Chapter 10, Article 9 NMSA 1978 may be cited as the “Personnel Act”.
HISTORY:
1953 5-4-28, enacted by Laws 1961, ch. 240, § 1; 2009, ch. 76, § 1.
Amendment Notes.
The 2009 amendment, effective June 19, 2009, substituted “Chapter 10, Article 9 NMSA 1978” for “This act.”
Notes to Decisions
Generally.
State highway department and state public defender were the same employer for the purpose of the exclusive-remedy provisions, 52-1-6C-E and 52-1-9 NMSA 1978 of the Workers’ Compensation Act, 52-1-1 to 52-1-70 NMSA 1978, because employees of the two agencies have access to another state entity to grieve personnel actions per the Personnel Act, are paid by the state from state funds per 9-6-1 to 9-6-3, 9-6-5 NMSA 1978, and 10-7-2 NMSA 1978, and are employed by agencies of the executive department, headed by gubernatorial appointees per 31-15-4 NMSA 1978 and 67-3-2 NMSA 1978. Singhas v. State Highway Dep't, 1995-NMCA-089, 120 N.M. 474, 902 P.2d 1077, 1995 N.M. App. LEXIS 92 (N.M. Ct. App. 1995), aff'd, 1997-NMSC-054, 124 N.M. 42, 946 P.2d 645, 1997 N.M. LEXIS 405 (N.M. 1997).
Construction.
The use of the word “may” in 10-9-18 NMSA 1978 was mandatory where employees’ claims arose in contract based on the rights accorded to them under the Personnel Act. Barreras v. State Corr. Dep't, 2003-NMCA-027, 133 N.M. 313, 62 P.3d 770, 2002 N.M. App. LEXIS 122 (N.M. Ct. App. 2002), cert. denied, 133 N.M. 413, 63 P.3d 516, 2003 N.M. LEXIS 28 (N.M. 2003).
New Mexico State Personnel Board has authority under the Personnel Act to adopt rules, so long as the rules adopted do not abridge the right or duty imposed by statute. State ex rel. New Mexico State Highway Dep't v. Silva, 1982-NMCA-121, 98 N.M. 549, 650 P.2d 833, 1982 N.M. App. LEXIS 927 (N.M. Ct. App. 1982).
Discharge.
Pursuant to the Personnel Act, the court reversed the district court’s judgment and reinstated the New Mexico State Personnel Board’s decision to terminate a prison guard for negligent or inefficient job performance because substantial evidence supports the Board’s decision, as the prison guard should have detected the escape of the prisoner given that 10 other inmates had escaped prior to the guard’s shift. Jimenez v. Department of Corrections, 1984-NMSC-089, 101 N.M. 795, 689 P.2d 1266, 1984 N.M. LEXIS 1693 (N.M. 1984).
Employees.
Because, in an administrative appeal under the Personnel Act, the New Mexico state personnel board had neither express nor implied authority to adjudicate issues raised under the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12111 to 12117, the board correctly declined to decide the ADA claims raised by a terminated state employee. Martinez v. New Mexico State Eng'r Office, 2000-NMCA-074, 129 N.M. 413, 9 P.3d 657, 2000 N.M. App. LEXIS 62 (N.M. Ct. App.), cert. denied, 129 N.M. 385, 9 P.3d 68, 2000 N.M. LEXIS 298 (N.M. 2000).
Where a person had been employed in the classified services with the New Mexico children, youth and families department for 13 years before resigning and accepting an exempt position, but, three years later, she resigned her exempt position and returned to the department in the classified service, at the time signing a form acknowledging that her position was probationary and that she could be dismissed without the right of appeal to the state personnel board for the state of New Mexico, given that there was nothing in the provisions of the Personnel Act, or in the board’s rules, that conflicted within the board’s final order that the person did not have the right of appeal because she had not yet completed the probationary period for her new position, 10-9-3I and 10-9-18A NMSA 1978, and given that the final order of the board was neither arbitrary nor capricious, was supported by substantial evidence, was within the scope of the board’s authority, and was not contrary to law, the court of appeals upheld the order. Clark v. New Mexico Children,Youth & Families Dep't, 1999-NMCA-114, 128 N.M. 18, 988 P.2d 888, 1999 N.M. App. LEXIS 82 (N.M. Ct. App.), cert. denied, 128 N.M. 148, 990 P.2d 822, 1999 N.M. LEXIS 249 (N.M. 1999).
Employee of a state facility operated by the department of health was subject to the provisions of the Personnel Act. New Mexico Dep't of Health v. Ulibarri, 1993-NMCA-048, 115 N.M. 413, 852 P.2d 686, 1993 N.M. App. LEXIS 41 (N.M. Ct. App. 1993).
Government officials.
Duties of mayors under former 1929 Code, § 90-617 making mayors conservators of the peace are not incompatible with those of district attorneys. State ex rel. Chapman v. Truder, 1930-NMSC-049, 35 N.M. 49, 289 P. 594, 1930 N.M. LEXIS 55 (N.M. 1930).
Governmental powers.
