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New Mexico Regulation & Licensing Department v. Lujan3/17/1999
{1} This case involves an administrative appeal by the New Mexico Regulation and Licensing Department (the Department) and a cross-appeal by Bernie Lujan (Employee). The Department appeals from orders of the district court and the State Personnel Board (the SPB) determination that Employee did not receive progressive discipline prior to termination, and directing that Employee be reinstated and transferred to an agency other than the Department. Employee cross-appeals the district court's and the SPB's determination that he was an employee of the Department and not the New Mexico Real Estate Commission (NMREC). We affirm.
FACTS
{2} Employee was dismissed from his position as Chief Investigator with the NMREC by Notice of Final Action on June 2, 1995. The Notice of Final Action stated that the grounds for Employee's dismissal included continued misconduct and unprofessional behavior including foul language, sexually charged misconduct, and outbursts of anger. Employee appealed his dismissal to the SPB.
{3} The Employee filed a motion for judgment on the pleadings concerning whether Employee was employed by the Department or NMREC and subsequently filed for summary judgment on the issue. The temporary hearing officer found that Employee was employed by the Department for purposes of the application of the State Personnel Act. After the hearing, the temporary hearing officer made detailed and specific findings of fact and Conclusions of law and wrote a comprehensive report.
{4} Specifically, the temporary hearing officer found that Employee had been a "major contributor to NMREC problems[,]" but found that while Employee "was a major source of [the Department's] problems, his behavior must be seen in light of other conduct occurring at the office, all of it attributable to lack of effective management." Despite these observations, the temporary hearing officer concluded that "the record and the evidence revealed a complete absence of any attempt to progressively discipline [Employee] for his contribution to the problems with NMREC offices, or even to supervise him[.]" The temporary hearing officer concluded that the prior superintendent's lack of supervision of Employee had effectively shielded Employee from discipline. He found that when the new supervisor, Robin Otten, took charge she was made aware of Employee's behavior problems. However, the new supervisor did not make any effort to see if she could control Employee on her own, and her decision to terminate Employee was made in the absence of any evidence of progressive discipline in his personnel records.
{5} The temporary hearing officer held that the specific instances of misconduct alleged against Employee in the notice of contemplated action were of such nature that progressive discipline was required. The temporary hearing officer also held that progressive discipline was not afforded to Employee, and therefore his termination was in violation of the State Personnel Board Rules. The temporary hearing officer's ultimate Conclusion was that the Notice of Final Action should be reversed and that Employee should be reinstated to his position as a chief investigator. Each party was then given the opportunity to file exceptions to the temporary hearing officer's recommended decision.
{6} The SPB adopted the temporary hearing officer's recommendation that Employee should be reinstated, but determined that he should be employed by an agency other than the Department. The Department appealed. The district court affirmed the decision and order of the SPB.
STANDARD OF REVIEW
{7} Both issues on appeal involve a determination of whether the district court
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