(specially concurring).
I specially concur.
It is important to note under § 22-10-20, N.M.S.A.1978, that when a certified school administrator appeals to the state board from a decision of the local board, the state board holds a de novo hearing and under subsection (G):
The issues to be determined by the state board are as follows:
(1) whether there has been a prejudicial departure from the procedures, required by statute or regulation of the state board; or
(2) whether the local board * * * has established, by a preponderance of the evidence presented, that sufficient cause existed for its decision. [Emphasis added.]
“The word ‘or’ designates alternative or separate categories.” First Nat. Bank v. Bernalillo Cty. Valuation, 90 N.M. 110, 112, 560 P.2d 174 (Ct.App.1977). Subsection (G) provides a two pronged alternative or separate method by which the state board can determine the issues. Stated precisely, if the state board’s decision in the instant case was correctly determined that “a prejudicial departure” occurred “from the procedures required” in the local board’s discharge of Jennings, a certified school administrator, it was unnecessary for the state board to determine the alternative or separate issue. The same rule would apply if the state board correctly determined the second issue on “sufficient cause.” It would be unnecessary to determine the first issue on “prejudicial departure.”
The state board’s decision determined both issues against the local board. We are not compelled to uphold the decision on both issues. This concurrence is focused primarily upon the first issue of “prejudicial departure.” Judge Neal’s opinion established that “sexual harassment is ‘unsatisfactory work performance.’ ” The local board, in discharging Jennings failed to afford Jennings any work conferences to correct the problems presented to the board.
Section 20-10-21 reads in pertinent part: The state board shall prescribe by regulations ... procedures to be followed by a local school board in supervising and correcting unsatisfactory work performance of certified school personnel before notice of discharge is served upon them * * *
State board Regulation No. 77-1 implements the mandate of § 22-10-21. Section III.F. defines “unsatisfactory work performance” as “the failure by certified school personnel to perform appointed tasks adequately.” Section IV.A. states:
Uncorrected unsatisfactory work performance is good cause for discharging .. . certified school personnel, so long as procedures established in Paragraph IV.B. herein are followed.
Section IV.B. states:
The following procedures shall be followed by local school boards * * * in supervising and correcting unsatisfactory work performance of certified school personnel before serving them with notice of discharge * * *.
1. Two or more conferences shall have been held with certified school personnel charged with unsatisfactory work performance by a local school board * * * before notice of discharge * * *. Such conferences shall be held with the individual’s immediate supervisor and such other persons as the local board * * * may designate. Sufficient time shall have elapsed between the conferences to allow the instructor or administrator to correct the unsatisfactory work performance * *.
The purpose of work conferences is to allow certified school personnel to work harmoniously with a supervisor to perform appointed tasks adequately. Jennings’ task was to discipline children. If Jennings’ work was inadequate, the conferences could resolve any inefficiency of his in the discipline of children. The paramount purposes of the school system would be preserved. See, Rumora v. Bd. of Edn. of Ashtabula Area City Sch. D., 43 Ohio Misc. 48, 72 0.0.2d 369, 335 N.E.2d 378 (1973).
The failure of the local board to afford Jennings’ work conferences was a prejudicial departure from the procedures required by § 20-10-21 and Regulation 77-1, IV.B.l. On this determination alone, the decision of the state board can be affirmed.
The local board discussed this issue cursorily. The local board, in good faith, was interested solely in the discharge of Jennings, not in the correction of the problem. Due to the sensitivity of sexual harassment, the conduct of the local board can be understood. But a good faith violation of statute and regulation requirements does not validate its decision to discharge Jennings.
The state board of education was created by the people of New Mexico to “determine public school policy” and to “have control, management and discretion of all public schools, pursuant to authority and powers provided by law.” Art. XII, § 6, N.M. Const. We must remind ourselves that the administration of the school system is entrusted by the constitution and the legislature to the state board and not to this Court. When a rational basis exists for its discretionary determinations, supported by the record and evidence insofar as it is factually required, this Court has no right to substitute its judgment for the state board’s or to interfere with the latter’s bona fide exercise of its discretion nor its decision.
I am unable to say that the state board’s determination lacks a rational basis for reinstating Jennings to his position as an assistant principal.
