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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: ___________

Filing Date: December 12, 2013

Docket Nos. 32,330 and 32,321 (consolidated)

NEW MEXICO DEPARTMENT OF

WORKFORCE SOLUTIONS and

NEW MEXICO STATE PERSONNEL

OFFICE,

Respondents-Appellants,

v.

SANDRA PEREZ,

Petitioner-Appellee.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY

Valerie A. Huling, District Judge

N.M. Department of Workforce Solutions

Office of General Counsel

Marshall J. Ray

Rudolph P. Arnold

Albuquerque, NM

for N.M. Department of Workforce Solutions

Morrissey * Lewis, LLC

Jason J. Lewis

Albuquerque, NM

for N.M. State Personnel Office

Youtz & Valdez, P.C.

Stephen Curtice

Shane Youtz

Albuquerque, NM

for Appellee
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OPINION

SUTIN, Judge.

{1} Terminated from her position as personnel director under New Mexico’s Personnel

Act, Sandra Perez sought unemployment compensation. The district court determined that

Ms. Perez was entitled to compensation, reversing administrative decisions to the contrary.

The crux of the issue in the proceedings and on appeal is whether the personnel director

position was designated pursuant to state law as a major nontenured advisory position. If

so, compensation was properly denied. We hold that compensation was properly denied and

reverse the district court.

BACKGROUND

{2} Whether Ms. Perez as personnel director has a right to unemployment compensation

is governed by the definition of “employment” under NMSA 1978, Section 51-1-44(A)

(1978) of New Mexico’s Unemployment Compensation Law. In relevant part, Section 51-1-

44(A)(5)(a) reads as follows:

For purposes of the Unemployment Compensation Law:

A. “employment” means service performed by an individual in

the employ of a governmental entity unless such service is performed by an

individual in the exercise of his duties:

. . .

(5) in a position which, under or pursuant to state law, is

designated as:

(a) a major nontenured [policymaking] or advisory

position[.]

{3} In analyzing whether Section 51-1-44(A)(5)(a) applies to a state personnel director,

the determinative factor is the state law that establishes the position of state personnel

director. The Personnel Act, NMSA 1978, §§ 10-9-1 to -25 (1961, as amended through

2009), establishes a “personnel board” and a “personnel director.” Section 10-9-3(A), (B);

see §§ 10-9-8 to -12. The personnel board is appointed by the governor. Section 10-9-8.

One of the duties of the personnel board is to hire, with the approval of the governor, a

personnel director. Section 10-9-10(C). The designated statutory duties of the personnel

director position are the following: 

The director shall:
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A. supervise all administrative and technical personnel activities

of the state; 

B. act as secretary to the board; 

C. establish, maintain[,] and publish annually a roster of all

employees of the state, showing for each employee his division, title, pay

rate[,] and other pertinent data; 

D. make annual reports to the board;

E. recommend to the board rules he considers necessary or

desirable to effectuate the Personnel Act; and 

F. supervise all tests and prepare lists of persons passing them

to submit to prospective employers.

Section 10-9-12; see 1.7.1.8(A) NMAC (6/15/2010) (“Pursuant to the provision of . . .

Section 10-9-12(A)[,] the director shall supervise all administrative and technical personnel

activities of the state.”). The personnel director’s service is covered by the Personnel Act

unless the personnel board determines that the position of director is one of policymaking.

Sections 10-9-3(C), -4(N). Nothing in the record indicates that the personnel board has

determined that the position of director is one of policymaking, and the parties do not argue

one way or the other in that regard.

{4} The New Mexico Department of Workforce Solutions (the Department) initially

denied Ms. Perez’s unemployment benefits through the administrative process. After

appealing the decisions of the Department, the Appeals Tribunal and the Board of Review

(the Board) also held against Ms. Perez. The Board adopted the Appeals Tribunal’s findings

and conclusions in reaching its decision. The pertinent findings and conclusions were as

follows.

FINDINGS OF FACT

4. [Ms. Perez] was nominated to the position of director by the (then)

governor along with two other candidates also nominated by the

governor. The State Personnel Board . . . appointed [Ms. Perez] as

director in July 2004 and her appointment was approved by the

governor.

