A. A superintendent may recommend to the governing authority the discharge of a licensed school employee during the term of a contract authorized pursuant to Section 22-10A-21 NMSA 1978 only for just cause according to the following procedure:

(1) the superintendent shall serve a written notice of intent to recommend discharge on the licensed school employee in accordance with the law for service of process in civil actions; and

(2) the superintendent shall state in the notice of intent to recommend discharge the cause for the recommendation and shall advise the licensed school employee of the licensed school employee's right to a discharge hearing before the governing authority as provided in this section. If the licensed school employee does not exercise that right to hearing, the superintendent shall discharge the licensed school employee.

B. A licensed school employee who receives a notice of intent to recommend discharge pursuant to Subsection A of this section may exercise the licensed school employee's right to a hearing before the governing authority by giving the superintendent written notice of that election within ten working days of the licensed school employee's receipt of the notice of intent to recommend discharge.

C. The governing authority shall hold a discharge hearing no less than twenty and no more than forty working days after the superintendent receives the written election from the licensed school employee and shall give the licensed school employee at least ten days written notice of the date, time and place of the discharge hearing.

D. Each party, the superintendent and the licensed school employee, may each be accompanied by a person of the party's choice.

E. The parties shall complete and respond to discovery by deposition and production of documents prior to the discharge hearing.

F. The 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 superintendent 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 superintendent had just cause to recommend discharge of the licensed school employee.

H. The superintendent shall present evidence first, with the licensed school employee presenting evidence thereafter. The 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 governing authority.

J. The governing authority shall render its written decision within twenty days of the conclusion of the discharge hearing.

History: 1953 Comp., § 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 Comp., § 22-10-17, recompiled as § 22-10A-27 by Laws 2003, ch. 153, § 72; 2019, ch. 238, § 8.

Recompilations. — Laws 2003, ch. 153, § 72 recompiled former 22-10-17 NMSA 1978, as 22-10A-27 NMSA 1978, effective April 4, 2003.

The 2019 amendment, effective June 14, 2019, provided that the superintendent shall discharge a licensed school employee who does not exercise the licensed school employee's right to a discharge hearing, and clarified certain terms in the section; in the section heading, added "licensed school employees"; in Subsection A, in the introductory clause, added "during the term of a contract authorized pursuant to Section 22-10A-21 NMSA 1978", and in Paragraph A(2), added the last sentence

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" and "or administrator" following "superintendent" throughout the section; substituted "ten working days" for "five calendar days" near the end of Subsection B; substituted "in no less than five and no more than fifteen working days" for "within ten calendar days" in the fourth sentence and "five working days" for "five calendar days" in the final sentence of Subsection C; and, near the middle of Subsection D substituted "five working days" for "five calendar days."

The 1989 amendment, effective June 16, 1989, inserted references to "certified school instructor" and "certified school administrator" throughout the section and added the last sentence in Subsection C.

I. GENERAL CONSIDERATION.

Constitutionality. — Considered together, the pre- and post-termination procedures of the School Personnel Act, Sections 22-10A-27 to -28 NMSA 1978, comport with due process requirements. West v. San Jon Bd. of Educ., 2003-NMCA-130, 134 N.M. 498, 79 P.3d 842, cert. denied, 2003-NMCERT-002, 134 N.M. 723, 82 P.3d 533.

Arbitration decision acts as collateral estoppel. — Where plaintiff was a certified teacher; defendant gave plaintiff notice of intent to discharge; plaintiff did not request a hearing before the school board; after defendant discharged plaintiff, plaintiff requested a hearing before the school board or before an arbitrator; defendant subsequently filed an action in district court for breach of contract and violation of due process; the district court ordered arbitration and stayed the proceedings pending the outcome of the arbitration; plaintiff was afforded an arbitration hearing before an independent arbitrator; the parties to the arbitration and the district court hearing were the same; the issue in the arbitration and the district court was the same; in the arbitration, plaintiff had notice of the allegations against plaintiff, was represented by counsel, and presented evidence and cross-examined witnesses; and the arbitrator upheld plaintiff's discharge and concluded that the procedural errors concerning plaintiff's request for a hearing before the school board were mooted by the district court's ruling requiring arbitration, plaintiff's claim for damages in district court was determined by the arbitrator and was barred by collateral estoppel. Larsen v. Farmington Mun. Sch., 2010-NMCA-094, 148 N.M. 926, 242 P.3d 493, cert. denied, 2010-NMCERT-009, 149 N.M. 49, 243 P.3d 753.

