A. An employee who is dismissed, demoted or suspended may, within thirty days after the dismissal, demotion or suspension, appeal to the board. The appealing employee and the agency whose action is reviewed have the right to be heard publicly and to present facts pertinent to the appeal.

B. An applicant denied permission to take an examination or who is disqualified may appeal to the board.

C. The technical rules of evidence shall not apply to appeals to the board.

D. A record shall be made of the hearing, which shall be transcribed if there is an appeal to the district court. Costs of the transcripts, including one copy for the board, shall be paid initially by the agency. The cost of the transcripts may be assessed by the court to the losing party on appeal.

E. The board may designate a hearing officer who may be a member of the board or any qualified state employee to preside over and take evidence at any hearing held pursuant to this section. The hearing officer shall prepare and submit to the board a summary of the evidence taken at the hearing and proposed findings of fact. The board shall render a decision, which shall include findings of fact and conclusions of law.

F. If the board finds that the action taken by the agency was without just cause, the board may modify the disciplinary action or order the agency to reinstate the appealing employee to the employee's former position or to a position of like status and pay. Every consideration shall be given to placing the appealing employee in the same geographical location in which the employee was employed prior to the disciplinary action. The board may recommend that the appealing employee be reinstated by an agency other than the one that disciplined the appealing employee. When the board orders an agency to reinstate an appealing employee, the reinstatement shall be effective within thirty days of the board's order. The board may award back pay as of the date of the dismissal, demotion or suspension or as of the later date as the board may specify.

G. A party aggrieved by the decision of the board made pursuant to this section may appeal the decision to the district court pursuant to the provisions of Section 39-3-1.1 NMSA 1978.

H. Where the public employer has entered into a collective bargaining agreement pursuant to the Public Employee Bargaining Act [Chapter 10, Article 7E NMSA 1978] covering the employee, such an employee who is dismissed, demoted or suspended may, within thirty days after the dismissal, demotion or suspension, irrevocably elect to appeal the action through arbitration. An appeal under this subsection shall be conducted in accordance with procedures and requirements as set forth in Subsections A, C and D of this section. The arbitrator shall have all of the powers of the board as set forth in Subsection F of this section. A party aggrieved by the decision of the arbitrator may appeal the decision pursuant to Subsection G of this section. The selection of an arbitrator shall be conducted in accordance with selection procedures set forth in the collective bargaining agreement that covers the employee.

History: 1978 Comp., § 10-9-18, enacted by Laws 1980, ch. 47, § 2; 1998, ch. 55, § 21; 1999, ch. 265, § 21; 2009, ch. 76, § 2.

Repeals and reenactments. — Laws 1980, ch. 47, § 2, repealed former 10-9-18 NMSA 1978, relating to appeals by employees to the personnel board, and enacted a new section.

Compiler's notes. — The reference to the "board" thoughout this section apparently means the personnel board. See 10-9-3 NMSA 1978 and notes thereto.

Cross references. — For appeal of final decisions by agencies to district court, see 39-3-1.1 NMSA 1978.

For procedures governing administrative appeals to the district court, see Rule 1-074 NMRA.

The 2009 amendment, effective June 19, 2009, added Subsection H.

The 1999 amendment, effective July 1, 1999, substituted "Section 39-3-1.1" for "Section 12-8A-1" in Subsection G.

The 1998 amendment, effective September 1, 1998, in Subsection D, substituted "assessed" for "assesed"; rewrote Subsection G and made minor stylistic changes.

I. GENERAL CONSIDERATIONS.

Right to hearing to challenge termination. — Federal law and, in general, New Mexico law require that when a state employee is terminated, that employee has a right to a hearing to challenge the termination. Copelin-Brown v. N.M. State Personnel Office, 399 F.3d 1248 (10th Cir. 2005)

Three-day mailing rule and notice of appeal. — While Subsection A of this section does provide that a notice of appeal to the state personnel board shall be filed within 30 days of the notice of termination, this language does not prohibit the board from adopting a three-day mailing rule to provide due process. N.M. Dep't of Health v. Ulibarri, 1993-NMCA-048, 115 N.M. 413, 852 P.2d 686.

