ADRIAN ALARCON, Petitioner-Appellee, v. ALBUQUERQUE PUBLIC SCHOOLS BOARD OF EDUCATION and BRAD WINTER Ph.D., SUPERINTENDENT OF ALBUQUERQUE PUBLIC SCHOOLS, Respondents-Appellants. consolidated with CENTRAL CONSOLIDATED SCHOOL DISTRICT NO. 22, Petitioner-Appellant, v. CENTRAL CONSOLIDATED EDUCATION ASSOCIATION, Respondent-Appellee.
No. A-1-CA-34843 consolidated with No. A-1-CA-34424
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
November 30, 2017
Shannon C. Bacon, District Judge; Alan M. Malott, District Judge; VIGIL, Judge.
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Shannon C. Bacon, District Judge
consolidated with
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Alan M. Malott, District Judge
J. Edward Hollington & Associates, P.A.
J. Edward Hollington
Albuquerque, NM
for Appellee Alarcon
Modrall, Sperling, Roehl, Harris & Sisk, P.A.
Nathan T. Nieman
K. Cameron Johnson
Albuquerque, NM
for Appellants Albuquerque Public Schools
Modrall, Sperling, Roehl, Harris & Sisk, P.A.
Arthur D. Melendres
Zachary L. McCormick
Albuquerque, NM
for Appellant Central Consolidated School District
Jones, Snead, Wertheim & Clifford, P.A.
Jerry Todd Wertheim
Roxie P. Rawls-De Santiago
Santa Fe, NM
for Appellee Central Consolidated Education Association
VIGIL, Judge.
{1} These consolidated cases present us with a common question: whether changes made in 2003 to the Public School Code,
{2} In Alarcon v. Albuquerque Public Schools, (No. A-1-CA-34843), (the APS appeal), the district court concluded that the discharge hearing for a certified school employee under the School Personnel Act,
{3} In Central Consolidated School District No. 22 v. Central Consolidated Education Association, (No. A-1-CA-34424), (the School District appeal), the district court affirmed the order of the Public Employee Labor Relations Board (PELRB) that the school board is required to hear and decide appeals from decisions of the school superintendent under grievance procedures set forth in the collective bargaining agreement (CBA) negotiated between the Central Consolidated Education Association (Union) and the Central Consolidated School District (School District) pursuant to the Public Employee Bargaining Act (PEBA),
{4} In both cases, the respective school boards asserted that changes made to the Public School Code in 2003 divested school boards of all authority to act on any personnel matters and vested exclusive authority to act on all personnel matters in the local superintendent. The linchpins in both cases are the 2003 revisions made to the Public School Code by H.B. 212 (House Bill 212), 46th Leg., 1st Sess., ch. 153 (N.M. 2003), which require us to engage in statutory interpretation. We first set forth our standard of review, then discuss House Bill 212 in general terms before addressing the specific arguments made in each appeal.
I. STANDARD OF REVIEW
{5} We are required to construe statutes enacted and amended by the Legislature in both appeals. We review questions of statutory construction de novo. See Weiss v. Bd. of Educ. of Santa Fe Pub. Sch., 2014-NMCA-100, ¶ 4, 336 P.3d 388. Our mandated
{6} Because we are reviewing a decision of the PELRB in the School District appeal, there is an additional dimension to our standard of review in that case. Section
A person or party, including a labor organization affected by a final rule, order or decision of the board or local board, may appeal to the district court for further relief. All such appeals shall be based upon the record made at the board or local board hearing. All such appeals to the district court shall be taken within thirty days of the date of the final rule, order or decision of the board or local board. Actions taken by the board or local board shall be affirmed unless the court concludes that the action is:
(1) arbitrary, capricious or an abuse of discretion;
(2) not supported by substantial evidence on the record considered as a whole; or
(3) otherwise not in accordance with law.
Id. In our appellate review of whether the district court erred in affirming the PELRB‘s decision, we follow the same standard of review used by the district court sitting in its appellate capacity, and at the same time determine whether the district court erred. N.M. Corr. Dep‘t v. AFSCME Council 18, 2017-NMCA-079, ¶ 9, 403 P.3d 709 (No. A-1-CA-34737, Sept. 5, 2017); see Paule v. Santa Fe Cty. Bd. of Cty. Comm‘rs., 2005-NMSC-021, ¶ 26, 138 N.M. 82, 117 P.3d 240 (stating that in administrative appeals the appellate court reviews the administrative decision under the same standard used by the district court while also determining whether the district court erred in its review); see Regents of Univ. of N.M. v. Fed‘n of Teachers, 1998-NMSC-020, ¶ 17, 125 N.M. 401, 962 P.2d 1236 (applying the general administrative standard of review applicable to appeals from administrative agencies to an appeal from a decision of the PELRB).