5. [Ms. Perez’s] duties as State Personnel Director include “recommend

to the board rules [she] considers necessary or desirable to effectuate

the Personnel Act.” (Section 10-9-12(E) NMSA 1978).
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6. Per Section 1.7.1.8(A) NMAC (“Approval Authority”), [Ms. Perez]

as director “shall supervise all administrative and technical personnel

activities of the state.”

7. [Ms. Perez] initiated, recommended[,] and drafted proposed

regulations to the New Mexico Administrative Code for adoption by

the Board and for subsequent public comment. She also provided

advice, guidance[,] and direction to the Secretaries of various state

government agencies and the governor regarding the administration

of the State Personnel Act.

CONCLUSION

Here, the evidence establishes that [Ms. Perez] regularly acted in an advisory

capacity to the State Personnel Board and to other state agencies in her

position as State Personnel Director. While [Ms. Perez] correctly notes that

final rules and regulations affecting the State Personnel Act were

promulgated by the Board and not by the Director, [Ms. Perez’s] function in

initiating, drafting[,] and recommending such regulations that “[she]

consider[ed] necessary or desirable to effectuate the Personnel Act” clearly

indicate she acted in an advisory position as contemplated by [Section] 51-1-

44(A)(5)(a). Therefore, as [Ms. Perez] acted in an advisory position in the

exercise of her duties, her wages do not constitute wages in covered

employment.

{5} The foregoing conclusional paragraph is instructive of how the administrative

decision-makers viewed the evidence upon which they relied for their determinations. Their

denial of Ms. Perez’s “employment” coverage under Section 51-1-44(A)(5)(a) was based

both on Ms. Perez’s actual activity, that is, having “regularly acted in an advisory

capacity[,]” and on the statutorily designated duties of the state personnel director, for

example, the duty to “recommend to the board rules . . . necessary or desirable to effectuate

the Personnel Act.” Section 10-9-12(E). As we discuss later in this Opinion, however, a

position-holder’s actual activities are irrelevant and should be considered a non-factor by

future administrative decision-makers faced with the question whether to apply Section 51-1-

44(A)(5)(a). Nevertheless, the administrative decision-makers were correct in considering

the statutorily designated duties of a personnel director, and their decision to deny Ms.

Perez’s employment benefits claim was proper.

{6} In this case, the administrative decision-makers focused on whether Ms. Perez’s

position as personnel director was advisory and did not consider whether it was

policymaking. See § 10-9-12(A), (E); § 51-1-44(A)(5)(a). There was no issue concerning

whether Ms. Perez was a nontenured employee. The district court, therefore, based its

decision on whether the position was a major advisory one. Accordingly, in this Opinion,

we limit our review to the question whether the position of personnel director is “major” and
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“advisory” as those terms are used in Section 51-1-44(A)(5)(a).

{7} The primary rationale for the district court’s rejection of an advisory designation

followed from the court’s comparison of the position of personnel director with the positions

of department secretaries under NMSA 1978, Section 9-1-3(B)(1) (1977) and NMSA 1978,

Section 9-1-5(B)(11) (1977) found in the New Mexico Executive Reorganization Act,

NMSA 1978, §§ 9-1-1 to -13 (1977, as amended through 1983). The Executive

Reorganization Act creates an executive cabinet headed by the governor and a cabinet

department structure. Sections 9-1-3, -4. The principal unit of the executive branch is a

“cabinet department” headed by a “secretary” who is appointed by the governor. Sections

9-1-2, -3(A), (B)(1). Among several express duties of the secretaries, who are executive

cabinet members, are the specific duties to “advise the governor on problems of state

government[,]” to “recommend methods of interagency cooperation[,]” and to “assist the

governor in defining policies and programs to make the government responsive to the needs

of the people.” Section 9-1-3(A), (B)(1), (4), (7). The governor is required to call meetings

of the executive cabinet and “seek the advice of the cabinet members.” Section 9-1-3(C).

