Bertrand v. New Mexico State Board of Education

544 P.2d 1176, 88 N.M. 611
CourtNew Mexico Court of Appeals
DecidedDecember 9, 1975
Docket1930, 2067
StatusPublished
Cited by9 cases

This text of 544 P.2d 1176 (Bertrand v. New Mexico State Board of Education) is published on Counsel Stack Legal Research, covering New Mexico Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bertrand v. New Mexico State Board of Education, 544 P.2d 1176, 88 N.M. 611 (N.M. Ct. App. 1975).

Opinions

OPINION

LOPEZ, Judge.

This case involves two appeals arising out of the Raton School Board’s decision to discharge a teacher, Patricia Bertrand, for her conviction for distributing marijuana. The first appeal discussed (No. 2067) concerns the due process obligation owed by local school boards when they decide not to renew a contract. The second appeal (No. 1930) raises issues relating to the Criminal Offender Employment Act (§§ 41-24-1 through 41-24-6, N.M.S.A. 1953 (Interim Supp.1974) (hereinafter COEA)) and the relationship between the State Board of Education and local school boards.

No. 2067 ■

This appeal concerns the Local Board’s refusal to give Ms. Bertrand a hearing and a statement of reasons for its refusal to rehire her. The teacher appealed the Local Board’s refusal to the State Board, asking them to reverse the Local Board and to give her a hearing. The State Board refused to accept the appeal or grant a hearing.

We do not reach the merits of the teacher’s claim because we do not have jurisdiction. Our decision in this matter is controlled by the decision of this court in Quintana v. State Board of Education, 81 N.M. 671, 472 P.2d 385 (Ct.App.1970), cert. denied 81 N.M. 668, 472 P.2d 382 (1970). In Quintana this court refused to decide an appeal from a decision of the State Board because the Local Board had not held a hearing. The jurisdiction of the State Board is limited to review of decisions of the local school board made after an informal hearing conducted pursuant to § 77-8-16, N.M.S.A.1953 (Repl. Vol. 11, pt. 1, Supp.1973). Section 77-8-17(A), N.M.S.A.1953 (Repl. Vol. 11, pt. 1, Supp.1973). The jurisdiction of the Court of Appeals is limited to review of decisions of the State Board made under § 77-8-17, N. M.S.A.1953 (Repl. Vol. 11, pt. 1, Supp.1973). The teacher’s remedy in this situation was to pursue mandamus. Quintana v. State Board of Education, supra; Brown v. Romero, 77 N.M. 547, 425 P.2d 310 (1967).

No. 1930

Ms. Bertrand was twenty-two years old at the time she began work for the Raton School Board in August of 1974 as a special education teacher for children seven to twelve years old. While a student at the University of New Mexico the preceding spring, she pled guilty to one count of unlawful distribution of marijuana and was placed on probation for one year. When Ms. Bertrand applied for a position with the Raton schools, she answered all questions asked her but did not volunteer any information about her conviction and probationary status. After she had been employed for approximately one month, her probation officer, Mr. Pacheco, contacted the school for an unspecified purpose. Following a meeting of the Superintendent of the Raton Public Schools, Russell Knud-son, with the probation officer and Ms. Bertrand, the School Board decided to discharge the teacher, and so informed her. An informal hearing was then held to determine if cause existed for discharging her at which time the decision was affirmed.

The teacher appealed this decision to the State Board. Section 77-8-17, supra. The Board appointed a hearing officer, Leon Karelitz, who determined that the Local Board had failed to act in accordance with the applicable law. He recommended reversal of the Local Board’s decision. The State Board heard new evidence, made new findings, and affirmed the Local Board’s decision.

The school authorities’ ability to discharge is found in two sources. One source is the teacher’s employment contract which states that employment can be terminated for “good and just cause”. The other source is the Criminal Offender Employment Act. Sections 41-24-1 through 41-24 — 6, supra. COEA is addressed to the problems of employment of those with criminal records. The purpose of COEA is stated to be:

“The legislature finds that the public is best protected when criminal offenders or ex-convicts are given the opportunity to secure employment or to engage in a lawful trade, occupation or profession and that barriers to such employment should be removed to make rehabilitation feasible.” Section 41-24-2, supra.

The general principle is that the state may take convictions into account in making employment decisions, but “. . . such conviction shall not operate as an automatic bar to obtaining public employment.” Section 41-24-3(A), supra.

The specific provision regarding termination of employment is framed in terms of two alternative causes:

“(1) where the applicant, employee or licensee has been convicted of a felony or a misdemeanor involving moral turpitude and the criminal conviction directly relates to the particular employment, trade, business or profession; or
“(2) where the applicant, employee or licensee has been convicted of a felony or a misdemeanor involving moral turpitude and the criminal conviction does not directly relate to the particular employment, trade, business or profession, if the board or other agency determines, after investigation, that the person so convicted has not been sufficiently rehabilitated to warrant the public trust.” Section 41-24 — 4(A), supra.

The Local Board told Ms. Bertrand that the reason for firing her was her conviction and probationary status. The Local Board was unaware of COEA and it is not contended that it complied with it.

The hearing officer noted the Local Board’s noncompliance with COEA. He concluded that there was no direct relationship between the conviction and her employment; that the Local Board had not investigated and determined whether the teacher was rehabilitated; and that, therefore, there was insufficient evidence of good cause to support her discharge.

The State Board affirmed the decision of the Local Board. Before doing so the Board held an evidentiary hearing limited to determining the validity of the Local Board’s actions under COEA. As a result of this hearing the State Board made findings that “Bertrand’s criminal conviction directly relates to her employment, or profession as a teacher,” and that “Bertrand had not been sufficiently rehabilitated to warrant the public trust.”

The relationship between the State Board, its hearing officer, and the Local Board forms the pivotal issue of this appeal. The statute which governs appeal from a decision of a local board to the State Board has led to confusion because reference is made in it to both a review function performed by the State Board (§ 77-8-17(G), supra) and to its ability to conduct a hearing de novo (§ 77-8-17(C), supra). The confusion engendered by this peculiar administrative procedure was substantially dispelled by this court’s recent decision in Board of Education of the City of Albuquerque v. New Mexico State Board of Education, 88 N.M. 10, 536 P.2d 274 (Ct.App.1975) (hereinafter referred to as the Whitman case). In that case the court held that the State Board owed no deference to the decision of the local board and it could “ . . . proceed with the action as if it had been originally commenced at the level of the State Board.”

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Bertrand v. New Mexico State Board of Education
544 P.2d 1176 (New Mexico Court of Appeals, 1975)

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Bluebook (online)
544 P.2d 1176, 88 N.M. 611, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bertrand-v-new-mexico-state-board-of-education-nmctapp-1975.