The formal grievance procedure applies exclusively to the suspension, involuntary demotion, and dismissal of classified employees.
A. Written Notification. The department head shall present the classified employee with written notification of intent to suspend, demote, or dismiss three working days in advance of the proposed action. The written notification shall explain the reasons for the proposed action; the evidence supporting the decision; and the employee's right to a predisciplinary hearing. The notification shall be hand delivered to the employee and signed by the employee when at all possible. If not possible, the notification shall be sent to the employee by certified mail in order to have a signed receipt.
B. Administrative Leave With Pay. In cases where city property, city employees or citizens are at risk because of the employee's actions, the employee, after the approval of the city manager, shall be placed on administrative leave with pay while an investigation is conducted, the appropriate disciplinary action is contemplated, and until the predisciplinary hearing is held and the final decision is rendered by the city manager.
C. Procedure for Predisciplinary Hearings for Suspension, Involuntary Demotion, or Dismissal. Employees shall pursue a formal grievance according to the rules contained herein.
1. Request for Predisciplinary Hearing
a. Within three working days of the receipt of the disciplinary notice, the employee shall notify the city manager, in writing, indicating whether or not the employee shall avail himself of a predisciplinary hearing with the city manager. The employee may respond to the notice of contemplated action in writing in lieu of a prediscipline hearing;
b. Upon receipt of the employee's written statement indicating participation in a predisciplinary hearing, the city manager or his designee shall set the time, place, and date of the predisciplinary hearing. The employee and the employee's supervisor must be advised of the scheduled predisciplinary hearing in writing.
2. Predisciplinary Hearing Procedure. The city manager or his designee shall meet with the employee, the employee's representative, and representatives of the employee's department at the appointed time. At this predisciplinary hearing, the employee shall have the opportunity to respond to the proposed disciplinary action. The hearing shall be held within five working days of the receipt of the request for the prediscipiinary hearing by the city, unless a continuation is mutually agreed upon by both parties in writing.
3. Prediscipiinary Hearing Decision. The city manager shall issue a decision in writing within five working days of the hearing. The written decision shall include the time, date, and location of the meeting; persons present; and the city manager's determination. The written decision shall be delivered directly to the employee (obtaining employee's signature of receipt of the decision) or be sent by certified mail, return receipt requested. The employee has the right to grieve the city manager's decision to the hearing officer.
4. Effect of the Decision. Disciplinary actions shall become effective at the time that the final decision is issued by the city manager.
D. Post-Disciplinary Hearings-Appeals to the Hearing Officer.
1. Notice of Appeal. Within five working days of receipt of the city manager's decision, the grievant must notify the city manager in writing of the intent to avail himself of a post-disciplinary hearing.
2. Appointment of a Hearing Officer. Within five working days of the grievant's notification of intent to pursue a post-disciplinary hearing, the city shall provide the grievant the name of a proposed hearing officer.
3. Hearing Officer Qualifications. The hearing officer must be familiar with public or private personnel systems, or have pertinent experience in the appropriate areas of management or law. The hearing officer cannot be an employee or former employee or former or current elected official of the city.
4. Post-Disciplinary Hearing Scheduled. The post-disciplinary hearing must be held as soon as possible, but not to exceed thirty days of the receipt of notification of the employee's request for a post-disciplinary hearing by the city manager. The parties must agree in writing to any postponement of the grievance hearing beyond the thirty days. At this hearing, the grievant shall have an opportunity to present witnesses and physical evidence and cross-examine the city's witnesses before the hearing officer. The grievant, at his own expense, may have legal counsel represent him.
E. Procedures for Post-Disciplinary Hearings.
1. The hearing officer shall determine the date, time, and location of the post-disciplinary hearing and grant continuances agreed to by both parties. The hearing shall be conducted at a time and place which is mutually convenient to all parties. Requests for continuances of hearings shall be made in writing to the city manager with a copy to the opposing party at least five working days prior to the scheduled hearing, absent extenuating circumstances.
