New Mexico
Register / Volume XXX, Issue 24 / December 31, 2019
TITLE 1 GENERAL
GOVERNMENT ADMINISTRATION
CHAPTER 7 STATE
PERSONNEL ADMINISTRATION
PART 1 GENERAL PROVISIONS
1.7.1.1 ISSUING
AGENCY: State Personnel Board.
[1.7.1.1 NMAC - Rp, 1 NMAC 7.1.1, 01/01/2020]
1.7.1.2 SCOPE: All
state agencies in the classified service.
[1.7.1.2 NMAC - Rp, 1 NMAC 7.1.2, 01/01/2020]
1.7.1.3 STATUTORY
AUTHORITY: Sections 10-9-3, 10-9-7, 10-9-10, 10-9-12
through 10-9-14 and Section 14-2-1 NMSA 1978.
[1.7.1.3 NMAC - Rp, 1 NMAC 7.1.3, 01/01/2020]
1.7.1.4 DURATION: Permanent.
[1.7.1.4 NMAC - Rp, 1 NMAC 7.1.4, 01/01/2020]
1.7.1.5 EFFECTIVE
DATE: January 1, 2020 unless a later date is cited
at the end of a section.
[1.7.1.5 NMAC - Rp, 1 NMAC 7.1.5, 01/01/2020]
1.7.1.6 OBJECTIVE: The
objective of Part 1 of Chapter 7 is: to define words and phrases used
throughout Chapter 7, to cite provisions pertaining to different Parts of
Chapter 7, to require maintenance of employment records, and to detail provisions
that do not warrant a separate Part.
[1.7.1.6 NMAC - Rp, 1 NMAC 7.1.6, 01/01/2020]
1.7.1.7 DEFINITIONS:
A. “Agency”
means any state department, bureau, division, branch or administrative group
which is under the same employer.
B. “Anniversary date” means the date of appointment or reemployment and is
changed as of the date of promotion, demotion, reduction, or transfer. The
assignment of an employee to a new classification which best represents the job
performed by the employee does not affect the employee’s anniversary date. The
director shall resolve disputes over how an anniversary date is derived.
C. “Applicant”
means any person, who has applied for a position in the classified service.
D. “Appointment” means the assumption of job
duties by a candidate who was offered and then accepted a classified position
in a state agency.
E. “Audit” means an
examination or inspection of an agency’s personnel and human resources
functions and activities, including but not limited to personnel transactions,
recruitment, leave administration, collective bargaining agreement
administration, and completion of personnel evaluations.
F. “Board” means
the personnel board.
G. “Break
in employment” means any period of time of at least one workday of not
being in the classified service.
H. “Candidate”
means any applicant who is on the employment list for a position.
I. “Classified
service” means all positions in the executive branch of state government which
are not exempt by law.
J. “Classification” means a job that is occupationally
and quantifiably distinct.
K. “Compa-ratio” means pay expressed as a percentage of the
midpoint of a pay band.
L. “Demotion”
means an involuntary downward change for disciplinary reasons with a reduction
in pay within an employee’s pay band or from a classified position in one pay
band to a classified position in a lower pay band with a reduction in pay,
and/or removal of supervisory responsibilities and pay for disciplinary
reasons.
M. “Director”
means the state personnel director.
N. “Disciplinary
action” means any action taken by an agency to influence change in an
employee’s performance or behavior to the expected standard, including letters
of reprimand, suspensions, demotions and dismissals.
O. “Dismissal”
means the involuntary separation from employment.
P. “Diversity
in the workplace” means an acknowledgment of all people in the workplace
equally, regardless of their differences.
Agencies’ management of diversity will ensure that efforts are made to
adapt to and accept the importance of all individuals who fall within a group
identified for protection under equal employment laws and regulations.
Q. “Domestic partner” means two
individuals who have shared a common, primary residence for at least 12
consecutive months, sign an affidavit of domestic partnership, and meet all of
the following criteria:
(1) Both
domestic partners must be unmarried.
(2) Domestic
partners must have been in a mutually exclusive relationship, intending to do
so indefinitely, and the relationship is similar to a marriage relationship in
the State of New Mexico.
(3) Domestic
partners must meet the age requirements for marriage in New Mexico (18 years of
age) and be mentally competent to consent to contract.
(4) Domestic
partners must not be related by blood to the degree prohibited in a legal
marriage in the State of New Mexico.
