2019 New Mexico Statutes
Chapter 22 - Public Schools
Article 10A - School Personnel Act
Section 22-10A-24 - Termination decisions; local school board; governing authority of a state agency; procedures.

A. A local school board or governing authority of a state agency may terminate a licensed school employee, excluding licensed educational assistants who have not been offered and accepted the third consecutive contract, for any reason it deems sufficient. A local school board or governing authority of a state agency may terminate a nonlicensed school employee or a licensed educational assistant with less than one year of employment for any reason it deems sufficient. Upon request of the employee, the local superintendent or state agency 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 local superintendent, state agency administrator, local school board or governing authority. The reasons shall not provide a basis for contesting the decision under the School Personnel Act.

B. Before terminating a nonlicensed school employee or a licensed educational assistant, the local school board or governing authority shall serve the employee or assistant with a written notice of termination.

C. A licensed school employee who has been employed by a school district or state agency for more than two consecutive years or a nonlicensed school employee or licensed educational assistant who has been employed for more than one year and who receives a notice of termination pursuant to either Section 22-10A-22 NMSA 1978 or this section may request an opportunity to make a statement to the local school board or governing authority on the decision to terminate the employee or assistant by submitting a written request to the local superintendent or state agency administrator within five working days from the date written notice of termination is served upon the employee or assistant. The employee or assistant may also request in writing the reasons for the termination action. The local superintendent or state agency administrator shall provide written reasons for the notice of termination to the employee or assistant 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 state agency administrator. Neither the local superintendent or state agency 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 a licensed school employee who has been offered and accepted a third-year contract or a nonlicensed school employee or licensed educational assistant who has been employed by a school district or state agency for more than one year without just cause.

E. The employee's request pursuant to Subsection C of this section shall be granted if the employee responds to the local superintendent's or state agency administrator's written reasons as provided in Subsection C of this section by submitting in writing to the local superintendent or state agency administrator a contention that the decision to terminate 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 the employee's 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 state agency administrator. The submission of this statement constitutes a representation on the part of the employee that the employee can support the employee's 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 the employee's 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. The employee and the local superintendent or state agency administrator may each be accompanied by a person of the employee's and the local superintendent's or state agency administrator's choice. First, the local superintendent shall present the factual basis for the 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 the employee's 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 the employee's representative and the local superintendent or state agency administrator or the local superintendent's or state agency administrator's 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 state agency administrator of its decision in writing within five working days from the conclusion of the meeting.

History: 1953 Comp., § 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 Comp., § 22-10-14, recompiled as § 22-10A-24 by Laws 2003, ch. 153, § 72; 2019, ch. 232, § 1.

Recompilations. — Laws 2003, ch. 153, § 72 recompiled former 22-10-14 NMSA 1978, as 22-10A-24 NMSA 1978, effective April 4, 2003.

The 2019 amendment, effective June 14, 2019, clarified that local school boards and governing authorities may terminate any licensed school employee, with certain exceptions, for any reason deemed sufficient, and clarified that licensed school employees who have been offered and are accepting a third-year contract, and nonlicensed school employees or licensed educational assistants employed more than one year, cannot be terminated without just cause; after "superintendent or", added "state agency" throughout; in Subsection A, after "state agency may terminate", deleted "an employee with fewer than three years of consecutive service" and added "a licensed school employee, excluding licensed educational assistants who have not been offered and accepted the third consecutive contract", added "A local school board or governing authority of a state agency may terminate a nonlicensed school employee or a licensed educational assistant with less than one year of employment for any reason it deems sufficient"; in Subsection B, after "terminating a", deleted "noncertified" and added "nonlicensed", after "school employee", added "or a licensed educational assistant", and after "serve the employee", added "or assistant"; in Subsection C, deleted "An" and added "A licensed school", after "district or state agency for", deleted "three" and added "more than two", after "consecutive years", added "or a nonlicensed school employee or licensed educational assistant who has been employed for more than one year", after "Section", deleted "22-10-12" and added "22-10A-22", after "superintendent or", added "state agency", after "served upon", deleted "him" and added "the employee or assistant", after each occurrence of "employee", added "or assistant"; in Subsection D, after "may not terminate", deleted "an employee who has been employed by a school district or state agency for three consecutive years" and added "a licensed school employee who has been offered and accepted a third-year contract or a nonlicensed school employee or licensed educational assistant who has been employed by a school district or state agency for more than one year"; and in Subsection F, after "accompanied by a person of", deleted "his" and added "the employee's and the local superintendent's or state agency administrator's".

