CAPS v. Board Members, 20139

• Decision Date: 28 May 1992
• Docket Number: No. 20139,20139
• Parties: , 75 Ed. Law Rep. 1211 In the Matter of Petition for Hearing On Recall of School Board Members. CAPS and Connie Sharp, Petitioners-Appellants, v. BOARD MEMBERS: Ruben B. Alvarado, Jeannette H. Dickerson, Patsy A. Duran and Jose V. Frietze, Respondents-Appellees.
• Court: New Mexico Supreme Court

Page 790

832 P.2d 790

113 N.M. 729, 75 Ed. Law Rep. 1211

In the Matter of Petition for Hearing On Recall of School Board Members CAPS and Connie Sharp, Petitioners-Appellants, v. BOARD MEMBERS: Ruben B. Alvarado, Jeannette H. Dickerson Patsy A. Duran and Jose V. Frietze, Respondents-Appellees.

No. 20139.

Supreme Court of New Mexico.

May 28, 1992.

Norman E. Todd, Las Cruces, for appellants.

Simons, Cuddy & Friedman, Charlotte H. Hetherington, Santa Fe, for appellee.

OPINION

FRANCHINI, Justice.

This appeal challenges a district court's decision that recall petitions alleging misfeasance in office by four members of a local school board did not state facts sufficient to allow the recall process to continue. On appeal, petitioners argue that: (1) the district court applied the incorrect definition of misfeasance in reaching the determination that the facts alleged in the petitions were insufficient to allow the recall process to continue; and (2) the petitions contained sufficient facts to support charges of misfeasance in office. We affirm the district court's determination.

I

In August 1991, Appellants Citizens Advocating Public Safety (CAPS) submitted petitions to the Dona Ana County Clerk seeking to recall four members of the Las Cruces Public Schools Board of Education, pursuant to the Local School Board Member Recall Act, NMSA 1978, Sections 22-7-1 to -16 (Repl.Pamp.1989) (the Act). The petitions alleged misfeasance in office due to the board members' choice of a site for a new high school. Specific facts recited in support of the charges of misfeasance included allegations that the site was adjacent to a main artery of travel in Las Cruces, existing city utilities did not extend to the site, and since the site was predominately outside the city limits, fire protection would be provided by volunteer community fire departments.

Upon receipt of the petitions, in compliance with Section 22-7-9.1(A) of the Act, the county clerk filed an application for hearing in the district court requesting the court's determination of whether sufficient facts existed to allow CAPS to continue with the recall process. For purposes of the hearing, the district court accepted all of the facts CAPS alleged in the petitions as true, and after hearing the matter in September 1991, determined that the petitions failed to state sufficient facts to allow CAPS to proceed with the recall process.

II

In New Mexico, the constitutional standard for recall of local school board members requires that "[a] petition for a recall election must cite grounds of malfeasance or misfeasance in office or violation of the oath of office, by the members concerned." N.M. Const. art. XII, Sec. 14. The parties do not dispute the proposition, and we agree, that our constitution provides for recall for cause, and not recall at will. See In re Recall of Estey, 104 Wash.2d 597, 707 P.2d 1338, 1340-41 (1985) (distinguishing between recall for cause and recall at will). However, neither the constitution nor the statutory procedures enacted to implement the constitutional mandate define the terms of the articulated standard.

In determining the meaning of the word misfeasance, the trial court found guidance in this court's opinion in Arellano v. Lopez, 81 N.M. 389, 467 P.2d 715 (1970). Although Arellano deals with the definition of malfeasance, misfeasance is discussed by way of contrast and comparison.

"Misfeasance is sometimes loosely applied in the sense of malfeasance. Appropriately used, misfeasance has reference to the performance by an officer in his official capacity of a legal act in an improper or illegal manner, while malfeasance is the doing of an official act in an unlawful manner. Misfeasance is literally a misdeed or a trespass, while nonfeasance has reference to the neglect or refusal without sufficient excuse to do that which was an officer's legal duty to do."

Id. at 392, 467 P.2d at 718 (emphasis added) (quoting State ex rel. Hardie v. Coleman, 115 Fla. 119, 155 So. 129, 132 (1934)). With regard to discretionary acts, Arellano further qualifies the definition of malfeasance in that if the act taken by a public official "is discretionary[,] it must have been done with an improper or corrupt motive." Id., 81 N.M. at 392, 467 P.2d at 718. For purposes of this appeal, it is undisputed that the selection, by a local school board, of a site for a new school is a discretionary act within that board's scope of authority. Following Arellano with respect to discretionary acts, the trial court concluded that discretionary acts must be done with improper or corrupt motive to rise to the level of misfeasance in office.

Initially, CAPS urges this court to interpret misfeasance to mean " 'the improper doing of an act an officer might lawfully do; or, in other words, it is the performance of a duty in an improper manner.' " Bocek v. Bayley, 81 Wash.2d 831, 505 P.2d 814, 817 (1973) (quoting State v. Miller, 32 Wash.2d 149, 201 P.2d 136, 138 (1948)), overruled by Cole v. Webster, 103 Wash.2d 280, 692 P.2d 799, 804 (1984). This definition was interpreted to include "action taken which is not in the best interests of the majority of the students and constituents of the school district." Bocek, 505 P.2d at 817. This broad interpretation conceivably encompasses recall as a response to all discretionary actions taken by a public official, regardless of motive or motivation. We reject this interpretation as incongruous with New Mexico's constitutional standard of recall for cause.

Cole, relying in part on its companion case Chandler v. Otto, 103...