TITLE 1 GENERAL GOVERNMENT ADMINISTRATION
CHAPTER 7 STATE PERSONNEL ADMINISTRATION
PART 11 DISCIPLINE
1.7.11.1 ISSUING
AGENCY: State Personnel
Board.
[1.7.11.1 NMAC - Rp,
1 NMAC 7.11.1, 07/07/01]
1.7.11.2 SCOPE: All state agencies in the classified service.
[1.7.11.2 NMAC - Rp,
1 NMAC 7.11.2, 07/07/01]
1.7.11.3 STATUTORY
AUTHORITY: NMSA 1978,
Section 10-9-13(H), NMSA 1978, Section 10-9-18(A), NMSA 1978, Section 10-9-22
and NMSA 1978, Sections 28-2-1 to 28-2-6; Chapter 173, laws of 1997.
[1.7.11.3 NMAC - Rp,
1 NMAC 7.11.3, 07/07/01; A, 11/14/02]
1.7.11.4 DURATION: Permanent.
[1.7.11.4 NMAC - Rp,
1 NMAC 7.11.4, 07/07/01]
1.7.11.5 EFFECTIVE
DATE: 07/07/01 unless a
later date is cited at the end of a section.
[1.7.11.5 NMAC - Rp,
1 NMAC 7.11.5, 07/07/01]
1.7.11.6 OBJECTIVE: The objective of Part 11 of Chapter 7 is: to
provide a mechanism by which management can implement constructive, progressive
steps towards solving performance or behavior problems.
[1.7.11.6 NMAC - Rp,
1 NMAC 7.11.6, 07/07/01]
1.7.11.7 DEFINITIONS:
[RESERVED]
[1.7.11.7 NMAC - Rp,
1 NMAC 7.11.7, 07/07/01]
1.7.11.8 DISCIPLINE:
A. The primary
purpose of discipline is to correct performance or behavior that is below
acceptable standards, or contrary to the employer's legitimate interests, in a
constructive manner that promotes employee responsibility.
B. Progressive
discipline shall be used whenever appropriate.
Progressive discipline can range from a reminder, to an oral or written
reprimand, to a suspension, demotion or dismissal. There are instances when a
disciplinary action, including dismissal, is appropriate without first having
imposed a less severe form of discipline.
C. Agencies shall
utilize alternative methods to resolve conflicts or improve employee
performance or behavior whenever appropriate.
[1.7.11.8 NMAC - Rp,
1 NMAC 7.11.8, 07/07/01]
1.7.11.9 NOTICES
AND COMPUTATION OF TIME:
A. Notices prescribed by 1.7.11 NMAC shall be served in
accordance with the provisions of 1.7.1.10 NMAC.
B. The computation of time prescribed or allowed by 1.7.11
NMAC shall be in accordance with the provisions of 1.7.1.11 NMAC.
[1.7.11.9 NMAC - Rp,
1 NMAC 7.11.9, 07/07/01; A, 11/14/02]
1.7.11.10 JUST
CAUSE:
A. An employee who
has completed the probationary period required by Subsection A of
1.7.2.8
NMAC may be suspended, demoted, or dismissed only for just cause which
is any behavior relating to the employee's work that is inconsistent with the employee's
obligation to the agency.
B. Just cause
includes, but is not limited to: inefficiency;
incompetency; misconduct; negligence; insubordination; performance which
continues to be unsatisfactory after the employee has been given a reasonable
opportunity to correct it; absence without leave; any reasons prescribed in 1.7.8
NMAC; failure to comply with any provisions of these Rules; falsifying
official records and/or documents
such as employment applications, or conviction of a felony or misdemeanor when
the provisions of the Criminal Offender
Employment Act NMSA 1978, Sections 28-2-1 to 28-2-6 apply.
[1.7.11.10 NMAC -
Rp, 1 NMAC 7.11.10, 07/07/01; A, 11/14/02]
1.7.11.11 PROBATIONERS AND EMPLOYEES IN
EMERGENCY OR TEMPORARY STATUS:
Probationers and employees in emergency or temporary status may be suspended,
demoted, or dismissed effective immediately with written notice and without
right of appeal to the board. The written notice shall advise the employee of
the conduct, actions, or omissions which resulted in the suspension, demotion,
or dismissal.
[1.7.11.11 NMAC -
Rp, 1 NMAC 7.11.11, 07/07/01; A, 11/14/02]
1.7.11.12 ADMINISTRATIVE
LEAVE PENDING DISCIPLINARY ACTION: Agencies may authorize administrative leave for a period up to 160
consecutive work hours during a disciplinary action proceeding or investigation.
Administrative leave in excess of 160 consecutive work hours must be approved
by the director.
