Petition for Writ of Certiorari — Eric Miller, Petitioner v. City of Albuquerque Personnel Board

Supreme Court briefJan 5, 2023

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Supreme Court of New M(

11/1/2022 3:3;

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IN THE SUPREME COURT OF THE STATE OF NEW MEXICO'^*^(;/

November 01,2022

NO. S-l-SC-39586

ERIC MILLER,

Plaintiff-Petitioner,

CITY OF ALBUQUERQUE

PERSONNEL BOARD,

Defendant-Respondents.

ORDER

WHEREAS, this matter came on for consideration by the Court upon

petition for writ of certiorari filed under Rule 12-502 NMRA, and the Court having

considered the foregoing and being sufficiently advised, Chief Justice C. Shannon

Bacon, Justice Michael E. Vigil, Justice David K. Thomson, Justice Julie J.

Vargas, and Justice Briana H. Zamora concurring;

now, therefore, it

is ordered that the petition for writ of

certiorari is DENIED; and

IT IS FURTHER ORDERED that the Court of Appeals may proceed in

Miller v. City of Albuquerque Personnel Board, Ct. App. No. A-l-CA-40469 in

accordance with the Rules of Appellate Procedure.

IT IS SO ORDERED.

'SB

WITNESS, the Honorable C. Shannon Bacon, Chief

Justice of the Supreme Court of the State of New

Mexico, and the seal of said Court this 1st day of

November, 2022.

Elizabeth A. Garcia, Clerk of Court

Supreme Court of New Mexico

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IOBRTtFY AMD ATTEST:pr &eif counsel of record m 4zte

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Cl«dc of tla© Supreme Court

of the Stef© of iWw Mexico

By__

Court of Appeals of New Mexico

Filed 8/29/2022 11:04 AM

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Marie Rsymjtls

ERIC MILLER,

Appellant-Petitioner,

CITY OF ALBUQUERQUE

PERSONNEL BOARD,

No. A-l-CA-40469

Bernalillo County

D-202-CV-2021-0461$

Appellee-Respondent.

ORDER DENYING PETITION FOR WRIT OF CERTIORARI

This Court has considered Petitioner’s Rule 12-505 NMRA Petition for Writ

of Certiorari .

THE COURT ORDERS that the petition is DENIED and this matter is

CLOSED.

MILES HANISEE, Chief Judge

MR L. ATTREP, Judge

AmCf.OMmi

icQUEIJNE R. MEDINA, Judge

APPENDIX A: ORDER OF THE NEW MEXICO

COUNTY OF BERNALILLO SECOND JUDICIAL

DISTRICT, FILED MAY 19, 2022

STATE OF NEW MEXICO

SECOND JUDICIAL DISTRICT

FOR THE TENTH CIRCUIT

May 19, 2022, Filed

No. D-202-CV-2021-04615

Eric Miller

Plaintiff-Appellant,

City Of Albuquerque Personnel Board

Defendant- Appellee.

OPINION and ORDER

Appellant Eric Miller appeals from the

January 7, 2021, adverse decision of Appellee

City of Albuquerque Personnel Board. The

request for hearing is denied. The Board's

decision is affirmed.

Facts and Background

Miller worked as a Motorcoach Operator in the

Albuquerque Transit Department from October 17,

2015, until his termination, on January 15, 2019.

[RP 0474] The incidents forming the basis of the

termination occurred on July 27, 2018, July 10,

2018, and July 17, 2018. [Id.]

For Incident 1, the Department received a

citizen complaint on July 27 alleging that

Miller was "'doing road rage"' and was involved

in a hit-and-run accident. [Id.] The Board

found that Miller denied engaging in road rage,

but admitted to his liability in the involvement

of the accident. [RP 0474]

Incident 2 resulted from a July 10 citizen

complaint alleging that Miller was on his cell

phone, cut off a vehicle, and was generally not

paying attention. [RP 0474] Miller denied the

allegations. [Id.]

On July 1 7, the Department received two

citizen

complaints

regarding

Incident

alleging that Miller "honks at everything,

drives violently, and flipped off a driver." [RP

0474] He denied the allegations. [Id.]

Rolando Suarez, Transit Supervisor, viewed

video from Miller's bus from these dates,

preparing timestamped descriptions of each

questionable action that might constitute a

violation. [RP 0474] The Board relied on video

evidence showing Miller committing the acts

alleged,

concluding

that

the

acts

were

infractions of City and Motorcoach Operator's

Manual (MCO) policies and regulations which

could

result

discipline,

including

termination. [Id.] On July 15, 2018, Miller was

temporarily reassigned to the Department's

Maintenance Division. [Id.]

Miller received training concerning safely

driving his bus as well as traffic safety, deescalation, the MCC), professionalism, and

dealing with members of the public. [RP 0474-

75] Miller had been disciplined twice in the

preceding year prior to the incidents for similar

behavior, resulting in two suspensions without

pay. [RP 0475]

Transit Director Bernard Toon stated that he

did not believe it was safe for Miller to continue

interacting

with

the

public;

thus,

terminated Miller January 15, 2019. [RP

0475] The Board found that Miller's improper

use of electronic devices while operating the

bus as well as his reckless driving and cursing

members of the public were aggressive and

inappropriate actions, violating City policy and

MCOs. [Id.]

The Board concluded that the City proved, by

a preponderance of evidence, that Miller' s

actions

warranted

disciplinary

actions,

constituting just cause for his termination.

