2018 New Mexico Statutes
Chapter 10 - Public Officers and Employees
Article 9 - Personnel
Section 10-9-13 - Rules; adoption; coverage.
Rules promulgated by the board shall be effective when filed as required by law. The rules shall provide, among other things, for:
A. a classification plan for all positions in the service;
B. a pay plan for all positions in the service;
C. competitive entrance and promotion tests to determine the qualifications, fitness and ability of applicants to perform the duties of the position for which they apply. Such rules shall also provide for the awarding to those applicants having a passing grade of two preference points for each year of residency in New Mexico not to exceed a total of ten preference points;
D. exemption from competitive entrance tests for those professional persons applying for classified positions in the service who possess recognized registration or certification by another state agency;
E. a period of probation of one year during which a probationer may be discharged or demoted or returned to the eligible list without benefit of hearing;
F. the establishment of employment lists for the certification of the highest standing candidates to the prospective employers and procedure to be followed in hiring from the lists;
G. hours of work, holiday and leave;
H. dismissal or demotion procedure for employees in the service, including presentation of written notice stating specific reasons and time for the employees to reply thereto, in writing, and appeals to the board;
I. the rejection of applicants who fail to meet reasonable requirements as to age, physical condition, training, experience or moral conduct; and
J. employment of any apparently qualified applicant for a period of not more than ninety days when an emergency condition exists and there are no applicants available on an appropriate employment list as provided in Subsection F of this section. The applicant, if employed, shall be paid at the same rate as a comparable position covered by the Personnel Act.
History: 1953 Comp., § 5-4-36, enacted by Laws 1961, ch. 240, § 9; 1963, ch. 200, § 4; 1967, ch. 181, § 5; 1975, ch. 26, § 1; 1983, ch. 28, § 2.
Employee must comply with internal grievance procedures. — An employee must substantially comply with mandatory internal grievance procedures contained in an employee manual or handbook before filing suit for breach of contract claims based on an alleged failure of an employer to follow its employment policies. Lucero v. Board of Regents of U.N.M., 2012-NMCA-055, 278 P.3d 1043, cert. denied, 2012-NMCERT-004.
Where a university manager was terminated by the university; the manager did not follow the grievance process contained in the university's employee handbook by filing a grievance; the handbook governed the manager's employment with the university; and the manager filed an action in district court for breach of contract and wrongful termination alleging that the employee handbook created a contract and that the university breached the contract by failing to abide by the handbook's policies and procedures governing workplace performance, disciplinary action, a harassment-free workplace, employer-employee relations, progressive discipline and by disciplining the manager without just cause, the manager's claims were barred because the manager failed to exhaust the handbook's internal grievance procedures before filing the breach of contract action based on an alleged failure of the university to follow policies in the handbook. Lucero v. Board of Regents of U.N.M., 2012-NMCA-055, 278 P.3d 1043, cert. denied, 2012-NMCERT-004.
Claim under the Human Rights Act was not barred by the Personnel Act. — The protections against discrimination and retaliation contained in the Human Rights Act, Section 28-1-1NMSA 1978 et seq., apply to probationary employees of the state who have been discharged pursuant to the Personnel Act. Rodriguez v. N.M. Dep't of Workforce Solutions, 2012-NMCA-059, 278 P.3d 1047.
Where the employee was hired as a probationary employee of the department of workforce solutions; while the employee was a probationary employee, the employee was given notice of dismissal from the employee's position pursuant to the Personnel Act, which permitted the department to terminate the employee without cause; as a probationary employee, the employee had no property interest in continuing employment; and the employee filed a claim under the Human Rights Act, Section 28-1-1NMSA 1978 et seq., alleging discrimination and retaliation based on sex and age, the employee had a right to pursue the claims under the Human Rights Act. Rodriguez v. N.M. Dep't of Workforce Solutions, 2012-NMCA-059, 278 P.3d 1047.
