Swinney v. Deming Board of Education , 117 N.M. 492 ( 1994 )

OPINION

FRANCHINI, Justice.

Ray Swinney appeals from an order of dismissal for failure to state a claim upon which relief may be granted. Swinney served as Superintendent of Schools in Deming, New Mexico, District No. 1, of the Deming Board of Education (Board) under a contract of employment. Swinney alleged that in connection with the Board’s decision to terminate his employment contract, certain terms of the contract were breached. The Board filed a motion to dismiss and the trial court granted the motion on the grounds that Swinney was terminated and not discharged, and therefore, the regulation relied on in his complaint did not apply to him. In addition, the trial court stated that Swinney’s allegations were based, not on a valid written contract, but instead, on an implied contract, and that therefore the Board was immune from suit under NMSA 1978, Section 37-1-23(A) (Repl.Pamp.1990). We affirm the trial court’s dismissal of this case, in part for different reasons. See Jaramillo v. Jaramillo, 113 N.M. 57, 62, 823 P.2d 299, 304 (1991) (holding that “[a] lower court’s decision will be affirmed on review if that decision was correct, even though the court may have used an incorrect rationale in arriving at its result”).

I.

On reviewing a ruling on a motion to dismiss we will assume as true all facts well pleaded and question whether plaintiff may prevail under any state of facts provable under the claim. DeBaca, Inc. v. Montoya, 91 N.M. 419, 420, 575 P.2d 608, 604 (1978). On January 15, 1991, the Board voted not to renew Swinney’s employment contract for the 1991-92 school year because of unsatisfactory work performance. Swinney continued until May, 1991, at which time he was placed on administrative leave. Swinney identified three sources of his contractual rights which he contends entitled him to an opportunity to correct alleged unsatisfactory work performance, receive written notice of the reasons for his termination, and participate in a hearing at which the merits of his termination would be decided. They were NMSA 1978, Section 22-10-14 (Repl. Pamp.1993), the Deming Public School’s Official Manual (Manual), and State Board of Education Regulation No. 89-1 (January 18, 1989).

Before examining the contractual rights that Swinney contends entitle him to notice and a hearing, we first look at the different treatment afforded teachers and administrators in our statutes and case law. School administrators may have employment contracts of one or two years. NMSA 1978, § 22-10-11(B)(4) (Repl.Pamp.1993). A person employed by such contract has no legitimate expectation of reemployment, and no contract shall be construed as “an implied promise of continued employment pursuant to a subsequent contract.” Section 22-10-11(E). While certified school instructors have certain rights under our statutory scheme, administrators have no tenure rights as administrators. See id.; NMSA 1978, §§ 22-10-12 to -16 (Repl.Pamp.1993); see also Atencio v. Board of Educ. of PeNasco Indep. Sch. Dist., 99 N.M. 168, 169-70, 655 P.2d 1012, 1013-14 (1982) (surmising that previously tenured school instructor lost tenure rights when reemployed as a certified school administrator); Hayden v. Lee, 90 N.M. 272, 273, 562 P.2d 833, 834 (1977) (holding that administrators are neither tenured nor non-tenured). Section 22-10-14 provides that only certified school instructors with three or more years of service are entitled to procedural due process following notice of termination. There is no similar protection provided to administrators that are terminated.

Nor do we interpret, as Swinney contends, the amendment of Section 22-10-16 after Atencio to expand the scope of Section 22-10-14 to include administrators. Section 22-10-16 currently exempts three categories of individuals from the provisions of Section 22-10-14. All of these categories include individuals who are teachers who might otherwise be determined to be “certified school instructors” within the meaning of various provisions of the School Personnel Act, NMSA 1978, §§ 22-10-1 to -26 (Repl. Pamp.1993). Section 22-10-16 exempts persons not holding a standard certificate, certified school instructors hired to replace certified school instructors that entered military service, and persons who are not qualified to teach. The exemption eliminated after Atencio was for “a certified school instructor who is also a certified school administrator and who is required to spend more than one-half of his employment time in administrative functions.” NMSA 1978, Section 22-10-16(B) (Supp.1983) (amended 1983). Thus, as in the other exemptions, we are dealing with individuals who are teachers. Eliminating this exemption does not indicate an intent by the legislature to grant administrators the termination procedures accorded to tenured certified school instructors by Section 22-10-14. If they had such intention surely they would have amended Section 22-10-14 to include by its terms both “school instructors” and “administrators” as is the case in other provisions of the School Personnel Act.

For purposes of the motion to dismiss we assume that the Manual applies to and is incorporated into Swinney’s employment contract. Swinney contends that the Manual in effect at the time of his termination provided in express terms that no personnel could be terminated except for uneorreeted unsatisfactory work performance or insubordination. It provided further that before anyone is terminated, they must receive written notification of the reasons for the termination and a hearing before the Board in order to determine whether good cause existed for the termination.

The Manual states that the “Scope and Purpose” of the Board’s reemployment and termination policy is “intended to cover decisions by the Deming Board of Education to reemploy or terminate school personnel when their existing contracts expire. [The Board’s] purpose is to ensure that any decisions to terminate such employees comply with Section 22-10-14 NMSA as amended, 1978.”

The Manual, as applied to Swinney, requiring that the employee be given the opportunity to correct his deficiencies, amounts to de facto tenure for administrators. As we discussed above, this is in direct conflict with the School Personnel Act, which provides nontenured employees with no expectation of continued employment.

Local school boards are creations of our legislature. See NMSA 1978, §§ 22-5-1 to -12 (Repl.Pamp.1993). A local school board has only limited authority to promulgate policies and enter into contracts. See Section 22-5-4. Any attempt by a local school board to enter into a contract or formulate a policy that violates the specific statutory provisions governing it is ultra vires and void. See Gragg v. Unified Sch. Dist. No. 287, 6 Kan.App.2d 152, 627 P.2d 335, 339 (1981). We agree with the following statement in Gragg: “A school district has only such power and authority as is granted by the legislature, and its power to contract, including contracts for employment, is only such as is conferred either expressly or by necessary implication.” Id. 627 P.2d at 338 (quoting Wichita Pub. Sch. Employees Union v. Smith, 194 Kan. 2, 397 P.2d 357, 359 (1964)).

Any attempt by the Board to enter into a contract or promulgate a termination policy giving an employee rights in conflict with the School Personnel Act would be ultra vires and void. We must therefore hold that Swinney had no contractual right to continued employment or tenure. Consequently the tenure procedures set out in the Manual do not apply to administrators.

Swinney’s allegation that Regulation 89-1 provides him additional rights under his contract, either on its own or as part of the Manual, is also unfounded. Regulation 89-1 specifically relates to discharge of an employee. “Discharge” is defined in Section 22-10-2(A) as “the act of severing the employment relationship with an employee prior to the expiration of the current employment contráete.]” “Terminate,” on the other hand, is defined in Subsection D of the same statute as “the act of not reemploying an employee for the ensuing school year[.]” Regulation 89-1 is inapplicable to Swinney because he was terminated and not discharged.

Swinney’s employment contract did not entitle him to a renewal of employment or an opportunity to correct unsatisfactory work performance. For all the above reasons, we affirm the trial court’s dismissal of this case.

IT IS SO ORDERED.

BACA and FROST, JJ., concur. RANSOM, J., specially concurs. MONTGOMERY, C.J., dissents.