{7} Under the terms of the statute, the School Board bears the burden of demonstrating on appeal that the decision of the PELRB is “arbitrary, capricious or an abuse of discretion“; is “not supported by substantial evidence on the record considered as a whole“; or is “otherwise not in accordance with law.” Section
II. HOUSE BILL 212
{8} Prior to the adoption of House Bill 212 in 2003, local school boards were required by Section
[A]pprove or disapprove the employment, termination, or discharge of all employees and certified school personnel of the school district upon a recommendation of employment, termination or discharge by the superintendent of schools; provided that any employment relationship shall continue until final decision of the board. Any employment, termination or discharge without the prior recommendation of the superintendent is void[.]
Section
{10} House Bill 212, sometimes referred to as the Public School Reform Act, made sweeping changes to statutes dealing with public education, and at the same time, enacted many new statutes to reform public education in New Mexico. To this end, House Bill 212 is 107 pages long and consists of 72 sections. In stating its legislative findings and purpose for enacting House Bill 212, the Legislature determined, among other findings, that one of the keys to student success in New Mexico is “a multicultural education system that... elevates the importance of public education in the state by clarifying the governance structure at different levels.”
The [L]egislature finds further that the public school governance structure needs to change to provide accountability from the bottom up instead of from the top down. Each school principal, with the help of school councils made up of parents and teachers, must be the instructional leader in the public school, motivating and holding accountable both teachers and students. Each local superintendent must function as the school district‘s chief executive officer and have responsibility for the day-to-day operations of the school district, including personnel and student disciplinary decisions.
Section
A. The local superintendent is the chief executive officer of the school district.
B. The local superintendent shall:
(1) carry out the educational policies and rules of the state board [department] and local school board;
(2) administer and supervise the school district;
(3) employ, fix the salaries of, assign, terminate or discharge all employees of the school district; [and]
....
(5) perform other duties as required by law, the department or the local school board.
{11} House Bill 212 clarified the powers and duties of local school boards and superintendents and structured their relationship in a familiar and well understood framework: the school board enacts policy of the school district and employs a superintendent as the chief executive officer to implement
III. THE APS APPEAL
{12} This case requires us to determine whether the discharge hearing for a certified school employee under Section
A. BACKGROUND
{13} During the 2014-2015 school year, APS notified Teacher, a certified licensed school instructor, of its intent to discharge Teacher from its employment pursuant to Section 27. APS also advised Teacher that he had a right to appeal the intended discharge at a discharge hearing under Section 27, and Teacher filed a timely appeal and request for a discharge hearing. APS scheduled the hearing before an assistant superintendent, and Teacher objected on grounds that he was entitled to a discharge hearing before the school board, not the superintendent. APS responded that under its interpretation of legislative intent and implementation of Section 27, its practice beginning in 2003 was for the superintendent, or the superintendent‘s designee to conduct the discharge hearing and issue a written decision on the employee‘s appeal after the hearing. Teacher responded, again objecting to the procedure imposed by APS as contrary to the “clear, specific, and unambiguous” procedures set forth in Section 27, which require the discharge hearing to be held before the school board, and not the superintendent. Teacher said that he had “no choice but to appear at the only hearing provided to him by APS, subject to objections that [the] proceedings are contrary to state law.”
{14} Instead of appearing at the hearing under the procedure dictated by APS, and before the hearing was scheduled to be held, Teacher obtained an alternative writ of mandamus from the district court directing that the discharge hearing be held before the school board and not the superintendent, or that APS show cause for its lack of compliance and why the writ should not be made permanent. In its answer to the alternative writ, APS argued in part that the 2003 revisions to the Public School Code by House Bill 212 transferred powers previously exercised by the local school board to the local superintendent, with the result that to the exclusion of local school boards, the local superintendent has the sole authority to discharge employees. After a hearing on the merits, the district court disagreed with APS and issued a permanent writ of mandamus, directing
B. ANALYSIS
{15} APS argues three reasons why it contends the district court erred, which we summarize as follows: (1) the permanent writ of mandamus disregards and renders meaningless the legislative intent of the 2003 amendments to the Public School Code, which “explicitly both divested local school boards of the authority to hire and terminate or discharge employees and vested that authority in local superintendents“; (2) the district court erred in issuing the permanent writ of mandamus because APS did not have a clear legal duty to provide Teacher with a discharge hearing before the school board; and (3) the district court erred in issuing the permanent writ of mandamus because Teacher did not exhaust available plain, speedy, and adequate administrative remedies. We address each argument in turn.