{8} Relying on Black’s Law Dictionary, (5th ed. 1979), the district court found that

“recommending” and “advising” were synonyms. Thus, the court implicitly acknowledged

that the position of personnel director is an “advisory” one. “Even so,” the court reasoned,

in comparing the position of personnel director with the executive cabinet positions, “what

and to whom [Ms. Perez] advises do not make her position ‘major.’ ” The court noted that

unlike members of the executive cabinet, Ms. Perez “[did] not advise on ‘problems of state

government’ or ‘assist the governor in defining policies and programs to make the

government responsive to the needs of the people.’ ” The court reasoned further that “this

comparison demonstrate[s] that [Ms. Perez’s] position was not ‘major,’ but it also show[ed]

that when the [L]egislature felt it appropriate to use the word ‘advise,’ it did.”

{9} Considering the Legislature’s use of the term “major” in Section 51-1-44(A)(5)(a)

and continuing to contrast the positions of personnel director and cabinet members, the court

observed that “[t]here is no doubt that advising the [g]overnor[] is ‘major.’ ” The court

supported this observation by noting that cabinet secretaries are required to post a twentyfive-thousand-dollar bond, yet the personnel board and director are not required to post any

bond, “most probably because they do not directly advise the [g]overnor and are therefore

not thought of as occupying ‘major’ or critical positions.” See § 9-1-5(B)(11) (setting out

the bond amounts for department secretaries). Further, the court noted that the various

“principal unit[s]” of the executive branch and the heads of those units were set out in

Section 9-1-4(A) of the Executive Reorganization Act, but that nothing in this section

depicted boards and their directors. See id. (stating that “the principal unit of the executive

branch is a ‘department,’ headed by a ‘secretary’ ”; “the principal unit of a ‘department’ is

a ‘division,’ headed by a ‘director’ ”; “the principal unit of a division is a ‘bureau,’ headed

by a ‘chief’ ”; and “the principal unit of a bureau is a ‘section,’ headed by a supervisor’ ”).

And, finally, the court noted the “limited number of cabinet secretaries” in comparison with

the “over one hundred . . . statutorily created boards and commissions, . . . each with any
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number of employees [who make] recommendations to them.” From this observation, the

court concluded that were it to read Section 51-1-44(A)(5)(a) as the Board of Review read

it, all employees that make recommendations to their respective boards and commissions

would hold major advisory positions, disentitling them to unemployment compensation,

rendering meaningless the Legislature’s “intentional use of the word ‘major’ ” in Section 51-

1-44(A)(5)(a).

{10} In conclusion, the district court stated that:

Rather than explore [Ms. Perez’s] statutory duties, the Board of

Review based its decision on the statements of an individual who knew that

on occasion [Ms. Perez] may have exceeded her duties. Section 51-1-

44(A)(5)(a), however, requires an examination of the employee’s position

pursuant to statute. Based on that examination, [Ms. Perez] did not occupy

a major policy-making position. She advised a board on rules, but she did

not advise the governor on problems of state government. The entity she

advised was not a member of the cabinet, and its only direct contact with the

governor was through presentation of an annual report at the end of each

year. . . . [Section] 10-9-10(F)[.]

Consequently, the district court reversed the Board’s decision and ordered that Ms. Perez

was entitled to unemployment benefits.

STANDARD OF REVIEW

{11} We focus on the administrative decision-makers’ rulings and rationales. Our

standard of review is the same as that required of the district court. See San Pedro

Neighborhood Ass’n v. Bd. of Cnty. Comm’rs of Santa Fe Cnty., 2009-NMCA-045, ¶ 11, 146

N.M. 106, 206 P.3d 1011 (“We will conduct the same review of an administrative order as

the district court sitting in its appellate capacity, while at the same time determining whether

the district court erred in the first appeal.” (alteration, internal quotation marks, and citation

omitted)); see also NMSA 1978, § 51-1-8(N) (2004, amended 2013) (relating to decisions

by the secretary or board of review appealable to the district court); NMSA 1978, § 39-3-1.1

(1999) (relating to final decisions by state agencies appealable to the district court); Rule 1-

074(A), (R) NMRA (relating to statutory review by district court of administrative decisions

or orders); Rule 1-077(J) NMRA (relating to appeals pursuant to unemployment

compensation laws).

