       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: _______________

Filing Date: June 3, 2014

Docket No. 32,844

ROSA WEISS and NATIONAL EDUCATION
ASSOCIATION – NEW MEXICO,

       Plaintiffs-Appellees,

v.

THE BOARD OF EDUCATION OF THE
SANTA FE PUBLIC SCHOOLS, JOEL BOYD,
in his official capacity as local superintendent of
the Santa Fe Public Schools,

       Defendants-Appellants.

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

Jones, Snead, Wertheim & Clifford, P.A.
Jerry Todd Wertheim
Roxie Rawls-De Santiago
Samuel C. Wolf
Santa Fe, NM

for Appellees

German & Associates, LLC
K. Lee Peifer
Elizabeth L. German
Albuquerque, NM

for Appellants

Cuddy & McCarthy, LLP
John F. Kennedy
Santa Fe, NM


                                            1
for Amicus Curiae
                                          OPINION

VANZI, Judge.

{1}     New Mexico law provides heightened substantive and procedural rights to teachers
who have been employed with a school district for three consecutive years if the school
board elects not to renew the teacher’s contract for a subsequent year. This case presents the
question of whether those protections apply when notice of a board’s intent not to renew a
teacher’s contract is served on the teacher during, but prior to the completion of, her third
year. We conclude that they do and therefore affirm the district court’s declaratory judgment
in favor of Plaintiffs.

BACKGROUND

{2}     Plaintiff Rosa Weiss was a teacher employed by the Santa Fe Public Schools during
the 2008-09, 2009-10, and 2010-11 school years, pursuant to three one-year contracts. On
May 12, 2011, approximately two weeks before the end of her third year, Weiss was served
notice that Defendant Board of Education of the Santa Fe Public Schools intended not to
renew her contract for a fourth year. Weiss requested a hearing on the decision, but her
request was denied.

{3}      Weiss and Plaintiff National Education Association-New Mexico then filed suit in
district court against the Board of Education and the Superintendent of the Santa Fe Public
Schools, seeking a declaratory judgment that Defendants were required by New Mexico law
to provide Weiss with a hearing to contest her termination. The district court ruled that
Weiss was employed for three consecutive years as a certified school instructor and that,
therefore, she was entitled to such a hearing. Defendants appeal.

DISCUSSION

{4}      Defendants argue that the district court’s ruling was based on a misinterpretation of
a provision of the School Personnel Act (the Act) governing termination procedures. This
Court reviews the district court’s interpretation of a statute de novo. See Bishop v.
Evangelical Good Samaritan Soc’y, 2009-NMSC-036, ¶ 8, 146 N.M. 473, 212 P.3d 361
(stating that questions of statutory construction are reviewed de novo). When construing a
statute, “the essence of judicial responsibility [is] to search for and effectuate the legislative
intent[.]” Id. ¶ 10 (internal quotation marks and citation omitted). Any such analysis will
begin with an examination of the statutory language, “as the text of the statute is the primary
indicator of legislative intent.” Id. ¶ 11. However, an appellate court must also “consider the
statutory subsection in reference to the statute as a whole and read the several sections
together so that all parts are given effect.” Id. Finally, we must “consider the practical
implications and the legislative purpose of a statute, and when the literal meaning of a statute
would be absurd, unreasonable, or otherwise inappropriate in application, we [will] go

                                                2
beyond the mere text[.]” Id. We now apply these principles of statutory construction to the
issue before us.

