June 03, 2014 – Rosa Weiss and National Education Association–New Mexico v. The Board of Education of the Santa Fe Public Schools, Joel Boyd, in his official capacity as local superintendent of the Santa Fe Public Schools, No. 32,844

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: _______________
Filing Date: June 3, 2014
NO. 32,844
ROSA WEISS and NATIONAL EDUCATION
ASSOCIATION – NEW MEXICO,
Plaintiffs-Appellees,
v.
THE BOARD OF EDUCATION OF THE
SANTA FE PUBLIC SCHOOLS, JOEL BOYD,
in his official capacity as local superintendent of
the Santa Fe Public Schools,
Defendants-Appellants.
APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
Sarah M. Singleton, District Judge
Jones, Snead, Wertheim & Clifford, P.A.
Jerry Todd Wertheim
Roxie Rawls-De Santiago
Samuel C. Wolf
Santa Fe, NM
for Appellees

German & Associates, LLC
K. Lee Peifer
Elizabeth L. German
Albuquerque, NM
for Appellants
Cuddy & McCarthy, LLP
John F. Kennedy
Santa Fe, NM
for Amicus Curiae

OPINION
VANZI, Judge.
{1} 	New Mexico law provides heightened substantive and procedural rights to
teachers who have been employed with a school district for three consecutive years
if the school board elects not to renew the teacher’s contract for a subsequent year.
This case presents the question of whether those protections apply when notice of a
board’s intent not to renew a teacher’s contract is served on the teacher during, but
prior to the completion of, her third year. We conclude that they do and therefore
affirm the district court’s declaratory judgment in favor of Plaintiffs.
BACKGROUND
{2} 	Plaintiff Rosa Weiss was a teacher employed by the Santa Fe Public Schools
during the 2008-09, 2009-10, and 2010-11 school years, pursuant to three one-year
contracts. On May 12, 2011, approximately two weeks before the end of her third
year, Weiss was served notice that Defendant Board of Education of the Santa Fe
Public Schools intended not to renew her contract for a fourth year. Weiss requested
a hearing on the decision, but her request was denied.
{3} 	Weiss and Plaintiff National Education Association-New Mexico then filed suit
in district court against the Board of Education and the Superintendent of the Santa
Fe Public Schools, seeking a declaratory judgment that Defendants were required by

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New Mexico law to provide Weiss with a hearing to contest her termination. The
district court ruled that Weiss was employed for three consecutive years as a certified
school instructor and that, therefore, she was entitled to such a hearing. Defendants
appeal.
DISCUSSION
{4} 	Defendants 	argue 	that 	the 	district 	court’s 	ruling 	was 	based 	on 	a
misinterpretation of a provision of the School Personnel Act (the Act) governing
termination procedures. This Court reviews the district court’s interpretation of a
statute de novo. See Bishop v. Evangelical Good Samaritan Soc’y, 2009-NMSC-036,
¶ 8, 146 N.M. 473, 212 P.3d 361 (stating that questions of statutory construction are
reviewed de novo). When construing a statute, “the essence of judicial responsibility
[is] to search for and effectuate the legislative intent[.]” Id. ¶ 10 (internal quotation
marks and citation omitted). Any such analysis will begin with an examination of the
statutory language, “as the text of the statute is the primary indicator of legislative
intent.” Id. ¶ 11. However, an appellate court must also “consider the statutory
subsection in reference to the statute as a whole and read the several sections together
so that all parts are given effect.” Id. Finally, we must “consider the practical
implications and the legislative purpose of a statute, and when the literal meaning of
a statute would be absurd, unreasonable, or otherwise inappropriate in application, we

