This formal disciplinary action appeal procedure applies to the suspension, involuntary demotion, and dismissal of regular employees.
A. 
Written notification. The Clerk/Administrator shall present the employee with written notification of intent to suspend, demote or dismiss at least three working days in advance of the proposed action. The written notification shall explain the reasons for the proposed action, the employee's right to a pre-disciplinary hearing, and contain the scheduled time and place of the pre-disciplinary hearing. The notification shall be hand-delivered to the employee, receipt of which shall be acknowledged by the employee. If the employee refuses the notification, the Village shall cause the notice to be hand delivered to the employee's residence or mailed by certified mail to the employee's preferred mailing address. The pre-disciplinary hearing shall not be set less than three working days after the hand delivery of the notice.
B. 
Immediate suspension. In cases where Village property, other employees, or citizens are at risk because of the employee's actions, the department head, in consultation with the Clerk/Administrator, shall put the employee on administrative leave with pay while the appropriate disciplinary action is contemplated and until the pre-disciplinary hearing is held and the decision is rendered.
An employee shall pursue appeals according to the rules contained herein.
A. 
Request for pre-disciplinary hearing. Within two working days of the receipt of the disciplinary notice, the employee is required to notify the Clerk/Administrator, in writing, and advise whether or not the employee will participate in the pre-disciplinary hearing. The time, place, and date of the pre- disciplinary hearing can be rescheduled upon the written agreement of the parties.
B. 
Pre-disciplinary hearing procedure. The Mayor shall meet with the employee and the Clerk/Administrator at the appointed time. At this pre-disciplinary hearing, the employee shall have the opportunity to respond to the proposed disciplinary action. The parties may be represented by counsel at the pre-disciplinary hearing at their own expense and may call witnesses and introduce evidence at said hearing. The Mayor may request that the Village Attorney be present for any such hearing.
C. 
Pre-disciplinary hearing decision. The Mayor will issue a decision in writing within three working days of the hearing. The written decision shall include the time, date, and location of the meeting; persons present and the determination. The written decision shall either 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 a right to appeal the decision to the Village Personnel Board.
D. 
Effect of decision. Demotions and suspensions will become effective at the time that the pre-disciplinary hearing decision is issued. A dismissal appealed by an employee will not become effective until the Village Council approves the dismissal following a post-disciplinary hearing.
A. 
Notice of appeal. Within three working days of receipt of the written pre-disciplinary decision, the appellant must give written notice to the Clerk/Administrator of the appellant's intent to pursue a post-disciplinary hearing.
B. 
Post-disciplinary hearing scheduled. The post-disciplinary hearing must be held within 10 working days of the receipt of notification of intent to pursue a post-disciplinary hearing by the Village. At this hearing, the appellant shall have an opportunity to present witnesses and physical evidence and cross-examine the Village's witnesses before the Village Personnel Board. The appellant and the Village may be represented by legal counsel. Each party bears its own costs and expenses with respect to the retention of legal counsel and the pursuit of post-disciplinary actions.
A. 
Rules of procedure.
(1) 
The Clerk/Administrator will determine the date and time of the post-disciplinary hearing and any continuances. Such hearings will be conducted at a time and place, which is mutually convenient to all parties concerned. Requests for continuances of hearings shall be made 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, unless the appellant requests a closed hearing.
(3) 
A quorum of the Personnel Board shall, by majority vote:
(a) 
Make rulings on procedural and substantive issues of the hearing.
(b) 
Determine the admissibility of evidence and testimony, all of which must have a direct bearing on the issue before the Board.
(c) 
Follow the evidentiary standards for administrative agencies.
(d) 
Issue a written ruling, including findings of fact and conclusions of law.
(4) 
The following persons are required to be present at all appeal proceedings unless otherwise excused by the Personnel Board or by agreement of the parties: the appellant, appellant's representative (if any), and the department'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 hearing, representatives shall prepare copies of all exhibits and evidence which are expected to be presented. Representatives shall stipulate to exhibits to the extent possible and bring to the hearing adequate copies for the Personnel Board as well as the opposing representative.
