2023 New Mexico Statutes › Chapter 3 - Municipalities › Article 13 - Clerk, Police Officer, Manager; Duties › Section 3-13-4 - Municipality may establish a merit system; provisions constitute part of an employment contract.

A. Any municipality may establish by ordinance a merit system for the hiring, promotion, discharge and general regulation of municipal employees. The ordinance may contain reasonable restrictions or prohibitions on political activities which are deemed detrimental to the merit system thereby established. The ordinance may provide for a personnel board or personnel officer to:
(1) administer the ordinance; and
(2) establish rules and regulations pursuant to the ordinance, which may include:
(a) rules governing classification of employees;
(b) service rating of employees;
(c) establishment of pay scales and ranges;
(d) establishment of the number of hours of work per week; and
(e) methods of employment, promotion, demotion, suspension and discharge of the municipal employees.
B. If a personnel board is created, the method of appointment, the number of members and terms of office shall be set forth in the ordinance. The board shall serve without compensation for its service.
C. Following the adoption of a merit system, the contract of employment between the municipality and an employee in a position covered by the merit system shall be subject to the provisions of the ordinance and rules and regulations issued pursuant to the ordinance.
D. Within ten days following the adoption of a merit system, an employee in a position covered by the merit system may file with the clerk a declaration stating that the employee does not desire to have his employment subject to the ordinance together with the rules and regulations issued pursuant to the ordinance. The contract of employment of all other employees employed at the time of the adoption of the merit system, and in positions covered by the merit system, shall be subject to the provisions of the ordinance and all rules and regulations issued pursuant to the ordinance.
History:
1953 Comp., § 14-12-4, enacted by Laws 1965, ch. 300.
ANNOTATIONS
Supervisor's action changed employee's probationary status.
— Where, eleven days prior to the expiration date of the employee's probationary period, the director of the employee's department approved the satisfactory completion of the employee's probationary period and a change from probationary to non-probationary status effective as of the end of the employee's probationary period and personally congratulated the employee; later on the same day, the employee received a memorandum approved by the director extending the employee's probation; the employee was terminated twenty six days later, before the end of the extended probationary period; and the municipality's merit ordinance required positive action by the director for an employee to become a non-probationary employee, the director's approval of the completion of the employee's probationary period and change to non-probationary status and congratulation of the employee probation was the positive action required by the merit ordinance to convert the employee from probationary to non-probationary status.
City of Albuquerque v. AFSCME Council 18
, 2011-NMCA-021, 149 N.M. 379, 249 P.3d 510.
When personnel board findings and conclusions are required.
— Where a hearing officer determined that an employee was a non-probationary employee and proposed findings of fact and conclusions of law to the municipality's personnel board; the board rejected the hearing officer's recommendations but did not make independent findings of fact and conclusions of law; the employee appealed the decision to the district court; the municipality's merit ordinance provided that if the board reversed the hearing officer's recommendation, the board was required to make its own findings of fact and conclusions of law; and the facts of the case were not disputed, the district court was required to make legal determinations to determine whether the employee was a non-probationary employee and the district court did not err by not remanding the case to the board for findings of fact and conclusions of law.
City of Albuquerque v. AFSCME Council 18
, 2011-NMCA-021, 149 N.M. 379, 249 P.3d 510.
Property interest in employment.
— Merit system ordinance provisions governing probationary employees were designed to offer a lesser expectation of continued employment than that offered to permanent employees, and did not create a property interest in probationary employees so as to trigger the due process protections asserted by a dismissed police cadet.
Richardson v. City of Albuquerque
, 857 F.2d 727 (10th Cir. 1988).
Village clerk-treasurer not subject to merit system.
— A village clerk-treasurer was an appointed official under 3-12-4 NMSA 1978 to whom the village had no authority to apply its merit system ordinance adopted under this section. Construing the word "employees" in this section as not including appointed officers conforms to common usage.
Webb v. Village of Ruidoso Downs
, 1994-NMCA-026, 117 N.M. 253, 871 P.2d 17, cert. denied, 117 N.M. 524, 873 P.2d 270.
Court personnel excluded from general merit system.
— Personnel directly employed by the courts cannot constitutionally be included in a general merit system or ordinance.
Mowrer v. Rusk
, 1980-NMSC-113, 95 N.M. 48, 618 P.2d 886.
Merit system.
— If a merit system provides for those matters usually contained in a collective bargaining agreement, both could not exist concurrently, and the inconsistency must be resolved in favor of the statute or municipal ordinance establishing the merit system.
International Bhd. of Elec. Workers Local 611 v. Town of Farmington
, 1965-NMSC-090, 75 N.M. 393, 405 P.2d 233.
Grievance procedure.
— A city ordinance, which provided a grievance procedure through which an employee could obtain an order of reinstatement and back pay, had the force of law. Mandamus was appropriate to compel the city to comply with an order entered pursuant to that ordinance.
City of Albuquerque v. Ryon
, 1987-NMSC-121, 106 N.M. 600, 747 P.2d 246.
Employee must comply with internal grievance procedures.
— An employee must substantially comply with mandatory internal grievance procedures contained in an employee manual or handbook before filing suit for breach of contract claims based on an alleged failure of an employer to follow its employment policies.