(5) Domestic
partners must be jointly responsible for the common welfare of each other and
share financial obligations.
(6) Domestic
partner must not be married or a member of another domestic partnership; nor
have been so during the past 12 months. If domestic partnership dissolves and
the same two people want to become partners again, they must once again meet
the 12-month requirements.
(7) Domestic
partners must provide proof of one of the following: joint mortgage or lease;
joint ownership of a motor vehicle; joint bank account; joint credit account;
domestic partner named as beneficiary of life insurance; domestic partner named
as beneficiary of retirement benefits; domestic partner named as primary
beneficiary in the employee's will; domestic partner assigned durable property
or health care power of attorney; or documentation of sharing of household
expenses by both partners.
R. “Employee”
means a person in a position in the classified service. [note: For purposes of brevity and consistency, this
definition differs from Subsection I of Section 10-9-3 NMSA 1978, but in no way
confers a greater right on certain persons than contemplated by Subsection I of
Section 10-9-3 NMSA 1978.]
S. “Employer”
means any authority having power to fill positions in an agency.
T. “Employment
list” the list of names of candidates referred to a hiring manager by the
agency’s Human Resources, from which a candidate may be selected for an
interview, and from which a candidate may be selected for appointment.
U. “Employment
records” means documents that contain information related to a person’s
employment or application for employment.
V. “Examination” means ranked competitive assessment
of qualifications, knowledge, skills, fitness and abilities of an applicant
including tests.
W. “Exempt service” means all positions in the executive branch of state
government exempt from the classified service by law.
X. “Filed” means received by the office.
Y. “Involuntary
separation” means involuntary removal of an employee from the classified
service without prejudice as provided for in 1.7.10.13 NMAC.
Z. “Line authority” means the assignment of activities or approval
authority by the director to State Personnel Office staff or an agency in a
manner that does not relinquish the director’s administrative oversight or
authority.
AA. “Manager” means an employee in a position
that manages internal staff or external staff, or who plans, organizes,
integrates, coordinates, and controls the activities of others. A manager also
is held accountable for the performance of people, services, systems, programs,
projects and resources and can change their direction, objectives and
assignments to meet performance and business needs.
BB. “Midpoint” means the salary midway
between the minimum and maximum pay rates of a pay band for positions in the
classified service. Midpoint represents
a compa-ratio value of 1.00 or one hundred percent.
CC. “Minimum
qualifications” means requirements approved by the board that must be met to be
considered for a position.
DD. “Office”
means the state personnel office.
EE. “Pay band” means the range of pay rates, from minimum to maximum.
FF. “Probationer”
means an employee in the classified service who has not completed the one-year
probationary period.
GG. “Promotion” means the change of an employee from a classified position
in one pay band to a classified position in a higher pay band.
HH. “Reduction” means a voluntary change without prejudice, within an
employee’s pay band, or from a classified position in one pay band to a
classified position in a lower pay band.
II. “Relation
by blood or marriage within the third degree” includes spouse, domestic
partner, parent, mother-in-law, father-in-law, step-parent, children, domestic
partner children, son-in-law, daughter-in-law, step-child, brother,
step-brother, brother-in-law, sister, step-sister, sister-in-law, grandparent,
grandchild, uncle, aunt, nephew, niece, great-grandchild, and
great-grandparent.
JJ. “Resignation” means the voluntary separation of an employee from the
classified service.
KK. “Rules” means the rules and regulations of the personnel board.
LL. “Signature”
means handwritten or electronic signature(s), provided that the mechanism for
electronic signatures is approved for use by the director, provides for
authentication, and otherwise complies with the Uniform Electronic Transactions
Act, Sections 14-16-1 to 21 NMSA 1978.
MM. “Status”
means all of the rights and privileges of an appointment.
NN. “Supervisor” means an
employee in a non-manager classification who devotes a substantial amount of
work time to supervisory duties, customarily and regularly directs the work of
two or more other employees and has the authority in the interest of the
employer to hire, promote, evaluate the performance of, or discipline other
employees or to recommend such actions effectively, but does not include an
individual who performs merely routine, incidental or clerical duties, or who
occasionally assumes supervisory or directory roles or whose duties are
substantially similar to those of subordinates, and does not include lead
employees, employees who participate in peer review or occasional employee
evaluation programs.
OO. “Suspension”
means an involuntary leave of absence without pay for disciplinary reasons for
a period not to exceed 30 calendar days.