1. Legislative Intent
{16} APS argues that the 2003 amendments to the Public School Code reflect a specific legislative intent to vest the local superintendent with plenary authority over all personnel decisions, thereby divesting local boards of authority to hold discharge hearings and the ultimate power to discharge employees. APS argues that this specific legislative intent was expressed when House Bill 212 deleted Subsection (D) from the enumerated powers of local school boards in Section
{17} We conclude that APS reads House Bill 212, and the amendments it made to the Public School Code, too narrowly, without taking into account other changes made by House Bill 212 to the Public School Code, or the fact that the Legislature re-codified, but did not repeal Section 27. This case involves the contemplated “discharge” of Teacher, a certified school employee. A “discharge” under the School Personnel Act is “the act of severing the employment relationship with a certified school employee prior to the expiration of the current employment contract[.]” Section
{18} House Bill 212 re-compiled, but did not otherwise amend, the procedure for discharging a certified school employee under Section 27 of the School Personnel Act. House Bill 212, Section 72(F) (recompiling former
{19} The requirements for discharging a certified school employee under Section 27 are clear and explicit.2 Under Section
the exclusive authority to discharge a certified school employee. Further, the school board can only discharge where “just cause” is proven by the superintendent by a preponderance of the evidence. Procedurally, the superintendent “shall” serve the employee with a written notice of his intent to “recommend” discharge, stating in the notice the cause for his recommendation, as well as informing the employee of his right to a discharge hearing “before the local school board.” Section 27(A). The
employee “may” exercise his right to a discharge hearing before the school board by giving written notice of that election,
{20} We also note that prior to the adoption of House Bill 212 in 2003, a hearing before the school board was always required for a discharge to take place, because the 2002 version of
{21} Discharging a teacher in the middle of the school year is significant because a teacher may not have an opportunity to find other employment, causing extreme hardship to the teacher. See Aguilera, 2006-NMSC-015, ¶ 32. Certified school employees have historically been accorded procedural and substantive rights by the Legislature to encourage individuals to enter the profession of teaching our children and to protect educators in their employment. See id. ¶¶ 8-15 (discussing statutory and jurisprudential goals of teachers’ tenure statutes). These goals are expressed in the Public School Code, where the Legislature finds that one of the keys to student success in New Mexico is to have a multi-cultural system that “attracts and retains quality and diverse teachers[.]”
{22} For all the foregoing reasons, we reject the argument made by APS that there is an irreconcilable conflict between
{23} We also reject the argument that House Bill 212 repealed, by implication,
{24} In its final argument, APS refers us to two pages from a publication that was apparently issued in June 2003 by the Department of Education (now known as the Public Education Department) and the Legislative Education Study Committee. The document is entitled, “HB 212 Public School Reform[:] Questions & Answers for School Districts and Constituents By Section” and two pages from the document are attached as an exhibit to APS’ answer to the alternative
2. Clear Legal Duty to Provide a Hearing
{25} APS argues that the district court erred in issuing the permanent writ of mandamus because “[APS did] not have a clear legal duty to provide [Teacher] with a discharge hearing before the [s]chool [b]oard[.]” See
{26} We generally review the granting or denial of a writ of mandamus under an abuse of discretion standard. See State ex rel. Stapleton v. Skandera, 2015-NMCA-044, ¶ 5, 346 P.3d 1191. However, within that context, we are required to interpret
{27} We begin with
{28} For additional support of its argument that it had no clear legal duty to provide Teacher with a discharge hearing before the school board, APS asks us to consider two additional attachments to its answer to the alternative writ. One of the exhibits is a decision and order issued by the secretary of education suspending the “Board of Education of the Questa Independent School District.” Nothing in this decision and order requires or allows a certified school employee‘s discharge hearing to be held before the superintendent. The second exhibit consists of the findings of fact and conclusions of law of an independent arbitrator following a de novo hearing held under
{30} We therefore reject the argument of APS that it did not have a clear legal duty to provide Teacher with a discharge hearing before the school board.
