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 1        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 2   THE NATIONAL EDUCATION ASSOCIATION
 3   OF NEW MEXICO, NATIONAL EDUCATION
 4   ASSOCIATION-SANTA FE, and TERRANCE
 5   MIRABAL,

 6          Petitioners-Appellees,

 7 v.                                                                                   NO. 33,065

 8 SANTA FE PUBLIC SCHOOLS,
 9 DR. JOEL BOYD, Superintendent,

10          Respondents-Appellants.


11 APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
12 Sarah M. Singleton, District Judge

13   Jones, Snead, Wertheim & Clifford, P.A.
14   Jerry Todd Wertheim
15   Elizabeth C. Clifford
16   Santa Fe, NM

17 for Appellees

18   Walsh Anderson Gallegos Green & Treviño, P.C.
19   Carol S. Helms
20   Elena P. Serna
21   Albuquerque, NM
 1 for Appellants

 2                             MEMORANDUM OPINION

 3 VIGIL, Judge.

 4   {1}   Respondents Santa Fe Public Schools and its superintendent appeal a writ of

 5 mandamus directing them to hold a discharge hearing for Petitioner Terence Mirabal.

 6 In our notice of proposed summary disposition, we proposed to reverse. In response

 7 to this Court’s notice, Petitioners have filed a memorandum in opposition and

 8 Respondents have filed a memorandum in support, both of which we have duly

 9 considered. As we do not find Petitioners’ arguments to be persuasive, we reverse.

10   {2}   In this Court’s notice of proposed summary disposition, we proposed to hold

11 that the district court erred in issuing a writ of mandamus directing Respondents to

12 hold a discharge hearing. It was undisputed that Respondents provided written notice

13 to Petitioner Mirabal that they intended to discharge him for cause, as required by the

14 School Personnel Act, NMSA 1978, § 22-10A-27(A) (2003). [RP 29-30] It was also

15 undisputed that Petitioner Mirabal failed to “exercise his right to a hearing before the

16 local school board or governing authority by giving the local superintendent or

17 administrator written notice of that election within five working days of his receipt of

18 the notice to recommend discharge.” Section 22-10A-27(B). Mirabal filed his petition


                                              2
 1 only after this period expired and he was notified that he had been discharged. [RP 36,

 2 37] This Court has held that the provisions of the Act regarding timing are mandatory,

 3 “unless waived by the parties or unless a continuance is sought and obtained for good

 4 cause.” Bd. of Educ. of Taos Mun. Schools v. Singleton, 1985-NMCA-112, ¶¶ 17-20,

 5 103 N.M. 722, 712 P.2d 1384 (interpreting the language of Section 22-10A-27, as

 6 previously codified at Section 22-10-17). It was undisputed that Petitioner Mirabal

 7 neither sought an extension of time or the discretionary acceptance of his late notice

 8 based on good cause shown. Because Mirabal’s notice was late, and because the times

 9 provided in Section 22-10A-27 are mandatory, we proposed to conclude that Mirabal

10 failed to follow the procedures necessary to exercise his right to a hearing and that

11 Respondents were therefore not under any clear statutory duty to provide him with

12 one. See Storm Ditch v. D’Antonio, 2011-NMCA-104, ¶¶ 34-35, 150 N.M. 590, 263

13 P.3d 932 (holding that the plaintiff was not entitled to mandamus compelling an

14 administrative hearing because it failed to timely file a protest in order to invoke its

15 right to such a hearing); see also State ex rel. Coll v. Johnson, 1999-NMSC-036, ¶ 12,

16 128 N.M. 154, 990 P.2d 1277 (“Mandamus is a drastic remedy to be invoked only in

17 extraordinary circumstances” and is available “only to one who has a clear legal right

18 to the performance sought” (internal quotation marks and citations omitted)); NMSA


                                              3
 1 1978, Section 44-2-4 (1884) (stating that a writ of mandamus may issue in order to

 2 direct a board to perform an act that it has a legal duty to perform). Cf. Sitzer v. State

 3 Taxation & Revenue Dep’t, 2000-NMCA-056, ¶¶ 11-12, 129 N.M. 274, 5 P.3d 1078

 4 (holding that a person aggrieved by an agency action forfeited his right to an

 5 administrative hearing when he failed to timely meet the mandatory requirements for

 6 seeking a hearing).

 7   {3}   In Petitioners’ memorandum in opposition, they make a number of arguments,

 8 all of which are premised on their assertion that the harmless error provision contained

 9 in the appeal section of the School Personnel Act requires Respondents to hold a

10 hearing after the time for invoking a hearing has passed unless they can affirmatively

11 demonstrate that they have been prejudiced by Petitioner’s late efforts to seek a

12 hearing. [Petrs.’ MIO 3-4, 6, 8-11] That section states that an employee “aggrieved by

13 a decision of a local school board or governing authority to discharge him after a

14 discharge hearing . . . may appeal the decision to an independent arbitrator.” NMSA

15 1978, Section 22-10A-28(A) (2003) (emphasis added). During the appeal, “[u]nless

16 a party can demonstrate prejudice arising from a departure from the procedures

17 established in [the portions of the act governing discharge hearings and appeals] such

18 departure shall be presumed to be harmless error.” Section 22-10A-28(L). As we

19 explained in our notice of proposed summary disposition, this subsection, located in


                                               4
 1 the section on appeals to an independent arbitrator from discharge hearings, clearly

 2 applies only to such appeals from discharge hearings. When a party has failed to

 3 perfect his right to a discharge hearing and therefore has had no hearing, there is no

 4 appeal to an independent arbitrator to which the harmless error rule could apply.

 5 Nothing in this subsection suggests that it is intended to revive a right to a hearing that

 6 was not properly invoked or to provide flexibility in the deadlines that this Court has

 7 held to be mandatory.

 8   {4}   Therefore, for the reasons stated here and in our notice of proposed summary

 9 disposition, we reverse.

10   {5}   IT IS SO ORDERED.


11                                           __________________________________
12                                           MICHAEL E. VIGIL, Judge

13 WE CONCUR:



14 ___________________________________
15 TIMOTHY L. GARCIA, Judge



16 ___________________________________
17 J. MILES HANISEE, Judge




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