{5}      If a school board wishes to put an end to a person’s employment, the Act mandates
different substantive and procedural protections depending on such factors as the person’s
position, how long the person has been employed, and the time at which the board proposes
that the person’s employment will end. See NMSA 1978, §§ 22-10A-24 and -27 (2003).
Teachers are “certified school employees” under the Act, NMSA 1978, § 22-1-2(G), (BB)
(2010), and therefore receive the protections set forth for those employees. Certified school
employees are hired pursuant to contracts that generally specify a term of one school year,
except that after three years of consecutive employment, a school board may choose to
employ a certified school employee for a contractual term of up to three years. NMSA 1978,
§ 22-10A-21(B)(5) (2003). When a school board seeks to end a certified school employee’s
employment, the procedures required depend on whether the board seeks to end the
employee’s employment in the middle of a school year or whether the board simply intends
not to renew the employee’s contract for the following year. The Act therefore distinguishes
between “discharging” a certified school employee, which is defined as “severing the
employment relationship with a certified school employee prior to the expiration of the
current employment contract” and “terminating” a certified school employee, which is
defined as “the act of not reemploying [a certified school] employee for the ensuing school
year.” See NMSA 1978, § 22-10A-2(A), (E) (2007).

{6}     Section 22-10A-24 of the Act governs the procedures and standards for termination.
That section sets out two different ways to terminate an employee depending on whether or
not the employee has worked for the school board for at least three consecutive years. First,
for an employee with fewer than three consecutive years of service, the statute provides for
termination for any reason and with minimal process. It states:

               A.     A local school board . . . may terminate an employee with
       fewer than three years of consecutive service for any reason it deems
       sufficient. Upon request of the employee, the superintendent or administrator
       shall provide written reasons for the decision to terminate. . . . The reasons
       shall not provide a basis for contesting the decision under the School
       Personnel Act.

Section 22-10A-24(A). Second, for an employee with at least three consecutive years of
employment, Section 22-10A-24 provides that termination must be based upon just cause
and provides the employee with an opportunity to be heard. It states:

               C.       An employee who has been employed by a school district or
       state agency for three consecutive years and who receives a notice of
       termination . . . may request an opportunity to make a statement to the local
       school board or governing authority on the decision to terminate him . . . .
       The employee may also request in writing the reasons for the action to

                                             3
        terminate him. The local superintendent or administrator shall provide
        written reasons for the notice of termination to the employee. . . .
                D.        A local school board or governing authority may not terminate
        an employee who has been employed by a school district or state agency for
        three consecutive years without just cause.
                E.        The employee’s request [for an opportunity to make a
        statement] shall be granted if he responds to the local superintendent’s or
        administrator’s written reasons . . . by submitting in writing to the local
        superintendent or administrator a contention that the decision to terminate
        him 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 his
        contention. . . .
                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.

Section 22-10A-24(C)-(F). An employee who is aggrieved by the board’s decision after such
a hearing may appeal pursuant to NMSA 1978, Section 22-10A-25 (2003).

{7}     Approximately two weeks before Weiss completed her contract for her third year of
teaching, she received notice that the school board intended to terminate her—in other
words, that she would finish out her third school year but would not be rehired for a fourth.
Because Weiss received the notice of termination at the end of her third year of teaching, the
single question at issue is whether she was entitled to the protections in Section 22-10A-24
for employees who have been employed for at least three consecutive years, despite the fact
that she had not actually completed all three years at the time that she received notice.

{8}      The answer to that question depends on whether the “three consecutive years”
referred to in Section 22-10A-24(C) is measured at the time that the employee receives
notice of termination or the date that the employee completes her last day of work under the
contract. When read in isolation, the most intuitive construction of the phrase in Section 22-
10A-24(C) providing protections for an employee “who has been employed by a school
district . . . for three consecutive years and who receives a notice of termination,” is that the
time is calculated from the time the employee receives notice. But to construe the statute in
this manner with respect to certified school employees would disregard the Legislature’s
distinct definition of “terminate” when it comes to those employees. Because termination of
a certified school employee refers to “the act of not reemploying [the] employee for the
ensuing school year,” § 22-10A-2(E), termination of a certified school employee’s
employment can only occur at the end of a school year. Although the employee will receive
a notice of termination prior to the end of the year, see NMSA 1978, § 22-10A-22 (2003)
(requiring written notice of termination “[o]n or before the last day of the school year of the
existing employment contract” and stating that the failure to provide such notice shall be

