OPINION
ANDREWS, Judge.In this action, Arthur Gallegos, a non-certified school employee, brought suit against members of the Los Lunas Consolidated Schools Board of Education and its superintendent in their official capacities. He alleged that he had been terminated without due process of law, and in violation of § 22-5-4, N.M.S.A.1978.1 The trial court determined that there existed no genuine issue of material fact, and granted a summary judgment for the defendants.
Summary judgment is a drastic action, for it forecloses any further proof in a matter-thus, a party opposing such a motion is entitled to have all reasonable-inferences afforded him. Barber’s Super Markets, Inc. v. Stryker, 81 N.M. 227, 465 P.2d 284 (1970). Summary judgment should only be entered when there is no genuine issue of fact to be determined by the factfinder. The burden was on defendants to show an absence of a genuine issue of fact, or that they were entitled as a matter of law for some other reason to a summary judgment in their favor. Goodman v. Brock, 83 N.M. 789, 498 P.2d 676 (1972); but cf.: Fischer v. Mascarenas, 93 N.M. 199, 598 P.2d 1159 (1979), where the Supreme Court relies on the “slightest doubt” test with reference to a summary judgment. Section 22-5-4 establishes the power and delineates the duties of local school boards. The provision provides local school boards with the power to delegate administrative and supervisory functions to the superintendent of schools; however, the law also requires that such boards must approve or disapprove the employment or discharge of “all employees and certified school personnel....” (Emphasis added.)
The statute is explicit. It speaks of a recommendation by the superintendent of schools, and action by the Board. This is a critical distinction. Since the Board acts as a body, and because its decisions as to terminations are carried out “subject to the provisions of law,” the employee has a right to have this public body consider and discuss a proposed termination prior to the action. Any other interpretation of this section would deny an employee the right to a prior determination by a majority of an elected forum.
Thus, we must consider whether the plaintiff in the instant action was afforded the rights guaranteed under the statute; if he (1) was terminated without a prior determination of the Board, and (2) was either an “employee” or “certified school personnel of the school district,” he has met the statutory requirements for a cause of action. Further, we need only decide “reasonable doubts” exist as to these elements. Goodman v. Brock, supra.
The facts presented here show that on March 6,1979, A. H. Ruybalid (the Superintendent of the defendant district) gave a letter of dismissal to Gallegos, a permanent custodian employed by the district since October, 1978. Although the Gallegos dismissal had been discussed with members of the school board prior to the date the letter was delivered, the Board did not approve the dismissal until a closed meeting held July 10, 1979. Later that same day, the Board reaffirmed and ratified its action in an open meeting.
The minutes of the July 10 Board meeting reflect that the second item on the agenda was to “[ajffirm actions taken by the Superintendent during meeting of March 13, on the dismissal of Arthur Gallegos bn 3/6/79.” Later in the minutes, the following explanation for the procedure is offered:
[I]t was on the agenda of March 13,1979, but he [Ruybalid] recommended it be deleted as he felt it was an administrative matter and could be handled administratively.
As stated above, the statute requires that a local school board “... approve the ... discharge” of all employees. The school board did not do so here. Rather, the Superintendent acted without the prior approval of the Board. Under § 22-5-4(D), the Superintendent has only the power to recommend a termination. If the Legislature had intended to provide the Superintendent with broader authority, it would have so stated. See Burroughs v. Board of County Commissioners, 88 N.M. 303, 540 P.2d 233; Martinez v. Research Park, 75 N.M. 672, 410 P.2d 200. In 1979, this portion of the statute was amended to require that any termination or discharge of an employee by a local school board without the prior recommendation of the superintendent is void. The Board argues that this amendment “strengthened the power of the superintendent” in regard to the termination of employees. While this is true, the amended provision still requires that the local board approve the discharge of an employee and the new language when compared with the original provides a clear guide to the legislative intent of the statute. The new sections, while not in effect at the time relevant to this action, anticipates that the Board will effect the actual termination. It is apparent, therefore, that Gallegos was terminated without prior approval of the Board, and that there is quite a bit more than “reasonable doubt” as to this point. Since there is uncontroverted testimony that plaintiff was an “employee”, it is clear that both elements of this cause of action were supported by sufficient evidence to raise reasonable doubts.
Certainly there exists evidence which suggest that the Board had previously heard of the desire of Mr. Ruybalid to terminate the plaintiff. There is even evidence which suggests that the Board may have given Ruybalid authority to terminate. This evidence is, however, controverted both by the statements quoted above, and by other evidence. There was the Superintendent’s belief that “[t]he superintendent has the authority to dismiss employees-to do many things.” Also, in response to the question of whether plaintiff’s termination had ever been discussed with the Board, the Superintendent responded:
[Y]ou don’t have the discussion necessarily at Board meetings, ... [workshops that ... did not have to be open to the public.
Most important was his statement that there had been “no vote. Just a discussion.”
Q. Was there a vote that gave you authority to handle it in the best way you knew how?
A. No, just general discussion and in fact-see, we had been having problems with Arthur Gallegos prior to the March meeting. ******
Q. O. K. But, there had never been a vote up until that (July 1979) time, is that correct?
A. Not at an open meeting, no.
The alleged authority was in the form of a discussion of a general nature, and had never actually been by vote. We need not reach the question of whether a Board action taken covertly would violate the obvious due process rights an open Board meeting might protect-for, the Board never actually granted any authority to the Superintendent. The issue of whether the actions were taken in an open or closed meeting is, therefore, largely irrelevant.2
As noted above, this evidence-when read in a light most favorable to Mr. Gallegos-creates a factual question which must be submitted to the jury before the ultimate legal issues can be resolved. See Pribble v. Aetna Life Ins. Co., 84 N.M. 211, 501 P.2d 255 (1972), where the court found that where a genuine issue of material fact existed as to the authority of an agent, a summary judgment was inappropriate.
The summary judgment is reversed and the trial court is directed to reinstate the cause on its docket for further proceedings consistent with this opinion.
IT IS SO ORDERED.
WOOD, C. J., dissenting. SUTIN, J., specially concurring.. 22-5-4. Local school boards; powers, duties.
A local school board shall have the following powers of duties.
A. subject to the regulations of the state board, supervise and control all public schools within the school district, and all property belonging to or in the possession of the school district;
B. employ a superintendent of schools for the school district and fix his salary;
C. delegate administrative and supervisory functions of the local school board to the superintendent of schools;
D. subject to the provisions of law, approve or disapprove the employment or discharge of all employees and certified school personnel of the school district upon a recommendation of employment or discharge by the superintendent of schools;
. Neither do we find issues as to the “personal matter” exclusion of the Open Meeting Law (§ 10-15-1, N.M.S.A.1978) applicable, since this provision became effective after the letter of dismissal which is the subject of this case.