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Kibbe v. Elida School District12/23/1999
atsoever for the incident in 1980 to the extreme sanction of terminating Kibbe's employment, we conclude that the school board's decision to terminate Kibbe for this incident was arbitrary and capricious. Cf. New Mexico State Bd. of Educ. v. Stoudt, 91 N.M. 183, 186-87, 571 P.2d 1186, 1189- 90 (1977) (concluding that the State Board of Education's decision to terminate a pregnant, unmarried teacher for immoral conduct "was arbitrary, unreasonable and not supported by substantial evidence" based in part on the fact that the local school board had retained five unwed mothers and had taken no action against them).
{18} We reverse Kibbe's termination on the basis that the school board's decision is not supported by substantial evidence in the record as a whole and was arbitrary and capricious. Because we reverse Kibbe's termination on this ground, it is unnecessary for us to address Kibbe's argument that it would be anomalous to permit a teacher's termination prior to a conviction based on alleged crimes that would not subject a teacher to termination under the COEA after conviction. See NMSA 1978, § 28-2-4(A) (1985, prior to 1997 amendment) (providing that a board or agency may refuse to renew public employment if, among other things, the employee "has been convicted of a felony or a misdemeanor involving moral turpitude" and either the conviction "directly relates to the particular employment" or the employee "has not been sufficiently rehabilitated to warrant the public trust"); see also NMSA 1978, § 28-2- 3(B) (1974) (providing that criminal records of misdemeanor convictions not involving moral turpitude shall not be used in connection with an application for public employment). We do, however, take note of the Legislature's expression of a public policy in the area of public employment which favors rehabilitation for crimes not directly relating to employment. See NMSA 1978, §§ 28-2-2 (1974) (stating that barriers to public employment for criminal offenders "should be removed to make rehabilitation feasible"), -4(A)(2).
IV. Conclusion
{19} Reviewing the record as a whole, we believe that the independent arbitrator's decision that the school board proved by a preponderance of evidence that Kibbe's conduct was rationally related to his competence or turpitude or the proper performance of his duties is not supported by substantial evidence. While we do not question Superintendent Cody's testimony that acting as a good role model is an integral part of teaching, the school board failed to introduce any evidence suggesting that Kibbe's DWI incident had any relationship to his competence as an employee or to the proper performance of his duties, as required by the relevant statutes. We also conclude that the drastic difference in the school board's treatment of Kibbe compared to another Elida teacher for substantially similar conduct with no explanatory evidence in the record renders Kibbe's termination arbitrary and capricious. We therefore reverse the independent arbitrator's decision. Pursuant to Section 22- 10-14.1(N), we order that Kibbe shall be reinstated to his former position as a teacher and coach in the Elida School District, and we further order that Kibbe shall be "reimburse for compensation during the entire period for which compensation was terminated . . . less an offset for any compensation received by [Kibbe] during the period the compensation was terminated."
{20} IT IS SO ORDERED.
PATRICIO M. SERNA, Justice
WE CONCUR:
PAMELA B. MINZNER, Chief Justice
JOSEPH F. BACA, Justice
GENE E. FRANCHINI, Justice
PETRA JIMENEZ MAES, Justice
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