[RP 0475] The Board accepted the hearing

officer's recommendation to terminate Miller

by a vote of three to zero. [RP 0476]

Discussion

This Court's standard of review is provided

by Rule 1-074(R) NVIRA. The Court must

determine

fraudulently,

whether

the

arbitrarily,

Board

acted

capriciously;

whether, based upon the whole record on

appeal, the Board's decision is not supported

by substantial evidence; whether the Board's

action was outside the scope of authority of the

agency; or whether the action of the Board was

otherwise not in accordance with law. Cf. id.

"Under whole record review, the court views

the evidence in the light most favorable to the

agency decision, but may not view favorable

evidence with total disregard to contravening

evidence." Nat'l Council on Compensation Ins.

v. N.M. State Corp. Comm 'n, 1988-NMSC-042,

1 7, 107 N.M. 278, 756 P.2d 558. "To conclude

that an administrative decision is supported by

substantial evidence in the whole record, the

court must be satisfied that the evidence

demonstrates

the

reasonableness

of the

decision." Id. f 8 "The reviewing court needs to

find evidence that is credible in light of the

whole record and that is sufficient for a

reasonable mind to accept as adequate to

support the conclusion reached by the agency."

Id.

"The court must view the evidence in the

light most favorable to the decision of the

agency and must defer to the agency's factual

determinations if supported by substantial

evidence." N.M. Bd. of Psychologist Exam'rs v.

Land, 2003-NMCA-034, f 5, 133 N.M 362, 62

P 3d 1244. In its appellate capacity, the Court

"may not substitute its judgment for that of the

agency and must evaluate whether the record

supports the result reached, not whether a

different result could have been reached." Id.

"In order to find just cause, 'the Board is

required to determine not only that there was

employee misconduct, but also that the

agency's discipline was appropriate in light of

that misconduct. Martinez v. N.M. Slate Eng'r

Office, 2000-NMCA-074, f 30, 129 N.M 413, 9

P.3d 657 (quoted authority omitted). "While

the first prong focuses on the nature of the

employee's conduct, the second prong focuses

the

reasonableness

of the

agency's

disciplinary action." Id. "Just cause occurs

when an employee engages in behavior

inconsistent with the employee's position and

can include, among other things, misconduct,

negligence,

insubordination or continuous

unsatisfactory

performance,"

Id.

32.

"Ultimately," this Court must decide "whether

substantial evidence supports] the Board's

order." Nat’l Council, 1998-NMSC-036, f 9.

In his amended statement of appellate

issues,

Miller

sets

out

thirteen

points.

Regarding some arguments, including his

contention that the Board erred as a matter of

law in

submitting a purportedly illegal

reassignment as a finding of fact, as well as

Miller' s assertions that the Board erred in

submitting

unrelated,

misleading,

and

needlessly cumulative evidence, Miller has not

demonstrated that these issues are relevant to

his termination or would require reversal. His

allegations of fraud are unsupported by the

record. In his other points, Miller ultimately

argues that the charged violations were not

supported by substantial evidence and that the

discipline was not warranted.

For Incident 1, the Department received a

citizen complaint on July 27 alleging that

Miller was "'doing road rage,"' became involved

in a verbal argument, made comments about

other drivers, arid was involved in a hit-aridrun accident. [RP 0319; City Ex. IB] The

video supports allegations that Miller engaged

and escalated a verbal argument with another

driver, made inappropriate, offensive remarks,

and was involved in a minor accident.

In the video of the incident, Miller remarks,

"pull out in front of a bus, jackass." [City Ex.

IB, 8:55 a.m.; RP 0320] A few moments later,

while stopped, Miller takes out his laptop,

placing his right hand on the keyboard. [Id. at

8:57-9:01, RP 0320] Later, at 9:18 a.m., while

stopped at a bus stop, Miller takes out his cell

phone and opens it; he puts the phone away

and departs. [Id.]

10a

A vehicle travels from the center lane into the

right lane, in front of the bus; Miller honks

the horn for about seven seconds, then stops

the bus next to the vehicle, opening the bus

door. [Id. at 9:07, RP 0320] Miller states to

the driver, "What the hell is wrong with you,

retarded boy; that was really stupid, see these

passengers in here." [Id.] The driver responds,

with an expletive, and Miller states, "shut your

mouth up." [Id.] The driver threatened to pull

Miller out of the bus, and Miller states,

repeatedly, for the driver to "try it," securing

the bus, unfastening his seat belt, and turning

sideways in the seat, facing the open door, until

the driver, opening his door, asks, "you want to

fight?" [Id.] Miller continued, twice stating,

"you said you were going to pull me out, come

on and pull me out;" after the driver closes his

door and says "you pussy bitch," Miller

11a

responds, "you pussy boy, just like your

mama." [Id.] Finally, in response to another

expletive from the driver, expressing that he

knew where Miller works, Miller replies, "come

and find me." [Id.]

A few minutes later, a pickup truck is in front

of the bus, turning north, partially in the same

lane as the bus. [City Ex. IB, at 9:09; RP

0320] Miller crosses solid white lines, moving

partially into the center lane, in order to drive

around the pickup. [Id.]

While traveling on Carlisle, a gold vehicle in

the right lane, crossing a solid white line,

changes lanes in front of the bus; Miller honks

the horn for about five seconds. [City Ex. IB,

at 9:20; RP 0321] When the vehicle in front of

the gold car stops to turn into a gas station,

Miller again honks and applies his brakes hard

in order to avoid rear-ending the gold car,

12a

stating, "see what you almost did, you pathetic

piece of trash." [Id.]

About three minutes later, as Miller is

pulling away from a bus stop while vehicles are

traveling in the lane, a pickup truck makes

contact with the driver's side mirror of the bus.

