serve as the independent arbitrator who has any direct or indirect financial interest in the outcome of the proceeding, has any relationship to any party in the proceeding, is employed by the local school board or governing authority or is a member of or employed by any professional organization of which the certified school employee is a member.
D. Appeals from the decision of the local school board or governing authority shall be decided after a de novo hearing before the independent arbitrator. The local school board or governing authority shall have the burden of proving by a preponderance of the evidence that, at the time of the notice of intent to recommend discharge, the local superintendent or administrator had just cause to discharge the certified school employee. The local school board or governing authority shall present its evidence first, with the certified school employee presenting his evidence thereafter.
E. The hearing shall be held within thirty working days from the selection of the independent arbitrator. The independent arbitrator shall give written notice of the date, time and place of the hearing, and such notice shall be sent to the certified school employee and the local school board or governing authority.
F. Each party has the right to be represented by counsel at the hearing before the independent arbitrator.
G. Discovery shall be limited to depositions and requests for production of documents on a time schedule to be established by the independent arbitrator.
H. The independent arbitrator may issue subpoenas for the attendance of witnesses and for the production of books, records, documents and other evidence and shall have the power to administer oaths. Subpoenas so 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.
I. The rules of civil procedure shall not apply to the hearing, but it shall be conducted so that both contentions and responses are amply and fairly presented. To this end, the independent arbitrator shall permit either party to call and examine witnesses, cross-examine witnesses and introduce exhibits. The technical rules of evidence shall not apply, but, in ruling on the admissibility of evidence, the independent arbitrator may require reasonable substantiation of statements or records tendered, the accuracy or truth of which is in reasonable doubt.
J. An official record shall be made of the hearing. Either party may order a transcript of the record at his own expense.
K. The independent arbitrator shall render a written decision affirming or reversing the action of the local school board or governing authority. The decision shall contain findings of fact and conclusions of law. The parties shall receive the written decision of the independent arbitrator within thirty working days from the conclusion of the hearing.
L. Unless a party can demonstrate prejudice arising from a departure from the procedures established in this section and in Section 22-10-17 NMSA 1978 [recompiled], such departure shall be presumed to be harmless error.
M. The decision of the independent arbitrator shall be final and binding on both parties and shall be nonappealable except where the decision was procured by corruption, fraud, deception or collusion, in which case it may be appealed to the court of appeals by filing a notice of appeal as provided by the New Mexico rules of appellate procedure.
N. Each party shall bear its own costs and expenses. The independent arbitrator’s fees and other expenses incurred in the conduct of the arbitration shall be assigned at the discretion of the independent arbitrator.
HISTORY:
1978 22-10-17.1, enacted by Laws 1986, ch. 33, § 25; 1990, ch. 90, § 5; 1991, ch. 187, § 8; recompiled as 1978 22-10A-28 by Laws 2003, ch. 153, § 72.
Editor’s notes.
Laws 2003, ch. 153, § 72 recompiles former 22-10-17.1 NMSA 1978, as 22-10A-28 NMSA 1978, effective April 4, 2003.
Former Section 22-10-17 NMSA 1978, referred to in Subsections A and L, was recompiled by Laws 2003, ch. 153, § 72 as 22-10A-27 NMSA 1978, effective April 4, 2003.
Notes to Decisions
Harmless error presumption.
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).
No direct appeal.
A discharged teacher had no right of direct appeal to the Court of Appeals from the decision of the Board of Education affirming a local school board’s decision to discharge her during the term of her contract. Riddle v. Board of Educ., 1967-NMCA-033, 78 N.M. 631, 435 P.2d 1013, 1967 N.M. App. LEXIS 175 (N.M. Ct. App. 1967).
Notice.
Under 22-10A-27 NMSA 1978 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).
Standard of review.
In an appeal by wrestling coach discharged for alleged sexual misconduct with a female student, the arbitrator employed an incorrect standard of review where he focused on the adequacy of the school district’s investigation rather than reviewing all of the evidence de novo. 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).
A state board of education [public education department] was authorized to conduct a de novo review of a local board’s decision to discharge a teacher, and the state board could also alter the recommendations of its designated hearing officer. 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).
In light of evidence that supported a local board of education’s discharge of a teacher, a state board of education’s reversal without even reading and considering the record was arbitrary, capricious, and unreasonable. Board of Educ. v. New Mexico State Bd. of Educ., 1987-NMCA-084, 106 N.M. 129, 740 P.2d 123, 1987 N.M. App. LEXIS 733 (N.M. Ct. App. 1987).
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).
OPINIONS OF ATTORNEY GENERAL
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.