Regulation & Licensing Dep't v. Lujan

• Decision Date: 17 March 1999
• Docket Number: 19-318
• Parties: NEW MEXICO REGULATION & LICENSING DEPARTMENT, ADMINISTRATIVE SERVICES DIV., Appellant/Cross-Appellee, v. BERNIE LUJAN, Appellee/Cross-Appellant.Opinion Number: 1999-IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO Filing Date:
• Court: Court of Appeals of New Mexico

NEW MEXICO REGULATION & LICENSING DEPARTMENT, ADMINISTRATIVE SERVICES DIV., Appellant/Cross-Appellee v BERNIE LUJAN, Appellee/Cross-Appellant

Docket No. 19,318

Opinion Number: 1999-NMCA-059

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Filing Date: March 17, 1999

APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY

Steve Herrera, District Judge

PATRICIA A. MADRID, Attorney General, KATHERINE ZINN, Special Assistant Attorney General, NM Regulation & Licensing Dept., Santa Fe, NM, for Appellant/Cross-Appellee

KENNETH R. WAGNER, Kenneth R. Wagner & Associates, P.A., Albuquerque, NM, for Appellee/Cross-Appellant

OPINION

ALARID, Judge.

{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 should have affirmed the SPB's decision and its adoption of the temporary hearing officer's findings of fact and conclusions of law. Our scope of review in reviewing appeals under the Personnel Act, NMSA 1978, §§ 10-9-1 to -25 (1961) (amended 1998) is identical to that of the district court. See Gallegos v. New Mexico State Corrections Dep't, 115 N.M. 797, 800, 858 P.2d 1276, 1279 (Ct. App. 1992). Section 10-9-18(G) requires the district court to "affirm the decision of the [SPB] 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." NMSA 1978, § 10-9-18(G) (1980) (amended 1998).

{8} An arbitrary and capricious action consists of conduct or a ruling that is unreasonable or does not have a rational basis. See Perkins v. Department of Human Servs., 106 N.M. 651, 655, 748 P.2d 24, 28 (Ct. App. 1987). An abuse of discretion occurs when the administrative agency has not acted in a manner required by the law. See id. Even if another conclusion may be reached or where there is room for two opinions, the action is not arbitrary or capricious if it was made after due consideration. See id. Whether the SPB's decision was supported by substantial evidence entails considering all of the evidence, both favorable and unfavorable to the SPB's decision, and deciding whether its decision was supported by the evidence. See id. Last, an agency's decision is not in accordance with the law if the decision or action taken by the agency was based on an error of law. See id. at 656, 748 P.2d at 29. "Whether a ruling or decision of an administrative agency is 'not in accordance with law' is a question of law to be decided by the court." Id.

DISCUSSION

{9} We begin our discussion with Employee's cross-appeal. We do so because the determination of this issue is a necessary step in addressing the Department's appeal. Employee asserts that he is an employee of NMREC and not the Department, and therefore the Department had no authority to terminate his employment. As the Department correctly asserts, however, Employee is employed by the Department because NMREC falls under the auspice of the Department. Stated alternatively, NMREC is a division of the Department.

{10} The Department was created in 1983 by the Legislature. See 1983 N.M. Laws, Ch. 297, §§ 17-29. Included in the Act creating the Department was a temporary provision that provided that "[t]he control of the professional and occupational licensing functions of the executive branch of state government may be consolidated [by the Governor] under the supervision of the regulation and licensing department upon executive order[.]" NMSA 1978, § 9-1-13 (1983). The stated purpose of this temporary provision was to consolidate the administration, operations, and services of these administrative agencies. This provision has been codified by Section 9-1-13. In response to this provision, Governor Anaya issued Executive Order number 86-10 to "streamline and maximize the efficiency of state agencies." In this order, he consolidated several professional boards, including NMREC, under the supervision of the Department. See Executive Order No. 86-10 (April 24, 1986).

{11} Employee argues that this is repeal by implication of one statute by another and that this practice is disfavored. See State ex rel. Quintana v. Schnedar, 115 N.M. 573, 575, 855 P.2d 562, 564 (1993); Hahn v. Sorgen, 50 N.M. 83, 89, 171 P.2d 308, 311-12 (1946). Employee asserts that should the Legislature want to place NMREC under the control of the Department, they would have to do so expressly by revoking prior statutory law and enacting 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...