(specially concurring).
I concur in the result.
The rules applicable to summary judgment have been restated many times. Generally speaking, they appear to be convenient vehicles used in the disposition of litigation. To repeat the admonition that “Summary Judgments are drastic remedies to be used with great caution” will not deter their use. It is a tautologous statement that has lost its vitality.
First, we are confronted with the discharge of plaintiff, a public school employee, by the superintendent of schools of a district that is under the supervision and control of Los Lunas Consolidated Schools Board of Education.
The only reference to discharge of an employee is found in § 22-5-4(D), N.M.S.A. 1978. It reads in pertinent part:
A local school board shall have the following powers or duties:
D. subject to the provisions of law, approve . .. the ... discharge of all employees ... upon a recommendation of ... discharge by the superintendent of schools.
This provision does not provide for discharge of employees by the board or the superintendent. It permitted the superintendent to recommend a discharge to the board. If, by some unknown way, a discharge is effected, the board can “approve ... the ... discharge.” To “approve a discharge,” anticipates a discharge of an employee. No provision was made in subsection (D) for the board, the superintendent or anyone else to discharge a school employee. To make this provision effective, we should have to delete “approve ... the ... discharge of all employees,” and substitute therefore, “may discharge all employees,” upon the recommendation of the superintendent. This amendment is a legislative, not a judicial, function. Subsection (D) is invalid.
Subsection (A) provides that subject to the regulations of the state board, the local school board shall have the power or duty to “supervise and control all public schools within the school district ....”, and subsection (C) provides that the board shall “delegate administrative and supervisory functions of the local school board to the superintendent of schools.” “Control,” however, remains with the local board. Subsection (A) grants the school board the right to discharge employees.
Page 12 of the Policy Handbook of the board sets forth the duties of the superintendent. Section 3(C) reads in pertinent part:
make recommendations to the Board on all official district business, including ... dismissal . .. of ... staff.
“The word ‘staff’ connotes a body of assistance carrying out the will of a superior.” Beta Nu Chapter, Delta Sigma Theta Sorority v. Smith, 120 Ind.App. 95, 89 N.E.2d 722 (1950). This may be explained in Davis v. Traub, 90 N.M. 498, 565 P.2d 1015 (1977). Davis held that “staff” in the context of a district attorney or attorney general refers to the legal staff of the district or attorney general, e. g., assistant district attorney or assistant attorney general.
Plaintiff, a janitor who worked in public schools was not a. staff assistant of the superintendent of schools. This provision did authorize the superintendent to make recommendations but not to discharge plaintiff.
On March 6,1979, the superintendent notified plaintiff in writing that his employment was “terminated as custodian for the Los Lunas Schools effective immediately.”
The superintendent testified that the letter was written under his authority as superintendent; that the superintendent has authority to dismiss employees; that on March 9, three days later, he enclosed a copy of the letter to the board to be discussed before the meeting on March 13. The subject was discussed before the meeting but it was deleted from the agenda. An official vote of the board to approve the superintendent’s dismissal of plaintiff was taken at the board meeting on- July 10, 1979. This was the only vote taken by the board at an open meeting.
The board claims that it delegated authority to the superintendent to discharge plaintiff.
The affidavit of the president of the board said:
That during a meeting in February 1979 ... the BOARD informed the Superintendent of the BOARD’S approval of the termination of ARTHUR GALLEGOS’ employment ... whenever, in the judgment of the Superintendent, ARTHUR GALLEGOS’ performance deteriorated to the extent that the Superintendent considered summary termination of ARTHUR GALLEGOS’ services advisable prior to the next scheduled meeting of the BOARD ....
The minutes of the February, 1979, board meeting are not of record.
The superintendent was asked these questions to which he gave these answers:
Q. Was there a vote taken at the work shop to dismiss Mr. Gallegos?
A. No vote. Just a discussion.
Q. O. K. And-
A. And they gave me the authority to handle it in the best way I knew how.
Q. Was there a vote taken that gave you authority to handle it in the best way you knew how?
A. No, just general discussion ....
A general discussion held by a local board of education does not constitute official action. The record discloses no dispute in the evidence and the facts. The board failed to make a prima facie showing that it was entitled to summary judgment. It established plaintiff’s claim for wages as a matter of law.
Plaintiff is entitled to recover compensation from March 6,1979 to July 10,1979, as a matter of law.
Second, plaintiff claims that the failure of the school board to formally act on his dismissal was a violation of due process rights. I agree.
Plaintiff was employed as a substitute custodian for the school system in February 1978, and then hired permanently in October of 1978. The board summarily dismissed plaintiff, a permanent employee, without notice or hearing, with no standard of “cause” for discharge, nor any right of appeal. In sum, plaintiff had no job protection rights.
Procedural due process means many different things in the numerous contexts in which it applies.
Although we cannot define “due process of law” as used in the Fourteenth Amendment of the United States Constitution and Art. II, § 18 of the New Mexico Constitution, its essential prerequisites procedurally are clear and unmistakable. When the Constitution says: “No person shall be deprived of life, liberty or property without due process of law,” it means “that there shall be a regular course of proceedings in which notice is given of the claim asserted and an opportunity offered to defend against it.” Simon v. Craft, 182 U.S. 427, 437, 21 S.Ct. 836, 840, 45 L.Ed. 1165 (1901). Stated succinctly, “The fundamental requisite of due process of law is the opportunity to be heard.” Grannis v. Ordean, 234 U.S. 385, 394, 34 S.Ct. 779, 783, 58 L.Ed. 1363, 1369 (1914); Goldberg v. Kelly, 397 U.S. 254, 267, 90 S.Ct. 1011, 1020, 25 L.Ed.2d 287 (1970); Matter of Protest of Miller, 88 N.M. 492, 542 P.2d 1182 (Ct.App.1975); Wollen v. State, 86 N.M. 1, 518 P.2d 960 (1974).
