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Alarcon v. Albuquerque Public Schools Board of Education

Court of Appeals of New Mexico

November 30, 2017

ADRIAN ALARCON, Petitioner-Appellee,
v.
ALBUQUERQUE PUBLIC SCHOOLS BOARD OF EDUCATION and BRAD WINTER Ph.D., SUPERINTENDENT OF ALBUQUERQUE PUBLIC SCHOOLS, Respondents-Appellants. CENTRAL CONSOLIDATED SCHOOL DISTRICT NO.22, Petitioner-Appellant,
v.
CENTRAL CONSOLIDATED EDUCATION ASSOCIATION, Respondent-Appellee.

         APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY Shannon C. Bacon, District Judge. Alan M. Malott, District Judge

          J. Edward Hollington & Associates, P.A. J. Edward Hollington Albuquerque, NM for Appellee Alarcon

          Modrall, Sperling, Roehl, Harris & Sisk, P.A. Nathan T. Nieman K. Cameron Johnson Albuquerque, NM for Appellants Albuquerque Public Schools

          Modrall, Sperling, Roehl, Harris & Sisk, P.A. Arthur D. Melendres Zachary L. McCormick Albuquerque, NM for Appellant Central Consolidated School District

          Jones, Snead, Wertheim & Clifford, P.A. Jerry Todd Wertheim Roxie P. Rawls-De Santiago Santa Fe, NM for Appellee Central Consolidated Education Association

          OPINION

          MICHAEL E.VIGIL, JUDGE.

         {1} These consolidated cases present us with a common question: whether changes made in 2003 to the Public School Code, NMSA 1978, §§ 22-2-1 to -33-4 (except Article 5 A) (1967, as amended through 2017), vest the local superintendent of a school district with plenary power and authority to act on all school personnel matters, to the exclusion of the local school board. The issue is presented in two separate contexts.

         {2} In Alarcon v. Albuquerque Public Schools, (No. A-1-CA-34843), (the APS appeal), the district court concluded that the discharge hearing for a certified school employee under the School Personnel Act, §§ 22-10A-1 to -39, must be conducted by the school board. The district court issued a permanent writ of mandamus to the Albuquerque Public Schools (APS) and its superintendent, directing that a proposed discharge hearing be conducted by the APS school board.

         {3} In Central Consolidated School District No. 22 v. Central Consolidated Education Association, (No. A-1-CA-34424), (the School District appeal), the district court affirmed the order of the Public Employee Labor Relations Board (PELRB) that the school board is required to hear and decide appeals from decisions of the school superintendent under grievance procedures set forth in the collective bargaining agreement (CBA) negotiated between the Central Consolidated Education Association (Union) and the Central Consolidated School District (School District) pursuant to the Public Employee Bargaining Act (PEBA), NMSA 1978, §§ 10-7E-1 to -26 (2003, as amended through 2005).

         {4} In both cases, the respective school boards 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 superintendent. The linchpins in both cases are the 2003 revisions made to the Public School Code by H.B. 212 (House Bill 212), 46th Leg., 1 st Sess., ch. 153 (N.M. 2003), which require us to engage in statutory interpretation. We first set forth our standard of review, then discuss House Bill 212 in general terms before addressing the specific arguments made in each appeal.

         I. STANDARD OF REVIEW

         {5} We are required to construe statutes enacted and amended by the Legislature in both appeals. We review questions of statutory construction de novo. See Weiss v. Bd of Educ. of Santa Fe Pub. Sch, 2014-NMCA-100, ¶ 4, 336 P.3d 388. Our mandated task in construing a statute is to "search for and effectuate" the intent of the Legislature. Id. (internal quotation marks and citation omitted). This task begins with an examination of the actual language of the statute, "which is the primary indicator of legislative intent." Id. "We look first to the plain language of the statute and give words their ordinary meaning unless the Legislature indicates a different one was intended, and we take care to avoid adopting a construction that would render the statute's application absurd or unreasonable or lead to injustice or contradiction." Miller v. Bank of Am. N.A., 2015-NMSC-022, ¶ 11, 352 P.3d 1162 (citation omitted). When the Legislature amends a statute, we presume the Legislature is aware of existing law, including opinions of our appellate courts, and we normally presume it intends to change existing law. Aguilera v. Bd. of Educ, 2006-NMSC-015, ¶¶ 19, 24, 139 N.M. 330, 132 P.3d 587.