2. Post-disciplinary hearings shall be conducted as open meetings with notice given to the public pursuant to the New Mexico Open Meetings Act, and the city's Open Meeting Resolution unless the parties agree to have a closed meeting.
3. The hearing officer shall:
a. Determine the order of agenda items;
b. Rule on procedural and substantive issues of the hearing;
c. Determine the admissibility of evidence and testimony, all of which must have a direct bearing on the issue according to the evidentiary standard for administrative agencies. The New Mexico Rules of Evidence shall be liberally interpreted;
d. Issue written findings of fact and conclusions of law.
4. The following persons are required to be present at all formal personnel hearings: the grievant, grievant's representative (if any), and the city's designated representative.
5. The parties shall stipulate to the facts and issues to the greatest extent possible prior to the hearing.
6. Prior to the formal hearing, the parties shall prepare copies of all exhibits and evidence which are expected to be presented. The parties shall stipulate to exhibits to the extent possible and bring to the hearing adequate copies for the hearing officer and opposing party.
7. At least five working days prior to the formal hearing, ail parties shall submit to the hearing officer a statement identifying the issues to be heard, a witness list, and a complete list of documents to be admitted as evidence.
8. Witnesses in formal grievance hearings shall not be admitted into the hearing room until called upon to testify, except those who are required to be present pursuant to subsection (E)(4) of this section.
9. Notice of the hearing shall be sent by certified mail to the grievant and postmarked at least ten days prior to the scheduled hearing. Copies of the hearing notice shall be sent concurrently to all relevant parties.
10. All formal hearings shall be tape recorded.
11. The city may have legal representation at the formal hearing, even if the grievant is not represented by counsel.
F. Presentation Order.
1. Opening Statement of Issues. The city shall present its statement of issues, followed by the grievant.
a. City's Presentation. Witnesses for the city shall be called and questioned on their involvement in, or knowledge of, the case. Following each witness's testimony, the grievant shall have the opportunity to cross-examine the witness. The hearing officer shall then have the opportunity to question the witness on matters related to the witness's testimony. Follow up or redirect questioning shall be allowed at the discretion of the hearing officer.
b. Grievant's Presentation. Witnesses for the grievant may be called and questioned on their involvement in, or knowledge of, the case. Following each witness's testimony, the city shall have the opportunity to cross-examine the witness. The hearing officer shall then have the opportunity to question the witness on matters related to the witness's testimony. Follow up or redirect questioning shall be allowed at the discretion of the hearing officer.
2. Rebuttal Testimony. Following presentation of the grievant's position, the city may offer rebuttal testimony. Such testimony must be brief and shall address only the issues brought forth in the grievant's presentation.
3. Closing Statements. The city's closing statement shall be presented, followed by that of the grievant. These statements shall not exceed ten minutes without the permission of the hearing officer, and at a minimum shall contain a request for the desired outcome. The city shall have the opportunity to make a final statement, not to exceed five minutes, and must be limited to issues brought forth in the grievant's closing statement.
4. The hearing officer may require the parties to prepare proposed findings of fact and conclusions of law and/or closing argument.
G. Hearing Officer's Decision. The hearing officer shall prepare written findings of fact and conclusions of law and submit them to the parties within thirty calendar days from the date of the hearing or from the date the proposed findings and conclusions are submitted to the hearing officer by the attorneys, if requested. The hearing officer may uphold, modify, or reverse the decision of the city manager, and may reinstate the employee and award only back pay and benefits. The decision of the hearing officer is binding and subject to review by petition for writ of certiorari by either party to the Fifth Judicial District Court of the state. The record of the proceedings shall be retained by the city manager's office for a period of not less than one year from the hearing date, along with all of the physical evidence admitted by the hearing officer. The verbal record shall be transcribed only in the case of appeal to the district court by one of the respective parties. The party requesting the transcript shall pay the cost of the transcript. (Ord. 435 § 8.1, 2001)