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New Mexico Regulation & Licensing Department v. Lujan3/17/1999
new statutory law to provide such a result. We do not agree. This was a temporary order that has the same force and effect as any other law and was intended to suspend but not repeal any contrary statutory sections. See Cunningham v. Smith, 53 P.2d 870, 872 (Kan. 1936); State ex rel. Prater v. State Bd. of Finance, 59 N.M. 121, 124-25, 279 P.2d 1042, 1044 (1955). This Executive Order has not yet been replaced or repealed and continues today as does Section 9-1-13 and is therefore the current law. See Baxter v. State, 214 S.E.2d 578, 582 (Ga. Ct. App. 1975); Blackwell v. Commonwealth, 387 A.2d 506, 509 (Pa. Commw. Ct. 1978). Further, the General Appropriation Act of 1998 appropriated funds to NMREC, thereby recognizing that it was a division of the Department. See 1998 N.M. Laws, ch. 116, § 4.
{12} Additionally, we hold that the power to control the administration of NMREC necessarily includes the hiring and firing of its employees. The Department, not NMREC, hired Employee, Employee's title falls under the Department, and Employee's hiring was approved by the superintendent of the Department. All of these factors fulfill the definition of employer found in the State Personnel Act. See NMSA 1978, § 10-9-3(E) (1961) (stating that "`employer' means any authority having power to fill positions, in an agency").
{13} There is nothing about the SPB decision that is arbitrary and capricious or an abuse of discretion, not supported by substantial evidence, or not in accordance with the law. It is clear from the Executive Order that NMREC is a division of the Department and that necessarily the Department's control over NMREC includes the authority to hire and fire employees. The SPB's decision was not an irrational choice and it acted in accordance with the law as it is currently written. The evidence as presented demonstrates that the Department was the employer of Employee and controlled the details of Employee's duties. We therefore affirm the determination of the district court and SPB finding that Employee was employed by the Department.
{14} The next issue we address is whether Employee was afforded progressive discipline prior to his termination. Employee asserts that any disciplinary action should have been in writing and placed in his personnel file. He argues that because no such documentation was placed in his file prior to his termination he did not receive progressive discipline. We agree.
{15} One of the stated purposes of the State Personnel Act is that "Employees shall be retained on the basis of the adequacy of their performance and provisions shall be made for correcting inadequate performance and separating employees whose inadequate performance cannot be corrected." State Personnel Board Rules, Purpose, page vii (January 2, 1993). According to the State Personnel Board Rules, the purpose of discipline is to correct inadequate job performance and progressive discipline should be used whenever it is appropriate. See State Personnel Board Rule 17.1(A) & (B) (March 16, 1994). Progressive discipline can range from an oral reprimand, to demotion, suspension or dismissal. See State Personnel Board Rule 17.1(B). Although progressive discipline is preferred, the State Personnel Board Rules acknowledge that there are instances where dismissal is appropriate prior to progressive discipline. See id. This Court has stated however, that dismissal should be preceded by specific directives to refrain from particular conduct. See State ex rel. Hughes v. City of Albuquerque, 113 N.M. 209, 215, 824 P.2d 349, 355 (Ct. App. 1991).
{16} Not only do the State Personnel Board Rules address discipline, but the Department's employee handbook states that a supe
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