The legislature can constitutionally prescribe the methods for adjudicating a dispute over termination of a certified school employee's right to continued employment because that right is a public right created by statute. Board of Educ. of Carlsbad Mun. Schs. v. Harrell, 1994-NMSC-096, 118 N.M. 470, 882 P.2d 511.

"Discharge" includes temporary or permanent removal. — "Discharge," as used in this section, prohibiting the discharge of certified instructors without an opportunity for notice and hearing, 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.

Reduction in force as just cause. — Statutory "just cause" allows for discharge of a teacher when exigent fiscal circumstances justify a reduction in force, but the teacher's competence, turpitude and performance do not. Aguilera v. Board of Educ., 2006-NMSC-015, 139 N.M. 330, 132 P.3d 587.

Standard for reduction in force discharge. — When a school board is forced to reduce its teaching staff by way of a reduction in force, it must prove that there is no other position for which the teacher, who is to be discharged, is qualified consistent with the academic necessities of the district. Aguilera v. Board of Educ., 2006-NMSC-015, 139 N.M. 330, 132 P.3d 587.

Justification for discharge for reduction in force. — Unlike termination, which applies to the coming year, discharge results in a teacher losing his or her job in the middle of the school year when there may be no opportunity to find other employment. Given the extreme hardship to the teacher, the justifications must be substantial to allow a school board to lay off a qualified teacher in the middle of a school year pursuant to a reduction in force. The school board has to show not just projected financial burdens in the future, but that it cannot survive financially in the present year, which is already underway. Aguilera v. Board of Educ., 2006-NMSC-015, 139 N.M. 330, 132 P.3d 587.

II. DISCHARGE PROCEDURE.

Adequate notice. — Where plaintiff, who was a certified teacher, was discharged; the notice of intent to recommend discharge alleged that plaintiff proposed to a student that the student pose for lewd photographs; the student at the arbitration hearing testified that plaintiff wanted the student to go with plaintiff somewhere in the woods after school to take pictures; the arbitrator found that defendant did not prove allegations that the proposed photographs were lewd; the arbitrator found only that plaintiff suggested to a student that the student pose for pictures outside the classroom and outside the presence of anyone else and that the photography was not part of a school project; and the arbitrator concluded that this suggestion alone constituted just cause for termination of plaintiff, plaintiff was not denied due process because the notice was sufficient to apprise plaintiff of the charges against plaintiff and the arbitrator's decision was not based on new charges but on information presented at the arbitration hearing which did not differ from the allegations contained in the notice. Larsen v. Bd. of Educ. of the Farmington Mun. Sch., 2010-NMCA-093, 148 N.M. 926, 242 P.3d 487, cert. denied, 2010-NMCERT-009, 149 N.M. 49, 243 P.3d 753.

The school board is required to conduct discharge hearings. — Where the Albuquerque public school district (APS) sought to discharge a teacher by providing the teacher a discharge hearing before the superintendent and where the school board asserted that changes made to the Public School Code in 2003 divested school boards of all authority to act on any personnel matters and vested exclusive authority to act on all personnel matters in the local school superintendent, the district court did not err in issuing a permanent writ of mandamus to APS and its superintendent, directing that a proposed discharge hearing be conducted by the APS school board, because APS had a clear, legal duty under this section to provide the teacher with a discharge hearing before the school board. Alarcon v. Albuquerque Pub. Schs. Bd. of Educ., 2018-NMCA-021, cert. denied.

