CLARK V. NEW MEXICO CHILDREN,YOUTH & FAMILIES DEP'T, 1999-NMCA-114, 128 N.M. 18, 988 P.2d 888
CYNTHIA CLARK, Petitioner-Appellee,
vs.
NEW MEXICO CHILDREN, YOUTH AND FAMILIES DEPARTMENT and THE
STATE PERSONNEL BOARD FOR THE STATE OF NEW MEXICO,
Respondents-Appellants.
COURT OF APPEALS OF NEW MEXICO
1999-NMCA-114, 128 N.M. 18, 988 P.2d 888
APPEAL FROM THE DISTRICT COURT OF
BERNALILLO COUNTY. Theresa Baca, District Judge.
Certiorari Denied August 23, 1999.
Released for Publication August 30, 1999.
Kenneth R. Wagner, Kenneth R. Wagner
& Associates, P.A., Albuquerque, NM, for Appellee.
Patricia A. Madrid, Attorney General,
Albert J. Lama, Assistant Attorney General, Elizabeth A. Glenn, Assistant Attorney
General, Santa Fe, NM, for Appellants.
RUDY S. APODACA, Judge. WE CONCUR: A.
JOSEPH ALARID, Judge, RICHARD C. BOSSON, Judge.
{1} This is an
administrative appeal from the district court's judgment, which reversed a
final order entered by Respondent New Mexico State Personnel Board (the Board).
Petitioner Cynthia Clark (Worker) appealed her dismissal from employment with
Defendant Children, Youth and Families Department (the Department). A hearing
officer for the Board entered a decision and order denying Worker's appeal for
lack of jurisdiction on grounds that she did not have a right of appeal. The
Board entered a final order adopting the decision of the hearing officer and
dismissing Worker's appeal. Worker appealed the decision to the district court.
The district court reversed the Board, concluding that, based on the State
Personnel Board Rules and Regulations (the State Personnel Rules) Worker had a
constitutionally protected property interest in her continued employment. The
Board and the Department appeal from that decision. The sole issue on appeal is
whether Worker had a right of appeal under the Personnel Act, NMSA 1978,
Sections
10-9-1 to -25 (1961, as amended through 1998) (the Act), the State
Personnel Rules, or applicable case law. Determining that Worker had no such
right, we reverse the district court and affirm the Board's final order.
I. FACTUAL AND PROCEDURAL BACKGROUND
{2} In December 1977,
Worker was hired by the State of New Mexico to serve under a temporary
appointment as a "utility worker" for the Human Services Department
(Human Services). Although the position was a temporary appointment, it was in
the classified service as defined under the Act and State Personnel Rules. In
1978, Worker received a permanent appointment as a "client service
agent" in the classified service with the Social Services Division of
Human Services, and her functions were later transferred to the Department when
the latter was created by the Legislature. At that time, Worker completed a
twelve-month probationary period. Approximately thirteen years later, in June
1991, Worker voluntarily resigned her classified position, and in July 1991,
accepted an exempt position as a Division Director II.
See NMSA 1978, §
10-9-4(D) (1990) (exempting the position of director of a department division
from the classified service). "Exempt service" is defined as
"all positions in the executive branch of state government exempt from the
classified service by law." State Personnel Board Rule 1.17 (Feb. 26,
1994). As director of the Social Services Division, by statute, Worker served
at the pleasure of the Secretary of the Department.
See NMSA 1978, §
9-2A-10 (1992) ("The secretary [of the Department] may appoint, with the
approval of the governor, 'directors' of such divisions as are established
within the department."). As a director, Worker was thus exempt from the
provisions of the Act.
See id.
{3} Prior to her
resignation from the classified service and acceptance of the exempt position,
a New Mexico State Personnel Office general memorandum, dated March 25, 1991,
was circulated "to provide guidance to agencies when probationary or
permanent incumbents accept exempt or temporary appointments in the classified
service." The memorandum stated: "Probationary, term, and permanent
incumbents accepting exempt appointments must resign from their classified
positions and lose all rights associated with the classified
appointments." The memorandum was addressed to cabinet secretaries, agency
directors, and personnel officers. It is thus unclear whether Worker received
or saw a copy of that memorandum, but as we note later in this opinion, that
question is not necessary to our disposition.
{4} In December 1994,
Worker voluntarily resigned her position in the exempt service in order to be
assigned to a Manager V position with the Department. In that position, Worker
reentered the classified service. A document dated January 25, 1995, and
entitled "Children, Youth and Families Department New Employee Notice of
Employment Status," reflects her signature acknowledging that her position
was probationary and that she could be dismissed without the right of appeal.