PP. “Transfer” means the movement of an employee from one position to
another in the same pay band without a break in employment.
QQ. “Without
prejudice” means a declaration that no rights or privileges of the employee
concerned are waived or lost except as may be expressly conceded or decided.
RR. “Writing or written” means in the written form and/or an alternative format, where deemed appropriate, and when requested, including electronic records that comply with the Uniform Electronic Transactions Ac, Sections 14-16-1 to 21 NMSA 1978.
[1.7.1.7 NMAC - Rp, 1 NMAC 7.1.7, 01/01/2020]
1.7.1.8 APPROVAL AUTHORITY:
A. Pursuant to the provision of Subsection A of Section 10-9-12 NMSA 1978, the director shall supervise all administrative and technical personnel activities of the state. The director may audit the administrative and technical personnel activities of the state. The director shall submit any findings of non-compliance with these rules to the board.
B. If it is established that an agency has violated the rules, an applicable collective bargaining agreement in place with the state, or the agency’s policies, and the agency is given adequate opportunity to correct violations and fails to do so, the director may suspend the agency’s line authority or right to approve personnel actions, to approve employment lists, to advertise employment positions, to negotiate with or to make agreements with exclusive bargaining representatives, or to perform any activities related to the agency’s violations and require director approval until the director rescinds the suspension.
C. The director reserves the right to assign line authority under these rules so long as such line authority maintains the director’s administrative oversight and authority.
D. The director shall establish criteria governing the requirements which must be met to achieve and maintain line authority status.
E. The director may modify or withdraw line authority status.
[1.7.1.8 NMAC - Rp, 1 NMAC 7.1.8, 01/01/2020]
1.7.1.9 INTERPRETATIONS: The board shall establish a procedure for the issuance of interpretations of these Rules.
[1.7.1.9 NMAC - Rp, 1 NMAC 7.1.9, 01/01/2020]
1.7.1.10 METHOD
OF SERVING NOTICE: Any notice required of an agency by these
rules, except for 1.7.13 NMAC, shall be delivered by a method that provides
proof of service or attempted service.
[1.7.1.10 NMAC - Rp, 1 NMAC 7.1.10, 01/01/2020]
1.7.1.11 COMPUTATION
OF TIME:
A. In
computing any period of time prescribed or allowed by these rules, the day from
which period of time begins to run shall not be included. The last calendar day
of the time period shall be included in the computation unless it is a
Saturday, Sunday or a day on which a legal holiday is observed. In such a case,
the period of time runs to the close of business on the next regular workday.
If the period is less than 11 days, a Saturday, Sunday or legal holiday is
excluded from the computation.
B. Whenever
an employee is permitted or required by these rules to respond or do some other
act within a prescribed period after service of a notice or paper upon the
employee and the notice or paper is served by mail or courier service, 3
calendar days shall be added to the prescribed period.
[1.7.1.11 NMAC - Rp, 1 NMAC 7.1.11, 01/01/2020]
1.7.1.12 EMPLOYMENT
RECORDS:
A. Agencies
shall maintain a record of each employee’s employment history in accordance
with operational necessity and applicable state and federal law requirements.
Employees shall have access to review their own file. Employment-related
confidential records shall be available for inspection by agencies during the
process of interviewing for employment when the employee has provided a signed
release. No materials shall be placed in
an employee’s employment history without providing the employee with a copy. Employees may submit written rebuttal to any
material placed in their employment history.
Agencies shall transfer the complete record of an employee’s employment
history upon inter-agency transfer.
B. Employment
records, except confidential records, are subject to inspection by the general
public. Confidential records may be
inspected with the written permission of the employee or pursuant to a lawful
court order or subpoena.
C. For the purpose
of inspection of public records under Subsection B of 1.7.1.12 NMAC, the following material shall be regarded as
confidential and exempted from public inspection: records and documentation pertaining to physical or mental illness,
injury or examinations, sick
leave and medical treatment of persons;
records and documentation maintained for purposes of the Americans with
Disabilities Act [42 U.S.C. Section 12010 et seq.]; letters of reference concerning employment, licensing, or
permits; records and documentation containing matters of opinion; interview
notes; documents concerning infractions and disciplinary actions; performance
appraisals; opinions as to whether a person should be re-employed; college
transcripts; military discharge; information on the race, color, religion, sex,
national origin, political affiliation, age, and disability of employees; home
address and personal telephone number unless related to public business; social
security number; laboratory reports or
test results generated according to the provisions of 1.7.8 NMAC; and as
otherwise provided by state or federal law.