                                               4
construed as a notice of reemployment for the upcoming year); 6.67.2.8(A)(2) NMAC
(requiring service of a notice of termination “on or before the fourteenth calendar day prior
to the last day of the school year”), she will nevertheless complete the full year of
employment. Therefore, in the absence of other intervening circumstances, a certified school
employee who receives a notice of termination during her third year will necessarily finish
her third year of service. If the school board wanted instead to end her employment prior to
the completion of her third year, it would have to discharge her and follow the separate
statutory procedures set out for discharging a certified school employee. See § 22-10A-2(A)
(defining “discharge” as “the act of severing the employment relationship with a certified
school employee prior to the expiration of the current employment contract”); § 22-10A-27
(setting out the procedures for discharging a certified school employee); NMSA 1978, §
22-10A-30 (2003) (requiring a school district to attempt to correct a certified school
employee’s unsatisfactory work performance and to document those attempts prior to
serving a notice of discharge).

{9}     Based on the way that the Act is written, a teacher who has actually completed three
consecutive years of teaching prior to receiving a notice of termination is entitled to
complete a fourth year, either because she received no notice of termination on or before the
last day of the end of her contractual third year and is therefore deemed to have been
provided with a notice of reemployment for a fourth contractual year pursuant to Section 22-
10A-22, or because she has actually received a notice of reemployment, and then, sometime
thereafter, a notice of termination. As a consequence, to conclude that Section 22-10A-24(C)
only provides heightened protections to certified school employees who have actually
completed their third year of employment at the time they receive notice of termination
would have the effect of providing such benefits only to those who will complete a fourth
consecutive year of service and whom a school board does not intend to hire for a fifth
consecutive year. We reject such a reading, both because it would be an unusual construction
of the phrase “employed . . . for three consecutive years” and because the history of the
statute indicates that this was not the Legislature’s intent.

{10} Between 1945 and 1986, Section 22-10A-24’s predecessor statutes expressly
provided that a teacher who had been employed by a school district for three years and had
a contract for a fourth year was entitled to heightened employment protections. See 1945
N.M. Laws, ch. 125, § 1 (stating that notice to discontinue the service of a certified
classroom teacher “who has served a probationary period of three (3) years and holds a
contract for the completion of a fourth year . . . shall specify a place and date . . . at which
time said teacher may at his or her discretion appear before the board for a hearing”); NMSA
1953, § 77-8-11 (1967) (providing that “[a] certified school instructor employed by a school
district for three (3) consecutive school years and having entered into an employment
contract . . . for a fourth consecutive school year acquires tenure rights with that school
district” (emphasis added)). It is therefore clear that the Legislature is capable of drafting
language that would ensure that heightened procedural protections only attach once teachers
have actually completed their third consecutive year of employment prior to receiving notice
of termination and therefore have a contract for a fourth year, either through an actual offer

                                               5
of reemployment or by operation of law. See Starko, Inc. v. Presbyterian Health Plan, Inc.,
2012-NMCA-053, ¶ 49, 276 P.3d 252 (“If the Legislature wanted to condition the
applicability of [a] payment scheme on the dispensing of the lesser expensive, therapeutic
equivalent drug, it would have included those terms within the statute.”). It chose not to
impose this requirement in the current version of Section 22-10A-24.

{11} Defendants and Amici Curiae argue that construing Section 22-10A-24(C) to provide
heightened procedural protections to a certified school employee who receives a notice of
termination while she is still completing her third year would disregard the language of
Section 22-10A-24(A), which states that “[a] local school board . . . may terminate an
employee with fewer than three years of consecutive service for any reason it deems
sufficient.” They argue that Section 22-10A-24(A) requires three years of actual service and
that this provides evidence that the Legislature could not have intended a person who has not
yet completed her third year of service to receive heightened procedural protections prior to
termination. However, as we have explained, barring any unforeseen circumstances, a
certified school employee who receives a notice of termination at some point during her third
consecutive year will in fact complete a third year of service prior to the termination of her
employment, even if the procedures for termination occur before the three years have passed.
Therefore, subsections (A) and (C) are consistent, and both support the conclusion that a
certified school employee in her third consecutive year of employment is entitled to
heightened protections if a school board intends to deny her a contract for a fourth year. See
§ 22-10A-24(A), (C).

