A. An employee who is still aggrieved by a decision of a local school board or governing authority rendered pursuant to Section 22-10-14 NMSA 1978 [recompiled] may appeal the decision to an arbitrator. A written appeal shall be submitted to the local superintendent or administrator within five working days from the receipt of the local school board's or governing authority's written decision or the refusal of the board or authority to grant a hearing. The appeal shall be accompanied by a statement of particulars specifying the grounds on which it is contended that the decision was impermissible pursuant to Subsection E of Section 22-10-14 NMSA 1978 [recompiled] and including 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 him for any appeal and render the local school board's or governing authority's decision final.

B. The local school board or governing authority and the employee shall meet within ten working days from the receipt of the request for an appeal and select an independent arbitrator to conduct the appeal. If the parties fail to agree on an independent arbitrator, they shall request the presiding judge in the judicial district in which the employee's public school is located to select one. 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 and who preferably has experience in the practice of law. 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 or labor organization of which the 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 issue to be decided by the independent arbitrator is whether there was just cause for the decision of the local school board or governing authority to terminate the employee.

E. The de novo hearing shall be held within thirty working days from the selection of the independent arbitrator. The arbitrator shall give written notice of the date, time and place of the hearing, and such notice shall be sent to the 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.

I. The rules of civil procedure shall not apply to the de novo 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 shall require reasonable substantiation of statements or records tendered, the accuracy or truth of which is in reasonable doubt.

J. The local school board or governing authority has the burden of proof and shall prove by a preponderance of the evidence that, at the time the notice of termination was served on the employee, the local school board or governing authority had just cause to terminate the employee. If the local school board or governing authority proves by a preponderance of the evidence that there was just cause for its action, then the burden shifts to the employee to rebut the evidence presented by the local school board or governing authority.

K. The independent arbitrator shall uphold the local school board's or governing authority's decision only if it proves by a preponderance of the evidence that, at the time the notice of termination was served on the employee, the local school board or governing authority had just cause to terminate the employee. If the local school board or governing authority fails to meet its burden of proof or if the employee rebuts the proof offered by the local school board or governing authority, the arbitrator shall reverse the decision of the local school board or governing authority.

L. No official record shall be made of the hearing. Either party desiring a record of the arbitration proceedings may, at his own expense, record or otherwise provide for a transcript of the proceedings; provided, however, that the record so provided shall not be deemed an official transcript of the proceedings nor shall it imply any right of automatic appeal or review.

M. 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 actual written notice of the decision of the independent arbitrator within ten working days from the conclusion of the de novo hearing.

N. The sole remedies available under this section shall be reinstatement or payment of compensation reinstated in full but subject to any additional compensation allowed other employees of like qualifications and experience employed by the school district or state agency and including reimbursement for compensation during the entire period for which compensation was terminated, or both, less an offset for any compensation received by the employee during the period the compensation was terminated.

O. Unless a party can demonstrate prejudice arising from a departure from the procedures established in this section and in Section 22-10-14 NMSA 1978 [recompiled], such departure shall be presumed to be harmless error.

P. The decision of the independent arbitrator shall be binding on both parties and shall be final and nonappealable except where the decision was procured by corruption, fraud, deception or collusion, in which case it shall be appealed to the district court in the judicial district in which the public school or state agency is located.

Q. 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.

R. Local school districts shall file a record with the department of education [public education department] of all terminations and all actions arising from terminations annually.

History: 1978 Comp., § 22-10-14.1, enacted by Laws 1986, ch. 33, § 23; 1990, ch. 90, § 3; 1991, ch. 187, § 5; 1994, ch. 110, § 3; recompiled as § 22-10A-25 by Laws 2003, ch. 153, § 72.

Recompilations. — Laws 2003, ch. 153, § 72 recompiled former 22-10-14.1 NMSA 1978, as 22-10A-25 NMSA 1978, effective April 4, 2003.

Bracketed material. — The bracketed material was inserted by the compiler and is not part of the law.

Laws 2004, ch. 25, § 27, provided that all references to the superintendent of public instruction shall be deemed references to the secretary of public education and all references to the former state board of education or state department of education shall be deemed references to the public education department. See 9-24-15 NMSA 1978.

Section 22-10-14 NMSA 1978 referred to in Subsections A and O was recompiled by Laws 2003, ch. 153, § 73 as 22-10A-24 NMSA 1978, effective April 4, 2003.

The 1994 amendment, effective May 18, 1994, substituted "employee" for "certified school instructor" throughout the section, substituted "Subsection E of Section 22-10-14 NMSa 1978" for "Subsection D of Section 22-10-14 NMSA 1978" in Subsection A, and substituted "professional or labor organization" for "teachers' organization" in Subsection C.

The 1991 amendment, effective June 14, 1991, rewrote this section to the extent that a detailed comparison would be impracticable.

