1997 -NMCA- 34, City of Albuquerque v. Chavez

Citation1997 NMCA 34,123 N.M. 258,939 P.2d 1066
Decision Date13 March 1997
Docket NumberNo. 16646,16646
Parties, 1997 -NMCA- 34 CITY OF ALBUQUERQUE, Plaintiff-Appellant, v. Ernest B. CHAVEZ, Defendant-Appellee.
CourtCourt of Appeals of New Mexico

Robert M. White, City Attorney, Charles W. Kolberg, Assistant City Attorney, City of Albuquerque, Albuquerque, for Plaintiff-Appellant.

Roy A. Anuskewicz, Jr., Albuquerque, for Defendant-Appellee.



¶1 The City of Albuquerque appeals the district court's order setting aside the City Personnel Board's (the Personnel Board) decision upholding the termination of Defendant Ernest B. Chavez (Employee). The district court held that the proceedings before the City's Hearing Officer violated constitutional due process, U.S. Const. amend. XIV; N.M. Const. art. II, § 18, because Employee bore the burden of persuasion and was required to present his evidence first. Under the particular facts of this appeal, we hold that due process was not violated by requiring Employee to present his evidence first or to bear the burden of production or persuasion in proceedings before the Hearing Officer. We therefore reverse the district court's order and remand for additional proceedings.


¶2 Employee was a sixteen-year veteran of the City of Albuquerque Fire Department (the Department) who had risen to the rank of lieutenant. Among his duties, he was in charge of procuring replacement parts, including tires, for Department vehicles. In early 1992, Employee solicited a $250 donation from Dan Shine, an employee of a company that did business with the Department, to help cover a shortfall in the budget for the Department's 1991 Christmas party. Not long after, Shine asked Employee for assistance in obtaining a discount on tires for Shine's personal vehicle. Employee arranged for Shine to pick up some tires from Fletcher's Cobre Tire, Inc., a supplier to the City. Shine obtained the tires but did not pay for them. After the tire company inquired about the purchase, Employee obtained the invoice and filled it out so that the City would be charged for the tires. When an investigation revealed that the City vehicle identified on the invoice did not have the new tires, Employee was charged with violating various Department and City rules.

¶3 In April 1992, Deputy Fire Chief Robert Otero presided over what the City called a "pre-[de]termination hearing." One week after the hearing, Fire Chief Thomas P. Montoya issued a memorandum to Employee notifying him that he was being terminated from the Department. The memorandum explained in detail the findings made against Employee and the grounds for the discharge. Employee's attorney, who had attended the pre-determination hearing (although not permitted to question witnesses or make a statement), wrote a letter in May 1992 appealing the decision to the mayor. The letter denied some of the factual allegations in the Fire Chief's memorandum to Employee, contended that Employee had no fraudulent intent, and pointed to severe emotional and physical problems that Employee had been suffering during the period of time the transactions took place.

¶4 The City's chief administrative officer upheld Employee's discharge and referred the matter to the Hearing Officer to schedule a hearing. There were only two issues before the Hearing Officer: (1) whether the employee's due process rights were violated during the pre-determination hearing and (2) whether the discipline imposed was too severe. After an evidentiary hearing, the Hearing Officer found that the Employee had "failed his burden" to demonstrate that there were adequate mitigating circumstances to condone the act or lessen the discipline imposed (emphasis added), and recommended upholding the termination. The Personnel Board, by a vote of two to one, accepted the recommendation.

¶5 In November 1992, Employee appealed the Personnel Board's ruling to the district court, raising a number of challenges to the administrative proceedings and contending that: (1) the Hearing Officer erred in concluding Employee had the burden of proof and in requiring Employee to present evidence first, (2) the pre-determination hearing violated Employee's due process rights, (3) the Hearing Officer erred when he excluded certain testimony, and (4) the Personnel Board's decision was arbitrary and capricious.

¶6 On August 27, 1993, the district court remanded the matter to the Personnel Board and held that the Hearing Officer had acted improperly in placing the burden of proof on Employee and requiring him to present his evidence first. The district court did not rule on the other issues. The City appealed to this Court, but we dismissed the appeal because the remand to the Personnel Board was not a final order. After the second hearing in April 1994, a new hearing officer recommended that Employee not be terminated but rather suspended from duty for thirty days. The Personnel Board unanimously voted to modify the recommendation by increasing the period of suspension to ninety days. The City appealed this decision to the district court. In June 1995, the district court affirmed the Personnel Board's second determination. The City now appeals both the 1993 and 1995 district court orders. We reverse the district court's 1993 order remanding the matter to the Personnel Board for a second hearing. We remand to the district court to consider the other issues raised by Employee's original appeal from the Personnel Board's first decision.


¶7 In discussing the burden of persuasion issue raised in this appeal, the parties pose the issue generally as follows: By placing the burden of persuasion on an employee, the City is essentially instructing the Personnel Board that it should not overturn a personnel decision unless it is persuaded that the decision was incorrect. To do what Employee would require--placing the burden of persuasion on the City--would be tantamount to instructing the Personnel Board that it should affirm the personnel action only if it is persuaded that the action was correct.