Reduction in force. — A school board cannot discharge a certified school teacher before her current employment contract expires solely because of a reduction in force. Aguilera v. Board of Educ., 2005-NMCA-069, 137 N.M. 642, 114 P.3d 322, cert. granted, 2005-NMCERT-006, 137 N.M. 767, 115 P.3d 230.

Preponderance of evidence. — It is incumbent upon a school board to demonstrate by a preponderance of the evidence that teacher's "discharge" was based upon her performance, competence, or turpitude. Aguilera v. Board of Educ., 2005-NMCA-069, 137 N.M. 642, 114 P.3d 322, cert. granted, 2005-NMCERT-006, 137 N.M. 767, 115 P.3d 230.

Construction of this section and Section 22-10-21 NMSA 1978 (now Section 22-10A-30 NMSA 1978). Morgan v. New Mexico 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 (decided prior to 1986 reenactment).

Section inapplicable to suspensions with pay for duration of contract. — School board's action in suspending school superintendent with pay for the duration of his contract period did not amount to a discharge and was not protected by the statutory requirements for a hearing. Black v. Board of Educ., 1974-NMSC-095, 87 N.M. 45, 529 P.2d 271 (decided prior to 1986 reenactment).

Neutral tribunal not required at pre-termination hearing, because the statutory framework of the School Personnel Act, Sections 22-10A-27 to -28 NMSA 1978, provides for the opportunity to appeal the board's decision to an independent arbitrator in a post-termination hearing, followed by meaningful district court (now court of appeals) review. West v. San Jon Bd. of Educ., 2003-NMCA-130, 134 N.M. 498, 79 P.3d 842, cert. denied, 2003-NMCERT-002, 134 N.M. 723, 82 P.3d 533.

Exhaustion of administrative remedies required. By not completing her appeal of the board's decision to an independent arbitrator, a discharged teacher failed to exhaust her administrative remedies under the procedures set forth by the School Personnel Act, Sections 22-10A-27 to -28 NMSA 1978. West v. San Jon Bd. of Educ., 2003-NMCA-130, 134 N.M. 498, 79 P.3d 842, cert. denied, 2003-NMCERT-002, 134 N.M. 723, 82 P.3d 533.

Whether discharged teacher was entitled to pre-discharge work conferences was a factual question where allegations against her were based on insubordination and willful misconduct. West v. San Jon Bd. of Educ., 2003-NMCA-130, 134 N.M. 498, 79 P.3d 842, cert. denied, 2003-NMCERT-002, 134 N.M. 723, 82 P.3d 533.

Determination as to good cause for discharge. — In the absence of a statutory definition of the term, it is the function of the state board of education in the exercise of its sound discretion to determine the question of "good cause," and its determination is conclusive unless the evidence discloses that it acted unlawfully, arbitrarily or capriciously. Lopez v. State Bd. of Educ., 1962-NMSC-070, 70 N.M. 166, 372 P.2d 121 (decided prior to enactment of Section 22-10A-2 NMSA 1978).

School boards may discharge superintendent without interim appointment. — The school board may discharge those employees of the school district that it directly employs, specifically superintendents, and is not required to hire an interim employee to fulfill this task or wait for the superintendent to recommend his own discharge. Stanley v. Raton Bd. of Educ., 1994-NMSC-059, 117 N.M. 717, 876 P.2d 232.

Assault while intoxicated. — State board of education did not act unlawfully, arbitrarily or capriciously in finding good cause for the termination of a teacher's contract where teacher assaulted a woman in a bar while intoxicated. Lopez v. State Bd. of Educ., 1962-NMSC-070, 70 N.M. 166, 372 P.2d 121.

Insubordination. — A principal's permitting a reading program which departed from the self-contained classroom basis established in the school system constituted insubordination. McAlister v. N.M. State Bd. of Educ., 1971-NMCA-088, 82 N.M. 731, 487 P.2d 159.