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[will] go beyond the mere text[.]” Id. We now apply these principles of statutory
construction to the issue before us.
{5} 	If a school board wishes to put an end to a person’s employment, the Act
mandates different substantive and procedural protections depending on such factors
as the person’s position, how long the person has been employed, and the time at
which the board proposes that the person’s employment will end. See NMSA 1978,
§§ 22-10A-24 and -27 (2003). Teachers are “certified school employees” under the
Act, NMSA 1978, § 22-1-2(G), (BB) (2010), and therefore receive the protections set
forth for those employees. Certified school employees are hired pursuant to contracts
that generally specify a term of one school year, except that after three years of
consecutive employment, a school board may choose to employ a certified school
employee for a contractual term of up to three years. NMSA 1978, § 22-10A-21(B)(5)
(2003). When a school board seeks to end a certified school employee’s employment,
the procedures required depend on whether the board seeks to end the employee’s
employment in the middle of a school year or whether the board simply intends not
to renew the employee’s contract for the following year. The Act therefore
distinguishes between “discharging” a certified school employee, which is defined as
“severing the employment relationship with a certified school employee prior to the
expiration of the current employment contract” and “terminating” a certified school

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employee, which is defined as “the act of not reemploying [a certified school]
employee for the ensuing school year.” See NMSA 1978, § 22-10A-2(A), (E) (2007).
{6} 	Section 22-10A-24 of the Act governs the procedures and standards for
termination. That section sets out two different ways to terminate an employee
depending on whether or not the employee has worked for the school board for at least
three consecutive years. First, for an employee with fewer than three consecutive years
of service, the statute provides for termination for any reason and with minimal
process. It states:
A. 	A local school board . . . may terminate an employee with
fewer than three years of consecutive service for any reason it deems
sufficient. 	Upon 	request 	of 	the 	employee, 	the 	superintendent 	or
administrator shall provide written reasons for the decision to terminate.
. . . The reasons shall not provide a basis for contesting the decision
under the School Personnel Act.
Section 22-10A-24(A). Second, for an employee with at least three consecutive years
of employment, Section 22-10A-24 provides that termination must be based upon just
cause and provides the employee with an opportunity to be heard. It states:
C. 	An employee who has been employed by a school district
or state agency for three consecutive years and who receives a notice of
termination . . . may request an opportunity to make a statement to the
local school board or governing authority on the decision to terminate
him . . . . The employee may also request in writing the reasons for the
action to terminate him. The local superintendent or administrator shall
provide written reasons for the notice of termination to the employee. . . .

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D. 	A local school board or governing authority may not
terminate an employee who has been employed by a school district or
state agency for three consecutive years without just cause.
E. 	The employee’s request [for an opportunity to make a
statement] shall be granted if he responds to the local superintendent’s
or administrator’s written reasons . . . by submitting in writing to the
local superintendent or administrator a contention that the decision to
terminate him was made without just cause. The written contention shall
specify the grounds on which it is contended that the decision was
without just cause and shall include a statement of the facts that the
employee believes support his contention. . . .
F. 	A local school board or governing authority shall meet to
hear the employee’s statement in no less than five or more than fifteen
working days after the local school board or governing authority receives
the statement.
Section 22-10A-24(C)-(F). An employee who is aggrieved by the board’s decision
after such a hearing may appeal pursuant to NMSA 1978, Section 22-10A-25 (2003).
{7} 	Approximately two weeks before Weiss completed her contract for her third
year of teaching, she received notice that the school board intended to terminate
her—in other words, that she would finish out her third school year but would not be
rehired for a fourth. Because Weiss received the notice of termination at the end of her
third year of teaching, the single question at issue is whether she was entitled to the
protections in Section 22-10A-24 for employees who have been employed for at least
three consecutive years, despite the fact that she had not actually completed all three
years at the time that she received notice.

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{8} 	The answer to that question depends on whether the “three consecutive years”
referred to in Section 22-10A-24(C) is measured at the time that the employee
receives notice of termination or the date that the employee completes her last day of
work under the contract. When read in isolation, the most intuitive construction of the
phrase in Section 22-10A-24(C) providing protections for an employee “who has been
employed by a school district . . . for three consecutive years and who receives a
notice of termination,” is that the time is calculated from the time the employee
receives notice. But to construe the statute in this manner with respect to certified
school employees would disregard the Legislature’s distinct definition of “terminate”
when it comes to those employees. Because termination of a certified school employee
refers to “the act of not reemploying [the] employee for the ensuing school year,” §
22-10A-2(E), termination of a certified school employee’s employment can only occur
at the end of a school year. Although the employee will receive a notice of termination
prior to the end of the year, see NMSA 1978, § 22-10A-22 (2003) (requiring written
notice of termination “[o]n or before the last day of the school year of the existing
employment contract” and stating that the failure to provide such notice shall be
construed as a notice of reemployment for the upcoming year); 6.67.2.8(A)(2) NMAC
(requiring service of a notice of termination “on or before the fourteenth calendar day
prior to the last day of the school year”), she will nevertheless complete the full year

