CONWELL V. CITY OF ALBUQUERQUE, 1981-NMSC-133,
97 N.M. 136, 637 P.2d 567 (S. Ct. 1981)
WAYNE CONWELL, J. J. O'CONNELL, THOMAS
SHOATS and PAUL
FROSTENSON, Plaintiffs-Appellees,
vs.
CITY OF ALBUQUERQUE, MAYOR DAVID RUSK, ALBUQUERQUE POLICE
DEPARTMENT, CHIEF E. L. HANSEN, LABOR MANAGEMENT
RELATIONS BOARD, DUANE GILKEY, HAROLD BREEN,
GEORGE CHERPELIS, Members,
Defendants-Appellants.
SUPREME COURT OF NEW MEXICO
1981-NMSC-133, 97 N.M. 136, 637 P.2d 567
Appeal from the District Court of
Bernalillo County, Gerald D. Fowlie, District Judge.
George R. "Pat" Bryan, III,
City Attorney, Albert N. Thiel, Jr., Assistant City Attorney, Albuquerque, New
Mexico, For Defendants-Appellants.
William J. Tryon, Albuquerque, New
Mexico, For Plaintiff-Appellees.
Payne, J., wrote the opinion. WE CONCUR:
MACK EASLEY, Chief Justice, WILLIAM R. FEDERICI, Justice
{1} The appellees, four
Albuquerque Police Department officers, were discharged following an
investigation of their use of citizen band radios while on duty. They filed
charges with the City of Albuquerque's Labor-Management Relations Board (LMRB)
alleging violation of the collective bargaining agreement between the City and
the Albuquerque Police Officers Association. After conducting a hearing, the
LMRB found no violation of the contract. The district court issued a decision
by writ of certiorari pursuant to
Article VI, Section 13 of the New Mexico
Constitution and reversed the LMRB decision, ordering "full back pay,
seniority, and benefits from the date of the unlawful terminations." The
City appeals from the reversal and the remedy granted.
{2} The investigation of the
officers' conduct began with a week-long radio surveillance conducted by Lt.
Sandlin. Lt. Sandlin was the immediate supervisor of appellee Conwell; Conwell
was the immediate supervisor of the other three appellees. Lt. Sandlin, with
the concurrence of his supervisor, instructed the Department's Internal Affairs
Unit (IAU) to further investigate. As part of the IAU investigation, the
appellees were individually questioned by IAU officers. Each appellee was told
prior to the recorded interrogation that the investigation was being conducted
at the request of "his supervisors." Appellee Conwell was told after
recording began that the questioning was "in reference to some allegations
about the misuse of CB radios by yourself and your subordinates." The
other appellees were likewise told that the interrogation involved allegations
of "your misuse," "you[r] and some fellow officers['] * * *
misuse," or "misuse * * * which you may have been involved in."
{3} Section 22 of the
collective bargaining agreement governs IAU investigations. Section 22D
provides:
The officer shall be informed of the nature, if known, of the
investigation before any interrogation commences. Names of complainants shall
be disclosed, together with sufficient information to reasonably apprise the
officer of the allegations. If it is known that the member being interrogated
is a witness only, he shall be so informed. When the officer is being
interrogated as a principal, he shall be entitled to the presence of an
attorney and/or one officer of his choice from the Albuquerque Police Department[,]
excluding any officer under investigation for [the] same incident * * *.
Section 22G of the contract states that "[t]he complete
interrogation of the member {*138} shall
be recorded * * *. There will be no 'off-the-record' conversations except by mutual
agreement."
{4} The LMRB found that the
investigating officers of the IAU substantially complied with Section 22 of the
contract since "each of the charging parties was fully apprised of the
allegations * * * and was made aware that he was a principal in the
investigation prior to the commencement of the questioning." The City
argues that there is substantial evidence in the record of the LMRB hearing to
support the finding of no contract violation. The City also argues that, even
if the district court properly overturned the LMRB decision, the court
improperly awarded back pay to the appellees. The appellees argue that in
overturning the LMRB decision the court corrected a misapplication of the
governing law (the collective bargaining agreement) and the application by the
LMRB of an incorrect "substantial compliance" standard. The appellees
also argue that although there is no right to back pay under the ordinance
governing the LMRB, the district court properly granted a traditional remedy
for violation of employees' rights.
{5} Judicial review of an
administrative decision is limited to determination of "whether the
administrative body acted fraudulently, arbitrarily or capriciously, whether
the order was supported by substantial evidence and, generally, whether the
action of the administrative body was within the scope of its authority."
Llano,
Inc. v. Southern Union Gas Company,
75 N.M. 7, 11-12,
399 P.2d 646, 649
(1964). Although the reviewing court generally may not substitute its judgment
for that of the administrative decision maker,
id., it may correct the
decision maker's misapplication of the law.
See Chemical Workers v.
Pittsburgh Glass, 404 U.S. 157, 92 S. Ct. 383, 30 L. Ed. 2d 341 (1971);
Alto
Village Services Corp. v. New Mexico, Etc.,
92 N.M. 323,
587 P.2d 1334
(1978). In reviewing the district court's action we must make the same review
of the LMRB decision on the record as did the district court, applying the same
legal standards.