{12} We review whether the administrative decision-makers acted fraudulently, arbitrarily,

or capriciously; whether, based upon a whole-record review, the administrative decisions

were supported by substantial evidence; whether the decision-makers abused their discretion

by acting outside the scope of authority; and whether the administrative decisions were

otherwise not in accordance with law. San Pedro Neighborhood Ass’n, 2009-NMCA-045,

¶¶ 10-11. “The decision of the agency will be affirmed if it is supported by the applicable
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law and by substantial evidence in the record as a whole.” Fitzhugh v. N.M. Dep’t of Labor,

1996-NMSC-044, ¶ 24, 122 N.M. 173, 922 P.2d 555. In the case now before us, we review

only whether the administrative decisions were in accordance with law.

{13} On appeal to this Court, the parties discuss the evidence in relation to both a

policymaking and an advisory position. As we have indicated, however, we see nothing in

the administrative decisions that indicates any determination relating to a policymaking

position. The sole issue on review is whether state law designates the position of personnel

director to be a major advisory position.

DISCUSSION

{14} As we have noted, Section 51-1-44(A)(5)(a) states that an employee is not eligible

for unemployment compensation benefits if she is “in a position which, under or pursuant

to state law, is designated as . . . a major . . . advisory position[.]” Analysis of whether the

position of personnel director is “a position which, under or pursuant to state law, is

designated as . . . a major . . . advisory position[,]” requires the interpretation of three key

terms used in Section 51-1-44(A)(5). Specifically, we must consider what the Legislature

intended to convey by its inclusion of the terms “designated,” “major,” and “advisory

position” in the context of Section 51-1-44(A)(5). We turn first to the Legislature’s use of

the term “designated.”

Interpretation of “Designated”

{15} It is reasonable to assume that the Legislature’s use of the term “designated” in the

phrase “designated as a . . . major . . . advisory position” was in part intended to create a

standard by which to measure whether a potential employee would, by reading the statutorily

prescribed duties of a position, be placed on notice that his or her position was not covered

employment for the purposes of unemployment compensation. This purpose was explained

in Conroy v. Unemployment Compensation Board of Review, 693 A.2d 254, 256-57 (Pa.

Commw. Ct. 1997).

The logic of the [l]aw . . . is plain. The exclusion imposes ineligibility on the

basis that any occupant of such a position can anticipate the possibility of job

termination upon a change of administration, so that unemployment in such

circumstances cannot be regarded as sudden and unexpected. The required

official designation hence provides a basis for that expectation; when the

nature of the position is designated by law, there is thus an official signpost

which informs the jobholder, upon assuming the position, of what can be

expected.

(Omission in original.) (Alteration, internal quotation marks, and citation omitted.) We

conclude that in the phrase “designated as . . . a major . . . advisory position[,]” the concept

of designation is a reference to the statutorily described job duties, which, when read by a
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prospective employee should alert her to the nature of the position, including whether the

position is “major” and “advisory.”

{16} Nothing in Section 51-1-44(A)(5)(a) indicates that the Legislature intended

“designated” to mean the position-holder’s actual activities in carrying out the duties of the

position. See Zerbe v. Unemployment Comp. Bd. of Review, 681 A.2d 740, 743-44 (Pa.

1996) (stating that “[n]othing in the language of [the unemployment compensation statute]

require[d] a factual determination as to whether the . . . claimant actually performed major

policymaking or advisory functions” and stating further that “[c]learly, our legislature has

decided that it is the designation which is controlling as to whether a government employee

is eligible for unemployment compensation benefits upon loss of employment”); Odato v.

Unemployment Comp. Bd. of Review, 805 A.2d 660, 662 (Pa. Commw. Ct. 2002) (stating

that the claimant’s “actual job activities [were] immaterial to the determination of whether

he [was] entitled to unemployment benefits”). Nor do we believe that our Legislature

intended the compensation determination to be made on the basis of the extent to which and

manner in which an employee engaged in activities.