[City Ex. IB, at 9:23; RP 0321] Miller follows

the truck into the left turn lane at Carlisle and

Lomas, pausing and calls dispatch, describing

the incident and giving the dispatcher the

license plate number. [Id.] He drives the bus

across three lanes of traffic, over solid white

lines, into the right hand turning lane. [Id.]

After stopping, Miller turns the bus on a red

light, pulling into the bus stop. [City Ex. IB,

at 9:26; RP 0321]

Suarez, the City's transit supervisor, in his

notification

predetermination

hearing,

described the personnel rules, administrative

13a

instructions,

and

regulations

issue,

including the MCO Manual. [RP 0321-5]

These include directives for serving the public

with respect and courtesy, reminders that the

public's safety and well-being is a driver's first

obligation, and emphasizes maintaining the

highest professional standards. [RP 0322] The

rules prohibit intimidation and verbal threats.

[Id.] The MCO Manual directs drivers to use

good customer relations skills in order to

diffuse any confrontational situation with

passengers and the public; drivers "shall not

provoke or aggravate any situation. Situations

that could lead to an altercation must not be

pursued." [RP 0324]

With respect to driving maneuvers, the MCO

Manual

provides,

when

entering

intersection, the driver must "be prepared to

make a smooth, safe stop in the event of signal

14a

changes," and, when stopped at a red light, the

vehicle "must not be put into motion until the

green traffic signal is displayed." [RP 0323] It

further provides that the driver must be

prepared to make safe, smooth stops to avoid a

collision and prevent passengers from falling if

another motorist is turning or stopping

suddenly in front of the vehicle, and to

maintain safe following distances. [RP 032324] A May 27, 2009, Cell Phone Policy, as well

as the Manual, prohibits cell phone use when

operating a City vehicle as a safety violation

and a major policy infraction; cell phone use is

allowed only at a "break point or recovery

time." [RP 0324-5]

Incident 2 resulted from a July 10, 2018,

citizen complaint alleging that Miller was on

his cell phone, cut off a vehicle, and was

generally not paying attention. [RP 0352; City

15a

Ex. 2B] Although there appears to be no

evidence of cell phone use, the video shows

examples of Miller' s language and driving

maneuvers of concern.

Miller, after servicing a bus stop, waits for a

pickup truck to pass in the left lane behind a

66 Central bus also paused at the bus stop; he

begins to move into the left lane when a silver

car traveling in the left lane has to brake in

order to prevent a collision with his bus, which

is partially in the left lane. [Id. at 3:58 p.m.]

As the other bus begins to depart, Miller turns

back into the right-hand lane, stating, "what

are you doing? You can't just pop out of the

driveway and sneak up under me. You see my

blinkers on. I was here first. Sneaking out of

the darn parking lot.” [Id.]

A few minutes later, a pickup truck is

traveling in the right lane next to Miller. [RP

16a

0353; City Ex. 2B, at 4:01] Miller attempts to

adjust his speed to get either in front of, or

behind, the truck, and states, "get out of the

damn way, boy," as he goes behind the pickup

and the vehicle honks at him. [Id.] He

responds, "you retarded moron, shut up. Are

you retarded, you were nowhere near my bus.

What are you doing honking the horn? You

damn mama, you four-eye, pathetic piece of

trash." [Id.]

Continuing on, Miller remarks, "retarded

pathetic idiots; I doubt you even graduated

from high school." [RP 0353 City Ex. 2B,

4:02] He further states, "how are you going to

sit there and accelerate about thirty-five with

the potential of getting hit on the back side,

and you make that right-hand lane-change,

why? You said, 'because I love being in an

17a

accident.' Their [sic] brain is that twisted.' [Id.

at 4:03]

While traveling behind a gray vehicle moving

forward with its right-hand turn signal

flashing, Miller moves left into the turn lane,

and then further left, partially into the ART

bus

lane,

marked

with

left-turn-only

indications clearly visible on the lane, in order

to pass and continue straight. [RP 0353 City

Ex. 2B, 4:08] He enters the intersection as the

vehicle is making a right turn, saying, "you

said thirty mph; keep up with traffic." [Id.]

Miller, traveling east-bound, comes upon a

pickup truck waiting to make a left turn. [RP

0352 City Ex. 2B, 4:10] Miller moves right,

squeezing between the pickup and the curb

before continuing through the intersection.

[Id.]

18a

Suarez,

the

Notification

Predetermination Hearing, again sets out

applicable rules and regulations. [RP 0352,

354-56] Suarez relied upon many of the rules

and regulations mentioned above, [/d.] In his

findings and recommendations with regard to

Incident 2, Suarez explains that Miller failed

carry

out

his

assigned

duties

and

responsibilities to the public when he changed

lanes to get around the bus without ensuring

that the lane was clear of traffic, and by

making derogatory remarks. [Id. at 0363-4]

Suarez noted that Miller did not come to a

complete stop prior to driving around a vehicle

that was stopped, waiting to make a left turn.

instead, he squeezed between the vehicle and

curb, failed to maintain a safe following

distance, made rude and insulting comments,

19a

and caused a vehicle to hit its brakes to avoid

running into the bus. [Id at 0364-5]

Incident

stemmed

from

two

citizen

complaints received on July 17, 2018, alleging

that Miller started honking and revving the

engine when a female senior citizen did not

immediately proceed when the light turned

green, flipping off the driver, and that he

"honks at everyone," drives violently, makes

sharp turns, and talks on the phone while

driving. [RP 0381; City Ex. 3C] Although

Miller does not flip off the driver, he honks,

drives

aggressively,

and

uses

improper

language.