Misconduct. — The actions of appellant in direct contravention of appellant's superior's instructions to stop yelling at others at the staff meeting was a sufficient basis upon which appellant's supervisors, the state personnel board and the district court could reasonably find misconduct by the appellant within the definition of Rule 14.7(C) of the state personnel rules; the appellant had the status of a supervisor and as such, appellant's behavior and conduct while on duty and while serving the public and individuals who had business with the agency affected the efficiency of the agency. Romero v. Employment Sec. Dep't, 1984-NMCA-111, 102 N.M. 71, 691 P.2d 72.
Rules adopted by board may not abridge statutory rights and duties. — The board has the statutory authority to adopt rules; however, the rules adopted may not abridge the rights or duties imposed by statute. State ex rel. N.M. State Highway Dep't v. Silva, 1982-NMCA-121, 98 N.M. 549, 650 P.2d 833.
Accrual of annual vacation leave. — Juvenile probation officers and their staff who were transferred from the New Mexico judicial branch to the New Mexico executive branch pursuant to the Youth Authority Act, Laws 1988, ch. 101, § 8, were not permitted to continue to accrue annual vacation leave at judicial branch rates under § 47(C) of the act. The rate of accrual of annual leave was not an "accrued benefit" under the plain meaning and structure of § 47(C), which clearly required transferred juvenile probation officers to accrue annual leave at Personnel Act rates from the time of transfer to the executive branch. Whitely v. N.M. State Personnel Bd., 1993-NMSC-019, 115 N.M. 308, 850 P.2d 1011.
Removal of personnel from policy-making positions. — By exempting members of boards and commissions and agency heads from the Personnel Act under Section 10-9-4B NMSA 1978, the legislature acknowledges that such policy-making positions are different from other types of employment positions and that such category of persons are not entitled to hearings, provided for by Subsection H of this section, before removal from their positions. State ex rel. Duran v. Anaya, 1985-NMSC-044, 102 N.M. 609, 698 P.2d 882.
Collective bargaining contracts with governmental employees cannot in any way conflict with, contradict, expand or enlarge the rules of labor-management relations adopted by the state personnel board or any other governmental entity acting in this regard. The same applies to any merit system in place or to be adopted in the future. Local 2238 of AFSCME v. Stratton, 1989-NMSC-003, 108 N.M. 163, 769 P.2d 76.
Change of definition that denied sick leave incentive benefit. — Where a collective bargaining agreement permitted employees who were assigned to shift work in a twenty-four hour facility and who did not utilize sick leave for a calendar quarter to receive eight hours of administrative leave; after an arbitrator decided that the sick leave incentive benefit did not apply only to workers who worked an assignment that constituted an unending twenty-four-hour coverage of the job, the state personnel board adopted a regulation that defined "shift work schedule" to be a normal work schedule assigned to an employee as part of a rotating group of individuals that must continuously maintain a twenty-four hour operation; and the union claimed that some state agencies had in the past given the sick leave incentive to workers working in a twenty-four-hour facility even when the workers did not work in a position requiring continuous shifts within a twenty-four hour period, that the state used the new definition to deny the benefit to workers in jobs that did not require twenty-four hour coverage, that the board attempted to circumvent the arbitrator's decision by adopting a definition that was the opposite of the definition the arbitrator had adopted, that the regulation denied sick leave incentive pay that the state had contractually agreed to provide and had paid in the past, and that the regulation impaired the agreement in violation of the Contract Clause of the United States Constitution and the New Mexico Constitution, the union's complaint adequately pled that the regulation would substantially impair an existing contract right so as to make the regulation unconstitutionally retroactive and stated a cause of action on which relief could be granted. AFSCME Council 18 v. State of N.M., 2013-NMCA-106.
No valid delegation of authority to promulgate rules. — The words "among other things" at the beginning of this section do not constitute a valid delegation of legislative power, authorizing the personnel board to promulgate rules allowing state employees to bargain collectively with state agencies, since the state constitution commits New Mexico to the doctrine of separation of powers and vests the legislative powers in the legislature. It is fundamental that no one of the three branches can delegate effectively any of the powers which belong to it. 1987 Op. Att'y Gen. No. 87-41, overruled by Local 2238 of AFSCME v. Stratton, 1989-NMSC-003, 108 N.M. 163, 769 P.2d 76.
