Gallegos v. New Mexico State Corrections Dept.

• Decision Date: 30 January 1992
• Docket Number: No. 11762,11762
• Citation: 858 P.2d 1276,1992 NMCA 13,115 N.M. 797
• Parties: Ernest GALLEGOS, Petitioner-Appellant, v. NEW MEXICO STATE CORRECTIONS DEPARTMENT and New Mexico State Personnel Board, Respondents-Appellees.
• Court: Court of Appeals of New Mexico

Page 1276

858 P.2d 1276

115 N.M. 797

Ernest GALLEGOS, Petitioner-Appellant, v. NEW MEXICO STATE CORRECTIONS DEPARTMENT and New Mexico State

Personnel Board, Respondents-Appellees.

No. 11762.

Court of Appeals of New Mexico.

Jan. 30, 1992.

[115 N.M. 798] E. Justin Pennington, Law Offices of E. Justin Pennington, Albuquerque, for petitioner-appellant.

Sharon Walton, Sp. Asst. Atty. Gen., Corrections Dept., Santa Fe, for respondents-appellees.

OPINION

APODACA, Judge.

The original opinion filed January 8, 1992, is hereby withdrawn, on this court's own motion, and the following opinion is substituted in its place.

Petitioner Ernest Gallegos (Employee) appeals from orders of the district court and State Personnel Board (Board) affirming his dismissal from the New Mexico State Corrections Department (Department). Employee argues that (1) the Board's action was not supported by substantial evidence, was arbitrary and capricious, and contrary to law; (2) the Board failed to make findings supporting its conclusion that the Department had just cause to dismiss him; and (3) the Department's failure to follow its own regulations renders its decision null and void and violated Employee's right to procedural due process. We hold that the Board's decision was not supported by substantial evidence, was arbitrary and capricious, and contrary to law. Because of our disposition, we need not address the due process issue. We have combined issues 1 and 2 in our discussion. We reverse and remand, with instructions that the district court's and Board's orders be vacated and that Employee be reinstated to his former position with the Department.

FACTS

Employee was employed by the Department as a Correctional Officer II (Lieutenant), at the Central New Mexico Correctional Facility (the Facility). In September 1987, when Employee was working the evening shift, he was called to assist Officer Steve Lovato (Lovato) at what was known as the J-1 unit (the unit). Lovato was having difficulty removing Inmate Dennis Leza (Leza) from a cellblock where Leza's presence was prohibited. Lt. Arthur Lesueur (Lesueur) accompanied Employee to the unit. When Employee and Lesueur arrived there, Leza and Lovato were in the corridor below the control center. The corridor was roughly horseshoe shaped, with a stairwell separating the two ends. It was impossible to see through or around the stairwell. A control center was located above the corridor on a second level. Windows in the floor of the control center allowed officers in the control center to see into the corridor below them.

Before Employee arrived at the unit, Leza had become confrontational and refused to leave the cellblock. He was holding several items of contraband, including a picture frame, which Employee took from him and handed to Lesueur. Leza suddenly grabbed for the picture frame held by Lesueur. In the brief struggle that followed, the frame broke and pieces scattered on the floor. Lovato and Employee picked up the pieces. After the frame broke, Lesueur picked Leza up with one hand on his throat and slid him up against the wall, lifting him at least several inches off the ground and holding him there for two or three seconds. Employee looked up and saw Lesueur follow Leza out the door. Officer Cary testified that Lesueur pushed Leza out the door.

Several officers saw Lesueur's action. Lovato looked up briefly as he was picking up pieces of the picture frame and saw Leza's feet off the floor. Cary and another employee, Officer Maes, saw Lesueur use force against Leza from the cellblock window. Cary testified that, if he had been momentarily distracted, he would not have seen the incident.

Employee testified that he did not see Lesueur lift Leza by the neck. He did not learn that force had been used until a month after it occurred, when Lesueur told him. After Lesueur's admission, Employee wrote a memo to the chief of security at the Facility, describing his conversation with Lesueur. The other officers involved in the incident testified either that they could not see Employee or that they were not looking at him and thus did not know where he was looking. No one testified that Employee saw Lesueur pick Leza up by the neck.

