Board of Educ. of Alamogordo Public Schools Dist. No. 1 v. Jennings

• Decision Date: 02 September 1982
• Docket Number: No. 5510,5510
• Parties: , 6 Ed. Law Rep. 1116 BOARD OF EDUCATION OF ALAMOGORDO PUBLIC SCHOOLS DISTRICT NO. 1, Plaintiff-Appellant, v. Lyman JENNINGS, Defendant-Appellee.
• Court: Court of Appeals of New Mexico

Page 1037

651 P.2d 1037

98 N.M. 602, 6 Ed. Law Rep. 1116

BOARD OF EDUCATION OF ALAMOGORDO PUBLIC SCHOOLS DISTRICT NO 1, Plaintiff-Appellant, v. Lyman JENNINGS, Defendant-Appellee.

No. 5510.

Court of Appeals of New Mexico Sept. 2, 1982.

Overstreet & Sandenaw, P. C., Alamogordo, for Bd. of Educ. of Alamogordo Public School District No. 1

Durrett, Jordon & Grisham, P. C., Alamogordo, for Lyman Jennings.

Jeff Bingaman, Atty. Gen., John F. Kennedy, Asst. Atty. Gen., Santa Fe, for State of N. M.

William McEuen, Santa Fe, for New Mexico State Bd. of Educ.

OPINION

NEAL, Judge.

Lyman Jennings, an assistant principal at Alamogordo Mid-High, was fired by the Alamogordo School Board (Local Board) for carrying on an extramarital affair with a secretary in the Mid-High office. Jennings appealed to the State Board of Education, Sec. 22-10-20, N.M.S.A.1978, which reversed the Local Board. The Local Board appeals.

We affirm.

The romance began in late 1979, and died with the coming of spring. The secretary filed a complaint with the Local Board accusing Jennings of sexual harassment. After a hearing before the Local Board Jennings was fired.

The Local Board based its termination on three grounds:

1. Sexual harassment and immoral conduct (the extramarital affair);

2. Gross inefficiency (sexual harassment of other secretaries);

3. Gross inefficiency (knowledge of the above had reached others, adversely affecting Jennings' ability to do his job).

A de novo hearing was held by the State Board. Section 22-10-20, supra. The hearing officer wrote a twenty-six page report containing a detailed fact summary and the legal issues presented. He concluded that the sexual harassment charges could not stand because Jennings was not given a work conference. He concluded that charge number three, gross inefficiency, was proven by a preponderance of the evidence.

The State Board reviewed the report. It agreed that the sexual harassment charge could not stand because no work conference was given. It did not agree that charge number three, gross inefficiency, was proven by a preponderance of the evidence, and reversed the Local Board. The State Board also refused to allow the Local Board to discharge Jennings from a contract for the following school year, 1980-81. The State Board requested revised findings and conclusions from the hearing officer. This was done, and the State Board adopted the revised findings and conclusions.

Appellant Local Board raises four issues:

1. The State Board should have taken new evidence when it rejected the findings and conclusions of its hearing officer.

2. State Board erred in concluding that appellant failed to prove, by a preponderance of the evidence, that good and just cause existed to support the firing.

3. Concerning sexual harassment, Jennings was not entitled to work conferences.

4. Jennings was not entitled to a 1980-81 contract.

Our review of the State Board's decision is limited to determining whether it is:

1. arbitrary, capricious or unreasonable;

2. not supported by substantial evidence; or

3. otherwise not in accordance with law.

See Sec. 22-10-20(J), N.M.S.A.1978; New Mexico State Bd. of Ed. v. Stoudt, 91 N.M. 183, 571 P.2d 1186 (1977).

1. The State Board need not have taken new evidence.

When the State Board rejected the findings and conclusions of its hearing officer, without taking new evidence, was it acting "in accordance with law?" The answer is "yes."

Local Board contends that the State Board cannot summarily reject the hearing officer's findings and conclusions, without taking new evidence, when the hearing officer's findings and conclusions are supported by substantial evidence. It contends that the hearing officer was in the best position to evaluate the credibility of the witnesses, and deference must be given to the hearing officer's decision. While this may be true, the State Board is not bound by the hearing officer's recommendations; it may wholly alter the recommendations of its hearing officer. Board of Education v. New Mexico State Bd. of Ed., 88 N.M. 10, 536 P.2d 274 (Ct.App.1975).