3. Failure to Exhaust Administrative Remedies
{31} For its last argument, APS contends that because Teacher did not attend the discharge hearing before the superintendent, and then appeal, the writ of mandamus was improper because Teacher failed to exhaust the plain, speedy, and adequate administrative remedies available to him. See
{32} APS argues that because Teacher could appeal an adverse decision from a discharge hearing conducted by the superintendent to an independent arbitrator who hears the case de novo, and from there, to the district court under
{33} APS’ argument overlooks Teacher‘s assertion from the very beginning: that he was entitled to a discharge hearing before the school board, a substantive and procedural right afforded to all certified public school employees by the Legislature under
{34} The constitutional right to a pre-termination hearing afforded all school employees under Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985), includes the right of an employee to present his or her side of the case because of its obvious value in reaching an accurate decision on a proposed termination. See id. at 543. “Even where the facts are clear, the appropriateness or necessity of the discharge may not be; in such cases, the only meaningful opportunity to invoke the discretion of the decisionmaker is likely to be before the termination
{35} In addition, our case law does not require Teacher to appear in a hearing that is contrary to the requirements of
Actions to terminate constitutionally protected rights must be conducted with scrupulous fairness. Such was not the case in the matter before us. [The employee] was terminated by the [d]istrict without being afforded the mandatory pre-termination or post-termination process to which he was entitled. Exhaustion of administrative remedies, as a precursor to [the employee‘s] suit for damages, was not required because the [d]istrict, by its actions, deprived [the employee] of his right to initiate and sustain the administrative process mandated by statute—a process which would have provided him with a meaningful opportunity to challenge the grounds for termination.
Id. ¶ 20 (citation omitted). Here the school district insisted that Teacher not be given the hearing he was entitled to receive under
{36} Sanchez v. Board of Education, 1961-NMSC-081, ¶¶ 1-4, 68 N.M. 440, 362 P.2d 979, involved a dispute between a teacher and the local school board over whether he had been dismissed. The teacher sought a writ of mandamus to compel his reinstatement, which the district court granted. Id. ¶ 1. As in this case, the teacher was entitled to be served with a notice of dismissal in which the school board specified its reasons to terminate the teacher, followed by a hearing before the local school board Id. ¶ 7. Pertinent to the issue before us here, our Supreme Court said, “It should be apparent that, under the circumstances here present, there must be a notice of dismissal containing the causes therefor, and a hearing in conformity with the law. A refusal to grant him such a hearing would probably warrant the granting of a writ of mandamus to require a hearing, but such was not the relief sought nor granted. Such a remedy may still be available should the board continue to refuse to follow the clear direction of the statute.” Id. ¶ 8. Because the teacher in Sanchez had not followed the required statutory procedure, our Supreme Court concluded that dismissal of the teacher‘s suit was proper. Id. ¶¶ 14, 17. Here, in contrast, Teacher
{37} Finally, in Stapleton v. Huff, 1946-NMSC-029, ¶ 2, 50 N.M. 208, 173 P.2d 612, superseded by statute as stated in Sanchez, 1961-NMSC-081, the teacher had been a certified school employee for twenty-two years. Stapleton, 1946-NMSC-029, ¶ 2. After being advised that his contract would not be renewed, the teacher appeared at a hearing before the local school board, then appealed to the state board of education. Id. ¶ 3. In neither hearing was the teacher afforded his statutory right to confront and cross-examine the witnesses against him. Id. ¶¶ 3-4. After concluding that by appealing to the State Board of Education, the teacher waived the errors committed by the local school board, id. ¶ 10, our Supreme Court said that the teacher was deprived of his right to the hearing that was statutorily required before the State Board of Education. Id. ¶ 13. Our Supreme Court said, “What the [teacher] has been denied is the hearing before [the] State Board of Education to which he was entitled under the law. This being a clear legal right is enforcible by mandamus[.]” Id. ¶ 14. This holding was consistent with Brown v. Romero, 1967-NMSC-057, 77 N.M. 547, 425 P.2d 310. In Brown, a teacher sued a local school board and the state board of education for breach of tenure rights and for a de novo trial on the issue of her tenure rights, when her own pleadings disclosed that she was denied her statutory rights to a hearing before the local school board and the state board of education. Id. ¶¶ 1-5. Our Supreme Court said, “Mandamus was available as a remedy to test [the teacher‘s] right to a hearing before the governing board.” Id. ¶ 8.
{38} Teacher had a clear statutory right to a hearing to contest his pending discharge before the School Board just like the teachers in Stapleton and Brown, and under the circumstances, a writ of mandamus was a proper vehicle for protecting that right. As a result, Teacher was not required to appear at the proposed discharge hearing before the superintendent, and then appeal before an arbitrator for a de novo hearing, followed by a limited appeal to the district court in lieu of seeking and obtaining the writ of mandamus.
C. RESULT
{39} For all the foregoing reasons, we conclude that the district court did not err in issuing the permanent writ of mandamus to APS.