Harmless error applies to untimely request for discharge hearing. — The explicit application of the harmless error provision in 22-10A-28(L) NMSA 1978 to this section's provision for requesting a discharge hearing unambiguously expresses the legislature's intent that failure to comply with the five-day time limit, 22-10A-27(B) NMSA 1978, is deemed harmless error, absent a showing of prejudice. National Educ. Ass'n of N.M. v. Santa Fe Pub. Sch., 2016-NMCA-009.

Where petitioner, who received notice of the Santa Fe public schools' intent to discharge him from his teaching and coaching positions, filed a request for hearing two days after the five-day time limit had passed, petitioner's departure from the five-day time requirement, 22-10A-27(B) NMSA 1978, was harmless error where respondent failed to demonstrate prejudice. National Educ. Ass'n of N.M. v. Santa Fe Pub. Sch., 2016-NMCA-009.

Timing of hearing mandatory. — The time specified for conducting a dismissal hearing pursuant to this section is mandatory, unless waived by the parties or unless a continuance is sought and obtained for good cause. Board of Educ. v. Singleton, 1985-NMCA-112, 103 N.M. 722, 712 P.2d 1384.

Appeal limited to issues urged at hearing. — A school board's delay in according a dismissed teacher a timely hearing under this section and the provisions of her contract could not be urged as a basis for dismissal of the board's appeal, where this ground was not initially argued in the administrative hearing below. Board of Educ. v. Singleton, 1985-NMCA-112, 103 N.M. 722, 712 P.2d 1384.

Constitutionality. — The procedures in Section 22-10-14 (now Section 22-10A-24), Section 22-10-14.1 (now Section 22-10A-25), this section, and Section 22-10-17.1 NMSA 1978 (now Section 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.

Law reviews. — For annual survey of New Mexico employment law, see 16 N.M.L. Rev. 39 (1986).

For 1984-88 survey of New Mexico administrative law, 19 N.M.L. Rev. 575 (1990).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 68 Am. Jur. 2d Schools § 204 et seq.

Validity of governmental requirement of oath of allegiance or loyalty, 18 A.L.R.2d 268.

Dismissal or rejection of public schoolteacher because of disloyalty, 27 A.L.R.2d 487.

Assertion of immunity as grounds for discharge of teacher, 44 A.L.R.2d 799.

Right to dismiss public schoolteacher on the grounds that services are no longer needed, 100 A.L.R.2d 1141.

Incompetency: what constitutes "incompetency" or "inefficiency" as a ground for dismissal or demotion of a public schoolteacher, 4 A.L.R.3d 1090.

Elements and measure of damages in action by schoolteacher for wrongful discharge, 22 A.L.R.3d 1047.

Use of illegal drugs as grounds for dismissal of teacher, or denial or cancellation of teacher's certificate, 47 A.L.R.3d 754.

Appearance: dismissal of, or disciplinary action against, public schoolteachers for violation of regulation as to dress or personal appearance of teachers, 58 A.L.R.3d 1227.

Sexual conduct as ground for dismissal of teacher or denial or revocation of teaching certificate, 78 A.L.R.3d 19.

Insubordination: what constitutes "insubordination" as ground for dismissal of public schoolteacher, 78 A.L.R.3d 83.

Tardiness: dismissal of public schoolteacher because of unauthorized absence or tardiness, 78 A.L.R.3d 117.

Sufficiency of notice of intention to discharge or not to rehire teacher, under statutes requiring such notice, 52 A.L.R.4th 301.

Liability of school authorities for hiring or retaining incompetent or otherwise unsuitable teacher, 60 A.L.R.4th 260.

Maternity leave: mandatory maternity leave rules or policies for public schoolteachers as constituting violation of equal protection clause of fourteenth amendment to federal constitution, 17 A.L.R. Fed. 768.

78 C.J.S. Schools and School Districts § 270 et seq.