No misconduct report, incident report or use of force report describing Lesueur's lifting Leza by the neck was prepared by any officer involved. Cary prepared a report in which he related that the inmate had been in the wrong unit and had been forcibly removed from the unit by Lesueur. He submitted this report to Lesueur. For reasons that are the subject of conflicting testimony, Cary retracted his original report and filed an amended one that omitted any mention of the use of force. The control log prepared by Cary, contemporaneously with the event, did not mention the use of force.

Leza later reported the incident. In the investigation that followed, Cary, Lesueur, Lovato and Employee all denied witnessing or using force against Leza. Cary said that he had seen Lesueur push Leza out of the unit. Only Maes told the investigator that Lesueur had lifted Leza by the neck. In a second interview, Lovato admitted seeing Lesueur lift Leza by the neck. Lesueur did not admit using force on Leza until late October.

All officers involved in the incident were eventually disciplined. Cary was suspended for two days for having witnessed an incident involving the use of force and failing to report, denying witnessing such force, and providing false and misleading statements during the investigation. Lovato was suspended for two days for having provided false and misleading statements. Maes received a letter of reprimand. Lesueur was suspended for five days for using physical force on an inmate, for failing to report the use of such force, failing to issue a misconduct report to the inmate or submit an incident report, and for making false and misleading statements during the interviews. Employee received the most severe discipline--he was terminated for failing to report the use of force, failing to issue a misconduct report to Leza or to submit an incident or use of force report, making false and misleading statements during the interview, continuing to deny witnessing the use of force, and intimidating the other officers involved by telling them that they would lose their jobs if they did not deny the use of force.

Employee sought review of his termination by the Board, which upheld his dismissal. He appealed the Board's decision to the district court, which affirmed the Board's decision. Employee then appealed to this court.

BOARD'S DECISION WAS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE

Employee argues that there is not substantial evidence to support the charges of misconduct against him. We agree.

This court's scope of review in reviewing appeals under the Personnel Act, NMSA 1978, Sections 10-9-1 to -25 (Repl.Pamp.1990), is the same as that of the district court. Padilla v. Real Estate Comm'n, 106 N.M. 96, 739 P.2d 965 (1987); Jimenez v. Department of Corrections, 101 N.M. 795, 689 P.2d 1266 (1984); Perkins v. Department of Human Servs., 106 N.M. 651, 654, 748 P.2d 24, 27 (Ct.App.1987). NMSA 1978, Section 10-9-18(G) (Repl.Pamp.1990), requires the reviewing court to affirm the decision of the Personnel Board "unless the decision is found to be: (1) arbitrary, capricious or an abuse of discretion; (2) not supported by substantial evidence; or (3) otherwise not in accordance with law." See Anaya v. New Mexico State Personnel Bd., 107 N.M. 622, 625, 762 P.2d 909, 912 (Ct.App.1988).

The reviewing court will not reweigh the evidence or substitute its judgment for that of the agency if the findings are supported by substantial evidence on the record as a whole. Whole record review requires the reviewing court to consider all of the evidence, both favorable and unfavorable to the administrative decision. Perkins v. Department of Human Servs., 106 N.M. at 655, 748 P.2d at 28. An administrative action is arbitrary and capricious if, when viewed in the light of the whole record, it is unreasonable. An action is an abuse of discretion "if the agency or lower court has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence." Id. Applying these guidelines to the facts in this appeal, we determine that there is not substantial evidence supporting the Board's decision to uphold Employee's termination.

The Department dismissed Employee in part because he "witnessed and failed to report" the use of force on Leza, he failed to submit a use of force report, he "made false and misleading statements regarding the use of force[,]" and he falsified his statement. The hearing officer found, and his decision was affirmed by the Board and district court, that Employee was in proximity to the incident and saw or was aware of Lesueur's use of force on Leza. He also found that Employee gave misleading information regarding the incident during the...