(7) 
At least five calendar days prior to the hearing, all parties must submit to the Personnel Board 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 appeal hearings are not admitted into the hearing room until called upon to testify. This ban excludes those individuals listed in Subsection A(4) above.
(9) 
Notice of the hearing will be sent by certified mail to the appellant and postmarked at least five days prior to the scheduled hearing. Copies of the hearing notice shall be sent concurrently to all relevant parties.
(10) 
Either a tape-recorded or stenographic record of all post-disciplinary appeal hearings will be made.
B. 
Conduct of hearings.
(1) 
The Village, which carries the burden of proof by a preponderance of the evidence, shall present its statements of issues involved in the case, followed by the appellant. Opening statements are limited to the pertinent issues of fact and law and shall not exceed 10 minutes without permission of the Personnel Board.
(2) 
Order of presentation.
(a) 
The Village will present its case first. Witnesses for the Village may be called and questioned on their involvement in, or knowledge of the case. Following each witness' testimony, the appellant will have the opportunity to cross-examine the witness. The Personnel Board will then have the opportunity to question the witness on matters related to the witness' testimony. The Personnel Board shall restrict its questions to those necessary to clarify the testimony previously given. Follow-up or redirect questioning will be allowed at the discretion of the Personnel Board.
(b) 
Witnesses for the appellant may be called and questioned on their involvement in, or knowledge of, the case. Following each witness' testimony, the Village will have the opportunity to cross-examine the witness. The Personnel Board will then have the opportunity to question the witness on matters related to the witness' testimony. The Personnel Board shall restrict its questions to those necessary to clarify the testimony previously given. Follow-up or redirect questioning will be allowed at the discretion of the Personnel Board.
(c) 
Following presentation of the appellant's position, the Village may offer rebuttal testimony. Such testimony shall be brief and shall address only the issues brought forth in the appellant's presentation.
(d) 
The Village's closing statement shall be presented, followed by that of the appellant. These statements shall not exceed 10 minutes without the permission of the hearing officer, and at a minimum shall contain a request for the desired outcome. The Village shall have the opportunity to make a final statement, not to exceed five minutes, which shall be limited to issues brought forth in the appellant's closing statement.
C. 
Communication of Personnel Board's decision. The Personnel Board's recommendation to the Village Council shall include findings and conclusions, shall be issued within five days of the hearing, shall indicate whether the decision was unanimous or whether particular members dissented, and shall be transmitted to the appellant, department head, and the Clerk/Administrator, who shall notify the Village Council. The Personnel Board may only recommend upholding, modifying, or reversing the decision, and may recommend reinstating the employee and awarding back pay and benefits. The record of the proceedings will be retained by the Clerk/Administrator's office or the certified court reporter for a period of not less than one year from the hearing date, along with all the physical evidence admitted by the Personnel Board. 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 transcription shall make arrangements to pay for the transcription.
D. 
Approval/disapproval of recommendation. The Village Council will approve or disapprove the recommendation by majority vote. The Village Council's vote will be based solely on the Personnel Board's findings, conclusions, and its recommendation; no further testimony will be heard at the Council meeting at which the vote is taken. The Village Council will meet to vote on a recommendation of the Personnel Board within five working days after the Personnel Board issues its decision.
With respect to those conditions which an employee wishes to appeal, but which are not subject to the formal disciplinary action procedure set forth in Sections 8.1 through 8.4, the employee shall discuss the problem with the department head in an attempt to work out a solution. Included in this type of appeal are complaints charging discrimination based on race, color, religion, sex, age, national origin, physical or mental handicap, or medical condition. If the employee is not satisfied with the proposed solution, the employee may address the problem to the Clerk/Administrator, whose decision shall be final.