While traveling eastbound on Central in the

left lane, a pickup truck traveling in the right

lane moves into the left lane, appearing to have

its left blinker on, in front of Miller. [RP 0382;

20a

City Ex. 3C, at 1:48] Miller honks, saying,

"get your behind away from my bus, you punk;

your mama, trash." [Id.] About ten minutes

later, Miller was behind a car, which was

stopped at the light with its left turn blinker

on. [RP 0382 City Ex. 3C, at 1:59] The light

changes, with the car waiting to turn left;

Miller proceeds to the right of the car, between

the car and the curb [Id.] As he approaches an

intersection, on a green light, people are in the

crosswalk; Miller honks, stating, "look at the

light,

man,"

proceeding

through

the

intersection. [Id.] While stopped at a bus stop

Miller takes out his cell phone, tapping on the

screen. [RP 0382 City Ex. 3C, at 2:01]

A few minutes later, as a pickup truck was

partially in the travel lane, either parked or in

the process of parking, Miller moves left into

the ART lane across double white lines to drive

21a

around the pickup. [RP 0382 City Ex. 3C, at

2:08] He honks, saying, "get the car out of the

road, if you can't drive, don't drive. Stay out of

the traffic lane." [Id.]

A green car in front of Miller pulls over to the

curb [RP 0382; City Ex. 3C, at 2:12] Miller

says, "you should know better than that,"

"worthless trash," and "jackass." [Id. at 2:1214] About a minute later, Miller moves from

the travel lane into the right-hand turn lane,

proceeding forward through the intersection.

[Id. at 2: 15] Another minute later, Miller,

seeing one vehicle going around the other,

honks, saying "the speed limit is thirty-five,

you retarded idiot. Read the speed limit sign.

Get off the road if you don't know what you're

doing. No wonder the guy's mad at you." [Id. at

2:16-17]

22a

Next, Miller is in the left turn lane, behind

two other vehicles waiting to turn, while the

light is red. [RP 0383; City Ex. 3C, at 2:22]

When the left turn arrow turns green, Miller

honks twice, saying "drive on boy, what the hell

are you looking at?” [Id.] He does not flip off

the driver, instead raising his arm three times.

[Id.]

While waiting at a bus stop, Miller takes out

his cell phone after loading the passengers.

[RP 0383; City Ex, 3C, at 2:24] A car passes,

honking; Miller responds, "yeah, you idiot."

[Id.] After a few minutes, Miller puts his cell

phone away and begins to pull out of the bus

stop; a male is walking next to the bus by the

midway point, appearing to be trying to catch

the bus, but Miller does not appear to check the

stop prior to departing. [Id. at 2:27] Finally,

while traveling behind a car, both the car and

23a

Miller move into the right lane, [Id. at 2:31]

Miller honks, saying something unintelligible,

then "boy." [Id.]

Suarez, in his findings and recommendations

for this incident, lists the rules, MCO Manual,

and regulations applicable to the conduct. [RP

0381; 384-9] These mirror those described

above, [/d.]

As noted above, Miller received training

concerning safely driving his bus as well as

traffic

safety,

driving laws

and

safety

technique, de-escalation, conflict resolution,

the

MCO

Manual

requirements,

professionalism and drivers being held to high

standard, as well as dealing with members

ofthe

public.

[RP

0474-75;

LaPlante

Testimony, Day 1 at 4:38-:39; 4:41-:44]

Miller, on the other hand, while agreeing that

received

some

training by

Training

24a

Specialist LaPlante, emphasized that he did

not

receive

"professional"

de-escalation

training. [Miller Testimony, Day 1]

Suarez testified with regard to the incidents,

explaining his concerns and the violations of

safety rules when Miller crossed solid white

lines, how only one vehicle is allowed in a

single lane, and why particular maneuvers

were unsafe. [Suarez Testimony, Day 1, at

5:21; 5:38; 5:42; 4:45-:53] LaPlante also

testified that Miller's driving conduct was

unsafe and improper, noting that Miller should

not have entered the crosswalk if pedestrians

were present under the Manual, that he should

not turn on a red light, that he should yield

right of way to other drivers, that he should

stay in his lane, that he should not cross solid

white lines, that there is only one vehicle in a

lane, and that, because large vehicles do not

25a

stop quickly, Miller must maintain appropriate

following distances. [LaPlante Testimony,

Day 1, at 4:47-:49; :53; 5:21; 5:38] He

explained

the

violations

rules

and

regulations, and why Miller's maneuvers were

unsafe, for each incident. [Id. at 5:42-:53]

Toon

testified

regarding

Miller's

inappropriate language and his inability to

control his language, expressing that he had

previously not encountered such escalating

comments,

and recalling Miller'

s prior

disciplinary incident in which Miller left his

route to follow a driver without getting

assistance. [Toon Testimony, Day 1, at 2:58;

3:00-:01; 3:03-:04] He stated that Miller's

language showed contempt for other drivers,

and

could

escalate,

not

diffuse,

tense

situations. [Id. at 3:18; 3:20] Toon testified

that it was inappropriate to honk at people in

26a

the crosswalk. [Id at 3:20] Toon similarly

described Miller's concerning driving behavior,

squeezing between a car and the curb, driving

abruptly, and going into the ART bus lane. [Id.

at 3:10-: 11] Toon found Miller's behavior

justified his termination because he did not

believe that Miller could be rehabilitated, as

the anger management class Miller attended

after the earlier disciplinary incident did not

help. [Id. at 3:29-:35]

Suarez, LaPlante and Toon discussed the cell

phone policy, explaining that drivers were

prohibited from using the cell phones unless at

a break point or during recovery time, although

the meaning of this prohibition was contested

Miller

during

the

hearing.

