Certiorari Denied, September 16, 2010, No. 32,565

       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2010-NMCA-093

Filing Date: July 27, 2010

Docket No. 28,428

IN THE MATTER OF THE TERMINATION
OF DOUGLAS LARSEN,

       Petitioner-Appellant,

v.

BOARD OF EDUCATION OF THE
FARMINGTON MUNICIPAL SCHOOLS,

       Respondent-Appellee.

APPEAL FROM A DECISION OF AN ARBITRATOR
Kimball Udall, Arbitrator

Hawk Law, P.A.
Sharon B. Hawk
Albuquerque, NM

for Appellant

Cuddy, Kennedy, Ives, Archuleta-Staehlin,
  Fairbanks & Vigil, LLP
Jacquelyn Archuleta-Staehlin
Evelyn A. Peyton
Santa Fe, NM

for Appellee

                                       OPINION

CASTILLO, Judge.

{1}    Plaintiff Douglas Larsen filed an action in district court for breach of contract and

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damages after he was discharged from his position as a teacher with Defendant Farmington
Municipal Schools. The district court ordered that the proceedings be stayed until an
arbitration hearing was held before an independent arbitrator. The arbitrator affirmed
Defendant’s decision to terminate Plaintiff. Plaintiff appeals, arguing that the arbitrator
relied on grounds beyond the statutory notice provided him, that the insufficient notice
violated his due process rights, and that substantial evidence does not support the arbitration
award. We affirm.

BACKGROUND

{2}     On December 16, 2002, a female student at Farmington High School contacted the
principal and reported that Plaintiff, a certified school employee and teacher at the high
school, was making advances of a sexual nature to her related to raising her grades in his
class, and that he had physically touched her inappropriately. On December 18, 2002, the
student filed a multi-page complaint against Plaintiff in which she stated that there had been
several conversations with Plaintiff that had taken place during the past several days during
which they discussed what the student could do about improving her grades. According to
the student, on Friday, December 13, Plaintiff proposed to give her a passing grade if she
allowed him to take pictures of her, and he also showed her the areas of her body that he
wanted in the pictures—chest, mid-area, lower body and back. The student also alleged that
Plaintiff touched her inappropriately on her breast and buttocks, and she explained that all
of this made her feel uncomfortable. The student also stated that again on Monday,
December 16, toward the end of class, Plaintiff directed her to the back of the classroom
where they were alone; there he further explained that he expected to take “natural” pictures
of her at the lake or in the woods with no one present, that she would have to act “like a
slut,” and do what he told her to do, and that no one could know of the matter.

{3}     On January 8, 2003, based primarily on the allegations of the student, Defendant’s
Superintendent of Schools served Plaintiff with a notice of intent to recommend his
discharge under the School Personnel Act (the Act), NMSA 1978, §§ 22-10A-1 to -39
(1967, as amended through 2009) (recompiled in 2003; prior version at NMSA 1978, §§ 22-
10-1 to -27 (1967, as amended through 2002)). The notice informed Plaintiff that the
discharge was based on misconduct involving inappropriate and lewd conduct with one of
his female students, inappropriate photographs in his classroom, and insubordination based
on previous warnings about similar conduct as to female students. Plaintiff appealed his
discharge, entitling him to a de novo hearing by an independent arbitrator.

{4}     After an arbitration hearing, the arbitrator determined that the notice of intention to
recommend discharge adequately apprised Plaintiff of the nature of the allegations; that
sufficient evidence supported a finding that Plaintiff suggested to a student that she pose for
pictures for him outside of the classroom and outside of the presence of anyone else; that this
suggestion alone constituted just cause for termination of Plaintiff’s employment; and that
the procedural errors regarding Plaintiff’s request for hearing and/or appeal were rendered
moot when the district court ordered the parties to arbitrate.

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{5}     Plaintiff appeals from the arbitration award, arguing that he received inadequate
notice of the grounds upon which the arbitrator based his decision and that his due process
rights were violated. Plaintiff also attacks the arbitration award on the basis of insufficient
evidence.

STANDARD OF REVIEW

{6}    “We determine whether substantial evidence supports the arbitrator’s factual
findings, and we review his conclusions of law de novo.” Aguilera v. Bd. of Educ.,
2005-NMCA-069, ¶ 8, 137 N.M. 642, 114 P.3d 322, aff’d on other grounds, 2006-NMSC-
015, 139 N.M. 330, 132 P.3d 587.

