10-9-18.  Appeals by employees to the board.

Amendment Notes. 

The 2009 amendment, effective June 19, 2009, added (H) and made stylistic changes.

Notes to Decisions

      Generally.

Review of the entire record of the Department of Human Services’ termination of an office manager and a supervisor in its social services division under the Personnel Act, showed that the Department’s action was not arbitrary, capricious, or an abuse of discretion under former 10-9-18G(1) NMSA 1978, and was supported by substantial evidence pursuant to former 10-9-18G(2) NMSA 1978; the evidence and the record established that the manager and the supervisor failed to properly report an incident of the sexual abuse of a child and to oversee and supervise the safety of children under the Department’s protective custody. Perkins v. Department of Human Servs., 1987-NMCA-148, 106 N.M. 651, 748 P.2d 24, 1987 N.M. App. LEXIS 801 (N.M. Ct. App. 1987).

      Abuse of discretion.

As used in former 10-9-18G(2) NMSA 1978 of the Personnel Act, an abuse of discretion is established if an agency or lower court has not proceeded in a manner required by law, the order or decision is not supported by the findings, the findings are not supported by the evidence, or the decision is contrary to logic and reason. Perkins v. Department of Human Servs., 1987-NMCA-148, 106 N.M. 651, 748 P.2d 24, 1987 N.M. App. LEXIS 801 (N.M. Ct. App. 1987).

      Applicability.

In an appeal of a disciplinary action of a state employee, the state personnel board’s authority to modify an agency’s disciplinary action or to order reinstatement of the employee under Subsection F of this section, was not limited by the misconduct of the employee; the statutory provision that refers to “action taken by the agency without just cause” does not refer to employee conduct, but rather it refers to agency action which is taken because of the employee’s conduct. 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).

      Construction.

The use of the word “may” in this section was mandatory where employees’ claims arose in contract based on the rights accorded to them under the State 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).

      Costs.

District court did not err by awarding costs in favor of an employee who had been discharged and later reinstated by the state highway department. The general rules and statute for the proposition that costs may be recovered, Rule 1-054 NMRA and 39-3-30 NMSA 1978, applied as there did not exist a specific statute on costs that would control over the general provisions. State ex rel. New Mexico State Highway & Transp. Dep't v. Baca, 1993-NMCA-149, 1993-NMCA-751, 116 N.M. 751, 867 P.2d 421, 1993 N.M. App. LEXIS 152 (N.M. Ct. App. 1993), aff'd in part and rev'd in part, 1995-NMSC-033, 120 N.M. 1, 896 P.2d 1148, 1995 N.M. LEXIS 178 (N.M. 1995).

      Definitions.

As used in former 10-9-18G(2) NMSA 1978 of the Personnel Act, arbitrary and capricious action by an administrative agency consists of a ruling or conduct that, when viewed in light of the whole record, is unreasonable or does not have a rational basis, and is the result of an unconsidered, willful, and irrational choice of conduct; further, it is not the result of the “winnowing and shifting” process. Perkins v. Department of Human Servs., 1987-NMCA-148, 106 N.M. 651, 748 P.2d 24, 1987 N.M. App. LEXIS 801 (N.M. Ct. App. 1987).

      Dismissal.

Trial court properly dismissed discharged employees’ claim of retaliatory discharge where employees were protected by the contract that is the Personnel Act, and could be dismissed only for cause under Subsection F of this section and 1.7.11.10 NMAC; a claim of retaliatory discharge is available only to at-will employees. 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).

      Employees.

Substantial evidence supported a finding by the New Mexico state personnel board of just cause under Subsection F of this section, to terminate a state employee based on incidents of misconduct, insubordination, and abusive and threatening behavior toward other employees, and because such conduct constituted just cause to terminate, progressive discipline was not required under the board’s rules. 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 with 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).

           —Sufficient.

The New Mexico personnel board’s disciplinary action against several penitentiary guards arising out of the escape of two inmates was not arbitrary, capricious, or an abuse of discretion where it was supported by evidence that more than one confidential informant reported the inmates’ failure to return to their living unit from a class, that their books were found under a modular classroom building beneath which there was room to crawl, and that a fence was cut almost directly across from that building. 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).

      Jurisdiction.

Under the standard of review provided by this section the court of appeals determined that because the elimination of plaintiff state employee’s position was made pursuant to a layoff plan approved by the state personnel board and the board did not withdraw its approval of the plan, the board was without authority to hear the employee’s appeal of his discharge. 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).

      Legislative intent.

That the State Personnel Act provides for on-the-record hearings at which hearing officers preside, take evidence, and submit summaries and recommendations to the Board pursuant to Subsections D and E of this section reflects the legislative intent that the administrative scheme for protecting employees from unjust adverse action is exclusive. 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).

The comprehensiveness and specificity of the State Personnel Act, as well as the provision for judicial review under Subsection G of this section 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).

      Procedure.

           —Appellate.