{12} Amici also object to this construction of Section 22-10A-24 on the ground that it will
result in the different treatment of certified and noncertified employees. As we have noted,
Section 22-10A-24 governs the procedures for the termination of both types of employees.
Although Section 22-10A-24 itself does not distinguish between certified and noncertified
employees, other provisions of the Act do. Unlike certified employees, noncertified
employees are not employed pursuant to contracts. Accordingly, the statutory definition of
“terminate” as choosing not to renew an employee’s contract for the upcoming year does not
apply to them. Section 22-10A-2(E). Neither does the statutory definition of “discharge,”
which involves ending an employee’s employment in the middle of that employee’s contract.
Section 22-10A-2(A). Instead, the Legislature has provided that the only way to end a
noncertified school employee’s employment is to “terminate” her, which is defined as “the
act of severing the employment relationship with the employee” at any time. Section 22-
10A-2(E). Because the single term “terminate” has two different definitions depending on
the certification status of the employee to be terminated, the provisions of Section 22-10A-
24 governing termination may also be different to some degree depending on that status.
Although we need not resolve the matter, as it is not squarely before us, with respect to a
noncertified employee, Section 22-10A-24(C)’s statement that “[a]n employee who has been
employed by a school district or state agency for three consecutive years and who receives
a notice of termination” receives heightened employment protections may well mean that
only an employee who has served a full three years at the time of the receipt of the notice is
entitled to such protections. However, assuming, without deciding, that that is so, we see no

                                              6
difficulty in a construction that results in different treatment of certified and noncertified
employees. The Legislature provided certified and noncertified employees with different
rights under the statute. Therefore, any such different treatment is by design.

{13} Finally, Amici argue that the sections of the Act governing the mentorship,
evaluation, and professional development of teachers demonstrate that the Legislature did
not intend for teachers who have not yet completed their third consecutive year of
employment to be entitled to heightened procedural protections prior to termination.
However, there is no conflict between those statutes and this Court’s construction of Section
22-10A-24. The Act states that new teachers are required to be mentored for at least one year
and up to three years. NMSA 1978, § 22-10A-7(A) (2011) (providing for mentoring of at
least one year for beginning teachers); NMSA 1978, § 22-10A-8(C) (2011) (same); NMSA
1978, § 22-10A-9(B) (2010) (providing that formal mentoring of beginning teachers may
extend up to three years). The Act also states that teachers who have completed at least three
years of teaching but who still fail to demonstrate essential competencies may receive
mentoring. See NMSA 1978, § 22-10A-19(E) (2010) (providing that teachers who are
beyond the first licensure level and whose performance is less than satisfactory may be
required to be mentored); § 22-10A-7(A) (providing that a teacher must have completed
“three full school years” of teaching before applying for the next level of licensure). Finally,
the Act requires that teachers be evaluated in order to ensure their competency. See NMSA
1978, § 22-10A-18(C) (2003); § 22-10A-19(C). While we agree that these statutes
demonstrate that the Legislature is committed to the process of improving the performance
and achievement of teachers, nothing about this fact suggests that the Legislature did not
intend to permit teachers who have been given contracts for three school years to be
provided with heightened procedural protections if a school district does not intend to
employ them for a fourth.

CONCLUSION

{14} Because Weiss was a certified school employee who had been hired to teach for three
consecutive years in the Santa Fe Public Schools, Section 22-10A-24(D) and (F) of the
School Personnel Act provides that she can only be terminated after a hearing and based
upon just cause. Accordingly, we affirm the district court’s declaratory judgment in
Plaintiffs’ favor.

{15}   IT IS SO ORDERED.

                                               ____________________________________
                                               LINDA M. VANZI, Judge

WE CONCUR:

____________________________________
JAMES J. WECHSLER, Judge

                                               7
____________________________________
MICHAEL E. VIGIL, Judge




                                   8
