NM Stat § 22-10A-28 (2021)
2021 New Mexico Statutes|Chapter 22 - Public Schools|Article 10A - School Personnel|Section 22-10A-28 - Discharge appeals; licensed school employees; independent arbitrator; qualifications; procedure; binding decision.

A. A licensed school employee aggrieved by a decision of the governing authority to discharge the licensed school employee after a discharge hearing held pursuant to Section 22-10A-27 NMSA 1978 may appeal the decision to an independent arbitrator. A written notice of appeal shall be submitted to the governing authority within ten working days from the receipt of the copy of the written decision of the governing authority.B. The governing authority may delegate responsibility for the arbitration to the superintendent. The superintendent as delegate of the governing authority and the licensed 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 superintendent or is a member of or employed by any professional organization of which the licensed school employee is a member.D. Appeals from the decision of the governing authority shall be decided after a de novo hearing before the independent arbitrator. The superintendent, as delegate of the 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 superintendent had just cause to discharge the licensed school employee. The superintendent shall present evidence first, with the licensed school employee presenting 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 licensed school employee and the 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 the party's own expense.K. The independent arbitrator shall render a written decision affirming or reversing the action of the 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 22-10A-27 NMSA 1978, 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 Comp., § 22-10-17.1, enacted by Laws 1986, ch. 33, § 25; 1990, ch. 90, § 5; 1991, ch. 187, § 8; recompiled as § 22-10A-28 by Laws 2003, ch. 153, § 72; 2019, ch. 238, § 9. ANNOTATIONSRecompilations. — Laws 2003, ch. 153, § 72 recompiled former 22-10-17.1 NMSA 1978, as 22-10A-28 NMSA 1978, effective April 4, 2003. Cross references. — For New Mexico Rules of Appellate Procedure, see 12-101 NMRA. For issuance of subpoenas in civil actions, see 1-045 NMRA.The 2019 amendment, effective June 14, 2019, provided that the governing authority may delegate responsibility for the arbitration to the superintendent, and clarified certain terms and provisions in the section; in the section heading, added "Discharge" and "licensed school employees"; in Subsection B, after "governing authority", added "may delegate responsibility for the arbitration to the superintendent. The superintendent as delegate of the governing authority"; and in Subsection L, after "Section", deleted "22-10-17" and added "22-10A-27".The 1991 amendment, effective June 14, 1991, substituted "employee" for "instructor or certified school administrator" throughout the section; substituted "notice of appeal" for "request for an appeal" in the second sentence in Subsection A and in the first sentence in Subsection B; in Subsection A, substituted "a discharge hearing held" for "his statement to the local school board presented" in the first sentence and deleted the former third sentence which read "The appeal shall be accompanied by a statement of particulars specifying the grounds on which it is contended that the decision was not based on good and just cause"; in Subsection C substituted "professional organization" for "teachers' or administrators' organization"; in Subsection D, inserted "de novo" in the first sentence and substituted the second and third sentences for the former second sentence which read "The issue to be decided by the independent arbitrator is whether the board's decision to discharge the certified school instructor or certified school administrator was based on good and just cause"; and made minor stylistic changes throughout the section. The 1990 amendment, effective May 16, 1990, inserted "or governing authority" following "local school board" throughout the section; in Subsection A, in the first sentence, inserted "local school" preceding "board" the second time the reference appears and substituted "may appeal the decision" for "may request an appeal", in the second sentence, inserted "or administrator" and substituted "five working days" for "five calendar days" and, in the third sentence, substituted "The appeal shall be" for "The request for an appeal to an independent arbitrator shall be"; substituted "five working days" for "five calendar days" in the final sentence of Subsection B; in Subsection E, substituted "thirty working days" for "thirty calendar days" in the first sentence and inserted "or certified school administrator" in the second sentence; substituted "labor arbitration rules" for "rules for arbitration" near the end of Subsection H; substituted "thirty working days" for "thirty calendar days" in the third sentence of Subsection K; in Subsection N, substituted "Each party" for "Either party" at the beginning of the first sentence and rewrote the second sentence which read "The arbitrator's fees and other expenses incurred in the conduct of the arbitration shall be borne by the school districts; provided that if the certified school instructor or administrator 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 proceeding and the arbitrator's fees"; and deleted former Subsection O relating to compliance with the American arbitration association's rules. Considered together, the pre- and post-termination procedures of the School Personnel Act, 22-10A-27 and 22-10A-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. Neutral tribunal not required at pre-termination hearing, because the statutory framework of the School Personnel Act, 22-10A-27 and 22-10A-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 in this section. 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. Compulsory arbitration is constitutional and the procedures used in judicial tribunals need not be used in compulsory arbitration, so long as the arbitration procedures are sufficient to guarantee a fair proceeding. Therefore, the provisions of this section mandating compulsory arbitration of the grievances of discharged school employees do not violate an employee's right of access to the courts, or right to jury trial; nor do these provisions unconstitutionally delegate power to a nonjudicial tribunal. Board of Educ. of Carlsbad Mun. Schs. v. Harrell, 1994-NMSC-096, 118 N.M. 470, 882 P.2d 511 (1994). Unconstitutional limit on judicial review. — Because due process and the separation of powers principle requires that parties to statutorily mandated arbitration be offered meaningful review of the arbitrator's decision, the provision of Subsection M limiting judicial review of the arbitrator's decision to cases "where the decision was procured by corruption, fraud, deception or collusion" must be stricken as a violation of due process and as an unconstitutional delegation of judicial power. Board of Educ. of Carlsbad Mun. Schs. v. Harrell, 1994-NMSC-096, 118 N.M. 470, 882 P.2d 511. Standard of review. — Subsection D requires the reviewing entity to determine whether the alleged misconduct actually occurred and constitutes just cause for discharge. Santa Fe Pub. Schs. v. Romero, 2001-NMCA-103, 131 N.M. 383, 37 P.3d 100. 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 22-10A-27 NMSA 1978, the 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), 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. Constitutionality. — The procedures in Section 22-10-14 (now Section 22-10A-24 NMSA 1978), Section 22-10-14.1 (now Section 22-10A-25 NMSA 1978), Section 22-10-17 (now Section 22-10A-27 NMSA 1978), and this section 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.