[Toon

Testimony, Day 1, at 2:58-:59; LaPlante

Testimony, Day 1, at 4:44-:46; 5:05-:06;

Suarez Testimony, Day 1, at 5:35-:36]

27a

Miller argues, as he did below, that the City

was critically short of drivers during the period

in question, noting that the City drafted

drivers to work on days off, sometimes

resulting in him working with less than eight

hours of rest before working another shift,

causing fatigue and difficulty in maintaining

his tolerance. [See, e.g., Miller Testimony,

Day 1, at l:33-:39; Amend. SAI, at 3] While

Miller

conceded

that

bore

some

responsibility for the escalating incident with

the other driver in the first incident, that his

driving was aggressive, but not road rage, and

he acknowledged that his language was

unprofessional, he points out that he served

the City with professional competence, with

only a few conflicts, and without historical

patterns of incidents, for over two years. [See,

e.g., id. at l:40-:42; Amend. SAI, at 3]

28a

The Court acknowledges the challenging

conditions Miller faced as a driver generally

and with respect to extra work hours.

However? he was given the opportunity to

present this information during the hearing,

and the Board had the discretion to take this

into consideration when determining the

proper level of discipline for the charges. Cf.

Las Cruces Profl Fire Fighters & Int 'l Ass 'n of

Fire Fighters, Local No. 2362 v. City of Las

Cruces, 1997-NMCA-044, f 12, 123 N.M 329,

940 P 2d 177 ("In accordance with the standard

of review, when considering a claim of

insufficiency of the evidence, the appellate

court resolves all disputes of facts in favor of

the

successful

party

and

reasonable inferences in

indulges

support

all

of the

prevailing party."). Similarly, the Board was in

the position to review both his positive work

29a

history as well as his

prior disciplinary

incidents and corrective actions.

The Court recognizes that the video shows

Miller treating his passengers respectfully,

and that many thanked him as they exited his

bus. The Court further acknowledges that

Miller's behavior during the hearing below

reflected his particular helpfulness and calm,

respectful manner. However, the Board could

determine that the troubling incidents while

operating

his

bus

outweighed

his

good

behavior. Cf. Nat’l Council, 1988-NMSC-042,1

8 ("To conclude that an administrative decision

is supported by substantial evidence in the

whole record, the court must be satisfied that

the evidence demonstrates the reasonableness

of the decision.").

Miller argues that the allegations made in

the

citizen

complaints

were

false

and

30a

unsupported, and should have been dismissed.

The Court agrees with the City that the citizen

complaints triggered its investigation into the

video footage, where Miller's improper conduct

was discovered and substantiated. As set out in

detail above, the Court concludes that the

Board's determination was supported by

substantial evidence and was in accordance

with law. Even if there is some dispute as to

violations of the cell phone and laptop policy,

Miller's use of language, escalation of a dispute

with another driver, and his improper driving

maneuvers support the Board's findings of fact

and conclusions of law, including termination.

Cf.

Martinez

(concluding

2000-NMCA-074,

that

substantial

evidence

supported just cause to terminate based on

misconduct, insubordination, and abusive and

threatening behavior).

31a

Conclusion

The Court AFFIRMS the determination of the

Board.

IT IS SO ORDERED.

/s/ Beatrice J. Brickhouse

Beatrice J. Brickhouse

District Court Judge

This is to certify that a true and correct copy of the

foregoing document was mailed/delivered/or

otherwise provided to Eric Miller and the Board on

this 20 day of May 2022.

D-202-CV-2021-04615

32a

APPENDIX B: ORDER OF THE CITY OF

ALBUQUERQUE PERSONNEL BOARD,

FILED DECEMBER 9, 2020

BEFORE THE CITY OF ALBUQUERQUE

PERSONNEL BOARD

PB 19-02

IN THE MA TTER OF ERIC MILLER, a

terminated employee ALBUQUERQUE

TRANSIT DEPARTMENT

ORDER

Pursuant to Chapter 3, Article I, Section 25 of the

Revised Ordinances of Albuquerque ('ROA") 1994, "a

nonprobationary employee who has been suspended

without pay for more than five days, demoted for

disciplinary reasons, or discharged may appeal the

discipline to the Personnel Board within ten calendar

days of the occurrence of the disciplinary decision. "

Section 3-1-25 (A) ROA 1994. The City Personnel

Board referred this appeal to a Personnel Hearing

Officer to conduct an evidentiary hearing and the

Hearing Officer prepared and submitted to the Board

and the parties a report containing a summary of the

33a

evidence taken at the hearing and proposed findings

of fact, pursuant to Section 3-1-25 (C) ROA 1994.

"The Board shall render a decision that shall

include findings of fact and conclusions of law

consistent with the evidence. The proceedings before

the Personnel Board shall be limited to consideration

of the

Hearing Officer's

Report,

any written

submissions of the parties, and, at the Board's option,

oral argument by the parties concerning the evidence

admitted at the hearing. The Board shall not hear

any

testimony.

tie

vote

upholds

the

recommendation of the Hearing Officer." Section 3-125 (D) ROA 1994. "The Board may take one of the

following actions: (1) Accept the recommendation of

the Hearing Officer by accepting the Hearing

Officer's Proposed Findings of Fact and entering

conclusions of law consistent with the findings; (2)

Reverse or modify the recommendation of the

Hearing Officer by making its own Findings of Fact

34a

consistent with the evidence and entering conclusions

of law consistent with the findings; or (3) Remand the

matter to a Personnel Hearing Officer for further

hearing. "Section 3-1-25 (D) ROA 1994.

