City of Las Vegas, NM Article X Grievance and Appeal

§ 66-49 Grievance.

A. Grounds for grievance. An eligible employee may file a grievance regarding any disciplinary action taken by management and in response to any misapplication or violation of any City rules or regulations.

B. Procedures. Any employee who is aggrieved may present his or her grievance according to the following procedures:

(1) The eligible employee shall present the grievance, in writing, to his or her immediate supervisor within seven calendar days of the action which gives rise to the grievance. The supervisor and the employee shall attempt to resolve the matter. The supervisor shall notify the employee, in writing, of his or her decision regarding the grievance within seven calendar days of receipt of the grievance.

(2) If the grievance is not settled to the satisfaction of the employee and the employee wishes to pursue the grievance, the employee shall present the grievance to the next level of supervision within seven calendar days of the notice of the decision of the immediate supervisor. The supervisor at this level and the employee shall attempt to resolve the matter. The supervisor shall notify the employee, in writing, of his or her decision within seven calendar days of receipt of the grievance.

(3) If the grievance is not settled at this level to the satisfaction of the employee, and the employee wishes to pursue the grievance, the employee shall continue, consistent with the procedures outlined above in § 66-49B, to present, the grievance to successive levels of supervision, up to and including the City Manager. The decision of the City Manager shall be final in the grievance procedure and shall be provided within 10 working days.

(4) In the event that an employee's grievance does not involve his or her respective supervisors, the written grievance shall be submitted directly to the department director of the employee's department who shall notify the employee of his decision within seven calendar days of receipt of the grievance. However, such grievance, in order to be considered by the department director, shall be submitted to the department director within seven calendar days of occurrence of the aggrieved action. The decision of the department director may be appealed directly to the City Manager, whose decision shall be final.

(5) The Human Resource Director may be requested to be involved at any stage of the grievance procedure by either the employee or the department director.

C. Conditions of grievance. If the employee fails to proceed to the successive level of supervision within the time period specified, the employee shall be conclusively deemed to have waived and abandoned the grievance. If any supervisor fails to render a decision within the time period specified, the employee may appeal to the next level of supervision within the time limits provided.

D. Expiration. If any eligible employee terminates or is terminated from employment with the City for any reason, any grievance previously filed by the employee which is in process at the time of termination shall also be terminated with the exception of any pay or benefit related grievance.

§ 66-50 Appeal of disciplinary action.

A. Grounds for appeal. Any disciplinary action may be appealed by a regular status, nonprobationary employee consistent with the policies set forth for appeal within this chapter.

B. Procedure.

(1) Time for appeal. The employee shall submit the appeal, in writing, to the Human Resource Director within seven calendar days of the effective date of the disciplinary action, the same being the date upon which the employee receives notification of the disciplinary action.

(2) Information in written appeal. Appeals must be set forth in writing and shall include the following information:

(a) The disciplinary action which is being appealed.

(b) The date on which the matter occurred.

(c) The relief requested by the disciplined employee.

(d) The date of the appeal.

(3) Employee's failure to follow rules. If the employee falls to abide by any part of the appeal process as outlined in § 66-50, then the employee shall be conclusively deemed to have waived and abandoned the grievance. Time limits may be extended by the written request of the employee with the written concurrence of the Human Resource Director.

(4) Submission by Human Resource Director. Upon receipt of the written appeal and upon determination thereof, the Human Resource Director shall submit the written appeal within three working days to the City Attorney and to either the department director of the respective department or to the City Manager based upon the following considerations:

(a) Department directors. The written appeal may be submitted to the department director of the respective department if the department director has not been the disciplinary authority, and the department director has remained reasonably uninvolved and impartial in the disciplinary action which is being appealed.

(b) City Manager. If the disciplinary action was taken by the department director or the department director was involved in the disciplinary action taken, the appeal shall be referred to the City Manager.

(5) Notification of employee. The Human Resource Director shall inform the aggrieved employee as to whether the appeal is first to be heard by the department director or the City Manager.

(6) Initial hearing by department director. The department director can conduct an investigation and hear information as he/she sees fit. The department director reserves the right to alter a supervisor's decision if such course is deemed appropriate. The department director's decision shall be made within seven working days upon receiving the written appeal from the Human Resource Director. If the appeal is not settled at the department director level to the satisfaction of the employee, and the employee wishes to pursue the appeal, the employee may present a written appeal of the department director's decision within seven working days after the decision is received by the employee. The appeal will then be referred to the City Manager. The City Manager will then hear the appeal or appoint a hearing officer.

(7) City Manager prerogatives. The City Manager may designate an impartial representative(s) or impartial representatives [hearing officer(s)] to review the appeal and hold a hearing on a date established by the City Manager.

(a) Upon hearing and reviewing the appeal and holding a hearing, the hearing officer shall submit the findings of their review to the City Manager within seven calendar days, unless the time is extended by the City Manager in writing. However, this decision must be submitted within seven calendar days.

(b) The City Manager will analyze the findings of any review and may conduct another investigation or hear other information as he/she sees fit. The City Manager shall render a timely decision and reserves the right to alter the disciplinary action if such course is deemed appropriate. The decision of the City Manager shall be final and shall be submitted within 14 working days.

(c) Except as otherwise indicated, the City Manager may, at his/her discretion, elect not to appoint a hearing officer and proceed directly with the review and hearing of the appeal. The City Manager may hold an investigation or hear information as he/she sees fit. The City Manager shall render a timely decision and reserves the right to alter the disciplinary action if he/she deems such action appropriate. The decision of the City Manager shall be final.