[1.7.11.12 NMAC -
Rp, 1 NMAC 7.11.12, 07/07/01; A, 7-15-05]
1.7.11.13 EMPLOYEES
IN CAREER STATUS:
A. Notice of contemplated action:
(1) To initiate the
suspension, demotion, or dismissal of an employee in career status and an employee
in term status who has completed the probationary period, the agency shall
serve a notice of contemplated action on the employee which: describes the conduct, actions, or omissions
which form the basis for the contemplated disciplinary action; gives a general
explanation of the evidence the agency has; advises the employee of his or her
right to inspect and obtain copies of any documentary evidence relied
upon; specifies what the contemplated
action is; and states that the employee has eleven calendar days from service
of the notice to respond in writing to the notice or to request an opportunity
for an oral response.
(2)
When the notice of contemplated action is served by mail, the employee
receiving service shall have 3 additional calendar days in which to file a
response.
B. Response to notice of contemplated action:
(1) A representative of
the employee's choosing may respond in writing to the notice of contemplated action
on behalf of the employee.
(2) If there is a request for an oral
response to the notice of contemplated action, the agency shall meet with the
employee within 11 calendar days of a request for an oral response, unless the
employee and the agency agree in writing to an extension of time. A
representative of the employee's choosing may represent the employee.
(3) The purpose of the
oral response is not to provide an evidentiary hearing but is an opportunity
for the employee to present his or her side of the story. It is an initial
check against mistaken decisions, essentially a determination of whether there
are reasonable grounds to believe that the charges against the employee are
true and support the proposed action.
C. Notice of final action:
(1) If the employee does
not respond to the notice of contemplated action the agency shall issue a notice
of final action within 11 calendar days following the response period.
(2) If the employee has
filed a written response or has been provided an opportunity for oral response,
the agency shall issue a notice of final action no later than 11 calendar days
from the date of receipt of the response.
(3) The notice of final
action shall:
(a)
specify the final action to be taken, which may be upholding the
contemplated action, a lesser form of discipline than contemplated, or no disciplinary
action;
(b)
describe the conduct, actions, or omissions which form the basis for the
disciplinary action, which may not include allegations not included in the
notice of contemplated action;
(c) give a general explanation of the evidence
the agency has;
(d)
specify when the disciplinary action will be effective, which must be at
least 24 hours from the time of service of the notice of final action; and
(e)
inform the employee of his or her appeal rights.
(4) Appeal rights:
(a)
an employee, not covered by a collective bargaining agreement, may
appeal a final disciplinary action to the board by delivering a written
statement of the grounds for appeal to the state personnel director at 2600
Cerrillos Road, Santa Fe, New Mexico 87505 no later than 30 calendar days from
the effective date of the final disciplinary action; the employee must submit a
copy of the notice of final disciplinary action with the notice of appeal;
(b)
an employee who is covered by a collective bargaining agreement may
either appeal the final disciplinary action to the board as stated above in Subparagraph
(a) of Paragraph (4) of Subsection C of 1.7.11.13 NMAC or make an
irrevocable election to appeal to an arbitrator pursuant to the collective
bargaining agreement.
[1.7.11.13 NMAC -
Rp, 1 NMAC 7.11.13, 07/07/01; A, 11/14/02; A, 7-15-05; A/E, 6/19/09; A, 9/15/09;
A/E, 4/27/10; Re-pr, 7/30/10]
HISTORY OF 1.7.11 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 14,
Separations and Demotions, filed 05-22-80;
SPB Rule 14,
Separations and Demotions, filed 09-01-81;
SPB Rule 14,
Separations and Demotions, filed 07-22-82;
SPB Rule 14,
Separations and Demotions, filed 10-21-82;
SPB Rule 14,
Separations and Demotions, filed 03-04-86;
SPB Rule 14,
Separations and Demotions, filed 03-14-86;
SPB Rule 14,
Separations and Demotions, filed 10-17-86;
SPB Rule 14,
Separations and Demotions, filed 08-31-87;
SPB-18, Disciplinary
Actions, filed 04-04-90;
SPB-18, Disciplinary
Actions, filed 10-19-90;
SPB-18, Disciplinary
Actions, filed 12-24-91;
SPB 17, Discipline,
filed 12-15-92;
SPB 17, Discipline,
filed 03-18-94.
History of Repealed Material:
1 NMAC 7.11, Discipline, filed 06-13-97.
Other History:
1 NMAC 7.16, Discipline, filed 01-12-96 replaced SPB 17, filed
03-18-94;
1 NMAC 7.16, Discipline, filed 05-02-96;
1 NMAC 7.11, Discipline, filed 06-13-97 replaced 1 NMAC 7.16, filed
05-02-96;
1 NMAC 7.11, Discipline, filed 06-13-97 replaced by 1.7.11 NMAC,
Discipline, effective 07/07/01.