Section 22-10-20(C), N.M.S.A.1978, provides that the hearing officer shall submit his report, and "thereafter the state board shall render a final decision in writing." Section 22-10-20(I), N.M.S.A.1978 provides:

The state board shall render a written decision affirming or reversing the action of the local school board or the governing authority of the state agency. Such decision shall contain findings of fact and conclusions of law.

Neither of these subsections contemplate an additional de novo hearing by the State Board after one has already been held. To require an additional hearing would unnecessarily burden the administrative scheme created by the legislature.

The Local Board had a fair opportunity to present its case, and there is no indication that its presentation would be any different at another hearing. The report of the hearing officer thoroughly presented the facts and legal issues. The State Board was capable of reviewing the report and making a decision based upon it.

Finally, Local Board's reliance on Bertrand v. New Mexico State Board of Education, 88 N.M. 611, 544 P.2d 1176 (Ct.App.1975), cert. denied, 89 N.M. 5, 546 P.2d 70 (1976), and Board of Education, supra, is misplaced. Neither case holds that the State Board, in rejecting its hearing officer's recommendations, must take new evidence.

Board of Education, supra, holds that the State Board is not compelled to follow the Local Board's decision even if the Local Board's decision is supported by substantial evidence. Bertrand, supra, holds that the State Board may take new evidence if it wishes. Bertrand does not hold that the State Board must take new evidence.

2. The State Board did not act unreasonably in concluding that Local Board did not prove, by a preponderance of the evidence, that good and just cause existed to support the firing.

The Local Board's evidence showed that Jennings and the secretary had an extramarital affair which began in the latter part of 1979; that she eventually became pregnant and told him so in March 1980; and that she wrote her letter of complaint on March 26, 1980, after he told her he did not wish to be involved in the situation.

Jennings' evidence showed that the relationship never went beyond romantic fantasy, and attacked the secretary's credibility.

The secretary separated from her husband in 1979 and moved into her own apartment. She instituted divorce proceedings. Jennings, married, had one daughter, and was in charge of attendance and disciplinary problems. The secretary was in charge of attendance, so the two often worked together. They began going to lunch, and he often gave her rides home from school.

The secretary testified that they frequently had intercourse, usually at her apartment, but at least once in the Home Economics Department when school was not in session. Jennings denied this. Love notes were introduced into evidence. The notes, while not explicitly sexual, suggest that the relationship had progressed beyond romantic fantasy.

Besides writing her letter of complaint, the secretary wrote a letter to Jennings' wife, and a letter to Jennings' daughter. Jennings' evidence showed that, after the letter of complaint, the secretaries in the Mid-High office leaked rumors. These rumors stated that the two were having an affair, had had sex on school grounds, and the secretary had become pregnant.

The Local Board's evidence showed that Mrs. Jennings told some friends, including her next door neighbor, about the affair; the neighbor told her son, who "may have told a friend" at Mid-High about it.

Jennings was suspended April 16, 1980. It is difficult to tell how widely the rumors had circulated prior to the suspension, and the source of those rumors. The suspension added fuel to the fire, and the affair became common knowledge among both students and staff.

At the hearing before the Local Board each side launched an attack on the other's credibility. The Local Board brought out inconsistencies between a deposition Jennings gave in July 1980 and his testimony before the Local Board.

Jennings presented evidence that the secretary had twice been convicted of shoplifting, and was subject to two bench warrants for failure to appear on two undisclosed criminal charges.

The Local Board presented a polygraph examiner who testified that the secretary was truthful when she stated that she had had intercourse with Jennings, including at least once on school property. The examiner also stated that she was truthful when she stated that she had not had intercourse with anyone other than Jennings during the period in which her child, born in November 1980, was conceived. Jennings countered with a psychologist who testified that polygraph tests are not reliable. The psychologist also testified that the secretary appeared to be a sociopathic personality type, which includes a readiness to lie to suit the sociopath's subjective emotional needs.

The hearing officer had the unenviable task of arriving at the true story. His job was made more difficult because the secretary did not testify in person at the de novo hearing. She had testified before the Local Board, and a tape was made. By the time the de novo hearing took place the secretary had moved out of state and was unavailable. Thus, the hearing officer heard only her taped testimony and could not observe her demeanor.

Jennings, as a certified school administrator, could not be fired unless he had breached his employment contract or "other good and just cause" existed. The Local Board's theory was that the affair was immoral and therefore "good and just cause" existed to support the firing.

"Good and just cause" is discussed in Stoudt, supra :

The words "for any other good and just cause" have no reasonably defined meaning in the law. These words do not allow the State Board to revoke a...