Section does not prevent regular cost assessment. — This section is a specific statute that provides only for the cost of the transcript; it does not prevail over the general statutes and rules governing costs. State ex rel. N.M. State Highway & Transp. Dep't v. Baca, 1993-NMCA-149, 116 N.M. 751, 867 P.2d 421, rev'd in part on other grounds, 1995-NMSC-033, 120 N.M. 1, 896 P.2d 1148.

II. SCOPE AND STANDARD OF BOARD REVIEW.

Board acts in quasi-judicial capacity in hearing appeals. — In hearing administrative appeals by employees from agency action, as distinguished from its function in adopting rules and creating policy, the state personnel board acts in a quasi-judicial capacity rather than a policy-making function. Montoya v. Dep't of Fin. & Admin., 1982-NMCA-051, 98 N.M. 408, 649 P.2d 476.

Board may modify agency's action. — The board can find there was employee misconduct and can also determine that the agency's action was inappropriate for the misconduct found by the board. The board may then modify the agency's action, and this includes reinstatement of a dismissed employee. State ex rel. N.M. State Highway Dep't v. Silva, 1982-NMCA-121, 98 N.M. 549, 650 P.2d 833.

Discrimination claims. — The state personnel board is not authorized to adjudicate statutory disability discrimination claims in administrative just-cause termination proceedings. Martinez v. State Eng'r Office, 2000-NMCA-074, 129 N.M. 413, 9 P.3d 657, cert. denied, 129 N.M. 385, 9 P.3d 68.

Just cause. — The rules adopted by the board limiting the meaning of "just cause" to employee conduct does not abridge the authority conferred upon the board by Section 10-9-18(F) NMSA 1978 to determine whether agency action was "without just cause". State ex rel. N.M. State Highway Dep't v. Silva, 1982-NMCA-121, 98 N.M. 549, 650 P.2d 833.

III. APPELLATE REVIEW.

Right to appeal reorganization plan approved by board. — A state employee who was terminated when his position was eliminated because of a lawful reorganization of a department did not have a right to appeal the decision to eliminate his position once the proposed layoff plan had been submitted to the board and the board had given its approval to the plan. Cibas v. N.M. Energy, Minerals & Natural Res. Dep't, 1995-NMCA-046, 120 N.M. 127, 898 P.2d 1265.

Probationer's right to appeal. — Worker who had not completed the probationary period upon reentry into the classified service was not an "employee" within the meaning of Section 10-9-3 NMSA 1978 and thus not entitled to appeal rights. Clark v. N.M. Children, Youth & Families Dep't, 1999-NMCA-114, 128 N.M. 18, 988 P.2d 888, cert. denied, 128 N.M. 148, 990 P.2d 822.

Agency appeal will stay reinstatement order. — An appeal by the highway department operates as a stay of an employment reinstatement order. State ex rel. N.M. State Highway Dep't v. Silva, 1982-NMCA-121, 98 N.M. 549, 650 P.2d 833.

Board not indispensable party on appeal. — The state personnel board is not an indispensable party to an appeal from a final order making an administrative determination as to the employment status of a state employee. Montoya v. Dep't of Fin. & Admin., 1982-NMCA-051, 98 N.M. 408, 649 P.2d 476.

Exhaustion of administrative remedies. — Employees, who were discharged by the state department of corrections, could not bypass the administrative procedure after the state personnel board dismissed their appeal in favor of the pursuit of a breach of contract claim in the district court. Barreras v. State Corrs. Dep't, 2003-NMCA-027, 133 N.M. 313, 62 P.3d 770, cert. denied, 133 N.M. 413, 63 P.3d 516.