The signing of this document, however, is not determinative of our disposition.
Worker was dismissed from her
{*21} position
as Manager V with the Department effective February 17, 1995. The
correspondence notifying Worker of her dismissal stated that she had no right
of appeal to the Board.
{5} Worker nevertheless
appealed her dismissal to the Board. The hearing officer for the Board entered
a decision and order dismissing the appeal for lack of jurisdiction on grounds
that Worker did not have the right of appeal. Worker first filed a Writ of
Mandamus in the district court. The district court granted the writ and ordered
the Board to review the hearing officer's decision and order. The Board voted
to adopt the hearing officer's decision and order and entered a final order,
determining that Worker was not an "employee" with a right of appeal,
as defined by the Act, under NMSA 1978, §
10-9-3(I) (1961). The Board
determined that it lacked jurisdiction to hear Worker's appeal, and the appeal
was dismissed with prejudice.
{6} On appeal, the
district court reversed the Board's final order, holding that Worker was a
classified employee since attaining career status in October 1979,
approximately one year after first accepting a permanent classified position
with Human Services. The district court also concluded that Worker had a
constitutionally protected property interest in her employment with the
Department under the rationale adopted in
Lovato v. City of Albuquerque,
106 N.M. 287,
742 P.2d 499 (1987). The Board and the Department appeal the
district court's judgment.
{7} We apply whole
record review in an appeal from an administrative decision.
See Anaya v. New
Mexico State Personnel Bd.,
107 N.M. 622, 625,
762 P.2d 909, 912 . "In
reviewing appeals from the district court perfected under the . . . Act, the
scope of our review is the same as that of the district court."
Id.
(citation omitted). We independently examine the entire administrative record
to determine whether the Board's decision was arbitrary and capricious, not
supported by substantial evidence, or not within the scope of the
administrative body's authority.
See id.; see also NMSA 1978, §
10-9-18(G) (1980). Although we may not generally substitute our judgment for
that of the Board, we may correct the Board's misapplication of the law.
See
Clayton v. Farmington City Council,
120 N.M. 448, 453,
902 P.2d 1051, 1056
(Ct. App. 1995). The determination of whether an administrative agency's ruling
is in accordance with the law is a question of law to be determined by the
courts and "courts are in no way bound by the agency's legal
interpretation."
Chavez v. Mountain States Constructors,
1996-NMSC-70,
122 N.M. 579, 584,
929 P.2d 971, 976 (1996). Nonetheless,
generally, an agency's reasonable statutory interpretation, when that agency is
charged with the statute's administration, is persuasive and given deference by
the courts.
See Gonzales v. Allstate Ins. Co., 1996-NMSC-41,
122 N.M.
137, 142,
921 P.2d 944, 949 (1996).
B. The Act and State Personnel Rules Do Not Establish
the Right of Appeal
{8} The Act governs
the rights and obligations of all state employees, with certain exceptions.
See
§ 10-9-4 (enumerating state positions excepted from coverage under the Act).
The Act charges the Board with the duty of promulgating regulations to
effectuate the Act's provisions.
See NMSA 1978, §
10-9-10(A) (1983). The
parties agree that the State Personnel Rules in effect at all material times
were those promulgated on January 2, 1993.
{9} The Act, under
NMSA 1978, §
10-9-18(A) (1980), provides that: "Any employee who is
dismissed, demoted or suspended may, within thirty days after the dismissal,
demotion or suspension, appeal to the Board." Section 10-9-3(I) defines
"employee" as "a person in a position in the service who has
completed his probationary period." This last provision is consistent with
the State Personnel Rules providing those in the "classified
service," who have completed their probationary period, the right of
appeal.
See State Personnel Board Rule 3.1(C), (D) (Jan. 2, 1993).
"Classified service" is defined as "all positions in the
executive branch of state government [that] are not exempt by law."
{*22} State Personnel Board Rule 1.6 (Feb. 26,
1994). State Personnel Rule 3.1, entitled "Career Appointments,"
falls under the heading of "Classified Service Appointments." It
provides:
A. A career appointment is the employment of an
applicant in a position recognized by the Office as permanent.
B. A probationary period of 12 months is required of
all employees unless otherwise provided for by these Rules.
1. The probationary period includes all continuous
employment regardless of class.
2. The probationary period includes employment in
temporary, emergency or term status when the employee is converted to a career
appointment without a break in employment.
