• Follow
  • Follow
  • Follow
  • Follow
  • Home
  • About Us
    • About Us
    • SPO A-Z
    • Director
    • General Memorandums
    • Interpretive Memorandums
    • COVID-19 Guidance for Employees
  • State Personnel Board
    • Board Meetings
    • NMAC Rules
    • Personnel Act
    • Rulemaking
  • Job Opportunities
    • Job Opportunities
    • Internship Opportunities
    • Application Guide & FAQ
    • Other State Jobs
  • Compensation & Classification
    • About Compensation and Classification
    • Classification Resources
      • Classification Descriptors
      • Annual Classification Plans
    • Compensation Resources
      • Total Compensation
      • Salary Schedules
      • Quarterly Workforce Reports
      • Annual Compensation Reports
      • Compensation Increase Instructions
      • FLSA and Overtime Resources
      • Compensation Forms
      • Classifications and Pay Listing
      • Compensation Pay Mechanisms
    • FY09 Union Lawsuit Information (Updated September 18, 2018 AM)
  • Labor Relations
    • About Labor Relations
    • Labor Relations
      Resources
      • Public Employee Labor Relations Board Rules
      • Public Employee Bargaining Act
      • Bargaining Unit Letter of Reprimand
      • CWA CBA Change Training
    • Labor Training Schedule
      • Overview
      • Course Descriptions
    • AFSCME
      • American Federation of State County and Municipal Employees (AFSCME) CBA
      • AFSCME Union Time Form
      • AFSCME LOR Removal Request Form
      • MOU AFSCME Article 12 Section 1 (C)
      • MOU AFSCME Effects of Rescission of Non-Mandatory Telework Policy
    • CWA
      • Communications Workers of America (CWA) CBA
      • CWA 2021 Official Union Time Form
      • MOU CWA Article 2 Section 15
      • MOU CWA Article 25 Section 1
      • MOU CWA Article 18 Section 8
  • Adjudication
    • Introduction
    • Adjudication Process
    • Adjudication Flow Chart
    • Alternative Dispute Resolution at SPO
      • Alternative Dispute Resolution Introduction
      • Alternative Dispute Resolution Voluntary Program
    • Disciplinary Appeal Forms
  • Training
    • Training Home
    • Training Calendar
    • ELM Tutorials
      • How to log into ELM
      • How to find and enroll in a course
      • How to get course handouts
      • How to drop a class
      • How to get download or print course certificates
    • Courses for State Employees
      • E-Learning Courses
      • Instructor Led Courses
      • External Trainings
    • Learning Tracks
      • Career Success Foundations Series
      • Change Management Series
      • Communication and Conflict Resolution Skills Series
      • Customer Service Excellence Series
      • Essentials of Supervision and Management Program
      • Professional Growth and Advancement Series
      • Workplace Wellbeing Series
  • Diversity & Inclusion
    • Diversity and Inclusion Home
    • Americans with Disabilities Act
      • Notice Under the Americans with Disabilities Act
      • State Personnel Office Grievance Procedure under The Americans with Disabilities Act
      • ADA Grievance Form
    • Events and Training
    • LGBTQ Resources
  • Contact Us

quick links

9

About Adjudication

9

Adjudication Process

9

Adjudication Flow Chart

9

Intro to Alternative Dispute Resolution

9

Alternative Dispute Resolution Program

9

Disciplinary Appeal Forms

Appealing a Disciplinary Action

Classified employees who have met their probationary period (1 NMAC 7.2.8.1) 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.

Hearing Officer

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.

Discovery

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.

Motions

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.

Additional Witnesses

If witnesses are not identified by the deadline set by the pre-hearing order, it is possible they may not be permitted to testify.

Subpoenas

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.

The Hearing

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.

Recommended Decision

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).

Reinstatement

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.

SPO IT

© 2022 New Mexico State Personnel Office

0
We use cookies to optimize our website and our service.
Functional Always active
The technical storage or access is strictly necessary for the legitimate purpose of enabling the use of a specific service explicitly requested by the subscriber or user, or for the sole purpose of carrying out the transmission of a communication over an electronic communications network.
Preferences
The technical storage or access is necessary for the legitimate purpose of storing preferences that are not requested by the subscriber or user.
Statistics
The technical storage or access that is used exclusively for statistical purposes. The technical storage or access that is used exclusively for anonymous statistical purposes. Without a subpoena, voluntary compliance on the part of your Internet Service Provider, or additional records from a third party, information stored or retrieved for this purpose alone cannot usually be used to identify you.
Marketing
The technical storage or access is required to create user profiles to send advertising, or to track the user on a website or across several websites for similar marketing purposes.
Manage options Manage services Manage vendors Read more about these purposes
Preferences
{title} {title} {title}