IV. THE SCHOOL DISTRICT APPEAL
{40} Pursuant to PEBA,
A. BACKGROUND
1. Proceedings Before the PELRB
{41} The Union filed a complaint with the PELRB alleging: (1) that the school board of the School District failed and refused to process grievances as required by the CBA in violation of the PEBA (grievance complaint); and (2) that the School District gave certain employees additional work and paid them an additional “foreman” stipend, thereby changing the terms and conditions of their employment without bargaining with the Union as required by the PEBA (foreman stipend complaint). See
{42} In its answer to the grievance complaint, the School District asserted the defense that revisions made in 2003 to the Public School Code by House Bill 212 transferred powers from the school board to the superintendent of the school district, with the
{43} An evidentiary hearing lasting more than twelve hours was held before the designated hearing officer, Thomas J. Griego. See
2. The Grievance Complaint
{44} The hearing officer found that the parties negotiated a CBA in which they agreed upon procedures for filing and processing grievances. The grievance procedure has five steps. Each succeeding step is followed if the preceding step does not resolve the issue. We summarize those steps as follows: Step 1: the “discussion level” in which a grievant meets with the immediate supervisor to attempt resolving the issue; Step 2: the “supervisor level” in which a written grievance is submitted to the immediate supervisor, and the supervisor communicates a written decision in writing; Step 3: the “superintendent level” which is invoked by appealing the immediate supervisor‘s decision in writing to the superintendent who renders a written decision after meeting with the grievant and the supervisor and reviewing the record and information presented; Step 4: the “board level” which is invoked by appealing to the school board through the superintendent; and Step 5: the “arbitration level” after the school board renders its decision, in which the arbitrator conducts a hearing and renders a final and binding decision.
{45} The question before the hearing officer was whether the school board complied with Step 4 at the school board level. The CBA provides that if the Union “is not satisfied” with the superintendent‘s decision, the Union “may appeal” to the board of education “through the [s]uperintendent.” The CBA further specifically provides that at Step 4:
The [school b]oard will review the grievance and, at the [school b]oard‘s discretion, the [Union] may be invited to appear before the [s]uperintendent and the [school b]oard at their initial or subsequent meeting to present its position and respond to question[s]. The [Union] shall be advised in writing of the decision of the [school b]oard within thirty (30) days of the [school b]oard‘s receipt of the request for review.
The hearing officer first rejected the School District‘s defense that the school board had no authority to hear and decide grievances as required by Step 4 because amendments to the Public School Code enacted by House Bill 212 in 2003 transferred certain duties from the school board to the superintendent. Secondly, the hearing officer found that the School District failed to comply with its duties under Step 4.
{46} The hearing officer found that the school board adopted a blanket policy to send all grievances brought before it back to the superintendent. The hearing officer further found that, consistent with the blanket policy,
{47} The hearing officer concluded that by refusing to review grievances appealed to the school board under Step 4 of the negotiated grievance procedure, the School District committed a prohibited practice in violation of
3. The Foreman Stipend Complaint
{48} The hearing officer found that the School District designated three bargaining employees as “transportation foreman” and made changes to their duties, hours, and pay, without bargaining with the Union, in violation of the PEBA. The hearing officer also rejected the School District‘s defense that the Union waived the failure to bargain on grounds that the Union had acquiesced in the historical practice of “management unilaterally establishing stipends and to whom they [would] be paid.” To the contrary, the hearing officer found, in the CBA, that the Union and the School District had entered into a memorandum of understanding to create a joint committee to review the requirements to be met for an employee‘s “increment, stipend, or activity allowance.”
{49} The hearing officer also made a specific finding that the “facts negate the [School] District‘s claim of waiver.” The hearing officer concluded that evidence presented by the School District established that most of the stipends the School District referred to were of employees outside the Union‘s bargaining unit. As for those employees who were in the bargaining unit and received stipends, the hearing officer found that “there is no evidence to support the proposition that the [U]nion was made aware of the payment of those stipends and given an opportunity to bargain them, a pre-requisite to waiver.”
{50} The hearing officer concluded that by giving three bargaining unit employees additional work and paying them an additional “foreman” stipend without bargaining those changes with the Union, the School District committed a prohibited practice in violation of
{51} The School District appealed from the conclusions of the hearing officer and the findings of fact supporting them to the PELRB. The PELRB voted unanimously to adopt the hearing officer‘s findings of fact, conclusions of law, and rationale as its own. See
B. PROCEEDINGS BEFORE THE DISTRICT COURT
{52} The School District next appealed the decision of the PELRB to the district court. See
{53} Like the hearing officer and the PELRB, the district court concluded that the 2003 amendments to the Public School Code did not prohibit the school board from performing
{54} In the district court, the School District no longer argued that it was not required to bargain with the Union the changes it made to the terms and conditions of employment to certain employees by giving them additional duties and paying them an additional foreman stipend. Instead, the Union relied on its defense that the Union had waived the failure to bargain. On this point, the district court found that substantial evidence supported the hearing officer‘s (and PERB‘s) finding that there was no waiver by the Union.
