(concurring in part and dissenting in part).
I concur in part and dissent in part. I join Part I of the majority opinion; I agree that school boards and their members acting in their official capacities are “persons” for purposes of actions based on 42 U.S.C. § 1983 (1988), and that a New Mexico school district is not an arm of the State for purposes of § 1983. I also agree that the Carlsbad Municipal School District and the Carlsbad Municipal Board of Education (“the District”) did not violate Catherine Daddow’s federal constitutional right to due process. Thus, I join the majority’s conclusion in Part II that the district court properly granted the District’s motion for summary judgment on Daddow’s § 1983 claim. I respectfully dissent, however, on the remaining issues, because I am not persuaded that NMSA 1978, Section 22-5-4 (Repl.Pamp.1993), permits a school board to discharge an employee without the prior recommendation of the superintendent. In my view, the District terminated Daddow contrary to Section 22-5-4, and thus the District breached the employment contract into which they had entered. In addition, I would hold that the district court erred in granting summary judgment in Daddow’s favor on the District’s counterclaim for negligence. Therefore, I would remand the case to the district court for trial on both Daddow’s contract claim and the District’s counterclaim. In light of these conclusions, I would vacate the award of costs. My reasoning follows:
A Whether Daddow’s Discharge Complied with Section 22-5-1,
I am unable to agree with Part III of the majority opinion, which affirms the district court’s construction of Section 22-5-4(D). Under the district court’s construction, the District properly discharged Daddow, notwithstanding the school superintendent’s contrary recommendation. I respectfully suggest that the wording the legislature chose indicates it intended a different result. The legislature seems to me to have allocated the decision-making authority on this issue equally between the superintendent and the school board.
Section 22-5-4(D) states, in relevant part:
A local school board shall have the following powers or duties: ... (D) subject to the provisions of law, approve or disapprove the ... termination or discharge of all employees ... upon a recommendation of ... termination or discharge by the superintendent of schools____ Any ... termination or discharge without the prior recommendation of the superintendent is void[.]
The majority opinion agrees with the District that the statute requires a superintendent’s input, but does not render a school board powerless to act, except in accordance with the recommendation of its superintendent. Op. at 106, 898 P.2d at 1244. However, the statute authorizes a school board to “approve ... [the termination] upon a recommendation ... of termination ... by the superintendent” and then provides that a termination without the prior recommendation of the superintendent is void. I believe that the legislature intended the last sentence of the section to mean “[a]ny ... termination or discharge without the prior recommendation of [termination or discharge by] the superintendent is void.” I note that Section 22-5-4(D) was amended in 1993 to say that “any employment relationship shall continue until final decision of the board.” See 1993 N.M.Laws, ch. 226, § 12. Although the amendment is not applicable to the facts of this ease, Daddow having been terminated prior to its effective date, it is consistent with the statutory construction I suggest is more appropriate: that the legislature contemplated the board would approve or disapprove a recommendation to terminate and did not authorize the board to discharge without such a recommendation.
There is some support for that construction in a 1980 opinion by Judge Andrews for the Court of Appeals. See Gallegos v. Los Lunas Consol. Sch. Bd. of Educ., 95 N.M. 160, 162, 619 P.2d 836, 838 (Ct.App.) (discussing the 1979 amendment to Section 22-5-4(D), which added the last sentence of the statutory provision, and agreeing with board’s position in that ease, which was that the legislature intended to strengthen the superintendent’s power), cert. quashed, 95 N.M. 299, 621 P.2d 516 (1980). Cases from other states with statutes similar to ours also support the construction I suggest. See Adkins v. Board of Educ. of Magoffin County, 982 F.2d 952, 959 (1993) (under state law, school board “could not hire classified personnel without a recommendation from the Superintendent”); State ex rel. Farley v. Board of Educ. of Euclid City Sch. Dist., 156 N.E.2d 924, 927-28 (Ohio 1958) (holding that “there can be no employment of a teacher ... without a recommendation by the superintendent to that effect made to the board”), aff'd, 169 Ohio St. 388, 159 N.E.2d 747 (1959); Reed v. Greene, 243 S.W.2d 892, 893 (Ky. 1951) (holding that the “recommendation of the superintendent is a condition precedent to the right of the board to employ”).
I do not disagree with the reasoning of Stanley v. Raton Board of Education, 117 N.M. 717, 876 P.2d 232 (1994), which held that a school board may unilaterally discharge a superintendent without the superintendent’s prior recommendation. As the Stanley opinion points out, it would be absurd to expect a superintendent to recommend his own removal. Id. at 719, 876 P.2d at 234. I am not persuaded, however, that requiring the superintendent’s recommendation before a school board may discharge other employees serves no useful purpose. Rather, I believe the requirement provides additional protection for employees and strengthens a superintendent’s administrative authority, reasonable choices we may presume the legislature made after due consideration of the alternatives. Thus, I would limit Stanley to those situations where the school board is attempting to discharge a superintendent.