Having reached this conclusion, a discussion of the other alternative or separate issue is unnecessary. However, this issue involves an appellate review of a determination made by the state board as a result of a de novo hearing held by the state board in which a local board and an assistant principal are adverse parties. We must first establish the perimeters of our review and then determine whether the local board met its burden.
The state board is a quasi judicial administrative agency. Board of Education v. County Board of School Trust, 13 Ill.App.2d 561, 142 N.E.2d 742 (1957); Friesen v. Clark, 192 Neb. 227, 220 N.W.2d 12 (1974); Mullins v. Board of Education of Etowah County, 249 Ala. 44, 29 So.2d 339 (1947); Sugar Grove Sch. Dist. v. Bonneville Special Sch. Dist., 208 Ark. 722, 187 S.W.2d 339 (1945).
“Quasi Judicial” is defined in Black’s Law Dictionary 1411 (Rev’d 4th ed. 1968) as follows:
A term applied to the action, discretion, etc., of public administrative officers, who are required to investigate facts, or ascertain the existence of facts, and draw conclusions from them, as a basis for their official action, and to exercise discretion of a judicial nature. [Citations Omitted.]
The state board shall render a decision which contains findings of fact and conclusions of law. Section 22-10-20(1). Not in name, but in fact, it sits as a district court by way of a hearing officer. The hearing proceeded in a manner the equivalent of one held before a district judge. We review the decision of the state board as we would that of a district judge.
The alternative or separate issue to be determined by the state board is “whether the local board” who has the burden of the evidence, “has established by a preponderance of the evidence presented, that sufficient cause existed for its decision.” The local board discharged Jennings because of the extramarital affair and gross inefficiency. The determination of the state board arises from two factors: (1) whether the extramarital affair and gross inefficiency existed and were sufficient cause to discharge Jennings and (2) whether the local board established these causes by a preponderance of evidence, i.e., “substantial support in the evidence.” Lujan v. Circle K Corp., 94 N.M. 719, 722, 616 P.2d 432 (Ct.App.1980). Whether these causes existed and were established by substantial support in the evidence was an issue for the state board to determine, not this Court. It weighs the evidence and tests the credibility of the witnesses. We do not. The burden was on the local board to convince the state board, not this Court, that its decision had substantial support in the evidence.
I concur with Judge Neal’s opinion on this issue. In passing, two additional evidentiary matters could have affected the decision of the state board.
Jennings was an assistant school principal. The principal of the school was present at the hearing. He was best able to determine the efficiency of Jennings to discipline the children. He was not called as a witness to establish that gross inefficiency existed as a “sufficient cause” to discharge Jennings. The local board did call as a witness a 16 year old student who testified that rumors of the affair were common knowledge among students even before Jennings’ suspension and more widely discussed afterward.
“Rumor” is defined in Black’s Law Dictionary 1498 (Rev’d 4th ed. 1968) as follows:
Flying or popular report; a current story passing from one person to another without any known authority for the truth of it. Webster. It is not generally admissible in evidence. [Citations omitted.]
Technical rules of evidence are not applicable at hearings but in ruling on the admissibility of evidence, the hearing officer may require reasonable substantiation of statements tendered, the accuracy or truth of which is in reasonable doubt. Section 22-10-20(E). The hearing officer did not require substantiation as to the accuracy or truth of the rumors. Regardless, the discharge of an assistant principal of a high school for the extramarital affair based upon rumor negates the existence of a fair hearing. The informality of the hearing must not lack in the rudimentary requirements that there be substantial evidence to sustain the decision of the local board.
We are not concerned with whether the state board believed that an extramarital affair was established. This fact is one sensitive in the minds of local and state boards of education. Differences of opinion exist whether “sexual harassment” is a sufficient cause upon which to discharge an assistant principal whose duty is to discipline children. Such differences also exist in the courts. See, Morrison v. State Board of Education, 1 Cal.3d 214, 82 Cal.Rptr. 175, 461 P.2d 375 (1969). The state board makes this determination, not this Court.
The local board contends the state board erred in reversing the local school board for the year 1980-81 because no contract had been executed between the local school board and Jennings. Jennings claims compensation for the 1980-81 school year. The decision of the state board was silent on this issue. They are not before this Court.