A. Our Disposition On Narrower Issue

¶8 Because of the particular procedural facts in this appeal, however, we conclude that the real question raised by the parties is much narrower. We believe that, in deciding this appeal, our real focus should be on what factual aspect of this case did the hearing officer require Employee to bear the burden. That is, what fact or set of facts was Employee required to prove?

¶9 The circumstances under which parties in a proceeding, including defendants in criminal proceedings, can constitutionally be required to bear the burden of proof and production are numerous. United States v. Battaglia, 478 F.2d 854 (5th Cir.1972) (criminal defendant bears burden of persuasion and production of true facts to rebut presentencing information); McGinnis v. Honeywell, Inc., 110 N.M. 1, 9, 791 P.2d 452, 460 (1990) (discharged employee bears burden to prove employer's culpable mental state for punitive damages); Chavez v. Manville Prods. Corp., 108 N.M. 643, 647, 777 P.2d 371, 375 (1989) (discharged employee bears burden of proving his discharge violates public policy); State v. Chavez, 78 N.M. 446, 447, 432 P.2d 411, 412 (1967) (criminal defendant bears burden to establish claims of prejudicial publicity, threats against himself, and threats against the jury); State v. Moser, 78 N.M. 212, 214, 430 P.2d 106, 108 (1967) (criminal defendant bears burden when claiming ineffective assistance of counsel); Acme Cigarette Servs., Inc. v. Gallegos, 91 N.M. 577, 580, 577 P.2d 885, 888 (Ct.App.1978) (defendant bears burden when claiming an affirmative defense).

¶10 The common thread that runs through these cases is that parties in a proceeding properly bear the burden of both production and persuasion when they come forward with an affirmative reason to explain their behavior or special circumstances in support, extenuation, or mitigation. Placing the burden on parties claiming the affirmative is deemed proper because they are the only ones in possession of the facts and evidence supporting their claim. We believe this requirement equally applies to the burden imposed by the City on Employee in this appeal.

¶11 To ascertain the nature of that burden, we now turn to the facts of this appeal. In his report, the Hearing Officer characterized the two issues before him as whether Employee's due process rights were violated during the pre-determination hearing and whether the discipline imposed was too severe. Employee did not challenge that characterization of the issues.

¶12 We note that the due process issue presented to the Hearing Officer at the pre-determination hearing was whether Employee was permitted assistance of counsel, as opposed to the due process issue raised in this appeal on the burden of proof. The Hearing Officer determined, in connection with the issue of assistance of counsel, that Employee's attorney was permitted to direct Employee's presentation and this allowed Employee adequate opportunity to respond. That ruling was appealed to the district court but is not the subject of this appeal.

¶13 The remaining issue before the Hearing Officer was whether the discipline imposed was too severe. This view is supported by Employee's own briefs filed in the district court, which extensively discussed Employee's physical and psychological problems as factors in mitigation. This interpretation is also buttressed by the Hearing Officer's finding that Employee failed to meet his burden to demonstrate that there were adequate mitigating circumstances to condone the act or lessen the discipline imposed (emphasis added). Based on our own review of the record, we conclude that the issue before the Hearing Officer was whether the discipline was too severe.

¶14 As we previously noted, it is not only permissible but necessary for Employee to bear the burden of...

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3 cases
  • State v. Nunez, No. 23
    • United States
    • New Mexico Supreme Court of New Mexico
    • December 30, 1999
    ...U.S. at 768, 114 S.Ct. 1937, that forfeitures have "distinctly punitive purposes"); City of Albuquerque v. Chavez, 1997-NMCA-034, ¶ 19, 123 N.M. 258, 939 P.2d 1066 (mentioning quasi criminal concept), rev'd on other grounds, 1998-NMSC-033, 125 N.M. 809, 965 P.2d 928; City of Albuquerque v. ......
  • 1998 -NMSC- 33, City of Albuquerque v. Chavez, 24257
    • United States
    • New Mexico Supreme Court of New Mexico
    • September 21, 1998
    ...the decision of the City of Albuquerque Personnel Board sustaining Chavez's termination. City of Albuquerque v. Chavez, 1997-NMCA-034, 123 N.M. 258, 939 P.2d 1066. The majority opinion of the Court of Appeals held that "due process was not violated by requiring Employee to present his evide......
  • State v. Garrison, 31,543
    • United States
    • New Mexico Court of Appeals of New Mexico
    • March 1, 2013
    ...that a criminal defendant bears the burden of proof of an affirmative defense); cf. City of Albuquerque v. Chavez, 1997-NMCA-034, ¶¶ 9-10, 123 N.M. 258, 939 P.2d 1066 (indicating that generally the party who claims an affirmative defense, including a criminal defendant, bears the burden of ......

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