The 1990 amendment, effective May 16, 1990, inserted "or governing authority" following "local school board" throughout the section; in Subsection A, deleted "who has been employed by a school district for three consecutive years and" following "school instructor", rewrote the second sentence which read "A written request for an appeal shall be submitted to the local superintendent within five calendar days from the receipt of the local school board's written decision or the refusal of the board to grant a hearing"; in Subsection B, substituted "ten working days" for "ten calendar days" in the first sentence and "five working days" for "five calendar days" in the third sentence; substituted "thirty working days" for "thirty calendar days" in Subsection E; substituted "ten working days" for "ten calendar days" in the third sentence of Subsection M; inserted "or state agency" following "school district" in two places in Subsection N and following "public school" near the end of Subsection P; and, in Subsection Q, substituted "assigned at the discretion of the arbitrator" for "borne by the school district; provided that if the certified school instructor does not prevail in the proceeding, he shall be responsible for reimbursing the school district for the costs incurred in the conduct of the arbitration proceedings and the arbitrator's fees" at the end thereof.

Effect of 1994 amendment. — The 1994 amendment to this section and Section 22-10-14 NMSA 1978 (now Sections 22-10A-24 NMSA 1978) does not protect a non-certified public school employee who was terminated a few days after the effective date of the amendment when the termination was authorized by the terms of a contract that predated the effective date of the amendment. Gadsden Fed'n of Teachers v. Board of Educ., 1996-NMCA-069, 122 N.M. 98, 920 P.2d 1052.

Adequate review necessary for reversal. — Before the state board opts to reject the decision of its hearing officer, particularly when the credibility of the witnesses is at issue, at the very least it must review so much of the transcript of the proceedings before the hearing officer as is necessary to support its decision. Board of Educ. v. New Mexico State Bd. of Educ., 1987-NMCA-084, 106 N.M. 129, 740 P.2d 123 (decided under former Section 22-10-20 NMSA 1978).

Arbitration not required. — Plaintiff was not required to appeal his termination by a school district to an independent arbitrator before filing suit for wrongful termination, where the district's own procedures successfully thwarted any possible effort by plaintiff to utilize available administrative procedures. Franco v. Carlsbad Mun. Schs., 2001-NMCA-042, 130 N.M. 543, 28 P.3d 531.

Board's reversal of hearing officer held erroneous. — The state board improvidently found that the local board did not establish sufficient cause for its discharge of a teacher by a preponderance of the evidence, in light of the number of witnesses testifying before the local board as to the teacher's sexual advances and the nature of their testimony. Board of Educ. v. N.M. State Bd. of Educ., 1987-NMCA-084, 106 N.M. 129, 740 P.2d 123 (decided under former Section 22-10-20 NMSA 1978).

Appeals to state board under former Section 22-10-20 NMSA 1978. Board of Educ. v. State Bd. of Educ., 1968-NMCA-040, 79 N.M. 332, 443 P.2d 502; Morgan v. State Bd. of Educ., 1969-NMCA-104, 80 N.M. 754, 461 P.2d 236, cert. denied, 81 N.M. 41, 462 P.2d 626 (1970); Wickersham v. N.M. State Bd. of Educ., 1970-NMCA-012, 81 N.M. 188, 464 P.2d 918; Shepard v. Board of Educ., 1970-NMSC-067, 81 N.M. 585, 470 P.2d 306; Quintana v. State Bd. of Educ., 1970-NMCA-074, 81 N.M. 671, 472 P.2d 385, cert. denied, 81 N.M. 668, 472 P.2d 382; Fort Sumner Mun. Sch. Bd. v. Parsons, 1971-NMCA-066, 82 N.M. 610, 485 P.2d 366, cert. denied, 82 N.M. 601, 485 P.2d 357; McAlister v. N.M. State Bd. of Educ., 1971-NMCA-088, 82 N.M. 731, 487 P.2d 159; Brown v. N.M. State Bd. of Educ., 1971-NMSC-089, 83 N.M. 99, 488 P.2d 734; Morgan v. N.M. State Bd. of Educ., 1971-NMCA-102, 83 N.M. 106, 488 P.2d 1210, cert. denied, 83 N.M. 105, 488 P.2d 1209; Board of Educ. v. N.M. State Bd. of Educ., 1975-NMCA-057, 88 N.M. 10, 536 P.2d 274; Bertrand v. N.M. State Bd. of Educ., 1975-NMCA-145, 88 N.M. 611, 544 P.2d 1176, cert. denied, 89 N.M. 5, 546 P.2d 70 (1976); N.M. State Bd. of Educ. v. Stoudt, 1977-NMSC-099, 91 N.M. 183, 571 P.2d 1186; Board of Educ. v. Jennings, 1982-NMCA-135, 98 N.M. 602, 651 P.2d 1037 (specially concurring opinion); Redman v. Board of Regents, 1984-NMCA-117, 102 N.M. 234, 693 P.2d 1266.

Constitutionality. — The procedures in Section 22-10-14 [now Section 22-10A-24 NMSA 1978], these sections, 22-10-17 (now 22-10A-27 NMSA 1978), and 22-10-17.1 NMSA 1978 (now 22-10A-28 NMSA 1978) satisfy the requirements of the due process clause of the fourteenth amendment to the constitution of the United States. 1988 Op. Att'y Gen. No. 88-05.