No presumptive ratification of rules. — Legislative acquiescence in and ratification of the rules for labor-management relations promulgated by the personnel board should not be presumed because the legislature did not disapprove collective bargaining when it amended this section in 1975 and Section 10-9-18 NMSA 1978 in 1980. 1987 Op. Att'y Gen. No. 87-41.
Requiring physical examination. — The state personnel board has the authority to require a physical examination of all applicants for employment. 1963-64 Op. Att'y Gen. No. 64-22.
Harmonization with other act. — The Personnel Act can be harmonized with the provision in the General Appropriation Act that "insurance department personnel shall have qualifications as established by the superintendent of insurance." 1964 Op. Att'y Gen. No. 64-121.
Granting of overtime pay or time-off. — There is no prohibition against the cattle sanitary board (now livestock board) paying its employees engaged in inspecting meat overtime pay or granting compensatory time-off for the extra hours worked. 1967 Op. Att'y Gen. No. 67-20.
Generally, as to specific work hours. — There is no requirement contained in the New Mexico constitution or statutes that work be done at any specific hours of the day. 1967 Op. Att'y Gen. No. 67-89.
Eight-hour days. — There is no specific requirement, either constitutional or statutory, requiring that employees of the state work an eight-hour day. 1967 Op. Att'y Gen. No. 67-89.
Classification of personnel file as confidential. — Under the rule-making authority of this section and 10-9-10 NMSA 1978, the state personnel board has a limited and restricted right to classify as confidential certain portions of an individual's personnel file which would not otherwise be made available to the state unless on a confidential or restricted basis. 1963-64 Op. Att'y Gen. No. 64-19.
Salary matter of public record. — An employee's salary, kept and published under this section, is a matter of public record under 14-2-1 NMSA 1978. 1968 Op. Att'y Gen. No. 68-110.
Test score and position. — A job applicant's test score and position on an eligibility list under this section, possessed by the state personnel office, is a public record under 14-2-1 NMSA 1978. 1968 Op. Att'y Gen. No. 68-110.
Medical and employment histories. — The medical history and employment history solicited from an applicant's previous employer, under this section, are not public records under 14-2-1 NMSA 1978. 1968 Op. Att'y Gen. No. 68-110.
Generally, as to employment termination and pay. — Terminal leave pay is available to involuntarily terminated employees at the discretion of the appointing authority. Terminal leave pay is available to voluntarily resigning employees as a matter of right. The only limitations upon the power of the appointing authority to dismiss are that notice must be given in writing to the dismissed employee and an authorized reason for dismissal must be stated therein. The only limitation on the right of the voluntarily resigning employee to terminal pay is the requirement that he must give 14 days' notice to the appointing authority. 1959-60 Op. Att'y Gen. No. 60-213.
Physician dismissal by miners' hospital board. — The miners' hospital board may dismiss a physician in their employment for not abiding by the rules and regulations of the hospital board, but the physician has the right to appeal the dismissal to the personnel board. 1964 Op. Att'y Gen. No. 64-130.
Dismissal of employees. — The miners' hospital board has the power to remove or discharge any employee, but it must exercise this power in accordance with the rules promulgated by the personnel board. 1964 Op. Att'y Gen. No. 64-130.
Right to board hearing. — An employee covered by the Personnel Act has a right to a personnel board hearing on his dismissal when the reason given for the dismissal is administrative change and a reduction in personnel. 1961-62 Op. Att'y Gen. No. 62-138.
Law reviews. — For note, "Public Labor Disputes - A Suggested Approach for New Mexico," see 1 N.M. L. Rev. 281 (1977).
Am. Jur. 2d, A.L.R. and C.J.S. references. — What constitutes unfair labor practice under state employee relations act, 9 A.L.R.4th 20.
67 C.J.S. Officers and Public Employees § 197.