3. Any full-time continuous leave without pay taken
during the probationary period exceeding 30 calendar days shall extend the
probationary period by the number of days of leave without pay that exceeds 30
calendar days.
4. The suspension, demotion or dismissal of a
probationer is not appealable to the Board.
C. Career status begins the day following the end of
the probationary period required by Rule 3.1(B) unless otherwise provided for
by these Rules.
D. The suspension, demotion, or dismissal of an
employee in career status is appealable to the Board in accordance with the
provisions of Rule 18.
A "probationer" is defined as "a person in the
classified service who is still in the probationary period." State
Personnel Board Rule 1.21 (Feb. 26, 1994). Under State Personnel Rule
3.1(B)(4), probationers do not have the right to appeal their dismissal.
{10} The district
court relied on State Personnel Rule 3.1(B)(1), which describes the
probationary period as including all "continuous employment,"
regardless of class, to conclude that, because Worker remained continuously
employed by the Department since 1977, she had already completed her
probationary period approximately a year after she first began working in the
classified service for the Department in her first position as a client service
agent. The court thus concluded that Worker had attained "career
status" under State Personnel Rule 3.1(C), and was entitled to appeal her
dismissal through the grievance process. Similarly, Worker asserts on appeal
that State Personnel Rule 3.1(B)(1) relieves her from being held accountable
for serving a second probationary term. Specifically, she argues that State
Personnel Rule 3.1(B)(1) refers to her "continuous employment" with
the Department, including her service as an exempt employee. She thus claims
that, because she had already fulfilled the only probationary period she was
required to complete, she was not a probationer but had attained career status
and the benefits of classified service, including the right to appeal her
dismissal. We disagree.
{11} We do not believe
the intention of State Personnel Rule 3.1(B)(1) is to relieve Worker from
serving the required probationary period upon reentering the classified service
directly from an exempt position. Section B of State Personnel Rule 3.1 refers
to the twelve-month probationary period required of all employees. The first
three numbered subsections that follow, in our view, pertain to what can be
counted towards the calculation of the twelve-month probationary period.
Subsection (B)(1) states that "the probationary period includes all
continuous employment regardless of class." "Class" is defined
as "a group of classified positions similar enough in powers and
responsibilities that can be covered by the same qualifications and rate of
pay." State Personnel Board Rule 1.5 (Feb. 26, 1994). Consequently, we
conclude that State Personnel Rule 3.1(B)(1) allows those employed in a
classified position to continuously serve their probationary period without
having to recommence the twelve-month period each time their class changes. For
example, if an employee who, after serving three months of their probationary
period, changes class, that employee does not have to recommence the time, but
may resume serving the probationary period for the remaining nine months.
{12} {*23} Worker contends that interpreting State
Personnel Rule 3.1(B)(1) in this manner leads to an unreasonable and absurd
result because it would require her, a continuous state employee for many
years, including the time period spent in exempt status, to serve a second
probationary term upon reentering the classified service. We disagree. Although
there is nothing in the Act or the State Personnel Rules concerning the purpose
of a probationary period, we do not believe it is unreasonable to require
employees to undergo a probationary period after separating from the classified
service. The essential skills needed to succeed in the classified position the
individual is reentering may be different, requiring the State to determine
again if the employee is suitable for the position. Even assuming an individual
is reemployed in the same classified position they previously held, we can see
legitimate reasons for requiring a probationary period to determine if the
employee is still capable of performing the job he or she is hired to do or of
fulfilling the changing needs of the particular job. Perhaps the staff has been
replaced or new duties have been assigned since the employee's resignation.
Consequently, we do not believe it is unreasonable to impose a probationary
period on a person reentering the classified service from an exempt position,
regardless of the years of employment with the State.
{13} The only
provisions of the State Personnel Rules that relieve an individual from serving
the probationary period do not expressly address whether an individual in
Worker's circumstances is relieved from serving a probationary term. State
Personnel Board Rule 14.4 (Mar. 26, 1994), entitled "Reemployment,"
which discusses reemployment into the classified service, addresses indirectly
whether Worker was a probationer upon reentering the classified service. It
provides:
A. Former employees in career status who separated
from the classified service without prejudice may be reemployed within two
years from the date of separation unless otherwise authorized by these Rules.
B. Former employees in career status who have resigned
may be reemployed in any class they formerly held, or in the classes that
replaced the classes they formerly held, without having to test.