         {6} Because we are reviewing a decision of the PELRB in the School District appeal, there is an additional dimension to our standard of review in that case. Section 10-7E-23(B) of the PEBA provides for judicial review of a final decision of the PERLB, and the standard of review to be applied is as follows:

A person or party, including a labor organization affected by a final rule, order or decision of the board or local board, may appeal to the district court for further relief. All such appeals shall be based upon the record made at the board or local board hearing. All such appeals to the district court shall be taken within thirty days of the date of the final rule, order or decision of the board or local board. Actions taken by the board or local board shall be affirmed unless the court concludes that the action is:
(1) arbitrary, capricious or an abuse of discretion;
(2) not supported by substantial evidence on the record considered as a whole; or
(3) otherwise not in accordance with law.

Id. In our appellate review of whether the district court erred in affirming the PELRB's decision, we follow the same standard of review used by the district court sitting in its appellate capacity, and at the same time determine whether the district court erred. N.M. Corr. Dep't v. AFSCME Council 18, ___NMCA___, ¶ 9, ___P.3d ___(No. A-1-CA-34737, Sept. 5, 2017); see Paule v. Santa Fe Cty. Bd. of Cty. Comm'rs., 2005-NMSC-021, ¶ 26, 138 N.M. 82, 117 P.3d 240 (stating that in administrative appeals the appellate court reviews the administrative decision under the same standard used by the district court while also determining whether the district court erred in its review); see Regents of Univ. of N.M. v. Fed'n of Teachers, 1998-NMSC-020, ¶ 17, 125 N.M. 401, 962 P.2d 1236 (applying the general administrative standard of review applicable to appeals from administrative agencies to an appeal from a decision of the PELRB).

         {7} Under the terms of the statute, the School Board bears the burden of demonstrating on appeal that the decision of the PELRB is "arbitrary, capricious or an abuse of discretion"; is "not supported by substantial evidence on the record considered as a whole"; or is "otherwise not in accordance with law." Section 10-7E-23(B). Our Supreme Court has recently repeated how these factors are considered on appeal as follows: "An agency's action is arbitrary and capricious if it provides no rational connection between the facts found and the choices made, or entirely omits consideration of relevant factors or important aspects of the problem at hand. An agency abuses its discretion when its decision is not in accord with legal procedure or supported by its findings, or when the evidence does not support its findings. Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion, and we neither reweigh the evidence nor replace the fact finder's conclusions with our own." Albuquerque Cab Co. v. N.M. Pub. Regulation Comm'n, ___NMSC___, ¶ 8 (No. S-1-SC-36169 & S-1-SC-36174, consolidated, Sept. 18, 2017) (alterations, internal quotation marks, and citations omitted). We apply a whole-record standard of review, and we independently review the entire record of the administrative hearing to determine if the School Board has met its burden. See AFSCME Council 18, ___ NMCA ___, ¶ 9. While we may give heightened deference to an agency's determination on matters that fall within its special expertise, we still apply a de novo standard of review to statutory construction. See Albuquerque Cab Co., ___NMSC___, ¶ 8; see also AFSCME Council 18, ___ NMCA ___, ¶ 9 (noting that an appellate court applies a de novo standard of review when reviewing an agency's rulings on statutory construction).

         II. HOUSE BILL 212

         {8} Prior to the adoption of House Bill 212 in 2003, local school boards were required by Section 22-5-4 (2002), to be involved in the day-to-day operations of school districts on an operational level. For example, school boards were required to "supervise and control" all the public schools in the school district; to apply for waivers of certain provisions of the Public School Code relating to length of school day, staffing patterns, subject area or the purchase of instructional materials; to "supervise and control" all property owned or in the possession of the school district; and to "repair and maintain" all property belonging to the school district. In addition, while the 2002 version of Section 22-5-4 provided in Subsection (C) that the local school board had the powers or duties to "delegate administrative and supervisory functions of the school board to the superintendent of schools[, ]" the statute failed to specify what those functions were, and certain administrative and supervisory functions, such as the power to hire, terminate, or discharge employees, could not be delegated. Section 22-5-4 (2002). For completeness, we set forth Section 22-5-4 (2002) as it existed prior to the changes made by House Bill 212.[1]

         {9} Specific to the cases before us here, before House Bill 212 was enacted, Section 22-5-4(D) (2002) provided that a local school board had the "power or duty" to:

[A]pprove or disapprove the employment, termination, or discharge of all employees and certified school personnel of the school district upon a recommendation of employment, termination or discharge by the superintendent of schools; provided that any employment relationship shall continue until final decision of the board. Any employment, termination or discharge without the prior recommendation of the superintendent is void[.]