Following oral argument by the parties, in open

session of the Personnel Board's December 9. 2020

Regular Meeting, regarding the Hearing Officer's

Recommendations for PB 19-02 In the Matter of

Eric Miller, a terminated employee of the

Albuquerque Transit Department, and upon

discussion by the Board in closed session, pursuant to

NMSA 1978, Section 10-15-1 (H)(2) of the Open

Meeting Act, the Board makes the following findings

of fact, conclusions of law and decision(s):

Findings of Fact

Appellant

Eric

Miller

worked

the

Albuquerque Transit Department as a Motorcoach

Operator ("MCO") from October 17, 2015, to January

35a

15, 2019. (Miller Testimony, Vol. 1, 12:1; City

Exhibits 1H, 21, 3J)

On June 27, 2018, the Transit Department

received a Citizen Complaint alleging Appellant

Miller was "doing road rage" and was involved in a

hit and run accident. (Incident #1). In Mr. Miller's

hearing before this Board, Miller denied the

allegation of "road rage" and admitted to his liability

in the involvement of the hit and run accident. (City

Exhibit IA)

On July 10, 2018 Transit received another

Citizen Complaint about Miller (Incident #2)

alleging that Miller was on his cell phone, cutting off

vehicle, and generally not paying attention. Again,

Miller denied the allegations. (City Exhibit 2A)

On July 17, 2018, Transit Department received

two separate Citizen Complaints alleging that Miller

"honks at everything, drives violently, and flipped off

36a

a driver. " Appellant denied these allegations.

(Incident #3) (City Exhibits 3A & 3B)

Transit

Supervisor,

Operations

Division

Rolando Suarez viewed Miller's bus videos from June

27, 2018, July 10, 2018 and July 17, 2018 and

prepared

timestamped

descriptions

each

questionable action that might constitute a potential

PRR and Motorcoach Operator's Manual violation for

each date which he included in the Notices of

Predetermination Hearing for each Incident. (City

Exhibit IE, 2B, and 3K)

Video evidence showed Miller committing the

acts complained of, and those acts were infractions of

City and MCO policies and regulations that could

result in discipline up to and including termination.

Mr. Suarez appropriately issued Notices of

Investigation, Notices of Predetermination Hearings;

held Predetermination Hearings and submitted his

Findings and Recommendations finding that Miller

37a

violated all allegations set forth in the Notices of

Predetermination Hearing.

On July 15, 2018, Miller was temporarily

reassigned to the Transit Department Maintenance

Division. (City Exhibit 3E)

On January 15, 2019, Transit Director Toon

issued Notices of Final Action for Incidents #1, #2 and

#3; each found there was just cause for termination.

(City Exhibits 1H, 21, 3J). Miller received and signed

for the Notices of Final Action on January 15, 2019.

Id.

10.

During his tenure with

Transit,

Miller

received training about safety driving his bus and

traffic

safety;

de-escalation;

the

Motorcoach

Operator's Manual and professionalism and dealing

with members of the public. (LaPlante Testimony, Tr.

Vol. I, 159:13-160:9; 157:23-158:15; 164:11-25)

11.

Miller's improper use of electronic devices

while operating the bus and his reckless driving and

38a

cursing members of the public were aggressive and

inappropriate actions and violated City RRRs, Phone

Polict and MCOs. (City Exhibits IB, 2B, & 3C; Miller

Exhibit 2A) City Exhibit 18; LaPlante Testimony, Tr.

Vol. I, 161:2-22; 180:2-8; Suarez Testimony, Tr. Vol.

I, 212:9-14)

12.

In the year prior to the incidents at issue here,

Mr. Miller was twice disciplined for similar behavior,

resulting in two suspensions without pay. (City

Exhibits 5 & 6)

13.

Transit Director Toon did not feel it was safe

for Mr. Miller to continue interacting with the public

and terminating his employment on January 15,

2019. (City Exhibits 1H, 21, 3J; Toon Testimony, Tr.

Vol I, 111:24-112:2)

Conclusions of Law

The City Personnel Board has jurisdiction of

the parties and subject matter herein, pursuant to §31-25 et. seq., ROA 1994.

39a

The

hearing

complied

with

procedural

safeguards required by the Personnel Board Rules

and applicable City ordinances, and the parties were

given full opportunity to present evidence and crossexamine witnesses.

The City sufficiently complied with the

disciplinary procedures required in P.R.R. 5902.2,

and Appellant was accorded due process of law.

The burden of proof rests with the City to

prove, by a preponderance of evidence, that its

disciplinary actions were warranted by just cause and

that the disciplinary action was reasonable under the

circumstances. Rule 10 (E), Personnel Board Rules of

Procedure for Appeals of Disciplinary Actions

(Adopted 9/8/93, revised 11/13/13); Martinez v. NM

State Engineer Office, 2000 NMCA 74 (NM App.,

2000).

Just cause is any behavior significant or

substantial in nature related to the employee's work

40a

and conduct that is inconsistent with the employee's

obligation to the City.

The City proved by a preponderance of the

evidence that its disciplinary actions were warranted

and that there was just cause to terminate Mr.

Miller's employment.

The City Personnel Board does not have

statutory authority to address Mr. Miller's future

employment with the City, once a determination has

been made that the City had just cause in

terminating Mr. Miller's employment.