This fundamental rule is applicable to persons engaged in public employment. Summary dismissal from public employment without hearing or inquiry violates due process. Slochower v. Board of Education, 350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692 (1956); Connell v. Higginbotham, 403 U.S. 207, 91 S.Ct. 1772, 29 L.Ed.2d 418 (1971). “It requires no argument to show that the right to work for a living in the common occupations of the community is of the very essence of the personal freedom and opportunity that it was the purpose of the Amendment to secure.” Truax v. Raich, 239 U.S. 33, 41, 36 S.Ct. 7, 10, 60 L.Ed. 131 (1915).
A distinction has been drawn between a person who seeks a renewal of public employment and one who has been discharged. In the former, the person is not deprived of a protected interest. Due process is not denied where no reasons are given for failure to renew the employment nor opportunity to challenge it at any sort of hearing. Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972).
In the latter, where one has been discharged, no more direct assault on a person’s freedom can be imagined than to allow school authorities to discharge an employee without a timely and adequate notice and hearing. The reasons for a proposed termination must be explicitly stated, and an effective opportunity given to defend by confronting adverse witnesses and presenting one’s own case. These rights are important. Due process requires an opportunity to confront and cross-examine adverse witnesses. But, see, Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633,40 L.Ed.2d 15 (1974). When governmental action seriously injures an employee and the reasonableness of the action is an issue, the government must disclose its case to the employee so that he has an opportunity to show that it is untrue. Procedural due process is our fundamental guarantee of fairness, our protection against arbitrary, capricious, and unreasonable government action.
In 1976, the Supreme Court of the United States did a rightaboutface in Bishop v. Wood, 426 U.S. 341, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976). Bishop was a probationary policeman. After six months he became a permanent employee. He was dismissed under a city ordinance that allowed discharge without a hearing for failure to properly perform his duties. The majority opinion followed state law. Following language in Roth, supra, that a person remains free as before to seek other employment, the court said:
. .. The same conclusion applies to the discharge of a public employee whose position is terminable at the will of the employer when there is no public disclosure of the reasons for the discharge. ******
The federal court is not the appropriate forum in which to review the multitude of personnel decisions that are made daily by public agencies. We must accept the harsh fact that numerous individual mistakes are inevitable in the day-to-day administration of our affairs. ... [426 U.S. 348-350, 96 S.Ct. 2079-2080.]
See, Annot. Termination of Public Employment: Right to Hearing Under Due Process Clause of Fifth or Fourteenth Amendment-Supreme Court Cases, 48 L.Ed.2d 996 (1977). In effect, the majority opinion has, by judicial rule, returned public employment to early law and to the status of private employment with reference to employees whose positions are terminable at the will of the employer. Notes-The Due Process Rights of Public Employees, 50 N.Y.U.L.Rev. 310 (1975), a historical and perspective view of the law. Although not discussed in the opinion, query-is the Fourteenth Amendment now inapplicable to public as well as private employment? For a history of the development of federal civil service reform, see Arnett, supra.
Bishop found a simple solution to the perplexing problem of “review of the multitude personnel decisions” that flow from a fast growing nation. It dropped the protection of due process in federal courts. This rule is not applicable to the states. Adherence to the former rule now compels legislative action to preserve the strength of the Fourteenth Amendment. Heretofore, absent legislative action, the Supreme Court extended the meaning of due process to meet the vast expansion of personnel problems. The requirements of summary procedures, rather than abolition of job protection rights, would better serve the needs of public employees today in a constitutional sense.
It has been argued by government that to provide procedural due process to all public employees would place an intolerable burden on the machinery of government; that to require notice, a statement of reasons and a hearing are useless acts because a government bent on denying employment to a public employee will do so regardless of the procedural hurdles that are placed in its path. Denigration of fundamental constitutional law is the wrong pathway to take when it deprives a public employee of due process, one of the most cherished of rights granted him two hundred years ago-the right to life, liberty and property as well as equal protection under the law. Summary denial of wages could, as a practical matter, drive such a wage-earning family to the wall. Done arbitrarily or capriciously it becomes a symbol of injustice that rankles the spirit of fair play.
Summary procedures can be devised that would provide fair and adequate methods to resolve the problem. This is essential because justice delayed may well be justice denied. Notice and hearing are commonplace in all administrative proceedings. Experience teaches that procedural safeguards often prevent erroneous decisions on the merits. It also teaches that government conduct is likely to be more cautious, careful and correct whenever it has to justify its decisions with sound reasons.
New Mexico must avoid the criss-cross position taken by the Supreme Court of the United States. Once again, I quote from Justice Chitty:
“Courts of justice ought not to be puzzled by such old scholastic questions as to when a horse’s tail begins and where it ceases. You are obligated to say: ‘This is the horse’s tail’ at some time.”
Howell v. Burk, 90 N.M. 688, 699, 568 P.2d 214 (Ct.App. 1977), Sutin, J., dissenting.
I say: “This is the horse’s tail.” The due process clause, when applied to discharge of public employees, requires adequate and timely notice of discharge, the reasons therefore, and a hearing in a summary procedure that protects his rights of continued employment. For a proposal of an adequate administrative proceeding, see 50 N.Y.U.L.Rev. 358, supra.