The 1994 amendment, effective May 18, 1994, substituted "employee" for "certified school instructor" throughout the section, rewrote the first sentence of Subsection A, added Subsection B and redesignated former Subsections B through E as Subsections C through F and made related changes, substituted "or this section" for "or Subsection A of this section" in Subsection C, and substituted "terminate" for "refuse to reemploy" in Subsection D.

The 1993 amendment, effective July 1, 1993, substituted "Subsection A" for "Subsection B" in the first sentence and "were received" for "was received" in the third sentence of Subsection B; substituted "Subsection B" for "Subsection C" in two places in the first sentence of Subsection D and in the fourth sentence of Subsection E; and substituted "Subsection D" for "Subsection E" in the fifth sentence of Subsection E.

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 "governing authority of a state agency" in the catchline and in the first sentence of Subsection A and "or governing authority" following "local school board", "or state agency" following "school district", and "local" before "superintendent" throughout the section; added the final four sentences in Subsection A; in Subsection B, substituted "five working days" for "five calendar days" in two places and deleted "local school board's" preceding "action to terminate him" at the end of the second sentence; in Subsection C, inserted "state agency" in Subparagraph (c) of Paragraph (2); substituted "ten working days" for "five calendar days" in the third sentence of Subsection D; and, in Subsection E, substituted "in no less than five or more than fifteen working days" for "within ten calendar days" in the first sentence and "five working days" for "five calendar days" in the final sentence.

I. GENERAL CONSIDERATION.

Effect of 1994 amendment. — The 1994 amendment to this section and Section 22-10-14.1 NMSA 1978 (now Section 22-10A-25 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.

II. TENURE RIGHTS.

A. GENERALLY.

Compiler's notes. — Most of the cases cited in the notes below were decided under this section as it existed prior to the 1986 reenactment. Prior to the reenactment, the section provided for tenure rights for certified school instructors employed for three consecutive school years and having entered into an employment contract for a fourth consecutive school year. See now 22-10-11E NMSA 1978 [now 22-10A-21 NMSA 1978], which provides that, except as provided in 22-10-12 NMSA 1978 [now 22-10A-22 NMSA 1978], no person employed by contract pursuant to 22-10-11 NMSA 1978 [now 22-10A-21 NMSA 1978] shall have a legitimate objective expectancy of reemployment, and Subsection F of this section.

Drawing on facts predating statute not retroactive application. — The supreme court has held that teacher tenure laws are prospective in application. However, a statute is not 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.

Persons to whom applicable. — Only certified school instructors with three or more years of service are entitled to procedural due process prior to nonrenewal; the statutory scheme does not give similar protection to administrators at the expiration and nonrenewal of their contracts. Cole v. Ruidoso Mun. Sch., 947 F.2d 903 (10th Cir. 1991).

Tenure rights of administrators. — While certified school instructors have procedural due process and certain other rights under the School Personnel Act, administrators have no tenure rights and therefore have no expectation of continued employment. Swinney v. Deming Bd. of Educ., 1994-NMSC-039, 117 N.M. 492, 873 P.2d 238.

The legislature purposely excluded school administrators from the protections afforded certified school instructors. Naranjo v. Board of Educ. of Espa ola Pub. Schs., 1995-NMSC-015, 119 N.M. 401, 891 P.2d 542.

Teacher at state school held entitled to tenure. — Where a certified teacher seeking recognition as a tenured teacher had been employed for three consecutive years prior to the effective date of the 1975 amendment making this section applicable to state agencies, and had entered into a contract for the fourth consecutive year after the amendment became effective, his years of service prior to that date could be counted towards the required number of years of employment, since a contract had been entered into after the effective date of the amendment. Lucero v. Board of Regents, 1978-NMSC-054, 91 N.M. 770, 581 P.2d 458.