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of employment. Therefore, in the absence of other intervening circumstances, a
certified school employee who receives a notice of termination during her third year
will necessarily finish her third year of service. If the school board wanted instead to
end her employment prior to the completion of her third year, it would have to
discharge her and follow the separate statutory procedures set out for discharging a
certified school employee. See § 22-10A-2(A) (defining “discharge” as “the act of
severing the employment relationship with a certified school employee prior to the
expiration of the current employment contract”); § 22-10A-27 (setting out the
procedures for discharging a certified school employee); NMSA 1978, § 22-10A-30
(2003) (requiring a school district to attempt to correct a certified school employee’s
unsatisfactory work performance and to document those attempts prior to serving a
notice of discharge).
{9} 	Based on the way that the Act is written, a teacher who has actually completed
three consecutive years of teaching prior to receiving a notice of termination is entitled
to complete a fourth year, either because she received no notice of termination on or
before the last day of the end of her contractual third year and is therefore deemed to
have been provided with a notice of reemployment for a fourth contractual year
pursuant to Section 22-10A-22, or because she has actually received a notice of
reemployment, and then, sometime thereafter, a notice of termination. As a

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consequence, to conclude that Section 22-10A-24(C) only provides heightened
protections to certified school employees who have actually completed their third year
of employment at the time they receive notice of termination would have the effect of
providing such benefits only to those who will complete a fourth consecutive year of
service and whom a school board does not intend to hire for a fifth consecutive year.
We reject such a reading, both because it would be an unusual construction of the
phrase “employed . . . for three consecutive years” and because the history of the
statute indicates that this was not the Legislature’s intent.
{10} 	Between 1945 and 1986, Section 22-10A-24’s predecessor statutes expressly
provided that a teacher who had been employed by a school district for three years and
had a contract for a fourth year was entitled to heightened employment protections.
See 1945 N.M. Laws, ch. 125, § 1 (stating that notice to discontinue the service of a
certified classroom teacher “who has served a probationary period of three (3) years
and holds a contract for the completion of a fourth year . . . shall specify a place and
date . . . at which time said teacher may at his or her discretion appear before the
board for a hearing”); NMSA 1953, § 77-8-11 (1967) (providing that “[a] certified
school instructor employed by a school district for three (3) consecutive school years
and having entered into an employment contract . . . for a fourth consecutive school
year acquires tenure rights with that school district” (emphasis added)). It is therefore

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clear that the Legislature is capable of drafting language that would ensure that
heightened procedural protections only attach once teachers have actually completed
their third consecutive year of employment prior to receiving notice of termination
and therefore have a contract for a fourth year, either through an actual offer of
reemployment or by operation of law. See Starko, Inc. v. Presbyterian Health Plan,
Inc., 2012-NMCA-053, ¶ 49, 276 P.3d 252 (“If the Legislature wanted to condition
the applicability of [a] payment scheme on the dispensing of the lesser expensive,
therapeutic equivalent drug, it would have included those terms within the statute.”).
It chose not to impose this requirement in the current version of Section 22-10A-24.
{11} 	Defendants and Amici Curiae argue that construing Section 22-10A-24(C) to
provide heightened procedural protections to a certified school employee who receives
a notice of termination while she is still completing her third year would disregard the
language of Section 22-10A-24(A), which states that “[a] local school board . . . may
terminate an employee with fewer than three years of consecutive service for any
reason it deems sufficient.” They argue that Section 22-10A-24(A) requires three
years of actual service and that this provides evidence that the Legislature could not
have intended a person who has not yet completed her third year of service to receive
heightened procedural protections prior to termination. However, as we have
explained, barring any unforeseen circumstances, a certified school employee who

