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Kibbe v. Elida School District12/23/1999
{1} Dwayne Kibbe, a certified school teacher, appeals his termination from the Elida Public Schools. Kibbe contends that his termination violated provisions of the Criminal Offender Employment Act (COEA), NMSA 1978, §§ 28-2-1 to -6 (1974, as amended through 1985, prior to 1997 amendment); alternatively, Kibbe contends that his termination is not supported by substantial evidence and is arbitrary and capricious. We agree with Kibbe that there is not substantial evidence in the record to support his termination. Because we reverse the independent arbitrator's decision upholding the local school board's termination of Kibbe on this ground, we do not reach Kibbe's arguments concerning the COEA.
I. Facts
{2} The Elida school board terminated Kibbe at the close of the 1995- 1996 school year. At the time of his termination, Kibbe had been a certified school teacher for approximately twenty years. He had been employed with the Elida Public Schools as both a teacher and a coach for four years. During the 1995-1996 school year, Kibbe taught four classes, seventh-grade New Mexico history, eighth-grade U.S. history, and two classes of physical education. Kibbe also taught the driving portion of driver's education and served as the head basketball coach for the Elida Public Schools. Kibbe had not previously taught driver's education.
{3} On April 13, 1996, Kibbe was arrested in Portales, New Mexico, which is approximately twenty miles from Elida, for driving while intoxicated (DWI). During the booking process at the police station, Kibbe, when told to empty his pockets, threw his change on the ground, striking a police officer in the leg. The officer told Kibbe to cooperate, and Kibbe then attempted to push his way past the officer but did not strike him. Kibbe was subsequently restrained by several officers. Following the incident, Kibbe was charged with three misdemeanor offenses: DWI, see NMSA 1978, § 66-8-102 (1994, prior to 1997 & 1999 amendments), resisting or obstructing an officer, see NMSA 1978, § 30-22-1(A) (1981), and battery, see NMSA 1978, § 30-3-4 (1963).
{4} The Elida school board notified Kibbe of the termination of his employment with Elida Public Schools on April 26, 1996, and pursuant to statute, NMSA 1978, § 22-10-14(C) (1994), Kibbe requested a written statement of the reasons for his termination. On May 8, 1996, the school board provided the following reasons for Kibbe's termination:
1. You have severely compromised your ability to be an effective teacher, coach and employee by being arrested and charged with driving under the influence of alcohol or drugs, resisting or obstructing an officer and battery, especially in your capacity as the driver's education instructor.
2. You have compromised your effectiveness as a teacher, coach and employee by the public scandal involving your behavior as set forth in the criminal complaint filed by Officer Preston Wilkerson of the Portales City Police and witnessed by Officer Gabe Chavez of the E.N.M.U. Police Department.
Kibbe challenged his termination, and after a hearing, the school board upheld the termination by a three-to-two vote. Kibbe then sought review of the school board's decision from an independent arbitrator. See NMSA 1978, § 22-10-14.1(A) (1994).
{5} A number of witnesses testified before the independent arbitrator. Officer Chavez testified that he observed Kibbe driving his vehicle and that he called Officer Wilkerson for assistance after he witnessed Kibbe jump a curb and drive away at a high rate of speed. Officer Wilkerson testified that Kibbe was driving thirty-nine miles per hour in a thirty mile-per-hour zone. After pulling Ki
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