Interpretation of “Advisory”

{17} Ms. Perez argues that state law must specifically name the position in question, that

of personnel director for example, to be a major advisory position. She further argues that

the designation must include the word “advisory.” We disagree. Instead, we read

“designated” to include advisory duties and responsibilities necessarily implied from the

designation. Cf. Odato, 805 A.2d at 663 (reversing the denial of the employee’s

unemployment benefits because the statute, which “set[] forth only a functional description

of job duties” did not “reveal any responsibility for [policymaking] or service in an advisory

role” and therefore failed to inform the employee what he could expect upon taking the

position); Conroy, 693 A.2d at 256 (“It is not necessary that the designation contain the

precise words ‘major’ or ‘policymaking’ or ‘advisory,’ although it can be done that way.”

(citation omitted)). Nevertheless, “[i]t must, at a minimum, be a written statement of policy

which has the clear and intended effect of establishing the . . . employment status attached

to the position.” Id. at 257.

{18} We now turn to the question whether, under or pursuant to Section 10-9-12(A), (E),

and (F), the designation of the personnel director position is one of an advisory position and

gives notice to a prospective personnel director that the particular duties and responsibilities

enumerated in Section 10-9-12 come within the intended meaning of “advisory position.”

Although the administrative decision-makers made their determinations based on actual

activities, their decisions were apparently governed by Subsection (A)’s generally stated

duty to “supervise all administrative and technical personnel activities of the state” and

Subsection (E)’s generally stated duty to “recommend to the board rules [that she] considers

necessary or desirable to effectuate the Personnel Act[.]” Section 10-9-12(A), (E). We

observe that the Appeals Tribunal’s administrative findings quoted Section 10-9-12(E) and

Regulation 1.7.1.8(A) NMAC, which mimics Section 10-9-12(A).
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{19} We do not believe that the Legislature’s omission of the term “advisory” from

Section 10-9-12 is indicative of the Legislature’s intent to exclude the position of personnel

director from the purview of Section 51-1-44(A)(5)(a). It is noteworthy that “supervise” is

synonymous with direct, manage, govern, regulate, oversee, and guide. Roget’s Int’l

Thesaurus ¶¶ 693.2, .4, .5, at 481-82 (7th printing 1951); see also

http://thesaurus.com/browse/supervise (describing “supervise” being synonymous with,

among other things, administer, be in charge, be responsible for, control, direct, oversee,

preside over, and superintend). Synonyms for “advise” are “admonish, caution, counsel,

consult, forewarn, inform, notify, [and] recommend[.]” The New Int’l Webster’s Pocket

Thesaurus of the English Language (hereinafter Webster’s) 16 (1997). “Advice” means

“[g]uidance offered by one person . . . to another.” Black’s Law Dictionary 63 (9th ed.

2009); see also Webster’s, supra, 16 (stating that “advice” is synonymous with “counsel,

guidance, lesson, [and] suggestion”). “Recommend” can mean “advise or counsel.” Black’s

Law Dictionary 1436 (Rev. 4th 1968); see also http://thesaurus.com/browse/recommend

(describing “recommend” being synonymous with, among other things, acclaim, advance,

advocate, counsel, justify, propose, steer, suggest, and urge); Webster’s, supra, 247 (stating

that “recommend” is synonymous with “commend, praise, endorse, suggest, prescribe, urge,

[and] advise”).

