Los Lunas—Through their attorney, former Los Lunas Board of Education members Bryan Smith and Eloy Giron appealed the New Mexico Public Education Department’s decision to permanently suspend the board in 2021.
In May 2021. NMPED indefinitely suspended all five members of the Los Lunas Schools Board of Education, including Smith and Giron, due to “credible evidence that certain board members have persistently violated procurement and public access laws, the state Public School Code, and professional ethical standards.”
“Sufficient reason exists to believe that the educational process in the school district has been severely impaired or halted as a result of such deficiencies,” the nine-page final decision read.
Through the appeal of the decision, Smith and Giron request to be reinstated to their elected positions, now held by board appointees Ragon Espinoza and Sonya C’Moya, respectively.
The appeal argument
In the 36-page statement of issues, the appellants argue the statutes under which the department and “the secretary” operated are unconstitutional on their face, the statutes under which the secretary acted are unconstitutional as applied since they were not granted due process, “the secretary” did not follow procedures as required by applicable state statute, and that “the secretary’s” final decision is not supported by substantial evidence.
Former New Mexico Secretary of Education Ryan Stewart resigned in August 2021, prior to the hearings of the suspended board members, although he did issue the May notice of indefinite suspension.
Kurt Steinhaus was appointed as secretary designate on July 29 and later as interim secretary following Stewart’s departure, making Steinhaus the responsible secretary for the permanent suspension.
PED suspended the board through New Mexico State Statue 22-2-14, which allows for the suspension of a board of education, superintendent or principal following a notice of disapproval.
The education secretary can then, after consultation with the public commission, is able to suspend a board if they still fail to comply with the terms laid out in the notice of disapproval. The statute says the secretary can forgo an alternative order of suspension, which lays out when the suspension starts and time, date and place for a public hearing if there is “sufficient reason to believe that the educational process in the school district or public school has been severely impaired or halted as a result of deficiencies so severe as to warrant disapproved status before a public hearing can be held.”
NMPED notified Smith, who was the board president at the time of issuance, and Walter Gibson, acting LLS superintendent, in November 2021 of potential violations of the procurement code, public school code, open meetings act, inspection of public records act and the governmental conduct act. The letter included a warning of their suspension if the “improper conduct” was continued.
Smith and Giron argue the laws were unconstitutional since it grants them the “power to nullify the elections of local school board members,” violating the New Mexico Constitution.
Under the New Mexico Constitution, an elected school board member may only be removed from their seat through a recall election, which is triggered by a petition of recall by the district’s voters.
The second argument of the appeal states the appellants did not receive due process prior to the suspension, as outlined by the 14th amendment of the U.S. Constitution.
“Due process requires that the burden of proof must be on the government that seeks to deprive the appellants here to offices to which they were elected,” the appeal states.
They argue the secretary did not:
- Identify the board members at fault and the specific sections of statute which were violated,
- Clearly specify the violations, which is needed to constitute an adequate notice, and
- Provide the appellants with a neutral decision maker since the secretary both issued the warnings and the final notice of suspension.
“These aren’t actions that we take lightly because we believe in the ability of local school boards to govern their local districts,” Stewart told the News-Bulletin in June 2021, shortly following the decision to indefinitely suspend the board. “It really just got to the point where, even though we warned them, we kept seeing these behaviors and actions continue. We had no choice but to make that suspension.”
The appeal also states the secretary failed to follow procedures outlined by New Mexico state statutes since the secretary failed to consult with the Public Education Commission prior to suspension, failure to provide a notice of final decision, which outlines what the suspended members can do to lift the suspension, allowance of hearsay as evidence during the hearing, and failure to provide hearing prior to suspension.
“In this case, the Secretary simply turned the procedure mandated by the state on its head,” the appeal read. “While the Secretary, in his final decision, mouthed the words that there was “severe impairment’ of the ‘educational process,’ the Secretary made no finding — either in his May 26, 2021, notice of summary suspension nor in his final decision — that any impact on the education process was caused by ‘deficiencies so severe as to warrant [summary suspension] before a public hearing be held.”
Smith and Giron also argue the education secretary’s final decision was not supported by substantial evidence, as outlined by the findings of fact determined by the public hearings, since the educational process was not impacted by the conduct of the board, and there was no intimidation or retaliation by any board member, with the exception of Steven Otero.
N.M. Public Education Department response
The New Mexico Public Education Department responded to the appeal at the end of January 2022, standing by the decision to permanently suspend the full board, disputing any argument put forth by the appellants.
“The secretary was faced by an uncontrollable board who exceeded their lawful authority, violated state law, violated their own policies, bullied and intimidated staff members and diverted precious taxpayer dollars away from the schools’ education programs,” the response said.
The civil case has been assigned to Judge Maria Sanchez-Gagne in the First Judicial Court, located in Santa Fe County.
A hearing has been scheduled in front of the judge for 9 a.m., Tuesday, May 17.