         Section 22-5-4(D) (2002). Thus, prior to 2003, the school board had the sole power to employ, terminate, or discharge an employee, and the superintendent only had power to recommend the employment, termination, or discharge of an employee. See Daddow v. Carlsbad Mun. Sch. Dist, 1995-NMSC-032, ¶28, 120N.M. 97, 898 P.2d 1235 (noting that under this prior version of the statute, the school board was the only entity with the power to make personnel decisions, and the limited role of the superintendent was to make recommendations before a personnel decision by the board was made).

         {10} House Bill 212, sometimes referred to as the Public School Reform Act, made sweeping changes to statutes dealing with public education, and at the same time, enacted many new statutes to reform public education in New Mexico. To this end, House Bill 212 is 107 pages long and consists of 72 sections. In stating its legislative findings and purpose for enacting House Bill 212, the Legislature determined, among other findings, that one of the keys to student success in New Mexico is "a multicultural education system that... elevates the importance of public education in the state by clarifying the governance structure at different levels." NMSA 1978, § 22-1-1.2(B)(6) (2015). House Bill 212, section 2 enacted this as Section 22-1- 1.2(B)(5). However, in 2007, the Legislature modified S.B. 561 (Senate Bill 561), 48thLeg., 1st Sess., ch. 308, Section 1 (N.M. 2007), added anew Subsection (5) and moved what was originally Subsection (B)(5) to Subsection (B)(6)). To this end:

The [L]egislature finds further that the public school governance structure needs to change to provide accountability from the bottom up instead of from the top down. Each school principal, with the help of school councils made up of parents and teachers, must be the instructional leader in the public school, motivating and holding accountable both teachers and students. Each local superintendent must function as the school district's chief executive officer and have responsibility for the day-to-day operations of the school district, including personnel and student disciplinary decisions.

Section 22-1-1.2(F) (emphasis added). In accordance with these findings, House Bill 212 defined a "local school board" to mean, "the policy-setting body of a school district[, ]" and a "local superintendent" to mean "the chief executive officer of a school district[.]" NMSA 1978, Section 22-1-2(H), (I) (2015). Consistent with these findings and definitions, House Bill 212 deleted Subsection (D) from Section 22-5-4 quoted above, and adopted a new statute, Section 22-5-14, setting forth powers and duties of the superintendent. House Bill 212, §§ 21, 25. Section 22-5-14 in pertinent part states:

A. The local superintendent is the chief executive officer of the school district.
B. The local superintendent shall:
(1) carry out the educational policies and rules of the state board [department] and local school board;
(2) administer and supervise the school district;
(3) employ, fix the salaries of, assign, terminate or discharge all employees of the school district; [and]
(5) perform other duties as required by law, the department or the local school board.

         {11} House Bill 212 clarified the powers and duties of local school boards and superintendents and structured their relationship in a familiar and well understood framework: the school board enacts policy of the school district and employs a superintendent as the chief executive officer to implement its policies in the day-today operations of the school district. That is, the local school board governs the school district through its authority to enact the regulations, standards, and rules under which the school district operates, and it employs the local superintendent as the highest ranking manager of the school district to implement them on an operational level in the day-to-day operations of the local school board. Cf. Black's Law Dictionary 289, 1345 (10th ed. 2014) (defining "chief executive officer" as "a corporation's highest-ranking administrator or manager, who reports to the board of directors" and "policy" in part as "a standard course of action that has been officially established"); NMSA 1978, § 21-7-7 (1995) ("The board of regents shall have power and it shall be its duty to enact laws, rules and regulations for the government of the university of New Mexico. The board of regents may hire a president for the university of New Mexico as its chief executive officer and shall determine the scope of the president's duties and authority."); State ex rel. Clark v. Johnson, 1995-NMSC-048, ¶ 33, 120 N.M. 562, 904 P.2d 11 ("[I]t is the Legislature that creates the law, and the Governor's proper role is the execution of the laws."); Salazar v. Town of Bernalillo, 1956-NMSC-125, ¶¶ 8, 11, 62 N.M. 199, 307 P.2d 186 (agreeing that as the chief executive officer of the town, a mayor has power to issue orders necessary or proper for the execution and enforcement of existing ordinances, regulations, and orders of the town council).