NOTICE AND DUE PROCESS

{7}     Section 22-10A-27 of the Act sets forth the manner in which a local school board
must handle the discharge of a certified school employee. The superintendent must serve
the employee with a written notice of intent to recommend discharge, stating the cause for
the superintendent’s recommendation as well as the employee’s right to a discharge hearing
before the school board. Section 22-10A-27(A)(2). When a local school board discharges
a certified school employee, the employee may appeal the school board’s decision to an
independent arbitrator, who shall decide the matter after a de novo hearing. Section 22-10A-
28(A), (D). At the arbitration hearing, a school board must show by a preponderance of the
evidence that, at the time of the notice of intent to recommend discharge, just cause existed
to discharge the employee. Section 22-10A-28(D). The

       arbitrator must review all the evidence relevant to the charges set forth in the
       notice of intent to discharge, including relevant evidence discovered after the
       notice has been served, and decide on that record whether the [local school
       b]oard has established by a preponderance of the evidence that the
       allegations of misconduct had a basis in fact and whether they constitute just
       cause supporting discharge.

Santa Fe Pub. Sch. v. Romero, 2001-NMCA-103, ¶ 16, 131 N.M. 383, 37 P.3d 100. The Act
defines “just cause” as “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 22-10A-2(G).

{8}    Plaintiff argues that he received inadequate notice of the bases for his discharge. The
notice of intention to recommend discharge provided Plaintiff with three reasons for
Defendant’s proposed action:

       1.      Misconduct, in that you engaged in inappropriate and lewd conduct
               with one of your female students, including:


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               a.      Proposing to the student that she pose for lewd photographs
                       for you;

               b.      Suggesting to the student that her compliance with your
                       proposal would result in improved grades;

               c.      Inappropriate and lewd physical contact with the student on
                       the breast and buttocks;

       2.      Insubordination, in that the foregoing misconduct was committed
               despite a warning you received against similar conduct with a
               different student during the 2001-2002 school year; and

       3.      Misconduct, in that you kept photographs of nude children or
               adolescents in your classroom.

{9}     The arbitrator made a finding that “the allegations as exactly set forth” were not
proved by a preponderance of the evidence. As to the first reason for discharge, the
arbitrator found only that Plaintiff “suggested to a female student that she pose for
photographs to be take[n] by [Plaintiff], out of the presence [of] anyone else, in a location
which was not in the classroom, and which was not part of a school project.” The arbitrator
found that Defendant did not prove its allegations that the proposed photographs were lewd,
and, because he did not find the student’s testimony to be wholly credible, he found that
Defendant did not prove the other allegations. As to the second reason, the arbitrator found
that the other student’s testimony concerning the 2001-2002 school year incident was also
not credible. As to the third reason, the arbitrator found that photographs shown to the
student were not “lewd, lascivious or pornographic” and that although Plaintiff had
inappropriate photographs in a cabinet in his office, there was no evidence that “any student
ever saw them or even knew about them,” such as to be just cause for discharge.
Nevertheless, the arbitrator upheld Plaintiff’s discharge because he concluded that the

       mere suggestion by [Plaintiff] that a female student should (or even could)
       be photographed by him, in a setting outside of the classroom, in the absence
       of other persons, for any reason other than a class project, whether the
       student was to be dressed or not, whether or not there was a suggestion of
       improving the student’s grades or other quid pro quo, constitutes just cause
       for [Plaintiff’s] termination.

{10} Plaintiff argues that the notice of intention to recommend discharge was insufficient
to give him notice, in violation of his due process rights, because the arbitrator based his
decision on allegations different from those in the notice. We agree with Plaintiff that the
due process clause to the Fourteenth Amendment to the United States Constitution entitles
him to adequate notice of the bases upon which Defendant based its decision to discharge.
Bd. of Educ. of Carlsbad Mun. Sch. v. Harrell, 118 N.M. 470, 477-78, 882 P.2d 511, 518-19

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(1994). We do not agree, however, that the notice was insufficient in this case.

{11} In Romero, this Court examined an arbitrator’s decision under the Act in the context
of the discharge of a certified school employee. 2001-NMCA-103, ¶¶ 1, 11. We held that
the arbitrator misapplied the law by focusing on the information available to the
administrator discharging the employee rather than conducting a de novo review to
determine whether just cause existed for the discharge. Id. ¶ 28. We observed that, in the
course of de novo review to determine the existence of just cause, the arbitrator was not
limited to evidence that existed at the time of the discharge but, instead, “must review all the
evidence relevant to the charges set forth in the notice of intent to discharge, including
relevant evidence discovered after the notice has been served.” Id. ¶ 16. We distinguished,
however, between new evidence of the charges contained in the notice and evidence of new
charges that were not in the notice. Id. ¶ 22. Because of the essential aspect of adequate
notice to enable an employee to present evidence in response to charges brought against the
employee, we noted that due process protections prohibit the use of evidence at a school
board or arbitration hearing of new reasons for discharge that are different from those set
forth in the notice. Id.

