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Kibbe v. Elida School District12/23/1999
school board to demonstrate by a preponderance of evidence that Kibbe's actions were rationally related to his competence as an employee or to the proper performance of his duties. In this case, the school board did not present evidence that Kibbe's arrest actually affected his ability to teach effectively or to serve as a proper role model for students; instead, the school board relied on Superintendent Cody's testimony about community sentiment and the importance of a teacher and coach providing a good example for students. Because Cody merely surmised that Kibbe's job performance would be impeded by the DWI incident, however, we believe that this testimony is of limited value in assessing the relevant factor under the statute: whether the DWI incident had an actual effect on Kibbe's ability to properly perform his duties. Looking at the record as a whole, Kibbe's testimony that he spoke to his students and players about the incident, that he used the incident as a teaching device, and that he coached the Elida basketball team during the summer serves as the only relevant evidence relating to Kibbe's ability to interact with students and players following his arrest. In light of this testimony and the absence of any relevant evidence to the contrary from the school board, we believe that there is no evidence "that a reasonable mind would regard as adequate to support conclusion" that Kibbe's actions prevented the proper performance of his required teaching and coaching duties. Fitzhugh v. New Mexico Dep't of Labor, 1996-NMSC-044, 24, 122 N.M. 173, 922 P.2d 555 (defining substantial evidence).
{16} With respect to Kibbe's position as a driver's education instructor, Cody testified that teaching driver's education was not a condition of Kibbe's employment. Additionally, Kibbe testified that he had not previously taught driver's education, that he was merely assisting the school by filling a position that had recently become vacant, and that he had not yet completed the necessary training to receive the mandatory certification that would have been required of him in order to serve as a driver's education instructor the following school year. Under these circumstances, while it may have been prudent to remove Kibbe from teaching the driving portion of driver's education, we believe that the school board failed to introduce substantial evidence that Kibbe's actions were rationally related to his competence in performing his required duties as a history and physical education teacher and as a coach.
{17} We believe the prior DWI incident involving another Elida teacher further supports our conclusion that the school board's termination of Kibbe must be reversed. While a school board's decision not to impose disciplinary action against an employee for certain conduct does not foreclose disciplinary action against a different employee in the future for similar conduct, the record in this case is devoid of any meaningful distinction between Kibbe's conduct and that of the other Elida school teacher. In other words, the school board introduced no evidence suggesting that Kibbe's conduct, in contrast to that of the other teacher, affected his ability to teach and coach in Elida schools. Further, Superintendent Cody ruled out the possibility that a distinction could be made based on a change in community and student attitudes toward DWI or the increased seriousness of the offense at the present time as compared to 1980. Cody testified that under no circumstances would he have recommended terminating the other Elida teacher for her behavior, even if it had occurred at the present time. From this testimony, as well as the vast difference in the treatment of the two teachers, from no disciplinary action wh
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