Section required only that a certified school instructor be employed by a school district; it did not limit that employment to teaching positions or to employment in a single school within that district. Penasco Indep. Sch. Dist. No. 4 v. Lucero, 1974-NMCA-099, 86 N.M. 683, 526 P.2d 825.

Instructor lost tenure rights upon employment as administrator. — A certified school instructor who had previously acquired tenure rights as a certified school instructor with a public school district lost those tenure rights as a result of being reemployed for the next consecutive school year as a certified school administrator. Atencio v. Board of Educ., 1982-NMSC-140, 99 N.M. 168, 655 P.2d 1012 (decided prior to 1983 amendment adding last sentence of Subsection B), superseded by statute. Naranjo v. Board of Educ. of Espa ola Pub. Schs., 1995-NMSC-015, 119 N.M. 401, 891 P.2d 542.

An individual who voluntarily changed his teacher status to become a certified school administrator did not retain a property interest as a tenured certified school instructor entitled to protection by due process. Atencio v. Board of Educ., 1982-NMSC-140, 99 N.M. 168, 655 P.2d 1012 (decided prior to 1983 amendment), superseded by statute. Naranjo v. Board of Educ. of Espa ola Pub. Schs., 1995-NMSC-015, 119 N.M. 401, 891 P.2d 542.

Reduction in force or staff realignment. — A tenured teacher subject to termination under a reduction-in-force plan is entitled to bump a non-tenured teacher holding a position for which both are certified, or take priority over a non-tenured teacher in obtaining the necessary certification for a vacant position for which neither is presently certified. However, a tenured teacher can be terminated and a non-tenured teacher retained as an alternative to a staff realignment which would seriously affect the educational program. N.M. State Bd. of Educ. v. Abeyta, 1988-NMSC-017, 107 N.M. 1, 751 P.2d 685.

Reemployment offer to come from school board. — An official offer to reemploy can come only from the school board; thus, a teacher's purported acceptance of employment based on a memorandum from his supervisors of their intent to recommend his reemployment did not form an employment contract. Giangreco v. Murlless, 1997-NMCA-061, 123 N.M. 498, 943 P.2d 532.

B. PROCEDURE FOR REFUSAL TO REEMPLOY.

Service of notice of termination during third year of employment. — A certified teacher who is served during, but prior to the completion of, the teacher's third year of teaching with notice of the school board's intent not to renew the teacher's contract may be terminated only after a hearing and based upon good cause. Weiss v. Board of Educ. of Santa Fe Pub. Sch., 2014-NMCA-100, cert. denied, 2014-NMCERT-009.

Where plaintiff, who was a certified teacher, received notice that the school board would not renew plaintiff's teaching contract for a fourth year; the notice was given to plaintiff two weeks before plaintiff had completed plaintiff's third consecutive year of teaching; and the school board denied plaintiff's request for a hearing, the school board could terminate plaintiff only after a hearing and based upon good cause. Weiss v. Board of Educ. of Santa Fe Pub. Sch., 2014-NMCA-100, cert. denied, 2014-NMCERT-009.

Sufficiency of notice of termination. — Where teacher with tenure rights was only given two days notice - excluding the date of service - before the end of the school year, and under the regulations prescribed by the state board she was entitled to no less than 14 days notice before the end of the school year, the conduct of the local board in failing to follow the regulation amounted to unfairness, and although teacher may have known her principal was going to recommend to the local board that she not be reemployed, this placed no burden upon her to employ an attorney, or to otherwise begin the preparation of her defense, in anticipation of the ruling of the local board. She was entitled, insofar as the section and the rule permitted, to a timely notice, pursuant to the requirements of the rule. Brininstool v. N.M. State Bd. of Educ., 1970-NMCA-034, 81 N.M. 319, 466 P.2d 885.