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receives a notice of termination at some point during her third consecutive year will
in fact complete a third year of service prior to the termination of her employment,
even if the procedures for termination occur before the three years have passed.
Therefore, subsections (A) and (C) are consistent, and both support the conclusion that
a certified school employee in her third consecutive year of employment is entitled to
heightened protections if a school board intends to deny her a contract for a fourth
year. See § 22-10A-24(A), (C).
{12} 	Amici also object to this construction of Section 22-10A-24 on the ground that
it will result in the different treatment of certified and noncertified employees. As we
have noted, Section 22-10A-24 governs the procedures for the termination of both
types of employees. Although Section 22-10A-24 itself does not distinguish between
certified and noncertified employees, other provisions of the Act do. Unlike certified
employees, 	noncertified 	employees 	are 	not 	employed 	pursuant 	to 	contracts.
Accordingly, the statutory definition of “terminate” as choosing not to renew an
employee’s contract for the upcoming year does not apply to them. Section 22-10A-
2(E). Neither does the statutory definition of “discharge,” which involves ending an
employee’s employment in the middle of that employee’s contract. Section 22-10A-
2(A). Instead, the Legislature has provided that the only way to end a noncertified
school employee’s employment is to “terminate” her, which is defined as “the act of

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severing the employment relationship with the employee” at any time. Section 22-
10A-2(E). Because the single term “terminate” has two different definitions depending
on the certification status of the employee to be terminated, the provisions of Section
22-10A-24 governing termination may also be different to some degree depending on
that status. Although we need not resolve the matter, as it is not squarely before us,
with respect to a noncertified employee, Section 22-10A-24(C)’s statement that “[a]n
employee who has been employed by a school district or state agency for three
consecutive years and who receives a notice of termination” receives heightened
employment protections may well mean that only an employee who has served a full
three years at the time of the receipt of the notice is entitled to such protections.
However, assuming, without deciding, that that is so, we see no difficulty in a
construction that results in different treatment of certified and noncertified employees.
The Legislature provided certified and noncertified employees with different rights
under the statute. Therefore, any such different treatment is by design.
{13} 	Finally, Amici argue that the sections of the Act governing the mentorship,
evaluation, and professional development of teachers demonstrate that the Legislature
did not intend for teachers who have not yet completed their third consecutive year of
employment to be entitled to heightened procedural protections prior to termination.
However, there is no conflict between those statutes and this Court’s construction of

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Section 22-10A-24. The Act states that new teachers are required to be mentored for
at least one year and up to three years. NMSA 1978, § 22-10A-7(A) (2011) (providing
for mentoring of at least one year for beginning teachers); NMSA 1978, § 22-10A-
8(C) (2011) (same); NMSA 1978, § 22-10A-9(B) (2010) (providing that formal
mentoring of beginning teachers may extend up to three years). The Act also states
that teachers who have completed at least three years of teaching but who still fail to
demonstrate essential competencies may receive mentoring. See NMSA 1978, § 22-
10A-19(E) (2010) (providing that teachers who are beyond the first licensure level and
whose performance is less than satisfactory may be required to be mentored); § 22-
10A-7(A) (providing that a teacher must have completed “three full school years” of
teaching before applying for the next level of licensure). Finally, the Act requires that
teachers be evaluated in order to ensure their competency. See NMSA 1978, § 22-
10A-18(C) (2003); § 22-10A-19(C). While we agree that these statutes demonstrate
that the Legislature is committed to the process of improving the performance and
achievement of teachers, nothing about this fact suggests that the Legislature did not
intend to permit teachers who have been given contracts for three school years to be
provided with heightened procedural protections if a school district does not intend
to employ them for a fourth.
CONCLUSION

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{14} 	Because Weiss was a certified school employee who had been hired to teach for
three consecutive years in the Santa Fe Public Schools, Section 22-10A-24(D) and (F)
of the School Personnel Act provides that she can only be terminated after a hearing
and based upon just cause. Accordingly, we affirm the district court’s declaratory
judgment in Plaintiffs’ favor.
{15} 	IT IS SO ORDERED.
_______________________________
LINDA M. VANZI, Judge
WE CONCUR:
_________________________________
JAMES J. WECHSLER, Judge
_________________________________
MICHAEL E. VIGIL, Judge