C. Any employee who separates from the classified
service to enter the United States Armed Forces, National Guard, or any organized
reserve unit may be reemployed in accordance with the provisions of 38 U.S.C. §
2021 and NMSA 1978, §§ 28-15-1 to 28-15-3 (Repl. Pamp. 1991).
D. The pay of employees who are reemployed shall be
governed by the provisions of Rule 6.7(I).
E. Former employees who are reemployed shall serve a
12-month probationary period, except those reemployed according to the
provisions of Rule 14.4(C).
State Personnel Rule 14.4(C) exempts former employees
reemployed after serving in the armed forces, National Guard, or reserve unit,
from serving a probationary period. Under Subsection E of this rule, however,
all other "former employees" who are reemployed must serve a
twelve-month probationary period.
{14} Worker argues
that, although the State Personnel Rules specifically delineate when at least
three types of employees, other than those newly hired, are required to serve a
probationary period upon reentering the classified service, there is no
provision concerning an individual who enters the classified service, resigns,
accepts an exempt position, and then is reemployed in the classified service.
First, State Personnel Board Rule 15.3(A) (
) states: "Program
transfer includes the movement of a person from a position outside the
classified service to a position in the classified service by legislative
action or executive order. A probationary period of twelve months of continuous
employment is required unless otherwise provided by law." Additionally,
State Personnel Board Rule 14.5(6) (
) provides that former employees
who have been unable to work due to a compensable injury under Workers'
Compensation Act must
{*24} complete a
probationary period unless they were in career status at the time of
separation. Finally, former classified employees who leave the employment of
the state and are later reemployed in classified service must serve another
twelve-month probationary period, unless they left to enter a branch of the
armed services.
See State Personnel Board Rule 14.4(C), (E). Because
Worker claims there is no board rule explicitly addressing her situation, she
asserts that it must be assumed that, under the State Personnel Rules, she
would be deemed to have already completed the probationary term and achieved
career status.
{15} Although Worker's
situation could have been addressed more explicitly, we believe the State
Personnel Rules, as written, support the Board's determination that Worker was
a probationer when she reentered the classified service. State Personnel Rule
14.4(E) requires "former employees" who are reemployed to serve a
twelve-month probationary period. Worker argues that Section 14.4(E) applies
only to employees who have actually left employment with the state. She also
points out that State Personnel Rule 14.4 refers only to "former employees,"
and argues that transfers from classified service to an exempt position are not
referred to as "former employees" under the State Personnel Rules.
However, State Personnel Board Rule 1.14 (Feb. 26, 1994) defines
"employee" as "a person in a position in the classified
service." Under this definition, when serving in the exempt position,
Worker was not considered an "employee," as that term is defined in
the Act and used in the State Personnel Rules. Consequently, under this
interpretation, Worker would have been considered a "former employee"
when reentering the classified service. It follows that State Personnel Rule
14.4(E), which requires "former employees" who are reemployed in the
classified service to serve a twelve-month probationary period, would apply to
Worker.
{16} Additionally,
Section 10-9-3(I) defines "employee" as "a person in a position
in the service
who has completed his probationary period."
(Emphasis added.) State Personnel Rule 1.14, which abbreviates the definition
of employee as a "a person in a position in the classified service,"
notes that, although this definition differs from the statutory one, it
"in no way confers a greater right on certain persons than contemplated by
Section 10-9-3(I)." As a result, upon reentering the classified service,
Worker was not considered an "employee," and therefore did not have
the right of appeal under Section 10-9-18(A), which only confers that right to
"any employee."
C. Case Law Does Not Support Worker's Asserted
Property Interest in Continued Employment
{17} The district
court specifically relied on
Lovato to conclude that, as a matter of
law, Worker had a constitutionally protected property interest in her continued
employment with the Department. In
Lovato, the employee served as a
"classified city employee," in various positions, for twenty-seven
years.
See Lovato, 106 N.M. at 288, 742 P.2d at 500. As a classified
employee, he was permanently employed and was entitled to certain rights,
including recourse to the grievance procedure.
See id. He had been on
"assignment status" since 1973, "a position that applies only to
classified employees who are placed in supervisory positions by an
administrative head of a department, agency or special program."
Id.
As a result of the assignment, he was given a five percent salary increase.
See
id. The employee remained on assignment status for thirteen years until he
was removed from that position and reassigned with a corresponding five percent
reduction in pay.
See id. He filed a grievance with the personnel board
and requested a hearing before the board, both of which were denied.
See id.
The city's personnel rules specifically exempted from the grievance provisions
a person removed from assignment status and reassigned to another position.