{20} A reasonable conclusion to be drawn from the personnel director’s statutorily

designated statewide duties is that they necessarily include advising the board and all

government employees and agencies that come within the Personnel Act in regard to

personnel matters. In particular, by its use of the terms “supervise” and “recommend” in the

context of Section 10-9-12(A) and (E), the Legislature expressed its intent that the personnel

director was expected, if not required, to advise state agencies covered under the Personnel

Act in regard to any number of “problems” and issues that may arise throughout state

government with respect to employees. Likewise, by requiring the personnel director to

“recommend” rules to the board, we believe the Legislature contemplated that the personnel

director would advise the board regarding the adoption of personnel-related rules affecting

all state employees covered by the Personnel Act. Thus, notwithstanding the Legislature’s

omission of the term “advisory” from Section 10-9-12, its use of synonyms thereof evoke

a clear sense of the “advisory” nature of the position of personnel director such that a

prospective candidate for the position would expect that position to come within the purview

of “advisory” in Section 51-1-44(A)(5)(a). See Conroy, 693 A.2d at 256-57 (explaining the

purpose behind designating positions as major policymaking or advisory). Turning to

dictionary definitions and synonyms is one method of attempting to understand what the

Legislature intended by words that it uses. See, e.g., Tri-State Generation Transmission

Ass’n v. D’Antonio, 2012-NMSC-039, ¶¶ 18-20, 289 P.3d 1232 (recognizing that the

dictionary is a useful tool in the analysis of legislative intent because it provides the ordinary

meaning of the Legislature’s chosen terms); State ex rel. Gaming Control Bd. v. Ten Gaming

Devices, 2005-NMCA-117, ¶ 12, 138 N.M. 426, 120 P.3d 848 (relying on synonyms and

dictionary definitions to determine legislative intent). Dictionary definitions and synonyms

do not end the discussion. But as the statute reads and under the circumstances here, we

conclude that our approach in understanding legislative intent is reasonable and practical and
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that any narrowing or detailing of meaning should be left to the Legislature.

Interpretation of “Major”

{21} The final question and the more difficult one is whether the advisory aspect of the

position reaches the status of “major.” The analysis in regard to what constitutes “major”

finds little, if any, guidance in the language of Section 51-1-44(A)(5)(a). The word “major”

has several dictionary meanings. Closest for the purpose of this case are “greater in number,

extent, or importance” and “notable or conspicuous in effect or scope[.]” The MerriamWebster Dictionary 296 (2005). Synonyms of the term “major” include “important,

significant, main, [and] principal.” Webster’s, supra, 194. In our view, the personnel

director’s statewide personnel supervisory duty and the personnel director’s role of

recommending rules relating to administration of the Personnel Act constitute duties that are

notable, conspicuous in effect and scope, important, and significant. As such, the statutory

duties of the personnel director come within the meaning of “major.”

{22} Ms. Perez fails to point to any place in the record where she provided to the

administrative decision-makers or to the district court any instances in which any positions

in government other than those of executive cabinet secretaries carried express policy or

advisory designations under or pursuant to state law at all comparable to those in Section 10-

9-12. The dissent points to none. Further, although not critical to our decision, on the issue

of whether Section 51-1-44(A)(5) should pertain solely to persons who can be appointed or

whose positions can be terminated only by the governor or perhaps another member of the

executive cabinet, it is important to note that the governor has substantial control over the

decision as to who will be hired to the position of personnel director. As discussed earlier

in this Opinion, the personnel board, which is appointed by the governor, is tasked with

hiring a personnel director, and final say as to the hiring decision rests with the governor.

See §§ 10-9-8, 10-9-10(C). Further, and nowhere contested by Ms. Perez, the Appeals

Tribunal entered the following findings of fact.

4. The claimant was nominated to the position of director by the (then)

governor along with two other candidates also nominated by the

governor. The State Personnel Board . . . appointed the claimant as

director in July 2004 and her appointment was approved by the

governor.

. . . .

9. The claimant filed for unemployment benefits . . . . In the claimant’s

statement . . . she indicated “As an exempt employee in an at will

status, I work at the pleasure of the governor and the governor found

another State Personnel Director.”

Thus, to the extent that the exclusion in Section 51-1-44(A)(5) is grounded in electoral
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politics and permits new administrations to “pick their own” to hold major nontenured

advisory positions, we see little distinction to be drawn between the governor’s direct

appointment of cabinet secretaries and the governor’s recommendation of an up or down

vote as to who may be hired as personnel director, particularly when the candidate is selected

by the governor’s hand-picked personnel board members, not to mention Ms. Perez’s own

statement that she worked at the pleasure of the governor and the governor replaced her.