         III. THE APS APPEAL

         {12} This case requires us to determine whether the discharge hearing for a certified school employee under Section 22-10A-27 (Section 27) of the School Personnel Act, Sections 22-10A-1 to -39 must be conducted by the local school board or its superintendent. The district court concluded that the hearing must be conducted by the school board and issued a permanent writ of mandamus to APS and its Superintendent, Brad Winter, Ph.D., directing that a proposed discharge hearing for Adrian Alarcon (Teacher) be conducted by the APS School Board. APS appeals, and agreeing with the district court, we affirm.

         A. BACKGROUND

         {13} During the 2014-2015 school year, APS notified Teacher, a certified licensed school instructor, of its intent to discharge Teacher from its employment pursuant to Section 27. APS also advised Teacher that he had a right to appeal the intended discharge at a discharge hearing under Section 27, and Teacher filed a timely appeal and request for a discharge hearing. APS scheduled the hearing before an assistant superintendent, and Teacher objected on grounds that he was entitled to a discharge hearing before the school board, not the superintendent. APS responded that under its interpretation of legislative intent and implementation of Section 27, its practice beginning in 2003 was for the superintendent, or the superintendent's designee to conduct the discharge hearing and issue a written decision on the employee's appeal after the hearing. Teacher responded, again objecting to the procedure imposed by APS as contrary to the "clear, specific, and unambiguous" procedures set forth in Section 27, which require the discharge hearing to be held before the school board, and not the superintendent. Teacher said that he had "no choice but to appear at the only hearing provided to him by APS, subject to objections that [the] proceedings are contrary to state law."

         {14} Instead of appearing at the hearing under the procedure dictated by APS, and before the hearing was scheduled to be held, Teacher obtained an alternative writ of mandamus from the district court directing that the discharge hearing be held before the school board and not the superintendent, or that APS show cause for its lack of compliance and why the writ should not be made permanent. In its answer to the alternative writ, APS argued in part that the 2003 revisions to the Public School Code by House Bill 212 transferred powers previously exercised by the local school board to the local superintendent, with the result that to the exclusion of local school boards, the local superintendent has the sole authority to discharge employees. After a hearing on the merits, the district court disagreed with APS and issued a permanent writ of mandamus, directing that the discharge hearing be held before the school board, not the superintendent. The district court also ordered that Teacher remain employed by APS with all benefits and that the proposed discharge hearing be stayed during the pendency of the appeal, as stipulated by the parties. APS appeals.

         B. ANALYSIS

         {15} APS argues three reasons why it contends the district court erred, which we summarize as follows: (1) the permanent writ of mandamus disregards and renders meaningless the legislative intent of the 2003 amendments to the Public School Code, which "explicitly both divested local school boards of the authority to hire and terminate or discharge employees and vested that authority in local superintendents"; (2) the district court erred in issuing the permanent writ of mandamus because APS did not have a clear legal duty to provide Teacher with a discharge hearing before the school board; and (3) the district court erred in issuing the permanent writ of mandamus because Teacher did not exhaust available plain, speedy, and adequate administrative remedies. We address each argument in turn.

         1. Legislative Intent

         {16} APS argues that the 2003 amendments to the Public School Code reflect a specific legislative intent to vest the local superintendent with plenary authority over all personnel decisions, thereby divesting local boards of authority to hold discharge hearings and the ultimate power to discharge employees. APS argues that this specific legislative intent was expressed when House Bill 212 deleted Subsection (D) from the enumerated powers of local school boards in Section 22-5-4 (providing that a local school board must approve or disapprove the employment, termination, or discharge of all employees of the school district) and simultaneously enacted a new statute, Section 22-5-14(B)(3), vesting the local superintendent with the power and duty to "employ, fix the salaries of, assign, terminate or discharge all employees of the school district." [Emphasis omitted.]

