Board of Educ. of Melrose Mun. Schools v. New Mexico State Bd. of Educ.

• Court: Court of Appeals of New Mexico
• Writing for the Court: GARCIA
• Citation: Board of Educ. of Melrose Mun. Schools v. New Mexico State Bd. of Educ., 740 P.2d 123, 106 N.M. 129, 1987 NMCA 84 (N.M. App. 1987)
• Decision Date: 25 June 1987
• Docket Number: 8332,Nos. 8054,s. 8054
• Parties: , 40 Ed. Law Rep. 1279 BOARD OF EDUCATION OF the MELROSE MUNICIPAL SCHOOLS, Appellant, v. NEW MEXICO STATE BOARD OF EDUCATION, and James C. Wilkinson, Appellees, STATE of New Mexico ex rel. BOARD OF EDUCATION OF the MELROSE MUNICIPAL SCHOOLS, Montey Welch, Wayne Pinnell, Don Gunn and Robert Bennet, in Their Official Capacity as Members of the Board of Education of the Melrose Municipal Schools, Cross-Appellees, v. NEW MEXICO STATE BOARD OF EDUCATION, James C. Wilkinson, Leonard J. Delayo, and the New Mexico State Department of Public Education, Cross-Appellants.

Page 123

740 P.2d 123

106 N.M. 129, 40 Ed. Law Rep. 1279

BOARD OF EDUCATION OF the MELROSE MUNICIPAL SCHOOLS, Appellant, v. NEW MEXICO STATE BOARD OF EDUCATION, and James C. Wilkinson,

Appellees,

STATE of New Mexico ex rel. BOARD OF EDUCATION OF the

MELROSE MUNICIPAL SCHOOLS, Montey Welch, Wayne Pinnell, Don

Gunn and Robert Bennet, in Their Official Capacity as

Members of the Board of Education of the Melrose Municipal

Schools, Cross-Appellees, v. NEW MEXICO STATE BOARD OF EDUCATION, James C. Wilkinson, Leonard J. Delayo, and the New Mexico State

Department of Public Education,

Cross-Appellants.

Nos. 8054, 8332.

Court of Appeals of New Mexico.

June 25, 1987.

[106 NM 129] Robert D. Castille, Simons, Cuddy & Friedman, Santa Fe, for appellant and cross-appellees.

Roger D. Hardaway, Clovis, for appellee and cross-appellant James C. Wilkinson.

Hal Stratton, Atty. Gen., Carolyn Wolf, Leroy R. Warren, Asst. Attys. Gen., Santa Fe, for appellee and cross-appellant New Mexico State Bd. of Educ.

OPINION

GARCIA, Judge.

This is an appeal from a decision by the New Mexico State Board of Education (State Board) reversing a decision by the Board of Education of the Melrose Municipal Schools (Local Board) discharging James C. Wilkinson, a teacher, for immorality and other good and just cause. On appeal, the Local Board urges that the State Board erred in reversing the credibility determinations of the Local Board and of the hearing officer without ever observing, hearing or reading any testimony of the witnesses, and that upon a review of the whole record, the State Board procedures were unfair and created a presumption of prejudice. The Local Board also argues that the decision of the State Board should be reversed because its members received ex parte communications from members of the Melrose community supporting Wilkinson. In its cross-appeal, the State Board urges improper issuance by the trial court in a separate proceeding of an alternative writ of mandamus directing that evidence of ex parte contact with the State Board be made part of the record of the proceedings. We reverse and reinstate the Local Board's discharge decision.

FACTS

Wilkinson, a teacher coach, under contract with Melrose Municipal Schools for the academic years of 1982-1983 and 1983-1984, was discharged for "immorality and other good cause." The Local Board, after a hearing conducted under the provisions of NMSA 1978, Section 22-10-20 (Repl.Pamp.1984), that included the testimony of twenty-eight witnesses, found that Wilkinson had engaged in immoral conduct with one of the students at Melrose High School and attempted to engage in similar conduct with others. It also found the conduct occurred on the school premises and involved the physical touching of a female student's intimate parts. Wilkinson appealed the Local Board's decision to the State Board. See id. A de novo hearing was held by a hearing officer appointed by the State Board. The hearing officer made findings of fact and concluded as a matter of law that the Local Board established by a preponderance of the evidence that sufficient cause existed for Wilkinson's discharge and that the Local Board's decision should be affirmed.