In Sum

{23} As the statute reads, courts are to address positions as they are designated under or

pursuant to state law. The only designations before the administrative decision-makers, the

district court, and this Court were that of personnel director and those of the executive

cabinet members. The record was not developed in a manner that can permit even

speculation in regard to designations of positions of persons employed or appointed by

various boards or commissions or executive functionaries in the state. There exists no basis

for wonder about other jobs that have no designations. Other than those of executive cabinet

members, none were presented for comparison or contrast. The personnel director has

statutorily designated duties. Although Section 10-9-12 does not expressly and specifically

state that any duty is “advisory,” embedded in the personnel director’s broad supervisory

duties and duty to recommend rules is obviously a duty and responsibility to advise state

government officials, employees, and agencies at all levels of state government in regard to

personnel matters within the purview of the Personnel Act and to assist the board in

considering rules and regulations for statewide administration of the Personnel Act.

Considering the critical importance of personnel in and throughout state government, these

duties and responsibilities can be considered major ones. The dissent’s assertion that the

personnel director is to oversee a system designed to treat the ill of mass employment change

upon changes in administration does not, in our view, constitute a rational basis on which

to read the position out of the Section 51-1-44(A)(5) exclusion.

{24} On a final note, in regard to the Legislature’s use of the term “major” in Section 51-

1-44(A)(5)(a), for the benefit of future tribunals faced with the interpretation of this section,

we reject the reasoning employed by the district court. The district court’s analysis is that

“major” under Section 51-1-44(A)(5)(a) should necessarily be limited to cabinet members

because of their advisory duties vis-a-vis the governor and perhaps also to possible advisory

duties of the lower executive branch employees mentioned in Section 9-1-4(A) who do not

have a close advisory position in regard to the governor. We cannot accept this rationale.

We see no reason why a personnel director cannot be considered to hold a major advisory

position when (1) she is the administrative director of a governmental office in charge of

Personnel Act matters throughout the entirety of state government; (2) she must supervise

and advise other employees, agencies, departments, divisions, bureaus, sections, boards, and

commissions in regard to personnel issues and problems; and (3) she must recommend and

advise the entity responsible for adopting rules for administration of the Personnel Act.

Furthermore, we cannot accept a rationale that the personnel director should be entitled to

unemployment compensation, yet, as implied in the district court’s decision, such
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compensation should be denied to a director of a division, a chief of a bureau, and a

supervisor of a section simply because these units of government are named in Section 9-1-

4(A) of the Executive Reorganization Act and may consist of a considerably fewer number

of employees than exist in the world of boards and commissions. The application of “major”

to an advisory position requires a case-by-case, position-by-position, designation-bydesignation analysis.

{25} We hold that advisory duties and responsibilities stemming from the express duties

found in Section 10-9-12 fairly come within the language “designated as” in Section 51-1-

44(A)(5). We further hold that the personnel director’s broadly designated duties to

supervise and recommend along with the director’s advisory responsibilities can be

considered major because they are notable, conspicuous in effect and scope, important,

significant, and a major part and aspect of the personnel director’s full gamut of duty. Thus,

the administrative decision-maker’s ruling denying Ms. Perez’s unemployment benefits

pursuant to Section 51-1-44(A)(5)(a) was in accordance with the law and is hereby affirmed.

See Fitzhugh, 1996-NMSC-044, ¶ 24 (stating that the administrative decision-maker’s

determination will be affirmed if it is supported by the applicable law).

CONCLUSION

{26} The administrative decision-makers did not err in denying Ms. Perez unemployment

compensation. We reverse the district court and affirm the determination of the Appeals

Tribunal adopted by the Board of Review.

{27} IT IS SO ORDERED.

____________________________________

JONATHAN B. SUTIN, Judge

I CONCUR:

____________________________________

LINDA M. VANZI, Judge

MICHAEL D. BUSTAMANTE, Judge (dissenting).