{55} The School Board filed a petition for writ of certiorari with this Court, which we granted. See
C. ANALYSIS
{56} The School District‘s argument is grounded on the same amendments made to the Public School Code by House Bill 212 that APS relies on in its appeal. To reiterate, House Bill 212 enacted a new statute,
{57} We address the School District‘s argument within the context of the PEBA, which like House Bill 212, was enacted by the Legislature in 2003. Public Employees were not given the right to engage in collective bargaining until 1992 when the Legislature enacted the PEBA for the first time. 1992 N.M. Laws, ch. 9; see Regents of Univ. of N.M., 1998-NMSC-020, ¶ 3 (noting that with the passage of the PEBA in 1992, public employees in New Mexico were given the right to engage in collective bargaining for the first time). However, the 1992 version of PEBA had a sunset provision that took effect in 1999, seven years later. 1992 N.M. Laws, ch. 9, § 30. Four years later in 2003, New Mexico once again recognized the right of public employees to engage in collective bargaining with the passage of the PEBA for the second time. 2003 N.M. Laws, ch. 4, § 1. (We also note that with the passage of 2003 N.M. Laws, ch. 5, the Legislature also enacted the PEBA again. Several sections of Chapter 5 are identical to those contained in Chapter 4, and these are noted in the Compiler‘s notes to the statutory sections. ) The 2003 version of the PEBA is the current version and is codified at
{58} One of the stated purposes of the PEBA “is to guarantee public employees the right to organize and bargain collectively with their employers,”
{59} Consistent with its definition of “collective bargaining,” the PEBA mandates that with the exception of certain retirement programs, exclusive representatives and public employers “shall bargain in good faith on wages, hours and all other terms and conditions of employment and other issues agreed to by the parties[,]” and the parties “shall enter into written collective bargaining agreements covering employment relations.”
1. Authority of the School Board to Hear and Decide Grievances
{60} With the foregoing background in mind, we now examine the School District‘s arguments in detail. Specifically, the School District argues that under Step 4 of the grievance procedure in the CBA in an appeal from the decision of the superintendent, a school board is impermissibly allowed to overrule the superintendent, contrary to Section 14 which states that “[p]ersonnel decisions are in the domain of the [s]uperintendent, not the [s]chool [b]oard.” Further, the School District asserts, because Section 14 vests all hiring and firing authority with the superintendent, if the school board has authority to overrule the superintendent at Step 4 of the grievance process, “then the actual power to hire and fire was never actually changed.” This result, the School District argues, violates two principles of statutory construction: (1) that the Legislature does not intend to enact a nullity when it passes a new law; and (2) that an amendment to an act expresses a legislative intent that the amendment prevails over any remaining contradictory provisions because it is a later declaration of legislative intent, and in adopting the amendment, the Legislature is presumed to have intended to change existing law.
{61} The School District‘s arguments focus on
{62} The School District‘s argument overlooks the fact that in addition to other changes discussed above, House Bill 212,
{63}
{64} The public education department has what appears to be exclusive and plenary control over all education policies of the state. It was created pursuant to
{65} However, the purposes of House Bill 212 are to have a “multicultural education system” that “integrates the cultural strengths of its diverse student population into the curriculum[,]” and “recognizes that cultural diversity in the state presents special challenges for policymakers, administrators, teachers and students” and to also change public school governance “from the bottom up instead of from the top down,”
{66} We therefore reject the School District‘s additional assertion that the PELRB and district court erred in determining that the school board is the public employer under the PEBA and that when the school board signed the CBA, it did not have authority to do so. Under the PEBA, the “appropriate governing body” to engage in collective bargaining and enter into a CBA is “the policymaking . . . body representing the public employer” that at the local level is “the elected or appointed representative body . . . charged with management of the local public body.”
{67} Summarizing, the PEBA provides that the locally elected body of the employer, which makes the employer‘s policies, is the proper party to engage in collective bargaining with a labor organization which has the right to represent all the public employees of the bargaining unit in collective bargaining. Collective bargaining means negotiating for the purpose of “entering into a written agreement regarding wages, hours and other terms and conditions of employment[.]”