Appellate review by district court. — The State Personnel Act limits the role of the district court to appellate jurisdiction as opposed to a fact-finding court of general jurisdiction that would ordinarily apply to breach of contract civil actions. Barreras v. State Corrs. Dep't, 2003-NMCA-027, 133 N.M. 313, 62 P.3d 770, cert. denied, 133 N.M. 413, 63 P.3d 516.

Scope and standard of review by district court. — In determining whether a decision by the board is supported by substantial evidence in the record as a whole, the district court, on appeal, will review the evidence in the light most favorable to the board's decision. Jimenez v. Department of Corrs., 1984-NMSC-089, 101 N.M. 795, 689 P.2d 1266.

Substantial evidence. — A reviewing court on appeal must determine whether, on balance, the record as a whole contains substantial evidence to support the hearing officer's finding. Anaya v. N.M. State Personnel Bd., 1988-NMCA-077, 107 N.M. 622, 762 P.2d 909.

Arbitrary and capricious. — Unless a statute provides otherwise, municipal personal board decisions are reviewable on the whole record for arbitrariness, capriciousness, fraud or lack of substantial evidence. Zamora v. Village of Ruidoso Downs, 1995-NMSC-072, 120 N.M. 778, 907 P.2d 182.

Court of appeal's scope of review in reviewing appeals under this article is the same as that of the district court. Gallegos v. N.M. State Corrs. Dep't, 1992-NMCA-013, 115 N.M. 797, 858 P.2d 1276.

IV. SPECIFIC CASES.

Termination without progressive discipline for intentional misconduct. — Where an employee of the corrections department forcefully struck a stack of coins toward the secretary of corrections and the deputy secretary when the secretary greeted the employee causing the coins to strike the secretary and deputy secretary, and cursed at the secretary and deputy secretary, just cause existed to terminate the employee without first imposing progressive discipline. Selmeczki v. N.M. Dep't of Corrs., 2006-NMCA-024, 139 N.M. 122, 129 P.3d 158.

Dismissals from human services department were in accordance with law and supported by substantial evidence, which included the failure to promptly report the alleged sexual abuse of a child to the proper authorities. Perkins v. Dep't of Human Servs., 1987-NMCA-148, 106 N.M. 651, 748 P.2d 24.

No substantial evidence to support dismissal. — There was not substantial evidence in the record to support the agency's findings that a correctional officer witnessed and failed to report the use of force on an inmate, and the board's decision upholding the officer's dismissal was therefore arbitrary, capricious and contrary to law, where the only direct evidence was the employee's own testimony that he did not see another officer pick up an inmate by the neck and there was no evidence whatsoever that contradicted this testimony. Gallegos v. N.M. State Corrs. Dep't, 1992-NMCA-013, 115 N.M. 797, 858 P.2d 1276.

No just cause for dismissal. — Both the law and the facts supported a hearing officer's finding that charges of continued misconduct and unprofessional behavior including foul language, sexually charged misconduct, and outbursts of anger, did not amount to just cause for dismissal without progressive discipline. N.M. Regulation & Licensing Dep't. v. Lujan, 1999-NMCA-059, 127 N.M. 233, 979 P.2d 744.

Disciplinary action against prison guards upheld. — Substantial evidence supported the hearing officer's conclusion that disciplinary action was properly taken against two prison guards in connection with two inmates' escape where it included evidence from more than one confidential informant that inmates never returned to their cellblock following a class and escaped that night, it was not until two days later that a headcount of that cellblock revealed that two inmates were missing, and the inaccuracy of earlier headcounts was one of the reasons for the disciplinary action. Anaya v. N.M. State Personnel Bd., 1988-NMCA-077, 107 N.M. 622, 762 P.2d 909, cert. denied, 107 N.M. 673, 763 P.2d 689.

Am. Jur. 2d, A.L.R. and C.J.S. references. — Rights of state and municipal public employees in grievance proceedings, 46 A.L.R.4th 912.

67 C.J.S. Officers and Public Employees §§ 112, 113, 145 to 185.