Bustamante, Judge (dissenting)

{28} I respectfully dissent. In my view the majority Opinion does not sufficiently honor

the policy considerations that underlie the exclusion.

{29} Though the majority is correct that the focus should be on the “designated” nature

of the position itself, the Opinion does not carry the analysis far enough. As the majority
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notes, the designation of a position should be sufficiently clear to place an employee on

notice that the position is “not covered employment for the purposes of unemployment

compensation.” See Majority Opinion ¶ 15. The Opinion does not delve into the policy

reasons that would support excluding a position from coverage.

{30} The best, most historically and administratively grounded explanation for exclusion

from coverage I have found comes from Gahres v. Commonwealth, 433 A.2d 152, 154 (Pa.

Cmmw. Ct. 1981). The Gahres court stated:

The logic of such a requirement is plain. The exclusion imposes

ineligibility on the basis that any occupant of such a position can anticipate

the possibility of job termination upon a change of administration, so that

unemployment in such circumstances cannot be regarded as sudden and

unexpected. The required official designation hence provides a basis for that

expectation; when the nature of the position is designated by law, there is

thus an official signpost which informs the jobholder, upon assuming the

position, of what can be expected. 

433 A.2d at 154.

{31} The passage’s emphasis on job termination tied to a “change of administration”

grounds the exclusion in electoral politics. Administrations have the right to ensure that

their policymakers and advisors carry out the goals of that administration. As such, they

should be able to pick “their own” to hold those positions. In turn, people holding such

positions should be aware that they can be replaced at any time and should expect to be

replaced with changes in administration. This rationale for exclusion from unemployment

compensation makes sense and provides a guide for assessing whether a position’s

designation gives sufficient notice to an employee.

{32} As the district court noted, positions such as cabinet secretaries are

obviously—almost inherently—political in nature and the Legislature rather clearly labeled

them as such. The difficulty arises when one considers positions—such as Ms.

Perez’s—which are not so obviously political. How are the courts to decide whether they

should be subject to exclusion from coverage? I submit that courts should err on the side of

caution and limit the number and type of positions subject to the political winds.

{33} In my view the majority Opinion is not appropriately cautious in its policy choice.

Section10-9-12 describes an important position in state government but there is nothing in

the description which obviously indicates that the holder of the position should be subject

to change as a consequence of election results. The Opinion goes astray with its emphasis

on dictionary definitions of “advice” and “recommend.” Rhetorically speaking, what

position of any consequence does not involve giving advice and making recommendations?

Are all such jobs to be subjected to the exclusion simply because they include those

functions? The question answers itself.
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{34} A better approach to the problem is to be found in the Conroy case that the majority

cites with approval. Conroy involved a claim for unemployment compensation by a former

borough police chief. The former chief wrote, and the borough counsel adopted, the manual

of policy and procedures for the police department. 693 A.2d at 255. The manual included

a description of the police chief’s position which explicitly included policymaking and

advisory duties. Id. There, as here, the employer argued that the position description as

adopted by the borough constituted a designation of a major policymaking and advisory

position. Id. at 256. The court in Conroy disagreed, finding the borough’s “analysis

insufficient, as it does not consider the underlying purpose of the [l]aw.” Id. Relying on and

quoting from Gahres, the Conroy court concluded that to come within the exclusion the

designation would have to be more than a functional description of the job. Id. at 257. It

would have to clearly relate to job security and establish job terms and employment status

as it relates to a change in administration. Id. Applying the approach followed in Conroy

leads to affirmance of the district court.

{35} The purpose of the Personnel Act is to “establish for New Mexico a system of

personnel administration based solely on qualification and ability[.]” Section 10-9-2. The

aim of the Personnel Act was to limit to the extent possible the practice of wholesale changes

in state employment after elections. Persons of a certain age will recall the difficulties

attendant to government employment ruled by patronage and the old “spoils” system. The

personnel director’s job is to oversee the system that put a stop to those difficulties. It seems

to me eminently good policy not to subject the position to even the restrained version of

political influence that necessarily persists.

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MICHAEL D. BUSTAMANTE, Judge