[1.7.1.12 NMAC - Rp, 1 NMAC 7.1.12,
01/01/2020]
1.7.1.13 SETTLEMENT
AGREEMENTS: Any settlement agreement reached by an agency
and an employee to resolve a matter between them, that incorporates provisions
covered by these rules, must conform to the provisions of these rules, unless
otherwise approved by the director. If a
potential offer of settlement relates to a personnel action covered by these
rules, including, but not limited to, disciplinary appeals, grievance
arbitrations, and prohibited practice complaints, or a collective bargaining
agreement entered into by the state, an agency must secure approval from the
director prior to extending the offer. If in the judgment of the director, the
offer of settlement is in the best interest of the state, the director may
authorize the agency to extend the offer of settlement to the employee. If such
settlement also involves payment of monies by an agency, joint approval of the
cabinet secretary of the department of the department of finance and
administration and administration signifying budget availability and the
director is required.
[1.7.1.13 NMAC - Rp, 1 NMAC 7.1.13, 07/07/01,
01/01/2020]
1.7.1.14 AGENCY
HUMAN RESOURCE POLICIES: Each agency shall provide a copy of their
human resource policies to the office and these policies must conform to the
provisions of these rules and other statutory requirements as required by law
and include, among other things, policies regarding diversity in the workplace.
[1.7.1.14 NMAC - Rp, 1 NMAC 7.1.14, 01/01/2020]
1.7.1.15 TRAINING
AND DEVELOPMENT: The director shall establish, pursuant to
direction from the board, and maintain a training and development work
plan. The board will review the training
and development work plan on an annual basis.
[1.7.1.15 NMAC - Rp, 1 NMAC 7.1.15, 01/01/2020]
1.7.1.16 SEVERABILITY: A
determination by a court of competent jurisdiction that any provision of 1.7.1 NMAC is unconstitutional
or invalid shall not adversely affect the constitutionality, validity or
enforceability of the remaining provisions.
[1.7.1.16 NMAC - Rp, 1 NMAC 7.1.16, 01/01/2020]
HISTORY OF 1.7.1 NMAC:
Pre-NMAC History:
Material in this
part was derived from that previously filed with the commission of public
records - state records center and archives as:
SPB Rule 1,
Definitions, filed 05-22-80;
SPB Rule 1,
Definitions, filed 06-03-81;
SPB Rule 1,
Definitions, filed 07-22-82;
SPB Rule 1,
Definitions, filed 10-21-82;
SPB Rule 1,
Definitions, filed 06-28-83;
SPB Rule 1,
Definitions, filed 03-07-86;
SPB Rule 1,
Definitions, filed 10-17-86;
SPB Rule 1,
Definitions, filed 07-30-87;
SPB-A, Glossary,
filed 04-04-90;
SPB-A, Glossary,
filed 10-19-90;
SPB 1, Definitions,
filed 12-15-92;
SPB 1, Definitions,
filed 02-10-94;
SPB Rule 2, General
Provisions, filed 05-22-80;
SPB Rule 2, General
Provisions, filed 06-03-81;
SPB Rule 2, General
Provisions, filed 07-22-82;
SPB Rule 2, General
Provisions, filed 10-21-82;
SPB Rule 2, General
Provisions, filed 06-28-83;
SPB Rule 2, General
Provisions, filed 03-07-86;
SPB Rule 2, General
Provisions, filed 10-17-86;
SPB-1, General
Applicability filed 04-04-90;
SPB-1, General
Applicability filed 10-19-90;
SPB-1, General
Applicability filed 12-24-91;
SPB 2, General
Provisions, filed 12-15-92;
SPB 2, General
Provisions, filed 02-10-94;
SPB 2, General
Provisions, filed 12-29-94.
Other History:
1 NMAC 7.1, General Provisions, filed 01-12-96 replaced SPB 1, filed 02-14-94 and SPB 2, filed
12-29-94;
1 NMAC 7.1, General Provisions, filed 05-02-96;
1 NMAC 7.1, General Provisions, filed 06-13-97 replaced by 1.7.1 NMAC, General Provisions, effective
07/07/01.
History of Repealed Material:
1 NMAC 7.1, General Provisions, filed
06-13-97.
1.7.1 NMAC, General Provisions, filed
6/13/1997, replaced by 1.7.1 NMAC, General Provisions, effective
01/01/2020.