{12} The evidence at the arbitration hearing in this case did not differ from the allegations
contained in the notice of intention to recommend discharge. Defendant presented evidence
relating to the allegations stated in the notice. Both students mentioned in the notice
testified. Their written complaints and the photographs Defendant removed from Plaintiff’s
office that formed the basis for the notice were received as exhibits. The issue before us is
not that there is a difference in the evidence but that there is a difference in the arbitrator’s
interpretation of the evidence. Instead of either accepting or rejecting the sufficiency of the
evidence of just cause for discharge, the arbitrator only accepted some of the evidence and
concluded that it constituted just cause for discharge. See Garnsey v. Concrete Inc. of
Hobbs, 1996-NMCA-081, ¶ 20, 122 N.M. 195, 922 P.2d 577 (stating that it is for the
factfinder to weigh evidence and resolve conflicts). As a result, the arbitrator’s basis for
discharge was not entirely the same as that contained in the notice. Although the notice
stated as an independent basis of misconduct that Plaintiff proposed to a student that she
pose for lewd photographs for him, the arbitrator rejected evidence that the proposed
photographs were intended to be lewd. He did find, however, that Plaintiff improperly
suggested that the student pose outside the presence of anyone else, in a location outside the
classroom, and for a purpose other than a school project.

{13} When evaluating Plaintiff’s due process rights, we consider the arbitrator’s
conclusion based on the specific grounds in the notice, rather than on a variation of the
grounds. The nature of a due process right in a proceeding involving the deprivation of a
property interest in continued public employment is that the proceeding be fundamentally
fair. Harrell, 118 N.M. at 478, 882 P.2d at 519 (“Due process requires that the proceedings
looking toward a deprivation be essentially fair.”). Due process requires that an employee
receive notice of the charges against them and an opportunity to present evidence to the
contrary. Id. The extent of the due process requirements depends on the facts of each case.

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Id.

{14} The arbitrator’s finding that portions of the student’s testimony were not credible did
not affect the scope of the hearing. The arbitration hearing was a full evidentiary hearing
at which Plaintiff was represented by counsel. Defendant centered its case against Plaintiff
on the previous written complaint of a female student. The student testified, consistent with
her complaint, that Plaintiff proposed to take lewd pictures of her after school in the woods.

{15} The details of the conversations between Plaintiff and the student were contained in
the written complaint. The only difference between the notice and the arbitrator’s decision
is that in its notice, Defendant characterized the conduct as inappropriate and lewd, while
in its decision, the arbitrator focused on the inappropriate conduct of the teacher in
requesting that a student pose alone for pictures to be taken off campus for a non-school
purpose.

{16} Plaintiff also testified that he discussed taking pictures of the student and presented
his version of the events, stating that he said that the photographs were to be taken on school
grounds for a school website. Plaintiff does not contend on appeal that he did not have
knowledge of the student’s previous written complaint, that there was any confusion about
the identity of the student or the pictures that were at issue at the arbitration, or that there
were any other instances that could have been confused with the one that was the subject of
the testimony.

{17} Regardless of whether the arbitrator believed the student or Plaintiff as to the version
of the events, both sides focused their testimony and argument on a single instance in which
Plaintiff proposed photographing the same student. Plaintiff agrees that neither Section 22-
10A-28(D) nor any New Mexico case requires that the notice of intent to recommend
discharge be stated with “the nicety of a criminal indictment.” Graves v. School Comm. of
Wellesley, 12 N.E.2d 176, 179 (Mass. 1937). Based on this record of the arbitration, the
notice was sufficient to apprise Plaintiff of the charges so as to afford him the opportunity
to present his evidence contravening the charges, and Plaintiff did so.