Lucero v. Bd. of Regents of UNM
, 2012-NMCA-055, 278 P.3d 1043, cert. denied, 2012-NMCERT-004.
Where a university manager was terminated by the university; the manager did not follow the grievance process contained in the university's employee handbook by filing a grievance; the handbook governed the manager's employment with the university; and the manager filed an action in district court for breach of contract and wrongful termination alleging that the employee handbook created a contract and that the university breached the contract by failing to abide by the handbook's policies and procedures governing workplace performance, disciplinary action, a harassment-free workplace, employer-employee relations, progressive discipline and by disciplining the manager without just cause, the manager's claims were barred because the manager failed to exhaust the handbook's internal grievance procedures before filing the breach of contract action based on an alleged failure of the university to follow policies in the handbook.
Lucero v. Board of Regents of UNM
, 2012-NMCA-055, 278 P.3d 1043, cert. denied, 2012-NMCERT-004.
Impartiality of hearing officer.
— Where a reasonable person would have serious doubts about whether a hearing officer could be fair, it is inappropriate for the hearing officer to hear the case.
City of Albuquerque v. Chavez
, 1997-NMCA-054, 123 N.M. 428, 941 P.2d 509.
Limited jurisdiction of board.
— Because of the personnel board's limited statutory authority to adopt regulations and to administer the merit system ordinance, it did not have jurisdiction in an administrative grievance proceeding over employee's Open Meetings Act and constitutional claims, and these claims were not barred by res judicata in a separate district court action.
Chavez v. City of Albuquerque
, 1998-NMCA-004, 124 N.M. 479, 952 P.2d 474.
Personnel board decision.
— Where plaintiff was represented by counsel before the personnel board; plaintiff had a strong incentive to litigate plaintiff's claim that defendant breached plaintiff's employment by terminating plaintiff without just cause; plaintiff was able to call witnesses, cross-examine witnesses and present other evidence, plaintiff had a fair and full opportunity to litigate plaintiff's breach of contract claim and the finding of the personnel board that plaintiff was terminated for just cause and collaterally estopped plaintiff from litigating the breach of contract claim in federal court.
Salquero v. City of Clovis
, 366 F.3d 1168 (10th Cir. 2004).
Appeal of personnel board's administrative decision.
— Absent a statute providing otherwise, a municipal personnel board's determinations are reviewable at the district court only by writ of certiorari for arbitrariness, capriciousness, fraud, or lack of substantial evidence.
Zamora v. Village of Ruidoso Downs
, 1995-NMSC-072, 120 N.M. 778, 907 P.2d 182.
Municipalities have authority to enact qualifications for appointive employee positions.
— Under 3-13-4 NMSA 1978, municipalities have been delegated the legislative authority articulated in N.M. Const., Art. VII, § 2(B) to enact qualifications and standards for appointive employee positions.
Kane v. City of Albuquerque
, 2015-NMSC-027.
Where the city of Albuquerque's charter and personnel rules prohibit employees of the city from being a candidate for, or from holding elective office of, the state of New Mexico or any of its political subdivisions, the city's employee regulations are valid promulgations because pursuant to 3-13-4(A) NMSA 1978, municipalities have the legislative authority to impose restrictions on political activities that are qualifications and standards within the meaning of N.M. Const., Art. VII, § 2(B). The city's employment regulations prohibiting petitioner from seeking or holding elective public office were permissibly promulgated.
Kane v. City of Albuquerque
, 2015-NMSC-027.
Supervision of employees of elected officials.
— A county commission, its personnel director or other agents may exercise supervision over the employees of other elected officials and require those employees to work hours contrary to those established by the officials, to the extent permitted by statute, provided the board's supervision over elected officials' employees does not interfere with the duties of those officials. 1990 Op. Att'y Gen. No. 90-05.
Although a county commission has the authority to control staff of elected officials to some extent through the budget, it must act reasonably in light of other demands on the budget and the needs of the officials. 1990 Op. Att'y Gen. No. 90-05.
Increasing work hours without additional compensation.
— A county commission may increase the hours worked by county employees without additional compensation. 1990 Op. Att'y Gen. No. 90-05.
Merit system supersedes collective bargaining agreement.
— If a merit system is established there can be no collective bargaining agreement between a municipality and its employees on those matters covered within the scope of the merit system. 1969 Op. Att'y Gen. No. 69-73.
Law reviews.
— For note, "Public Labor Disputes - A Suggested Approach for New Mexico," see 1 N.M.L. Rev. 281 (1971).
Am. Jur. 2d, A.L.R. and C.J.S. references.
— Workmen's Compensation Law as covering injury to municipal employee while entering or leaving place of employment, 49 A.L.R. 436, 82 A.L.R. 1043.
Workmen's Compensation Law, liability of municipal corporation under provisions of, for additional compensation because of failure to comply with specific requirements of statute for protection of workmen, 106 A.L.R. 79.
Collective bargaining agreements with union employees and municipal employees, 31 A.L.R.2d 1142, 37 A.L.R.3d 1147, 95 A.L.R.3d 1102.
62 C.J.S. Municipal Corporations § 611.