B. Daddow’s Contract Claim
Following Daddow’s presentation of her case, the district court directed a verdict in the District’s favor after concluding that “[t]he School District did not breach its employment contract with Plaintiff by wrongfully terminating her.” In my view, this was an erroneous conclusion of law.
By its terms, the employment contract between Daddow and the District incorporated the termination procedures set forth in the Public School Code. The contract language mandates that any termination must comply with statutory procedures, even when there is good cause for termination.
This contract may be canceled by the Board for cause, including unsatisfactory work performance, incompetency, insubordination, physical or mental inability to perform the required duties or for any other good and just cause, provided, that any such cancellation may be effected only in accordance with the New Mexico Statutes and any applicable rules and regulations of the State and Local Boards of Education.
This provision mandates that any termination must comport with the requirements of Section 22-5-4. Because the termination did not comport with that statute, the District improperly terminated her, and thus breached the foregoing provision of her contract. Whether Daddow was incompetent or insubordinate does not change the fact that the District failed to follow a procedure to which it had consented. I would reverse the directed verdict and remand for trial on the contract claim.
C. Whether Daddow’s Illegal Discharge Gives Rise to a § 1983 Claim
As set forth above, I believe that the District failed to comply with the requirements of Section 22-5-4(D). Notwithstanding that conclusion, I agree with Part II of the majority opinion that the district court properly granted summary judgment in favor of the District on the § 1983 claim. Even if the District’s termination of Daddow without the prior recommendation of the superintendent did constitute an illegal deprivation of a valid property interest, Daddow is not entitled to relief under 42 U.S.C. § 1983.
In evaluating a procedural due process challenge to a deprivation of property, a court “examine[s] the procedural safeguards built into the statutory or administrative procedure of effecting the deprivation, and any remedies for erroneous deprivations provided by statute or tort law.” Zinermon v. Burch, 494 U.S. 113, 126, 110 S.Ct. 975, 983, 108 L.Ed.2d 100 (1990). When a governmental entity terminates a public employee, predeprivation procedural due process normally requires notice and an opportunity for a meaningful hearing. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542, 105 S.Ct. 1487, 1493, 84 L.Ed.2d 494 (1985). The record indicates that the District provided these safeguards to Daddow, and she does not challenge their adequacy on appeal. Moreover, under state law, Daddow had the right to challenge her termination in a postdeprivation common law contract suit, see NMSA 1978, § 37-1-23 (Repl.Pamp.1990), and she availed herself of that right.
Daddow’s § 1983 claim does not challenge the adequacy of either the predeprivation safeguards or the postdeprivation state law remedies; rather, she asserts that because the District violated state law, it violated her constitutional rights. However, “[vjiolation of state law does not in itself create liability under Section 1983.” Garcia v. Las Vegas Medical Ctr., 112 N.M. 441, 443, 816 P.2d 510, 512 (Ct.App.), cert. denied, 112 N.M. 308, 815 P.2d 161 (1991).
In Parrott v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), overruled on other grounds, Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986), the United States Supreme Court indicated that procedural due process requirements may be satisfied by an adequate post-deprivation remedy; the Court held that random and unauthorized negligent conduct resulting in deprivation of property did not give rise to a § 1983 claim because an adequate state remedy existed. Id. at 541-43, 101 S.Ct. at 1916-17; see also 1 Sheldon H. Nahmod, Civil Rights and Civil Liberties Litigation § 3.09 (3d ed. 1991 & 1993 Cum. Supp.). In reaching its decision, the Court reasoned that the Fourteenth Amendment was not intended to be a “ ‘font of tort law to be superimposed upon whatever systems may already be administered by the States.’ ” Parratt, 451 U.S. at 544, 101 S.Ct. at 1917 (quoting Paul v. Davis, 424 U.S. 693, 701, 96 S.Ct. 1155, 1160-61, 47 L.Ed.2d 405 (1976)). Underlying the Parratt decision were considerations of federalism and the concern that federal constitutional law would subsume all other forms of existing tort law. See Michael Wells & Thomas A. Eaton, Substantive Due Process and the Scope of Constitutional Torts, 18 Ga.L.Rev. 201, 208-212 (1984). Parratt and its progeny support a conclusion that Daddow’s § 1983 claim lacks merit, regardless of whether the District violated Section 22-5-4 when it terminated her, absent a showing that state remedies or procedures are inadequate. See Clifton v. Schafer, 969 F.2d 278, 281 (7th Cir.1992); Costello v. Town of Fairfield, 811 F.2d 782 (2d Cir.1987). See generally 1 Nahmod, supra, § 3.17.
D. The School Board’s Counterclaim for Negligence
I also am not persuaded that the district court properly dismissed the District’s counterclaim against Daddow for negligence, and I therefore respectfully dissent from Part V of the majority opinion. See 120 N.M. at 106-07, 898 P.2d at 1244-45. The district court determined that the School Board’s negligence claim would not lie because there was no allegation that Daddow had personally profited from her malfeasance. The requirement of personal profit is not an element of a negligence claim. See generally W. Page Keeton, et al., Prosser and Keeton on Torts § 30 (5th ed. 1984). Indeed, such a requirement would seem to be consistent with an intentional tort rather than one based upon negligence. Moreover, while Daddow defends the correctness of the dismissal, her brief to this Court cites no authority to support the proposition that, under these circumstances, a negligence claim requires a showing of personal profit.