The City Personnel Board has statutory

authority, pursuant to §53-1-25 (E) ROA1994, to take

one

of the

following

actions:

(1)

the

recommendation of the Hearing Officer by accepting

the Hearing Officer's Proposed Findings of Fact and

entering conclusions of law consistent with the

findings; (2) Reverse or modify the recommendation

of the Hearing Officer by making its own Findings of

41a

Fact consistent with the evidence and entering

conclusions of law consistent with the findings; or (3)

Remand the matter to a Personnel Hearing Officer

for further hearing.

Decision of the Board

Based on the above stated findings of fact and

conclusions of law, the Board determines that

termination was warranted by just cause and was

appropriate and reasonable under the circumstances.

The Board further determines that it does not have

statutory authority to address Mr. Miller's future

employment with the City. Accordingly, the Board

hereby

accepts

the

Hearing

Officer's

Recommendation that "the City's termination of Eric

Miller's employment as a Motorcoach operator be

sustained" and does not take any action on the

Hearing Officer's additional recommendations to the

City regarding Mr. Miller's future employment with

the City. See Recommendation of the Hearing Officer.

42a

By a vote of 3 "Ayes" and 0 "Nays," the Board

determines that termination is the appropriate

level of discipline.

IT IS SO ORDERED.

/s/ Sonja Brown

12/20/20

Sonja Brown, Chair

Is/ John Castillo

1/7/21

John Castillo

/s/ Zone Reeves

Thomas Zane Reeves

12/29/20

43a

APPENDIX C: ORDER AND OPINION OF THE

COURT OF APPEALS FOR THE TENTH CIRCUIT,

IN RE ARMIJO, 1976-NMCA-032

Appeal of Cora S. ARMIJO and Robert E. Fox

et al., from the Orders of the County

Evaluation Protest Board of Bernalillo

County.

No. 2234

COURT OF APPEALS OF NEW MEXICO

1976-NMCA-032, 89 N.M. 131, 548 P.2d 93

March 16, 1976

COUNSEL

Thomas G. Cornish, Hannett, Hannett, Cornish &

Barnhart, Albuquerque, for appellants.

Sandra Grisham, Albuquerque, for appellee.

Toney Anaya, Atty. Gen., John C. Cook, Joseph T.

Sprague, Asst. Attys. Gen., Santa Fe, amicus curiae.

JUDGES

LOPEZ, J., wrote the opinion. SUTIN, J., concurs.

HERNANDEZ, J., concurs in the result only.

AUTHOR: LOPEZ

OPINION

LOPEZ, Judge.

44a

{1} Cora Armijo and Robert Fox appeal orders of the

Bernalillo County Valuation Protests Board denying

their requests for change in the valuation records of

the county assessor in respect to the "full value"

placed on their respective properties. We reverse and

remand.

{2} Cora Armijo owns about 2400 acres and Fox owns

about 1755 acres in the west side of Albuquerque, New

Mexico.

Both

taxpayers

protest

the

amounts

determined by the assessor to be the full or market

value of their respective properties. Taxpayers do not

protest the amount of taxes or the taxable value of the

properties.

{3} The protests were authorized under § 72-31-24,

N.M.S.A. 1953 (Repl. Vol. 10, pt. 2, Supp.1975). This

section states in part:

"A property owner may protest the value

determined by the county assessor for his

property for property taxation purposes or the

assessor's allocation of value of his property to

a particular governmental unit by filing a

petition with the assessor. Filing a petition in

45a

accordance with this section entitles the

property owner to a hearing on his protest."

{4} The taxpayers do not protest the amount of taxes

nor the taxable value of the properties determined by

the county assessor. Nonetheless, under § 72-31-24,

supra, they have a right to protest the county

assessor's determination of the "full" or "market

value" of their properties.

{5} There is no issue in this appeal that the properties

were properly classified as grazing lands for tax

purposes pursuant to § 72-29-9, N.M.S.A. 1953 (Repl.

Vol. 10, pt. 2, Supp.1975).

{6} The issue on appeal is whether the county

assessor, once having classified the properties as

grazing lands, pursuant to § 72-29-9, supra, should

also have determined the {*132} full value in a

manner consistent with that classification.

{7} Section 72-29-9(A), N.M.S.A. 1953 (Repl. Vol. 10,

pt. 2, Supp.1975) reads as follows:

46a

"A. The value of land used primarily for

agricultural purposes shall be determined on

the basis of the land's capacity to produce

agricultural products.

The burden of

demonstrating primary agricultural use is on

the owner of the land, and he must produce

objective evidence of bona fide agricultural use

for the year preceding the year in which

application is made for his land to be valued

under this section. The fact that land was

devoted to agricultural use in the preceding

year is not of itself sufficient evidence to

support a finding of bona fide primary

agricultural use when there is evidence that the

agricultural use was subordinate to another

use or purpose of the owner, such as holding for

speculative land subdivision and sale,

commercial use of a nonagricultural character,

recreational use or other nonagricultural

purpose."

{8} At the protest hearing, the testimony of Armijo

revealed that the market value of the properties was

$25.00 per acre; Fox did not introduce any evidence as

to the market value of his property. The assessor

introduced evidence that the full or market value of

properties was $200.00 per acre. The board found,

consistent with the testimony of the county assessor,

that the full or market value of the property was

$200.00 per acre. The transcript reveals that the

47a

estimate produced by the county assessor's

witness of $200.00 an acre was based upon

comparable sales. Our duty is to determine whether

or not the board's conclusion that the assessor was

right in determining the full and market value of the

property at $200.00 an acre is supported by the

evidence and is in accordance with the law. In Matter

of Protest of Miller, 88 N.M. 492, 542 P.2d 1182 (Ct.

