APS may settle suit from teacher
District used wrong process in effort to fire educator
Albuquerque Public Schools is considering settling a lawsuit from a teacher the district attempted to fire four years ago but used the wrong bureaucratic process in a case that highlights a power shift between school district superintendents and elected school boards.
The case turned on an interpretation of what the Legislature did — or didn’t do — in its 2003 School Reform Act under thenGov. Bill Richardson.
The 2003 law, among many changes, moved the power of hiring, firing and day-today operations squarely under control of school district superintendents across the state and made the superintendent the only employee elected school boards can hire or fire.
But lawmakers left in place the state personnel code, which gives fired school employees the right to a hearing before the elected school board.
In 2015, Valley High School coach and teacher Adrian Alarcon was charged with child abuse after he, according to court documents, “grabbed a child and hurt her while grabbing a device she was recording him on” at school.
APS says in its court filings that Alarcon admitted he forcefully grabbed a phone held by a girl, attempting to make her delete a recording of the conversation they were having about him inadvertently having touched her breast.
Then-interim Superintendent Brad Winter recommended he be fired and scheduled a discharge hearing with another official in the administration. Here’s where the dispute surfaces: Alarcon protested and said that hearing should be before the school board, not the superintendent.
The state’s personnel code says that if the target employee protests being fired, that protest is heard in a mini-trial before the local elected school board.
And before the 2003 School Reform Act, school boards had the power to hire and fire employees.
The 2003 law, though, handed over that power of hiring and firing to the superintendents to “employ, fix the salaries of, assign, terminate or discharge all employees of the school district.”
In addition to the law, the Public Education Department issued guidance to districts to interpret the 2003 law as giving, among other things, superintendents the hiring and firing power.
For APS, that law and PED guidance meant it was the superintendent who would handle Alarcon’s firing.
But Alarcon and his attorney, Ed Hollington, successfully argued that the state personnel code should trump the School Reform Act and that it should be the school board that should hold the hearing.
“APS seeks to give superintendents dictatorial power by making the superintendent the prosecutor, judge and jury when discharging a certified teacher,” Hollington said last week.
They took their argument to the state Court of Appeals and won.
“Here, the Legislature has mandated that the discretion lies with the school board, not the superintendent, and with good reason. At the very least, there is an appearance of impropriety in requiring an employee, such as Teacher, to appear before his accuser, the superintendent. The Legislature left this decision to the elected members of the local board of education, who can take a more dispassionate view of the evidence and decide if an employee’s conduct warrants a discharge or some lesser sanction. When an employee, such as Teacher, is denied his rights under (the personnel code) an ‘impermissibly high risk’ exists that the employee will be erroneously terminated, ” Judge Michael Vigil wrote in the court’s unanimous opinion.
APS appealed, but the state Supreme Court declined to hear the case.
That means Alarcon, who is still officially an employee of APS on paid administrative
leave, was fired in the wrong way.
And because of that, he could get a payout from the school district in addition to the $168,000 in salary he has collected since he was put on leave in the 2014-2015 school year.
APS said last week that it is in “settlement negotiations with Mr. Alarcon” but wouldn’t comment further.
Alarcon, who eventually pleaded guilty to criminal damage to property and interference with communication and was given a deferred sentence and put on probation, could also get a hearing before the school board.
Hollington said last week that Alarcon is not looking to get his job back, though he was when he first filed his protest. Hollington did not comment further on what Alarcon wants at this time.
“Because (the firing) was not justified. He wasn’t going to just take that,” Hollington said. “He had excellent evaluations . ... He liked what he was doing.”
APS declined to answer any questions about the case because of Alarcon’s pending litigation.
“It’s frustrating for us that we can’t provide more information,” APS spokeswoman Johanna King said. “As long as we are in the middle of litigation, our hands are tied.”
King provided the district employee handbook, the union contract and the state’s personnel code — the document Alarcon and his lawyer used to win their argument — for guidance in how the district now handles terminations, discharges and appeals.
Albuquerque Teachers Federation President Ellen Bernstein said cases like Alarcon’s are rare. Since he filed his protest in 2015, her union, representing the most employees in the district, hasn’t had any discharge protests filed.
Bernstein said the union doesn’t prefer one firing process over another, but whatever process is in place should be followed to the letter.
“The most important thing is not who benefits,” she said, “it is that a person’s due process rights are upheld and the process upholding those rights is fair and transparent.”