         {17} We conclude that APS reads House Bill 212, and the amendments it made to the Public School Code, too narrowly, without taking into account other changes made by House Bill 212 to the Public School Code, or the fact that the Legislature re- codified, but did not repeal Section 27. This case involves the contemplated "discharge" of Teacher, a certified school employee. A "discharge" under the School Personnel Act is "the act of severing the employment relationship with a certified school employee prior to the expiration of the current employment contract[.]" Section 22-10A-2(A); see Section 22-1-2(BB) (defining a "certified school employee" as "a licensed school employee").

         {18} House Bill 212 re-compiled, but did not otherwise amend, the procedure for discharging a certified school employee under Section 27 of the School Personnel Act. House Bill 212, Section 72(F) (recompiling former NMSA1978, Section 22-10-17 (2002) as Section 27). "In the absence of a clear legislative directive to abandon existing law, we continue to apply it." Aguilera, 2006-NMSC-015, ¶ 24. Importantly, Section 27(A) explicitly states that a discharge may "only" occur according to the procedure it then sets forth in detail. Equally important, Section 27(A) states that a certified school employee may be discharged only for "just cause, " meaning "a reason that is rationally related to an employee's competence or turpitude or the proper performance of the employee's duties and that is not in violation of the employee's civil or constitutional rights." Section 22-1 OA-2(G); see Aguilera, 2006-NMSC-015, ¶¶ 16-25 (discussing "just cause" in the context of a reduction in force policy of a school district).

         {19} The requirements for discharging a certified school employee under Section 27 are clear and explicit.[2] Under Section 27, the local school board is vested with the exclusive authority to discharge a certified school employee. Further, the school board can only discharge where "just cause" is proven by the superintendent by a preponderance of the evidence. Procedurally, the superintendent "shall" serve the employee with a written notice of his intent to "recommend" discharge, stating in the notice the cause for his recommendation, as well as informing the employee of his right to a discharge hearing "before the local school board." Section 27(A). The employee "may" exercise his right to a discharge hearing before the school board by giving written notice of that election, Section 27(B), and if the employee makes that election, the school board "shall" hold a discharge hearing. Section 27(C). At the hearing, the superintendent "shall" have the burden of proving that, at the time of the notice of intent to recommend discharge, he "had just cause to discharge the certified school employee." Section 27(G). The superintendent "shall" present his evidence first, followed by the certified school employee's proof. Section 27(H). After hearing and considering the evidence, "the local school board shall render its written decision[.]" Section 27(J); see Larsen v. Bd. of Educ, 2010-NMCA-093, ¶ 7, 148 N.M. 920, 242 P.3d 487 (describing in general terms the statutory process under Section 27 for discharging a certified school employee). This framework is consistent with the roles assigned to school boards and superintendents by House Bill 212, and corresponds with both the duty of the superintendent to carry out the rules of the school board and the power of the school board to adopt and interpret its own rules.

         {20} We also note that prior to the adoption of House Bill 212 in 2003, a hearing before the school board was always required for a discharge to take place, because the 2002 version of Section 22-5-4, quoted in footnote 1, directed that the school board had the exclusive authority to employ, terminate, or discharge a school employee, and that "any employment relationship shall continue until final decision of the board." Under Section 22-5-14(B)(3), if a certified school employee does not exercise his right to a hearing, the discharge now becomes effective without the necessity for school board action. In addition, before the Public School Code was amended in 2003 by House Bill 212, no employee could be employed, terminated, or discharged without the express approval of the school board. Under Section 22-5-14(B)(3), subject to any other laws or requirements that may apply, the superintendent has authority to employ, terminate and discharge all noncertified school employees of the school district without school board approval. However, the procedural and substantive rights contained in Section 27 are a legislative expression that the discharge of a certified school employee is anything but a managerial task to be performed by the superintendent in the day-to-day operations of the school district.

         {21} Discharging a teacher in the middle of the school year is significant because a teacher may not have an opportunity to find other employment, causing extreme hardship to the teacher. See Aguilera,2006-NMSC-015, ¶ 32. Certified school employees have historically been accorded procedural and substantive rights by the Legislature to encourage individuals to enter the profession of teaching our children and to protect educators in their employment. See id. ΒΆΒΆ 8-15 (discussing statutory and jurisprudential goals of teachers' tenure statutes). These goals are expressed in the Public School Code, where the Legislature finds that one of the keys to student success in New Mexico is to have a multi-cultural system that "attracts and retains quality and diverse teachers[.]" Section 22-1-1.2(B)(1). In recognition of the realities attending a discharge in the middle of the school year, and consistent with its commitment to ...


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