See
id.
{18} The employee then
filed a petition for mandamus in the district court, requesting that the city
be ordered to grant him a hearing before the personnel board on the merits of
his reassignment and pay reduction.
See id. The writ was issued, and
before a hearing was held, the city granted the employee a hearing on the
limited issue
{*25} of grievability.
See
id. The district court "concluded that the City's denial of a full
hearing on [the employee's] claims resulted in a denial of his right to due
process of law."
Id. at 289, 742 P.2d at 501. On appeal, our
Supreme Court agreed with the district court's determination that, as a matter
of law, the employee had a property right in continued employment in his
assignment position, and for that reason, his reassignment was appealable.
See
106 N.M. at 289-90, 742 P.2d at 501-02. In so holding, the Court observed that
the Constitution does not create property interests, but rather "'they are
created and their dimensions are defined by existing rules or understandings that
stem from an independent source.'"
Id. at 290, 742 P.2d at 502
(quoting
Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577,
33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972)). The Court consequently determined
that "the sufficiency of any claim of entitlement must be decided by
reference to the independent source of rules or understandings that secure the
benefit."
Id. The Court stated that the independent source of rules
or understandings arose from the employee's retention in the assignment
position for thirteen years and the merit system and personnel rules that
applied to permanent positions.
See id. Despite these sources providing
that assignment positions were "'not permanent advancements in the
classification plan,' that classified 'employees assigned to these positions
may be reassigned at any time at the discretion of their respective
administrative head,' and that 'reassignment is not the subject of a
grievance,'" the Court concluded that the "district court correctly
found that, after a thirteen year employment in [the] assignment position, [the
employee's] employment at the position, grade, and pay rate prior to transfer
could not be considered a temporary, discretionary advancement within the
meaning of the merit system and personnel rules."
Id. (quoting
Albuquerque, N.M., Merit System Ordinance § 2-9-7, Revised Ordinances 1974
(1980 ed.));
see also Personnel Rules and Regulations §§ 451-52).
{19} The facts in this
appeal, however, are distinguishable, and, applying
Lovato, we reach a
different conclusion.
Lovato, 106 N.M. at 290, 742 P.2d at 502, provides
that the entitlement to a constitutionally protected property interest is
contingent upon the independent source of rules or understandings securing the
benefit. We have already determined that there is no support in either the Act
or the State Personnel Rules for Worker's asserted property interest in her
continued employment. There also does not appear to be any other independent
source of understanding securing the benefit. In
Lovato, our Supreme
Court relied on the city's retention of the employee in the assignment position
for thirteen years for its determination that he had a constitutionally
protected property interest in continued employment in the same position he
held for thirteen years.
Id. After holding that position for thirteen
years, the employee had expectations of continued employment in the same
position and at the same pay rate.
{20} In contrast,
after reentering the classified service, Worker in this appeal held the Manager
V position for only two or three months before she was dismissed. Worker thus
cannot be said to have secured the same expectation of continued employment in
the Manager V position as did the employee in
Lovato. Additionally,
despite her prior fourteen-year period of employment in a classified position
and total of seventeen years of working for the Department, Worker did not
retain the rights and benefits of a classified employee, but voluntarily
relinquished those rights when she resigned from her classified position and
accepted an exempt position.
{21} Lovato is also
distinguishable by the nature of the assignment in that case. While serving in
a classified position, the employee was placed in the assignment position by an
administrative head or a department, agency or special program.
See id.
at 288, 742 P.2d at 500 (stating that assignment status is "a position
that applies only to classified employees who are placed in supervisory
positions by an administrative head of a department, agency or special program.").
Here, however, Worker voluntarily chose to leave her employment in a classified
position to accept an exempt position. Both the Act and the State Personnel
Rules apprised her that, by resigning from the classified service to accept an
exempt position, she was relinquishing
{*26}
the rights associated with a classified position. We are likewise not
persuaded that Worker had the same expectation of continued employment, as did
the employee in
Lovato, merely because of her prior years of experience.
The critical difference in this case, we believe, is that Worker voluntarily
resigned from her classified position and, in doing so, lost all the rights and
benefits associated with that position. In resigning from the classified
service to accept the exempt position, the State Personnel Rules made no
provision for Worker's retention of the rights and benefits of a classified
employee. Although serving as director of the Social Services Division, Worker
was, by statute, exempt from the Act altogether.