The State Board was subjected to a blizzard of oral and written communications from members of the Melrose community which, in general, supported the good character of Wilkinson. The State Board rejected the Local Board's findings and those of its hearing officer although it took no evidence and, at the time of its vote, had not reviewed the transcript of either the Local Board hearing or the hearing conducted by its hearing officer. It found that the Local Board did not establish by a preponderance of the evidence that cause existed for Wilkinson's discharge.

The Local Board appealed the State Board's decision to this court and also brought mandamus proceedings in the district court to require the State Board to include in its record of proceedings evidence of the communications to and from the Melrose community respecting the character of Wilkinson. The trial court granted the mandamus.

APPEAL FROM THE STATE BOARD DECISION

The State Board relies on Board of Educ. of Alamorgordo Public Schools Dist. No. 1 v. Jennings, 98 N.M. 602, 651 P.2d 1037 (Ct.App.1982), a case with remarkably similar facts. In Jennings, as here, the actual hearing by the State Board was before a hearing officer, with a report and recommended findings of fact and conclusions of law submitted to the State Board. In terms of the standard of review by the State Board, it was specifically held that the State Board did not have to hear new evidence, review the transcript of the hearing before the hearing officer or defer to the hearing officer's decision. As in this case, the State Board adopted a decision contrary to the hearing officer's recommendation without having the benefit of the actual transcript of the hearing before it. We believe Jennings was incorrectly decided to the extent it permits the State Board to reach a decision contrary to the hearing officer's, particularly on issues involving the credibility of witnesses, without the State Board having reviewed the transcript of proceedings, as it relates to the issue involved. In his well-reasoned dissent in Jennings, Chief Judge Donnelly noted that:

Although the State Board under Sec. 22-10-20, supra, is not bound by the findings, conclusions or recommendations of its hearing examiner after a de novo hearing, Board of Education v. New Mexico State Bd. of Ed.[,] 88 N.M. 10, 536 P.2d 274 (Ct.App.1975), the Board's action in arriving at a contrary holding, without itself independently reviewing all of the evidence at the de novo hearing, and based upon a report of the hearing officer which it rejected, is contrary to the requirements of a fair hearing. This is especially true where the credibility of several key witnesses to the proceedings are a determinative factor in the Board's ultimate decision. See McAlpine v. Garfield Water Commission, 135 N.J.L. 497, 52 A.2d 759, 171 A.L.R. 172 (Ct.App.1947); Morgan v. United States, 298 U.S. 468, 56 S.Ct. 906, 80 L.Ed. 1288 (1936). At a de novo hearing, the State Board serves as a quasi-judicial body. It has a duty to see that a fair hearing is held. See First Nat. Bank v. Bernalillo Cty. Valuation, 90 N.M. 110, 560 P.2d 174 (Ct.App.1977).

* * *

* * *

While the State Board is not bound to accept the findings of its hearing officer, nor to accept his recommended conclusions of law, fundamental fairness requires that when the State Board, in its role as a fact finder, elects to disregard the findings and conclusions of its own hearing officer and to arrive at a contrary result, it must review the entire record of the de novo hearing and based on a fair review thereof, arrive at its own findings and conclusions of law * * * * Where, as in this case, the ultimate decision rests upon the credibility of * * * major witnesses, a review of the hearing officer's report, without review of the entire record in the case, does not accord the fundamental due process.

Id. at 614, 651 P.2d at 1049. This holding is consonant with an established body of law. See Morgan v. United States; Megill v. Board of Regents of Florida, 541 F.2d 1073 (5th Cir.1976); Crouse Cartage Co. v. United States, 343 F.Supp. 1133 (N.D.Iowa 1972). This is particularly true where the State Board gave no legally valid reasons for its reversal, and the decisional issues necessarily rested on a determination of the credibilty of witnesses.

We note that our decision here does not affect the holding of Jennings to the effect that the State Board can reverse the decision of its hearing officer, without taking new evidence, even on points turning on the credibility of witnesses. We only require that before the State Board opts to reject the decision of its...