(dissenting).
It is important to note, first, that the trial court dismissed Swinney’s complaint under Rule 12(B)(6) for failure to state a claim upon which relief could be granted, based on two grounds: First, that State Board of Education Regulation No. 89-1, relied on in part in Swinney’s complaint, did not apply to his termination (i.e., nonrenewal of his contract) because the regulation related only to the discharge (as that term is defined in Section 22-10-2(A)) of school employees, not to their termination. I agree with this point; but, as the majority opinion notes, Regulation No. 89-1 was only one of the bases for the claim asserted in Swinney’s complaint. The others were a statute (Section 22-10-14) and — I would say primarily — the School Board’s Official Manual. Like the regulation, the statute is inapplicable to Swinney’s claim, because it relates entirely to termination of “certified school instructors” — a category of school employees into which Swinney clearly did not fall.
This leaves the Official Manual, which Swinney alleged was incorporated into his written contract and which, he claimed, provided him with certain protections, such as termination only for uncorrected unsatisfactory work performance or insubordination, written notification of the reasons for termination, and a hearing before the Board in order to determine whether good cause existed for termination. The trial court dismissed this claim on the ground that Swinney was alleging only an implied contract and that sovereign immunity was not waived for implied contracts, citing Section 37-l-23(A). That statute makes unenforceable unwritten contracts (not implied ones) with a governmental entity, and I would hold that where the operative terms of a contract (even though “implied”) are all written, Section 37-1-23(A) does not apply.
The majority avoids dealing with the sovereign-immunity statute altogether and instead relies on a ground not asserted by the defendant (and not discussed by any of the parties to this appeal) — that a contract between a school board and an administrator purporting to give the administrator rights such as those claimed by Swinney is beyond the board’s power — i.e., is “ultra vires” and therefore void. I respectfully disagree.
There are two critical portions of the majority opinion that I believe are erroneous. The first is the portion stating that the provisions in the Manual on which Swinney relies amount to a grant of “de facto tenure” for a certified school administrator and that this is in direct conflict with the School Personnel Act. The specific reference is to Section 22-10 — 11(E), which provides that a person employed by contract has no legitimate objective expectancy of reemployment and that no such contract shall be construed as an implied promise of continued employment. The statute does not say that a school board cannot by contract provide a certified school administrator with a “legitimate expectancy” of reemployment by obligating itself to follow certain procedures in connection with termination of an administrator’s contract. Thus, I do not see that the Manual’s alleged promise to afford employees of the School Board specified procedures in connection with termination of their contracts is “in direct conflict” with the statute.
The Manual provides that any school employee with three or more years of experience shall be provided notice of termination in writing and that such notice must include the reasons for termination and the procedures for appeal in the event the employee wishes to contest the termination. (Swinney alleged that he had been employed by the Board for a period of more than three years.) This may amount to “de facto tenure,” but I do not see why the Board cannot obligate itself to follow these procedures — perhaps as an inducement to certified school administrators to accept employment with the school district, or perhaps out of the simple notion that certified school administrators should be treated similarly to certified school instructors, even though state law does not require such similarity in treatment.
This brings me to the second part of the opinion that I believe is crucial and with which I disagree. That is the statement: “Any attempt by the Board to enter into a contract or promulgate a termination policy giving an employee rights in conflict with [or, I would say, broader than] the School Personnel Act would be ultra vires and void.” While I agree that “A local school board has only limited authority to promulgate policies and enter into contracts,” I do not agree that the Board’s extension of “de facto tenure” rights to certified school administrators like Swinney, by means of an employment contract and an official policy manual, exceeds the Board’s statutory authority. As the opinion notes, the powers and duties of local school boards are listed in Section 22-5-4. School boards have the power, subject to regulations of the State Board of Education, to supervise and control all public schools within the school district, § 22-5-4(A); to employ a superintendent of schools for the school district and fix his or her salary, § 22-5-4(B); to approve or disapprove the employment, termination, or discharge of all employees and certified personnel of the school district, § 22-5-4(D); and to contract, lease, purchase, and sell for the school district, § 22-5-4(G). The source of the Board’s power and authority to enter into a contract with its superintendent, allowing procedures upon termination similar to those contained in Section 22-10-14, is these subsections of the statute. The statute (Section 22-5-4) certainly does not state that a local school board has no authority to include such provisions in an employment contract with its superintendent of schools. In the absence of an explicit limitation on the authority of local school boards to grant, by contract, school administrators greater process upon termination than that afforded by statute, I cannot agree with the majority that such action is ultra vires.
I might agree with the position taken by Justice Ransom in his special concurrence that the references to Section 22-10-14 in the Manual create an ambiguity; but this is a reason to deny, not grant, the Board’s motion to dismiss the complaint for failure to state a claim. If indeed the Manual contains an ambiguity on this point, the motion to dismiss should be denied and the case should proceed to an evidentiary hearing to resolve the ambiguity. See Mark V v. Mellekas, 114 N.M. 778, 782, 845 P.2d 1232, 1236 (1993). But I am inclined to believe that the Manual, fairly read, is really not ambiguous. It provides, under the heading “Statement of Policy”:
The Board is committed to providing the best qualified personnel and will strive continually to improve the quality of education the district delivers. Similarly, it is in the best interest of the school district to hire and retain the best qualified personnel possible, and the district recognizes that to do so all personnel must be treated professionally and fairly.
Immediately above this “Statement of Policy” is a paragraph dealing with “Scope and Purpose” and saying that “This policy is intended to cover decisions by the Deming Board of Education to reemploy or terminate school personnel when their existing contracts expire. Our purpose is to ensure that any decisions to terminate such employees comply with Section 22-10-14 NMSA as amended, 1978.” In view of the consistent use in the Manual of the terms “school personnel” and “school employees” — instead of, for example, distinguishing between certified school instructors and other employees — it seems clear that the Board intended to extend the procedures listed in Section 22-10-14 to all employees, including school administrators like Swinney, as a matter of contract, even though it was not required by statute to do so.
There is a certain magic to the word “tenure,” which suggests that it is available only in an academic setting and only to teachers or other faculty members of an educational institution. And there are reasons why the law may provide tenure to instructors and not provide it to other employees, such as administrators, within an academic community. Those reasons have to do with the public policy favoring academic freedom — to provide a measure of job security to instructors, who might otherwise hesitate to advocate, or teach, unpopular positions or theories for fear of losing their jobs. Thus, a statutory scheme that provides tenure to “certified school instructors” makes perfectly good sense to me. At the same time, I can see no reason to deny to a school board the power to provide job security to other employees engaged to assist the board in carrying out its academic responsibilities. I can see no reason to disable a board from contractually extending job security, of the type Swinney alleged in his complaint the Board had granted him in his contract, to administrators in order to induce qualified candidates to accept employment and to continue that employment once accepted.
For these reasons, I would hold that Swinney’s complaint stated a cause of action and that the trial court erred in dismissing it.