Appealing a Disciplinary Action
Classified employees who have met their probationary period (1 NMAC 188.8.131.52) and have either been demoted, dismissed, or suspended by a State agency or department have a right to appeal their disciplinary action to the Personnel Board for a public hearing.
Disclaimer: The material covered here is only a brief outline of 1 NMAC 7.12 and is not intended to be all-inclusive. Applicants are cautioned to read the law and governing rules, or consult the advisor or attorney of their choice. November 10, 2009. Should you have additional questions, please contact the State Personnel Office, Adjudication at (505) 476-7813.
Filing Your Appeal
Your notice of appeal must be in writing and filed with the State Personnel Director no later than 30 calendar days from the actual date on which you were demoted, dismissed or suspended. Your notice of appeal must be in writing and should include: your full name, mailing address and a telephone number or contact, and a statement or list of the reason(s) for your appeal. A copy of the notice of final action must accompany your notice of appeal. NOTE: untimely appeals, those not filed within 30 calendar days from the actual or effective date of discipline, will be dismissed for lack of jurisdiction.
Acceptance of Your Appeal
Upon acceptance of your notice of appeal, a hearing officer will send your agency a copy of your notice of appeal and will issue an order setting up a schedule for submitting pre-hearing paperwork. The hearing officer is normally an employee of the State Personnel Office or any qualified State employee who is strictly neutral. The hearing officer does not work for, or have any ties to, your agency. The hearing officer is interested only in a fair and just outcome to your case. You or your representative will work with your agency to put together a pre-hearing order which will contain: 1) a statement of any contested facts and issues; 2) identification of those facts not in dispute; 3) a deadline for identification of all probable witnesses with a brief summary of their anticipated testimony; 4) a list of documentary or physical evidence; 5) a deadline for identifying new witnesses, evidence and subpoenas. Remember, the parties do not have to be in agreement, but they must cooperate and communicate with each other.
As previously mentioned, the hearing officer is outside your agency and is neutral. Therefore, he will not discuss the details of a case unless both parties are present, such as through a conference telephone call.
Dismissing an Appeal
An appeal can be dismissed: 1) based on the hearing officer coordination on a written settlement agreement between the parties; 2) based upon your filing a written request to withdraw the appeal. The timing of the request to withdraw, particularly if it is at the end of the pre-hearing process, could lead to assessment of costs.
The hearing officer can order a party (you, your representative or the agency) to supply copies of written materials or other evidence considered relevant to the appeal. A party has the following legal tools available to seek official disclosure of information in the possession of the other party: depositions, interrogatories, requests for production, and requests for admission. All discovery is subject to the control of the hearing officer, but is scheduled by agreement of the parties.
Any defense, objection, or request that can be decided prior to the hearing may be raised by motion, by either party, before the deadline set in the pre-hearing order. Responses to motions are also filed according to the schedule set in the pre-hearing order. The hearing officer rules on all motions except those that would decide the merits of the case.
If witnesses are not identified by the deadline set by the pre-hearing order, it is possible they may not be permitted to testify.
A subpoena is a document, hand delivered by a party, that orders a witness to appear at the hearing. In order to compel attendance, they must be delivered (served) at least 72 hours in advance of the hearing. The subpoena can also direct a witness to bring something to the hearing, such as documents. If this is the case, it is called a subpoena duces tecum. (A subpoena should be issued to all State employees to ensure they are given administrative leave to be present at the hearing.)
Sanctions that may be imposed
The hearing officer can impose penalties on either of the parties to serve the cause of justice. If a party fails to: obey an order, such as to answer questions in a deposition; to deliver copies of evidence to the other party; to identify witnesses and their location; or to admit certain facts; then the hearing officer has the power to: 1) draw an inference in favor of the requesting party with regard to the information sought; 2) prohibit the party failing to comply with such order from introducing evidence concerning, or otherwise relying upon testimony relating to the information sought; 3) permit the requesting party to introduce secondary evidence concerning the information sought; and 4) strike any part of the pleadings or other submissions of the party failing to comply with such request. The hearing officer may refuse to consider any motion or other action which is not filed in a timely fashion. The hearing officer may issue an order to show cause why an appeal should not be dismissed because of the appellant’s failure, for example, to state reasons for the appeal or to participate in preparing the pre-hearing order. The hearing officer can also rule for the appellant if the agency fails to proceed with the hearing schedule.
Notice of Hearing
A notice of the hearing will be mailed to the parties at least 14 days prior to the date set for hearing by the hearing officer.
Withdrawal of Appeal
You (the Appellant) can withdraw your appeal at any time prior to the scheduled hearing. A written request or notice of your withdrawal must be submitted to the hearing officer. Once approved, the hearing officer will dismiss your appeal.
Your hearing will be open to the public unless otherwise agreed. You or an agency may appear at the hearing through a representative, but the representative must make a written entry of appearance prior to the hearing date. The hearing will be conducted in an orderly manner. The hearing officer shall admit evidence relevant only to allegations against the appellant included in the notices of contemplated and final action, as well as those contested issues set forth in the pre-hearing order. The hearing will be recorded by a tape recorder operated by the hearing officer.
Post-hearing Briefs (Submissions)
The hearing officer may require written closing arguments, post-hearing briefs, proposed findings of fact and conclusions of law by a scheduled date.
The hearing officer will prepare a written recommended decision to the parties just as soon as possible. Time will be allowed for the parties to submit written objections to any part of the decision before it is resented to the Personnel Board for review and consideration.
Decision of the Board
The Personnel Board will only consider post-hearing briefs, the hearing officer’s recommended decision and any exceptions to the recommended decision in your appeal. The Board will not consider any additional evidence (material not in the record) or pleadings not in the record before the hearing officer. The Board will consider the matter at a noticed/advertised meeting in executive (closed) session. The hearing officer is not present during the Board’s closed deliberations. Parties may attend the open portions of a Board meeting. The Board will announce the decision when it reconvenes to open session and a written decision is mailed to the parties shortly thereafter. Either party may appeal the Board’s decision to the appropriate District Court within 30 days of their decision being filed as provided by NMSA 1978, 39-3-1.1(C) (1998).
The Personnel Board may order agencies to reinstate appellants. Such appellants shall be reinstated to their former classifications or to classifications in the pay grades they occupied at the time of the disciplinary action. If the Board’s order includes any back pay, the appellant shall provide the agency with a sworn statement of gross earnings and any unemployment compensation since the effective date of the disciplinary action. The agency shall be entitled to offset earnings and unemployment compensation received during the period covered by the back pay award against the back pay due. There is no statutory authority to award attorney’s fees or other costs.