Alarcon v. Albuquerque Pub. Sch. Bd. of Educ.

• Citation: 413 P.3d 507
• Decision Date: 30 November 2017
• Docket Number: consolidated with No. A-1-CA-34424,No. A-1-CA-34843,A-1-CA-34843
• Parties: Adrian ALARCON, Petitioner-Appellee, v. ALBUQUERQUE PUBLIC SCHOOLS BOARD OF EDUCATION and Brad Winter Ph.D., Superintendent of Albuquerque Public Schools, Respondents-Appellants. Central Consolidated School District No.22, Petitioner-Appellant, v. Central Consolidated Education Association, Respondent-Appellee.
• Court: Court of Appeals of New Mexico

413 P.3d 507

Adrian ALARCON, Petitioner-Appellee,

v.ALBUQUERQUE PUBLIC SCHOOLS BOARD OF EDUCATION and Brad Winter Ph.D., Superintendent of Albuquerque Public Schools, Respondents-Appellants.

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

Court of Appeals of New Mexico.

Filing Date: November 30, 2017

Certiorari Denied, January 23, 2018, No. S-1-SC-36811

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, NMSA 1978, §§ 22-2-1 to - 33-4 (except Article 5A) (1967, as amended through 2017), vest the local superintendent of a school district with plenary power and authority to act on all school personnel matters, to the exclusion of the local school board. The issue is presented in two separate contexts.

{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, §§ 22-10A-1 to -39, must be conducted by the school board. The district court issued a permanent writ of mandamus to the Albuquerque Public Schools (APS) and its superintendent, directing that a proposed discharge hearing be conducted by the APS school board.

{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), NMSA 1978, §§ 10-7E-1 to -26 (2003, as amended through 2005).

{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 task in construing a statute is to "search for and effectuate" the intent of the Legislature. Id. (internal quotation marks and citation omitted). This task begins with an examination of the actual language of the statute, "which is the primary indicator of legislative intent." Id. "We look first to the plain language of the statute and give words their ordinary meaning unless the Legislature indicates a different one was intended, and we take care to avoid adopting a construction that would render the statute's application absurd or unreasonable or lead to injustice or contradiction." Miller v. Bank of Am. N.A. , 2015-NMSC-022, ¶ 11, 352 P.3d 1162 (citation omitted). When the Legislature amends a statute, we presume the Legislature is aware of existing law, including opinions of our appellate courts, and we normally presume it intends to change existing law. Aguilera v. Bd. of Educ. , 2006-NMSC-015, ¶¶ 19, 24, 139 N.M. 330, 132 P.3d 587.

{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 10-7E-23(B) of the PEBA provides for judicial review of a final decision of the PERLB, and the standard of review to be applied is as follows:

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 , 2018-NMCA-007, ¶ 9, 409 P.3d 983, 2017 WL 3947553 (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 10-7E-23(B). Our Supreme Court has recently repeated how these factors are considered on appeal as follows: "An agency's action is arbitrary and capricious if it provides no rational connection between the facts found and the choices made, or entirely omits consideration of relevant factors or important aspects of the problem at hand. An agency abuses its discretion when its decision is not in accord with legal procedure or supported by its findings, or when the evidence does not support its findings. Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion, and we neither reweigh the evidence nor replace the fact finder's conclusions with our own." Albuquerque Cab Co. v. N.M. Pub. Regulation Comm'n , 2017-NMSC-028, ¶ 8, 404 P.3d 1, 2017 WL 4112029 (No. S-1-SC-36169 & S-1-SC-36174, consolidated, Sept. 18, 2017) (alterations, internal quotation marks, and citations omitted). We apply a whole-record standard of review, and we independently review the entire record of the administrative hearing to determine if the School Board has met its burden. See AFSCME Council 18 , 2018-NMCA-007, ¶ 9, 404 P.3d 1. While we may give heightened deference to an agency's determination on matters that fall within its special expertise, we still apply a de novo standard of review to statutory construction. See Albuquerque Cab Co. , 2018-NMCA-007, ¶ 8, 409 P.3d 983 ; see also AFSCME Council 18 , 2017-NMSC-028, ¶ 9, 409 P.3d 983 (noting that an appellate court applies a de novo standard of review when reviewing an agency's rulings on statutory construction).

II. HOUSE BILL 212

{8} Prior to the adoption of House Bill 212 in 2003, local school boards were required by Section 22-5-4 (2002), to be involved in the day-to-day operations of school districts on an operational level. For example, school boards were required to "supervise and control" all the public schools in the school district; to apply for waivers of certain provisions of the Public School Code relating to length of school day, staffing patterns, subject area or the purchase of instructional materials; to "supervise and control" all property owned or in the possession of the school district; and to "repair and maintain" all property belonging to the school district. In addition, while the 2002 version of Section 22-5-4 provided in Subsection (C) that the local school board had the powers or duties to "delegate administrative and supervisory functions of the school board to the superintendent of schools[,]" the statute failed to specify what those functions were, and certain administrative and supervisory functions, such as the power to hire, terminate, or discharge employees, could not be delegated. Section 22-5-4 (2002). For completeness, we set forth Section 22-5-4 (2002) as it existed prior to the changes made by House Bill 212.¹ {9} Specific to the cases before us here, before House Bill 212 was enacted, Section 22-5-4(D) (2002) provided that a local school board had the "power or duty" to:

[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

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