Under the circumstances presented, the Personnel Act did not invest the New Mexico Personnel Board with jurisdiction over an appeal of the decision to eliminate appellant employee’s position once the proposed layoff plan had been submitted to the Board, and the Board was without authority to order that the employee’s position be retained unless the Board withdrew its approval of the layoff plan. Cibas v. New Mexico Energy, Minerals & Natural Resources Dep't, 1995-NMCA-046, 120 N.M. 127, 898 P.2d 1265, 1995 N.M. App. LEXIS 63 (N.M. Ct. App.), cert. denied, 896 P.2d 490, 1995 N.M. LEXIS 238 (N.M. 1995).
Jurisdiction.
Former 5-4-28 through 5-4-46, 1953 Comp. (now 10-9-1 through 10-9-25 NMSA 1978) did not provide for judicial review of an order of the State Personnel Board affirming an employee’s dismissal from his employment with the New Mexico Commission on Alcoholism, and judicial review was not permitted under former 4-32-16F, 1953 Comp. (now 12-8-16 NMSA 1978) because neither the Board nor the Commission had been placed under the Administrative Procedures Act; thus, the court dismissed the employee’s appeal for lack of subject matter jurisdiction. The employee’s remedy for review of the administrative actions of the Board and the Commission was by a writ of certiorari from the district court. Durand v. New Mexico Comm'n on Alcoholism, 1976-NMCA-077, 89 N.M. 434, 553 P.2d 714, 1976 N.M. App. LEXIS 597 (N.M. Ct. App. 1976).
Legislative intent.
The comprehensiveness and specificity of the Personnel Act, as well as the provision for judicial review under 10-9-18G NMSA 1978, reflects a legislative intent that the Act is the exclusive means for an employee who seeks to vindicate the rights provided for in the act. Barreras v. State Corr. Dep't, 2003-NMCA-027, 133 N.M. 313, 62 P.3d 770, 2002 N.M. App. LEXIS 122 (N.M. Ct. App. 2002), cert. denied, 133 N.M. 413, 63 P.3d 516, 2003 N.M. LEXIS 28 (N.M. 2003).
Probationer.
Employee who had resigned her classified position to accept an exempt position, and thereafter returned to the classified service, was a probationer under 10-9-3I NMSA 1978, the Personnel Act, and 10-9-1 to -25 NMSA 1978, and could not appeal her dismissal. Clark v. New Mexico Children,Youth & Families Dep't, 1999-NMCA-114, 128 N.M. 18, 988 P.2d 888, 1999 N.M. App. LEXIS 82 (N.M. Ct. App.), cert. denied, 128 N.M. 148, 990 P.2d 822, 1999 N.M. LEXIS 249 (N.M. 1999).
Remedies.
Where discharged employees requested that the state personnel board hold in abeyance their appeals until they could pursue the matter in the district court, and the board dismissed the appeals with prejudice, the employees were not entitled to pursue their breach of contract claims in district court; the employees’ remedies were limited to those set forth in the Personnel Act. Barreras v. State Corr. Dep't, 2003-NMCA-027, 133 N.M. 313, 62 P.3d 770, 2002 N.M. App. LEXIS 122 (N.M. Ct. App. 2002), cert. denied, 133 N.M. 413, 63 P.3d 516, 2003 N.M. LEXIS 28 (N.M. 2003).
Where a state agency employee was reinstated with back pay after his dismissal for misuse of a state vehicle by the New Mexico State Personnel Board, the employee’s request for an award of attorney fees was properly denied because the Personnel Act was silent on the question of attorney fees. State ex rel. New Mexico State Highway Dep't v. Silva, 1982-NMCA-121, 98 N.M. 549, 650 P.2d 833, 1982 N.M. App. LEXIS 927 (N.M. Ct. App. 1982).
Res judicata.
Trial court properly denied the attorney general’s motion for summary judgment and granted a union’s motion for summary judgment in proceedings involving the approval of a collective bargaining agreement under the Personnel Act, the attorney general was collaterally estopped from challenging the provisions of the collective bargaining agreement that had been addressed in a prior action. Local 2839 of Am. Fed'n of State v. Udall, 1991-NMSC-017, 111 N.M. 432, 806 P.2d 572, 1991 N.M. LEXIS 62 (N.M. 1991).
Review.
—Standards.
In reviewing appeals from a district court perfected under the Personnel Act, the scope of review of the New Mexico Court of Appeals is the same as that of the district court. Anaya v. New Mexico State Personnel Bd., 1988-NMCA-077, 107 N.M. 622, 762 P.2d 909, 1988 N.M. App. LEXIS 77 (N.M. Ct. App.), cert. denied, 107 N.M. 673, 763 P.2d 689, 1988 N.M. LEXIS 256 (N.M. 1988).
OPINIONS OF ATTORNEY GENERAL
Construction with other law.
To the extent possible, Chapter 297, Laws of New Mexico, 1983, which created the economic development and tourism department and the regulation and licensing department and transferred functions and personnel, and the Personnel Act, 10-9-1 NMSA 1978 et seq., must be read so as to give effect to both acts. 1983 N.M. Op. Att'y Gen. No. 83-3, 1983 N.M. AG LEXIS 4.
Research References and Practice Aids
New Mexico Law Review.
Comment: Contemplating The Dilemma Of Government As Speaker: Judicially Identified Limits On Government Speech In The Context Of Carter v. City Of Las Cruces, Leigh Contreras, 27 N.M. L. Rev. 517 (1997).