(d) The City Manager must select a hearing officer in a termination appeal where the terminated employee is at the highest level in a department.

(e) The City Attorney shall, at all times, appear on behalf of the City.

(8) Subpoenas of witness.

(a) For attendance of witness. Every subpoena for a hearing in a appeal of a disciplinary action shall be issued by the Municipal Judge or Clerk of the Municipal Court, and shall state the name of the court and the title of the action and shall command each person to whom it is directed to attend and give testimony at a time and place therein specified.

(b) For production of documentary evidence. A subpoena may command the person to whom it is directed to produce the books, papers, documents or tangible things designated therein; but, the Court, upon motion made promptly and in any event at or before the time specified in the subpoena for compliance therewith, may;

[1] Quash or modify the subpoena if it is unreasonable and oppressive; or

[2] Conditional denial of the motion upon the advancement by the party in whose behalf the subpoena is issued of the reasonable cost of producing the books, papers, documents or tangible things.

(c) Issuance. The Municipal Judge or Clerk may issue a subpoena, or a subpoena for the production of documentary evidence, signed and sealed but otherwise in blank, to a party requesting it, who shall fill it in before service.

(d) Service. A subpoena may be served by the Sheriff, a Deputy Sheriff, a Municipal police officer or any other person who is not a party and is not less than 18 years of age. Service of subpoena upon a person named therein shall be made by delivering a copy thereof to such person within San Miguel County.

(e) Contempt. Failure by any person without adequate excuse to obey a subpoena served upon him may be deemed in contempt of the Municipal Court from which the subpoena was issued.

(f) Fees. A witness shall be entitled to fees and mileage provided for a witness in a court of record to be paid by the party requesting the witness to appear, unless the witness is a City employee giving testimony during regular working hours.

(9) Hearing.

(a) No provision of the procedure in § 66-50 should be read or interpreted as requiring a formal hearing as a part of these procedures.

(b) Parties to review an appeal shall include the employee perfecting the appeal and the department director or the supervisor who proposes the disciplinary action and the City Attorney. Notice of the time of the hearing of an appeal shall be served personally on the parties or by first-class mail to the last address furnished to the Human Resource Director by the party to be notified. In the event that the employee has obtained legal representation and legal counsel has indicated as such to the City, then notification shall be sent to the Office of the Attorney of the employee. Setting the time and place of any hearing, the Human Resource Director will give due regard to the convenience of the parties and their representatives.

(c) The department director or a supervisor causing the disciplinary action to be taken shall have the burden of proof, based upon the civil burden of preponderance of the evidence, and every party to the proceeding shall have the right to present his case or defense by oral and documentary evidence, to submit rebuttal evidence and to conduct such cross examination as may be required for a full and true disclosure of the facts. Subject to these rights and requirements, where a hearing will be expedited and the interests of the parties will not be substantially prejudiced thereby, the City Manager or other hearing officer may receive all or part of the evidence in written form, or in the form of tape recorded statements. The parties may offer such evidence as they desire and shall produce such additional evidence as the City Manager or other hearing officer may deem necessary to an understanding or determination of the appeal. The City Manager or other hearing officer shall be the judge of the relevancy and materiality of the evidence offered and conformity to the legal rules of evidence offered and conformity to the legal rules of evidence shall not be necessary. The City Manager or other hearing officer may receive and consider the evidence of witnesses by affidavit, and shall give such evidence only such weight as he/she deems proper after consideration of the objections made to its admission. Objections to evidentiary offers may be made and should be noted in the record. The City Manager or other hearing officer shall give effect to the rules of privilege recognized by law. Hearings, at which evidence is heard, shall not be public unless so requested by the employee against whom the disciplinary action has been taken.

(d) It shall be the duty of the City Manager or other hearing officer to consider whether the disciplinary action taken by the department director or supervisor was reasonable based upon the context of the alleged violation of the provision of the personnel or other rules and written appeal being submitted by the grievant as provided by this chapter. The City Manager or other hearing officer shall have the power to sustain, modify, or reject the disciplinary action taken and shall enter written findings herein provided below.

(e) The decision of the hearing officer shall include a statement of the findings and conclusions upon all material issues of fact or law presented by the record and the testimony of evidence contained therein. The decision of the City Manager or other Hearing Officer shall be based upon a preponderance of evidence presented at the hearing and shall be final.

(10) Pretermination hearing. In any case where the disciplinary action contemplated is dismissal of a nonprobationary employee, the employee shall be afforded a pretermination hearing. This hearing shall be of an informal nature and shall be heard by the department director if the employee who is proposed to be terminated is below the classification of department director. The employee shall be given written notice of the charges against him/her and an explanation of the evidence against him/her. The employee shall then be given an opportunity to present, either in person or in writing, his/her side of the story prior to the termination. Administrative regulations may be set forth by the City Manager regarding the conduct of such a hearing which are not inconsistent herewith.

(11) Back wages upon reinstatement. If an employee is dismissed in accordance with these rules and any pertinent administrative regulations, and the employee, at any stage of the proceedings, wins his/her appeal of the disciplinary action and is reinstated, said employees shall be paid all back wages from the date of the dismissal at the rate of pay in effect on the date of the dismissal, unless such reinstatement is without back pay.