{68} We note two more facts before concluding our discussion of this issue. By hearing an appeal at Step 4 of the grievance process, the school board is not making personnel decisions on an operational level. We agree, that as the chief executive officer of the school district, these are responsibilities of the superintendent. Moreover, by hearing an appeal at Step 4 of the grievance process, the school board is not “interfering” in personnel matters or “overruling” a personnel decision of the superintendent as suggested by the School District. These assertions overlook what a “grievance” is under the CBA. The CBA defines a “grievance” as “an allegation by an employee, group of employees, or the [Union], that there has been a violation, misinterpretation, or misapplication of a specific provision of the [CBA].” Thus, at Step 4 of the grievance process, the CBA provides that the school board, as the policy maker who negotiated and agreed to the CBA, simply determines whether its own policy (i.e., a specific provision in the CBA) has been violated, misinterpreted, or misapplied. Making such a determination is not “interfering” in personnel matters nor does it constitute “overruling” a personnel decision of the superintendent. Instead, as the Union asserts, because the CBA applies to all employees, the school board is not involved in making a personnel decision on a personal basis, but under the contractual structure of the CBA through which all individual personnel matters are administered.
{69} Finally, the School District‘s arguments completely overlook the fact that in addition to the president of the school board, the superintendent of the school district signed the CBA on behalf of the school district.
2. Waiver of the Union‘s Right to Bargain for the Stipends
{70} The hearing officer found that the School District unilaterally added duties and responsibilities to three hourly employees in the transportation department, designated them “transportation foreman” and changed their compensation by paying them a stipend of $4,000 per year. The additional duties and responsibilities were different from those usually performed by bargaining unit transportation employees, and would otherwise require overtime pay. Prior to these changes, the position of “[t]ransportation [f]oreman” did not exist. The Union became aware of the increased duties and pay and requested collective bargaining over the changes, but the School District refused. The hearing officer rejected the School District‘s argument that because it had previously paid stipends to other employees without negotiating them, the Union waived its right to bargain over these changes, and held that the School District violated the PEBA when it refused to bargain over the changes. The hearing officer did not, however, order rescission of the new duties and stipends because the Union did not request it, and because the CBA has in place a mechanism (discussed below) for ongoing discussions that are taking place under the CBA. The district court agreed and affirmed.
{71} The School District states that its argument under this point “is primarily one of law, that is, whether the merger of two unions requires that the custom and practice of the employer and the surviving union continue to be recognized as a custom and practice, or whether the merger is a merger for some purposes but not for all.” However, the factual basis for this argument is not clearly presented to us by references to the transcript and record. See
{72} From the briefs of the parties, we gather the following. The Union originally represented only certified academic employees who were paid a salary. Examples are teachers, psychologists, and nurses. The Union expanded the bargaining unit to include hourly paid maintenance and transportation employees, thereby merging two separate bargaining units into one.
{73} Before the bargaining units were merged, when a school required additional services to be performed beyond the salaried position, such as running the science fair, sponsoring the chess club, or coaching cross-country, academic employees were paid stipends for the additional work. The School District would have us consider Exhibit 9 as evidence that “[t]here are, in fact over a thousand such stipends currently in effect.” Exhibit 9 is a computer generated document consisting of twenty-four pages with numerous codes, but there is no evidence informing us how to understand the exhibit or what the codes mean. We therefore do not consider Exhibit 9 further). The CBA at issue here is the first CBA in which negotiations for the combined unit had occurred, and during the negotiations, the duties and payment for a maintenance foreman stipend, and an asbestos inspector stipend, and an “on-call” stipend for employees that had just been merged into the unit were negotiated. The additional duties and stipends paid to academic employees before the “merger” had not been negotiated with the Union. The parties therefore also negotiated a memorandum of understanding as part of the present CBA to “examine the minimum requirements to be met for individuals to be eligible to receive their increment, stipend, or activity allowance” to be submitted to the superintendent and the Union for consideration and implementation.
{75} Further, we conclude that the evidence supports the finding of the hearing officer that the School District failed to prove that the Union waived its right to bargain the transportation stipends. See Ortiz v. Shaw, 2008-NMCA-136, ¶ 19, 145 N.M. 58, 193 P.3d 605 (“Waiver is the intentional relinquishment of a known right.” (internal quotation marks and citation omitted)); Magnolia Mountain Ltd. P‘ship v. Ski Rio Partners, Ltd., 2006-NMCA-027, ¶ 29, 139 N.M. 288, 131 P.3d 675 (“Waiver by acquiescence arises when a person knows he is entitled to enforce a right and neglects to do so for such a length of time that under the facts of the case the other party may fairly infer that he has waived or abandoned such right.” (internal quotation marks and citation omitted)); McCurry v. McCurry, 1994-NMCA-047, ¶ 8, 117 N.M. 564, 874 P.2d 25 (holding that the party asserting waiver as a defense bears the burden to prove the waiver).
{76} Finally, we agree with the observation made by the district court that it was not arbitrary or capricious for the PELRB to consider differences between paying salaried certified academic employees (white collar) for extracurricular activities such as sponsoring student clubs outside working hours and paying stipends to hourly paid maintenance and transportation employees (blue collar) for bargaining unit work that would otherwise require overtime, in concluding that the Union did not waive its right to bargaining over changes in duties and pay for the transportation employees.