Although former 10-9-18A NMSA 1978 provided that a notice of appeal to the state personnel board had to be filed within 30 days of notice of termination, the employee’s notice was timely because she complied with the board’s rule adding three days to the appeal time if notice of termination was mailed rather than served personally. 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).

      Remedies.

Correction officers’ claims for breach of the implied covenant of good faith and fair dealing were dismissed because they were based on rights accorded them in the State Personnel Act (Act), as the officers were alleging that the New Mexico Corrections Department accused them of misconduct and terminated them without just cause in violation of their employment agreement, and therefore the Act provided the exclusive remedy. Eoff v. N.M. Corr. Dep't, No. CIV 10-0598 JB/RHS, No. CIV 10-0599 JB/DJS, No. CIV 10-0600 JB/WDS, 2010 U.S. Dist. LEXIS 137159 (D.N.M. Dec. 20, 2010).

Correction officers’ breach of contract claims were dismissed because they were based on rights accorded them in the State Personnel Act (Act), as the officers were alleging that the New Mexico Corrections Department accused them of misconduct and terminated them without just cause in violation of their employment agreement, and therefore the Act provided the exclusive remedy. Eoff v. N.M. Corr. Dep't, No. CIV 10-0598 JB/RHS, No. CIV 10-0599 JB/DJS, No. CIV 10-0600 JB/WDS, 2010 U.S. Dist. LEXIS 137159 (D.N.M. Dec. 20, 2010).

To the extent that remedies under Subsection F of this section may, in some instances, be less than what an aggrieved employee might recover in court, such restrictions reflect a legislative effort to balance the economic security needs of public employees with prudential considerations for protecting the public treasury; the legislature did not intend that employees might pursue their contract actions in court rather than through the state personnel board. 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).

The New Mexico State Personnel Board could reinstate a state agency employee with back pay after his dismissal for misuse of a state vehicle and at the same time order reinstatement. 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).

      Review.

State Personnel Board was required to render both findings of fact and conclusions of law pursuant to Subsection E of this section when determining whether a state employee’s termination was arbitrary and capricious. Gallegos v. New Mexico State Corrections Dep't, 1992-NMCA-013, 115 N.M. 797, 858 P.2d 1276, 1992 N.M. App. LEXIS 110 (N.M. Ct. App. 1992).

State personnel board was required by Subsection F of this section not only to determine whether the employee’s conduct warranted discipline, but also whether the agency’s discipline of the employee was commensurate with the conduct. Gallegos v. New Mexico State Corrections Dep't, 1992-NMCA-013, 115 N.M. 797, 858 P.2d 1276, 1992 N.M. App. LEXIS 110 (N.M. Ct. App. 1992).

           —Standards.

Where a state employee was terminated for continued misconduct and unprofessional behavior including foul language, sexually charged misconduct, and outbursts of anger, but the record and the evidence revealed a complete absence of any evidence of serious disciplinary problems or of any attempt to progressively discipline him, or even to supervise him, and the state personnel board determined that the employee did not receive progressive discipline prior to termination, and directed that the employee be reinstated and transferred to another agency, the board properly found that the employee was not afforded progressive discipline and that there was no just cause for dismissal, and the decision was affirmed because, pursuant to this section of the Personnel Act, it was not arbitrary, capricious, or an abuse of discretion, unsupported by substantial evidence, or otherwise not in accordance with the law. New Mexico Regulation & Licensing Dep't v. Lujan, 1999-NMCA-059, 127 N.M. 233, 979 P.2d 744, 1999 N.M. App. LEXIS 26 (N.M. Ct. App. 1999).

      Sanctions.

In an action for judicial review of a state personnel board decision, the court, including an appellate court, may sanction a party for misconduct by an award of attorney fees. State ex rel. New Mexico State Highway & Transp. Dep't v. Baca, 1993-NMCA-149, 1993-NMCA-751, 116 N.M. 751, 867 P.2d 421, 1993 N.M. App. LEXIS 152 (N.M. Ct. App. 1993), aff'd in part and rev'd in part, 1995-NMSC-033, 120 N.M. 1, 896 P.2d 1148, 1995 N.M. LEXIS 178 (N.M. 1995).

      Sovereign immunity.

      Time limitations.

Employee’s application for review of decision of state board of education to fire her was improperly dismissed based on laches, despite that 15 months had lapsed since the State Board’s decision issued; because good cause existed for tolling the limitation period, as she promptly had attempted an appeal, and board was not prejudiced. Roberson v. Board of Educ., 1967-NMSC-176, 78 N.M. 297, 430 P.2d 868, 1967 N.M. LEXIS 2777 (N.M. 1967), superseded by statute as stated in Caballero v. N.M. Dep't of Workforce Solutions, No. 31793, 2012 N.M. App. Unpub. LEXIS 234 (N.M. Ct. App. June 25, 2012).

OPINIONS OF ATTORNEY GENERAL

      Collective bargaining.