Opinion No. 68-70
July 1, 1968
TO: Honorable Herbert J. Taylor State Senator 1602 Linda Drive Gallup, N. M. 87301
QUESTION
FACTS.
A teacher was employed under contract by a school district for the school years of 1962-1963 and 1963-1964 and then took a year's leave of absence in the 1964-1965 school year. The teacher returned and was employed by the school district during the next three successive school years. No contract has been signed for the 1968-1969 school year. The teacher, however, was given tenure by the school board at the end of the 1966 school year.
QUESTIONS
1. Could a school board lawfully grant tenure to a teacher who does not other wise meet the requirements of Section 73-12-13, N.M.S.A., 1953 Compilation?
2. Did the above described teacher acquire tenure when his three years of service were not consecutive, having been interrupted by a leave of absence for one year and not having a contract for the next school year?
CONCLUSIONS
1. No.
2. See analysis.
OPINION
{*114} ANALYSIS
Section 73-12-13, N.M.S.A., 1953 Compilation provided that any certified employee who was "employed" in a particular county or other particular administrative school unit for three consecutive years and who holds a contract for the completion of a fourth consecutive year in the school district cannot be dismissed without cause. It is our opinion that a school board neither has the power to confer tenure upon a teacher who has not met the conditions of Section 73-12-13, supra, now Section 77-8-11, N.M.S.A., 1953 Compilation, nor deny tenure to a teacher who has met the conditions of one of these sections of the New Mexico Statutes.
It is our opinion that "employed" as used in Section 73-12-13, supra, and now Section 77-8-11, supra, requires that a contract be entered into for four consecutive years and services be rendered. See Wood v. Los Angeles City School District, 44 P.2d 644, 645 (Calif. Dist. Ct. of App. 2d Dist. 1935). If a contract was not entered into between the school board and the above described teacher in the 1964-1965 school year, the local school board had no authority to confer tenure on the teacher at the end of the 1965-1966 school year.
By: Gary O'Dowd
Assistant Attorney General