The formal grievance procedure is applicable for improper promotions,
suspensions, demotions or terminations.
The following matters are not eligible for the formal grievance
provision of this chapter:
A.
Disputes as to whether or not an established County practice or policy
is good;
B.
Matters in which a method of review is mandated by law;
C.
Matters where the County is without authority to act or does not
have the ability to provide a remedy;
D.
Termination of temporary, part-time or contract employees;
E.
Preferences for transfers, temporary assignments, and removal from
temporary assignments, and layoffs;
F.
Termination of a probationary employee prior to the expiration of
the probationary period;
G.
Letters of complaint when the employee's supervisor determines
it is justified and appropriate to be placed in the employee's
personnel file;
H.
Written reprimands in the employee's file;
I.
Denial of outside employment;
K.
Suspensions for three workdays or less.
The County Manager, an elected official, a Chief Deputy, Appointed
Officials, the Sheriff's Administrator, part-time employees,
contract employees, probationary employees, and temporary employees,
are not eligible for grievance procedures, nor are they entitled to
a grievance hearing.
A.
A regular employee may request, in writing, a hearing before a Personnel
Hearing Officer within five calendar days of the event which gave
rise to the grievance. The request should state with specificity the
reason for the grievance and the remedy requested.
B.
An employee is required to use the supervisory chain of command or
department review committee to resolve problems before requesting
a hearing. Matters involving termination for cause shall not be subject
to review by a department review committee and may be appealed only
before the Personnel Hearing Officer.
The County Manager shall appoint the Hearing Officer and set
the date for the hearing. As soon as the date, time and location have
been selected, the County Manager shall notify the grievant by certified
mail, return receipt requested. Requests for continuances shall be
submitted to the County Manager. Under no circumstances will a formal
grievance hearing be granted more than two continuances.
Hearing officers may be attorneys, personnel professionals,
or have pertinent experience in the fields of management, education
or law. The County Manager may appoint an appeal panel composed of
three members of management as the appointed Hearing Officer and shall
designate a chairperson. The County Manager shall verify the qualifications
of the Hearing Officer/appeal panel. The Hearing Officer is not required
to reside in Otero County.
Within 30 days of the notification that the employee wants to
pursue a formal grievance hearing, the County Manager will schedule
a hearing. The parties must agree, in writing, to any postponement
of the hearing beyond 30 calendar days. At this hearing, the grievant
shall have an opportunity to present witnesses and physical evidence
and cross-examine the County's witnesses before the Hearing Officer.
The grievant and the County may be represented by legal counsel. If
the grievant chooses to be represented by legal counsel, the employee
must inform human resources in writing to allow the County time to
arrange for its general counsel to be present at the hearing. The
County reserves the right to have the general counsel present at any
and all hearings.
A.
The Hearing Officer shall:
(1)
Make rulings on procedural and substantial issues of the hearing;
(2)
Determine the admissibility of evidence and testimony, all of which
must have a direct bearing on the issue before the Hearing Officer;
(3)
Issue a written ruling, including findings of fact, which form the
basis of the Hearing Officer's conclusions of law.
B.
The grievant, the grievant representative, if any, and the County's
designated representatives are required to be present at the hearing
unless otherwise excused by the Hearing Officer or by agreement of
the parties.
C.
The grievant can request that the meeting be open.
D.
Prior to the hearing, the parties or their representatives shall
prepare and exchange, at least five work days prior to the hearing,
copies of all exhibits and evidence which are expected to be presented.
The parties shall bring to the hearing adequate copies for the Hearing
Officer as well as the opposing party.
E.
At least five calendar days prior to the hearing, all parties must
submit to the Hearing Officer and the opposing party identifying the
issues to be heard a witness list and a complete list of documents
to be admitted as evidence. Witness lists and exhibits shall be exchanged
between the parties.
F.
Each party will be responsible for ensuring that their witnesses
are present for the hearing. The County shall ensure the attendance
of any necessary county employees.
G.
Witnesses in grievance hearings are not permitted in the hearing
room until called upon to testify.
H.
A tape-recorded record of all grievance hearings will be made.
The County shall present a statement of issues involved in the
case, followed by the grievant. Opening statements are limited to
the pertinent issues of fact and law and shall not exceed 10 minutes
without the permission of the Hearing Officer.
A.
The County will present first. Witnesses for the County may be called
and questioned concerning their involvement in or knowledge of the
case. Following each witness's testimony, the grievant/grievant
representative will have the opportunity to cross-examine the witness.
B.
The Hearing Officer will then have an opportunity to question the
witness on matters related only to the witness's testimony. The
Hearing Officer shall restrict questions to those necessary to clarify
the testimony previously given. Follow up or redirect questioning
will be allowed at the discretion of the Hearing Officer.
C.
Witnesses for the grievant may be called and questioned concerning
their involvement in or knowledge of the case. Following each witness's
testimony, the County will have the opportunity to cross-examine the
witness. The Hearing Officer will have an opportunity to question
the witness on matters related to the witness's testimony. The
Hearing Officer shall restrict questions to those necessary to clarify
the testimony previously given. Follow-up/redirect questioning will
be allowed at the discretion of the Hearing Officer. Following the
presentation of the County and grievant positions, rebuttals may be
offered. Such testimony shall be brief and shall address only new
issues brought forth in the opponent's presentation.
D.
The grievant closing statement shall be presented, followed by the
County's closing statement. These statements shall not exceed
10 minutes without the permission of the Hearing Officer and shall
contain a request for the desired outcome.
A.
The Hearing Officer's decision will be issued within 15 calendar
days of the hearing and will be signed by the Hearing Officer and
transmitted to the grievant and the County Manager or elected official.
B.
The Hearing Officer may uphold, modify or reverse the decision of
the County Manager or elected official, and may reinstate the employee
and award back pay and benefits.
C.
The record of the proceedings will be retained by the County Manager's
office for a period of not less than three years 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 parties. The party requesting
the transcription shall pay for the transcription.
Either party may appeal the Hearing Officer's decision
to the District Court on the whole record, within 30 days of the Hearing
Officer's decision pursuant to NMRA 1-074.