See § 9-2A-10. We hold
that by reentering the classified service, Worker was the equivalent of a
"former employee" under the State Personnel Rules and as such, was
required to undergo a probationary period.
{22} Worker also
argues that the Board's determination (that she was on probation and therefore
not entitled to an appeal) constituted a disregard of (1) the legislative
mandate that the Board implement a state government personnel system based on
merit, and (2) the legislatively intended spirit of the Act and State Personnel
Rules. We disagree. This Court has recognized that, to achieve the purposes of
the Act, "provisions providing for the right of an administrative hearing
and judicial review should not be narrowly interpreted so as to restrict such
review."
Montoya v. Department of Fin. & Admin.,
98 N.M. 408,
413,
649 P.2d 476, 481 . There is no provision, however, giving Worker a right
to appeal. Rather, under the State Personnel Rules, Worker was properly
classified as a probationer when she reentered the classified service, and the
State Personnel Rules expressly prohibit probationers from appealing their
dismissal.
See State Personnel Board Rule 3.1(B)(4).
{23} Worker next
asserts that the Board was charged with promulgating rules based on demonstrated
competence within state government employment. She emphasizes the Board's
function to promulgate rules and conduct hearings in furtherance of a merit
system of personnel administration. These requirements, she contends, support
her argument that she demonstrated her fitness and competence for a period of
eighteen years, and she should not have been required to undergo a second
probationary period after reentering the classified service. There is nothing
in the provisions of the Act, however, nor in the stated purpose of the State
Personnel Rules, that conflicts with the Board's decision.
See NMSA
1978, §
10-9-2 (1963); NMSA 1978, §
10-9-13.1 (1983); Purpose, State Personnel
Board vii (Jan. 2, 1993). Despite consideration of Worker's years of employment
with the Department, there is no support in the Act, the State Personnel Rules
or case law to conclude that Worker had a constitutionally protected property
interest in continued employment.
{24} Worker lastly
argues that requiring her to complete another probationary period after an
eighteen-year period of employment with the State is contrary to the Act's
purpose of encouraging "residents to remain in the state rather than
moving out of state because of unsatisfactory employment opportunities in New
Mexico." Section 10-9-13.1. Worker analogizes her circumstance to the
situation where an employee resigns from his or her old employment and
relocates in order to accept an offer of employment at will. She contends that
many courts have determined that an implied contract arises out of the promise
of job security and the relocation to accept that job.
See Manesh K.
Rath,
How Relocation Affects the Employment at Will Relationship, 12
Lab. Law. 207, 209 (1996). We believe this approach is similar to the rationale
in
Lovato, where our Supreme Court concluded that an employee's
understanding of his or her job security, because of rules or promises
constituting an implied contract, often may give rise to a constitutionally
protected property interest in continued employment. As we have already
determined, there is not a statute, rule or other circumstance giving rise to
an understanding that Worker had a property interest in her continued
employment. We therefore reject her implied contract argument.
{25} We note that we
have given no weight to the document signed by Worker
{*27}
acknowledging her probationary status when she reentered the classified
service. If she had been made to sign a document that was contrary to the State
Personnel Rules or case law, her written acknowledgment would have no effect.
Similarly, the fact that she signed the document acknowledging her probationary
status is not a factor we have considered. In the factual context of this
appeal, that document did not operate as a waiver. Nor is the general
memorandum notifying employees of their relinquishment of all the rights and
benefits of classified service by accepting an exempt position a consideration
in our decision. Instead, we determine that the Act and the State Personnel
Rules sufficiently apprised Worker of this relinquishment.
{26} The State
Personnel Rules expressly prohibit a probationer from appealing their
dismissal. The issue in this appeal is whether Worker was properly
characterized as a probationer when she reentered the classified service.
Although the State Personnel Rules do not specifically address the factual
circumstances of Worker, we interpret them as requiring an employee resigning
from classified service to accept an exempt position, and then reentering
classified service, to serve a twelve-month probationary period upon such
reentry. We also hold that Worker has failed to show she was deprived of a
constitutionally protected property interest under
Lovato.
{27} In summary,
having reviewed the whole record in this appeal, we conclude that the Board's
decision "was not arbitrary and capricious, was supported by substantial
evidence, and was within the scope of the administrative body's
authority."
Anaya, 107 N.M. at 625, 762 P.2d at 912. Based on the Act,
the State Personnel Rules, and the case law, we also conclude that the Board's
decision was in accordance with the law. We therefore reverse the district
court's judgment and affirm the Board's final order. The parties shall pay
their respective costs on appeal.