D. RESULT
{77} Having reviewed the administrative record and the School District‘s arguments, we conclude that the PELRB did not err, nor did the district court err in affirming the PELRB decision.
V. CONCLUSION
{78} In the APS Appeal, the order of the district court issuing a permanent writ of mandamus to APS is affirmed.
{79} In the School District Appeal, the memorandum opinion and order of the district court affirming the PELRB decision is affirmed.
{80} IT IS SO ORDERED.
MICHAEL E. VIGIL, Judge
WE CONCUR:
JONATHAN B. SUTIN,
JAMES J. WECHSLER, Judge Pro Tempore
Notes
A local school board shall have the following powers or duties:
A. subject to the regulations of the state board, supervise and control all public schools within the school district and all property belonging to or in the possession of the school district;
B. employ a superintendent of schools for the school district and fix his salary;
C. delegate administrative and supervisory functions of the local school board to the superintendent of schools;
D. subject to the provisions of law, approve or disapprove the employment, termination or discharge of all employees and certified school personnel of the school district upon a recommendation of employment, termination or discharge by the superintendent of schools; provided that any employment relationship shall continue until final decision of the board. Any employment, termination or discharge without the prior recommendation of the superintendent is void;
E. apply to the state board for a waiver of certain provisions of the Public School Code . . . relating to length of school day, staffing patterns, subject area or the purchase of instructional materials for the purpose of implementing a collaborative school improvement program for an individual school;
F. fix the salaries of all employees and certified school personnel of the school district;
G. contract, lease, purchase and sell for the school district;
H. acquire and dispose of property;
I. have the capacity to sue and be sued;
J. acquire property by eminent domain as pursuant to the procedures provided in the Eminent Domain Code [
K. issue general obligation bonds of the school district;
L. repair and maintain all property belonging to the school district;
M. for good cause and upon order of the district court, subpoena witnesses and documents in connection with a hearing concerning any powers or duties of the local school boards;
N. except for expenditures for salaries, contract for the expenditure of money according to the provisions of the Procurement Code [
O. adopt regulations pertaining to the administration of all powers or duties of the local school board;
P. accept or reject any charitable gift, grant, devise or bequest. The particular gift, grant, devise or bequest accepted shall be considered an asset of the school district or the public school to which it is given; and
Q. offer and, upon compliance with the conditions of such offer, pay rewards for information leading to the arrest and conviction or other appropriate disciplinary disposition by the courts or juvenile authorities of offenders in case of theft, defacement or destruction of school district property. All such rewards shall be paid from school district funds in accordance with regulations that shall be promulgated by the department of education.
A. A local school board or the governing authority of a state agency may discharge a certified school employee only for just cause according to the following procedure:
(1) the superintendent shall serve a written notice of his intent to recommend discharge on the certified school employee in accordance with the law for service of process in civil actions; and
(2) the superintendent shall state in the notice of his intent to recommend discharge the cause for his recommendation and shall advise the certified school employee of his right to a discharge hearing before the local school board or governing authority as provided in this section.
B. A certified school employee who receives a notice of intent to recommend discharge pursuant to Subsection A of this section may exercise his right to a hearing before the local school board or governing authority by giving the local superintendent or administrator written notice of that election within five working days of his receipt of the notice to recommend discharge.
C. The local school board or governing authority shall hold a discharge hearing no less than twenty and no more than forty working days after the local superintendent or administrator receives the written election from the certified school employee and shall give the certified school employee at least ten days written notice of the date, time and place of the discharge hearing.
D. Each party, the local superintendent or administrator and the certified school employee, may be accompanied by a person of his choice.
E. The parties shall complete and respond to discovery by deposition and production of documents prior to the discharge hearing.
F. The local school board or governing authority shall have the authority to issue subpoenas for the attendance of witnesses and to produce books, records, documents and other evidence at the request of either party and shall have the power to administer oaths.
G. The local superintendent or administrator shall have the burden of proving by a preponderance of the evidence that, at the time of the notice of intent to recommend discharge, he had just cause to discharge the certified school employee.
H. The local superintendent or administrator shall present his evidence first, with the certified school employee presenting his evidence thereafter. The local school board or governing authority shall permit either party to call, examine and cross-examine witnesses and to introduce documentary evidence.
I. An official record shall be made of the hearing. Either party may have one copy of the record at the expense of the local school board or governing authority.
J. The local school board shall render its written decision within twenty days of the conclusion of the discharge hearing.
(Emphasis added.)