Formality of notice of termination. — Evaluation reports by a school principal and a supervisor addressed "To Whom It May Concern," copies of which were sent to counsel for teacher, did not constitute the written statement of the cause or causes for his dismissal even though the letter by which these evaluation reports were transmitted referred to them as formal charges on file with the local board, and also advised of complaints and observations made against teacher by school patrons and parents. Belen Mun. Bd. of Educ. v. Sanchez, 1965-NMSC-088, 75 N.M. 386, 405 P.2d 229.

Grounds for termination. — Absent grounds personal to a teacher, to terminate his services it is necessary to show affirmatively that there is no position available which he is qualified to teach, and where a local board asserts no grounds personal to the teacher, it is up to them to prove that no position is available for which he is qualified. Penasco Indep. Sch. Dist. No. 4 v. Lucero, 1974-NMCA-099, 86 N.M. 683, 526 P.2d 825; 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.

C. HEARINGS.

Due process required. — Exhaustion of administrative remedies as a precursor to plaintiff's suit for wrongful termination was not required where school district did not inform plaintiff of his right to attend the board meeting where his termination would be discussed, and thereby deprived plaintiff of his due process right to employ the administrative process mandated by this section. Franco v. Carlsbad Mun. Schs., 2001-NMCA-042, 130 N.M. 543, 28 P.3d 531.

Hearing prerequisite to appeal. — It is well settled that a teacher must first seek a hearing before the local board and, if dissatisfied there, appeal from an adverse decision of the local board to the state board of education. Shepard v. Board of Educ., 1970-NMSC-067, 81 N.M. 585, 470 P.2d 306; (decided under former Section 22-10-19 NMSA 1978, repealed in 1986).

The right to appeal to the state board, affirmatively authorized, is from a decision of the local board "after a hearing." The negative implication is that where no hearing has been held, an appeal to the state board is not authorized. Absent a hearing before the local board, neither the state board nor the court of appeals has jurisdiction over any matter presented. 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 (decided under former Section 22-10-19 NMSA 1978, repealed in 1986).

A teacher whose contract was not renewed and who so desired had an obligation to call for a hearing before the local school board, to be followed by an appeal to state board of education in event decision of the local board was unsatisfactory, before resorting to the courts for relief. Jones v. Board of Sch. Dirs., 1951-NMSC-025, 55 N.M. 195, 230 P.2d 231 (decided under former Section 22-10-19 NMSA 1978, repealed in 1986).

Local board's decision must rest on its conclusion of law and the conclusion must in turn be supported by one or more findings of fact. 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 (decided under former Section 22-10-19 NMSA 1978, repealed in 1986).

Admission of hearsay evidence. — Where discharged school principal, appealing from his discharge for insubordination, complained of the admission of four written exhibits at the local board hearing on the basis that the documents were hearsay and prejudicial to his interest, and where none of the four exhibits contained evidence of insubordination during the term of the current contract, but each tended to establish that principal's insubordination during the current contract was willful, admission of the written hearsay was not error, since it could not have said that principal's right to a fair hearing, or his interests, was substantially prejudiced thereby. McAlister v. N.M. State Bd. of Educ., 1971-NMCA-088, 82 N.M. 731, 487 P.2d 159 (decided under former Section 22-10-19 NMSA 1978, repealed in 1986).

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

"Employed" required that a contract be entered into for four consecutive years and services be rendered. 1968 Op. Att'y Gen. No. 68-70.

Teacher did not acquire tenure where the three years of service were not consecutive, being interrupted by a leave of absence for one year. 1968 Op. Att'y Gen. No. 68-70.

Policy behind tenure statute. — The legislature recognized the sound public policy of retaining in the public school system teachers who had become increasingly valuable by reason of their experience and had by statute assured these public servants an indefinite tenure of position during satisfactory performance of their duties. 1963 Op. Att'y Gen. No. 63-152.

Law reviews. — 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. — Request for hearing, sufficiency under statute requiring hearing on request before discharge, 89 A.L.R.2d 1018.

Who is "teacher" for purposes of tenure statute, 94 A.L.R.3d 141.

Termination of teacher's tenure status by resignation, 9 A.L.R.4th 729.

Validity and construction of statutes, ordinances, or regulations requiring competency tests of schoolteachers, 64 A.L.R.4th 642.