{18} We read the notice as a whole. Plaintiff had notice of the facts surrounding the
photos by virtue of the student’s written complaint upon which Defendant based the notice
of intention to recommend discharge. Moreover, it is reasonable to assume that because the
student’s complaint expressed that Plaintiff wished to take “natural” pictures of her in the
woods in which she had to “act like a slut,” the pictures would be taken for reasons other
than a school project, outside of the presence of others, and outside of the classroom. The
notice did not have to specify these circumstantial facts. Cf. State ex rel. Children, Youth
& Families Dep’t v. Brandy S., 2007-NMCA-135, ¶ 31, 142 N.M. 705, 168 P.3d 1129
(holding that “fair notice of the central issues that were to be litigated at the [termination of
parental rights] hearing” was sufficient to satisfy due process requirements); see also Alfieri
v. Alfieri, 105 N.M. 373, 379, 733 P.2d 4, 10 (Ct. App. 1987) (“[F]acts may be proven by
circumstantial evidence.”).

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{19} Further, even though the notice did not mention them, or rely on grounds that did not
include proposing photographs that were not lewd, the notice was nonetheless sufficient.
Plaintiff had full opportunity to present his case. Plaintiff’s focus was not on the character
of the photos, rather his position was that the photos were to be taken on campus and for
purposes of the school website. Plaintiff specifically defended against the facts found by the
arbitrator. Although the arbitrator did not believe the student that the photos were lewd, he
did believe that the photos were to be taken off campus for non-school purposes, and this
was sufficient to support just cause for discharge. The arbitrator’s decision was not based
on new charges, rather it was based on the information provided by the student as to where
and for what purpose the photos were to be taken. Plaintiff was able to defend against the
allegations made by the student. There was no problem with notice. Accordingly, we
conclude that the difference between the language in the notice and the arbitrator’s decision
did not infringe upon Plaintiff’s due process rights. See Harrell, 118 N.M. at 478, 882 P.2d
at 519 (requiring hearings involving a deprivation of a property interest to be “essentially
fair”).

SUBSTANTIAL EVIDENCE

{20} Plaintiff argues that the evidence did not support a finding that the pictures would
be taken outside the presence of anyone else, that they would be taken off school grounds,
or that they would not be used for his school-related website. He asserts that the arbitrator
did not find the student’s testimony wholly credible, and because Plaintiff testified that he
proposed to take pictures for his website on school grounds, the arbitration award must be
overturned. In ascertaining whether substantial evidence supported the arbitrator’s decision,
we look to whether the evidence is such “that a reasonable mind would regard [it] as
adequate to support [the] conclusion.” In re Termination of Kibbe, 2000-NMSC-006, ¶ 15,
128 N.M. 629, 996 P.2d 419 (filed 1999) (second alteration in original) (internal quotation
marks and citation omitted).

{21} The student alleged that Plaintiff wanted her “to go with him somewhere after
school,” to take pictures. She stated that the pictures were to be taken “somewhere in the
woods.” The student’s testimony alone is enough to support a finding that Plaintiff offered
to photograph the student off school grounds. Additionally, as we have discussed, the
circumstantial evidence before the arbitrator was sufficient to support his finding that the
pictures would be outside the presence of others and for a reason other than for a school
project.

{22} Plaintiff also argues that other evidence, particularly his own testimony, requires the
arbitration award to be vacated. However, on appeal, we do not reweigh the evidence or
substitute our judgment for that of the factfinder. Las Cruces Prof’l Fire Fighters v. City of
Las Cruces, 1997-NMCA-044, ¶ 12, 123 N.M. 329, 940 P.2d 177 (filed 1996). “The
question is not whether substantial evidence exists to support the opposite result, but rather
whether such evidence supports the result reached.” Id. In the present case, viewing the
evidence in the light most favorable to the prevailing party, the arbitrator’s factual findings

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are supported by substantial evidence. See id.

CONCLUSION

{23}    We affirm the arbitration award.

{24}    IT IS SO ORDERED.

                                            ____________________________________
                                            CELIA FOY CASTILLO, Judge

WE CONCUR:

____________________________________
MICHAEL D. BUSTAMANTE, Judge

____________________________________
MICHAEL E. VIGIL, Judge

Topic Index for In the Matter of the Termination of Larsen, Docket No. 28,428

AE                            APPEAL AND ERROR
AE-SR                         Standard of Review
AE-SB                         Substantial or Sufficient Evidence

CP                            CIVIL PROCEDURE
CP-AT                         Arbitration
CP-NO                         Notice

CT                            CONSTITUTIONAL LAW
CT-DP                         Due Process
CT-NO                         Notice

CN                            CONTRACTS
CN-BR                         Breach

EL                            EMPLOYMENT LAW
EL-TE                         Termination of Employment

GV                            GOVERNMENT
GV-ES                         Education and Schools




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