I agree with the majority that the circumstances under which an employer can maintain a negligence action against an employee are limited. Nonetheless, I think that the facts of this case may give rise to such a claim. According to the Restatement of Agency,
The negligence for which an agent is subject to liability to the principal may consist of misconduct in negotiations with third persons, of conduct causing harm to the principal’s tangible things in his custody, or of conduct causing the principal to be subject to liability for a tort, crime; or breach of contract. If the agent receives compensation, he is subject to liability in an action of contract or of tort____
Restatement (Second) of Agency § 379, at 178 cmt. b (1958) (emphasis added). The School District’s counterclaim specifically alleged that Daddow’s negligence resulted in a $60,000 liability to the Department of Agriculture. Presumably, this liability arose out of the school district’s breach of its contractual obligations.
United States v. Gilman, 347 U.S. 507, 74 S.Ct. 695, 98 L.Ed. 898 (1954), is distinguishable. In Gilman, a plaintiff who was injured as a result of Gilman’s negligence brought a personal injury claim against the federal government pursuant to the federal Tort Claims Act. After the plaintiff recovered against the government, the government in turn brought a third-party claim against Gilman under a common law theory of indemnification, and the appeal ensued. Id. at 508, 74 S.Ct. at 695-96. Noting that Congress had been silent on the issue of indemnification, the United States Supreme Court weighed the public policy concerns and determined that a right of indemnification was not embodied in the federal Tort Claims Act. Id. at 509-13, 74 S.Ct. at 696-98.
Unlike Congress, however, our legislature has spoken on the issue of indemnification in the New Mexico Tort Claims Act, NMSA 1978, § 41^-17(A) (Repl.Pamp.1989), which provides:
A. The Tort Claims Act [41^-1 to 41-4-27 NMSA 1978] shall be the exclusive remedy against a governmental entity or public employee for any tort for which immunity has been waived under the Tort Claims Act and no other claim, civil action or proceeding for damages, by reason of the same occurrence, may be brought against a governmental entity or against the public employee or his estate whose act or omission gave rise to the suit or claim. No rights of a governmental entity to contribution, indemnity or subrogation shall be impaired by this section, except a governmental entity or any insurer of a governmental entity shall have no right to contribution, indemnity or subrogation against a public employee unless the public employee has been found to have acted fraudulently or with actual intentional malice causing the bodily injury, wrongful death, property damage or violation of rights, privileges or immunities secured by the constitution and laws of the United States or laws of New Mexico resulting in the settlement or final judgment. Nothing in this section shall be construed to prohibit any proceedings for mandamus, prohibition, habeas corpus, certiorari, injunction or quo warranto.
This statute makes available that which the Gilman Court lacked — legislative action suggesting general public policy. In view of the legislature’s action, I am not satisfied that Daddow was entitled to judgment as a matter of law on the underlying facts. See SCRA 1986, 1-054(C) (Repl.Pamp.1992).
The district court dismissed the counterclaim after it granted the District a directed verdict on Daddow’s contract claim. By then Daddów had put on her case-in-chief, but the District had not put on its defense or its case-in-chief on the counterclaim. Dismissal of the counterclaim under these circumstances probably constituted a grant of summary judgment in Daddow’s favor. Cf. Santistevan v. Centinel Bank of Taos, 96 N.M. 734, 735, 634 P.2d 1286, 1287 (Ct.App.1980) (holding that a motion for dismissal for failure to state a claim may be treated as a motion for summary judgment if matters outside the pleadings are considered by the court), aff'd in part, rev’d in part, 96 N.M. 730, 634 P.2d 1282 (1981). In light of the procedural posture of this case at the time the District’s counterclaim was dismissed, I am concerned that a decision to affirm is premature. We cannot determine on this record whether the District can support its allegations of negligence and, if so, what degree of negligence they would be able to prove. We also cannot determine on this record whether Daddow’s negligence caused the District any harm. Indulging all reasonable inferences in favor of the District, I would conclude that summary judgment on the counterclaim was improper and remand for trial. Under these circumstances, I believe we run the risk of hampering the future development of the law governing an appropriate recovery of public funds in analogous cases, even if on these facts the ultimate resolution would be adverse to the District’s position.
E. Conclusion
For these reasons, I would affirm the district court’s decision granting the District summary judgment on Daddow’s § 1983 claim, reverse the court’s decision directing a verdict for the District on her contract claim and the decision dismissing the District’s counterclaim, and remand for trial; I would vacate the award of costs to the District as premature. Although I agree with the analysis of the District’s status under § 1983 and join Parts I and II of the majority decision, I respectfully dissent from those portions of the majority opinion affirming the district court’s resolution of Daddow’s contract claim and the District’s counterclaim, and thus do not join Parts III, IV, and V of the majority opinion.