Lloyd McKee Motors v. New Mex. St. Corp.,
93 N.M. 539,
602 P.2d 1026 (1979);
Grace v. Oil Conservation Commission of New Mexico,
87 N.M. 205,
531 P.2d 939 (1975);
El Paso Natural Gas Co. v. Oil
Conservation Com'n,
76 N.M. 268,
414 P.2d 496 (1966);
Reynolds v.
Wiggins,
74 N.M. 670,
397 P.2d 469 (1964).
{6} The law governing the
conduct of the interrogation is that stated in Section 22 of the collective
bargaining agreement. The preamble to Section 22 states that the purposes of
the procedures therein established are "[t]o insure that investigations by
the Internal Affairs Unit are conducted in a manner conducive to public
confidence, good order, discipline, and good management practices and
recognizing the individual rights of each member of the force * * *." We
hold that only specific and careful compliance with the terms of Section 22
furthers those purposes. Permitting mere substantial compliance with Section 22
allows ambivalence and uncertainty and could defeat the purposes and undermine
the agreement as negotiated by both parties. We therefore hold that the LMRB
applied an incorrect standard when finding no contract violation because the
IAU substantially rather than strictly complied with the terms of Section 22.
{7} Section 22 plainly
requires that the officer being investigated be informed, on the record, of
everything prescribed by Section 22D. Section 22D specifies that he be told the
names of the complainants, whether they be fellow officers or civilians. That
section necessarily requires that the officer be told that he is being
interrogated as a principal. If he is to be "entitled to the presence of
an attorney and/or one officer" during the interrogation, he must be
informed of his status as a principal. Failure to so inform him is a
deprivation of an important bargained-for right.
{8} After reviewing the
record of the LMRB hearing under the standards here announced, we conclude that
the investigation was conducted in violation of the collective bargaining
agreement. Although
{*139} most of each
of the interrogations was recorded, before the recording began each appellee
was merely told that he was being investigated at the request of his
supervisors. Not only did that not comply with Section 22D, but it was also
misleading, since appellee Conwell was the supervisor of the other three
appellees and they might well have thought that he was a complainant. The
appellees were not specifically informed that they were being investigated as
principals, which may have caused them to forego requesting that someone else
be present, as permitted by the contract. We therefore affirm the district
court holding that the investigative procedure violated the collective
bargaining agreement, and that the LMRB decision was erroneous.
{9} The City of Albuquerque
has developed a comprehensive scheme governing relations with its employees.
The Merit System Ordinance, comprising Article IX of the City's Revised
Ordinances, governs the hiring, promotion and discharge of employees. The
Labor-Management Relations Ordinance, comprising Article II of the Revised
Ordinances, modifies the Merit System Ordinance with regard to those whose
conditions of employment are governed by a collective bargaining agreement. We
must examine both ordinances in order to decide whether the district court
properly awarded back pay, seniority and benefits to the appellees.
{10} Under the Merit System
Ordinance, the City's Personnel Board is empowered to decide on appeal the
merits of any disciplinary action taken by a department head. ALBUQUERQUE,
N.M., REV. ORDINANCES art. IX, §§ 2-9-24, -25(B)-(D) (1978). The Board may
accept, reverse, or modify that action,
see id. § 2-9-25(D)(4); methods
of modifying that action include ordinary reinstatement with back pay and
reducing dismissal to suspension without pay,
see id. § 2-9-24(A). The
appellees availed themselves of this appellate procedure, and prevailed before
the Personnel Board on the merits of their dismissals. The Board's decision to
reduce their terminations to ninety-day suspensions has not been appealed.
{11} The Merit System
Ordinance provides that employees with complaints regarding "the
interpretation or application of a collective bargaining agreement may not
utilize the grievance resolution procedures of this Ordinance. All such claims
shall be properly referred to the Labor-Management Relations Board."
Id.
§ 2-9-25(B). The LMRB, established pursuant to the Labor-Management Relations
Ordinance, is empowered to,
inter alia, determine whether the City or
any employee collective bargaining organization has violated the provisions of
any written agreement in force. If it determines that either has committed such
a prohibited act the LMRB is required to state its findings of fact and its
conclusion in the form of an order. ALBUQUERQUE, N.M., REV. ORDINANCES art. II,
§§ 2-2-9 to -10 (1977). Here the LMRB issued such an order.
{12} The district court on
review was limited to considering the propriety of the LMRB decision under the
standards outlined in
Llano, Inc. v. Southern Union Gas Company,
supra.
The court's options were to uphold the decision, reverse it, or vacate it and
remand the case for further consideration; it could grant no further remedy.
See
Tafoya v. New Mexico State Police Board,
81 N.M. 710,
472 P.2d 973 (1970).
We reverse the district court's award of back pay, seniority and benefits to
the appellees as exceeding the scope of its review.
{13} We therefore remand the
case to the district court, with directions to amend its order in conformance
with this opinion and further remand the case to the LMRB for such further
proceedings as are consistent with this opinion.
EASLEY, Chief Justice, and FEDERICI, Justice, concur.