App.1975).

{9} We conclude that since the county assessor had

already classified the property as grazing land, any

valuation of the full or market value of the property

would have to be based upon the provisions of § 72-299, supra.

{10} In Matter of Protest of Miller, supra, this

Court said:

"If there is substantial evidence in the record to

support a decision of a county valuation

protests board, we are bound thereby. United

Veterans Org. v. New Mexico Prop. App.

Dept., 84 N.M. 114, 500 P.2d 199 (Ct.

48a

App.1972). In deciding if there is substantial

evidence to support the decision,

we must view the evidence in the most

favorable light to support the finding and we

will reverse only if convinced that the evidence

thus viewed, together with all reasonable

inferences to be drawn therefrom cannot

sustain the finding. Further, only favorable

evidence and the inferences to be drawn

therefrom, will be considered, and any evidence

unfavorable to the findings will not be

considered.'

"Id., 84 N.M. at 118, 500 P.2d at 203."

The evidence most favorable to the county was the

testimony of the county assessor that the property had

a full value of $200.00 per acre and this testimony was

based upon comparable sales. The criteria to

determine the value of agricultural lands for taxation

purposes such as the lands of the taxpayers is spelled

out in § 72-29-9(A), supra.

(Ill We conclude that the criteria to determine the

full or market value of the property used by the county

assessor was not correct and that the action of the

49a

protests board was not supported by substantial

evidence nor in accordance with the law.

{12} The case is reversed and the cause is remanded

to the protests board to proceed in accordance with §

72-29-9, supra, and in conformity with this opinion.

{13} IT IS SO ORDERED.

SUTIN, J., concurs.

HERNANDEZ, J., concurs in the result only.

50a

APPENDIX D: City Exhibit 1H - [RP 345]

EXHIBIT

City of Albuquerque

Transit Department

Tim Keller, Mayo*

Interoffice Memorandum

To:

Eric Miller, Motorcoach Operator, Employee ID

From:

Remie Toon, Director.Transit

Subject:

NOTICE OF FINAL ACTION

January 15,2019

A Pre-Detemriration Hearing was conducted on Friday, August 3,2018 at 2:45 pm, at the Yale Transit

Facility,’ located at 601 Yale Boulevard SE, Albuquerque, New Mexico. The purpose of this haring was

to provide you, and/m you: representative, with an opportunity to respond, orally or fn writing, to

allegations mentioned in the Notification of Pre-Determination Hearing memorandum signed February

26,2018. In attendance at the hearing was Rolando Suarez, Transit Supervisor/Opentiions, acting as the

hearing officer; yourself, Mr. Eric Miller, respondent; end Paul Froonjian, as your representative.

DESCRIPTION of ALLEGATIONS and PROVISIONS si ISSUE

The allegations are listed in detail on the Notification or Pre-Determination Heanngsigncd July 18,2018,

end on the attached Find tngs and Recommendations from the Hearing Officer. The hearing officer found

that you acted in violation of the City’s Personnel Rules and Regulations. Administrative Instructions, and

City of Albuquerque Transit Department Motorcoach Operator Manuel of Rules and Procedures, and that

just cause exists for discipline congruent with the violations.

11.

EMPLOYMENT HISTORY

In determining what action is appropriate, your employment history has been taken into consideration.

A review of Mr. Miller’s personnel file found the following:

•

Final Action issued June 21, 2018, Mandatory De-escalation Training and an Eight (8) Day Leave

Without Pay Suspension

•

Final Action issued August 17,2017,6dayleavcwithoutpay,and Anger Management Class- Violent

behavior towards passeogef after being spot at on April 24,2017

•

Letter of Instruction issued August 8,2017 - Oft Route on multiple dm« hetween May 29. 2017 July 23,2017

HI.

DISCIPLINE

I have reviewed the Findings and Recommendation from the Hearing Officer, attached hereto in full for

your review; and yoUr employmicnt history I find Acre is just cause for immediate termination from

employment with Ore CHy of Albiuquerque.

51a

APPENDIX E:

City Exhibit 3J — [RP 394]

EXHIBIT

City of Albuquerque

Transit Department

Tim Keller.

Interoffice Memorandum

To:

January IS, 2019

line Miller. Mokrrcoach Operator. Employee 1(5

From:

Bemic Toon, Director. Transit Depart

Subject:

NOTICE OF FINAL ACTION

A Pre-Determination Hearing was conducted on Monday. October 29, 2018. at 6:15 pm. at the

Yale Transit Facility, located at 601 Yale Boulevard SIS, Albuquerque. New Mexico. The purpose

of this hearing was to provide you. and/or your representative, with an opportunity io respond,

orally or in writing, to allegations mentioned in the Notification of Pre-Determination Hearing

memorandum signed February' 26,2018. In attendance at the hearing was Rolando Suarez. Transit

Supervisor/Operations, acting as the hearing officer: yourself. Mr. Eric Miller, respondent; and

Paul Froonjian. as your representative.

DESCRIPTION of ALLEGATIONS and PROVISIONS at ISSUE

The allegations are listed in detail on the Notification of Pre-Determination Hearing signed

October 16,2018. and on the attached Findings and Recommendations from the Hearing Officer.

The hearing officer found that you acted in violation of the City's Personnel Rules and Regulations.

Administrative Instructions, and CUv of Albuquerque Transit Department Motoreoach Operator

Manuel of Rules and Procedures, and that just cause exists for discipline congruent with the

violations,

II.

EMPLOYMENT HISTORY

In determining what action is appropriate, your employment history has been taken into

consideration. A review of Mr. Millers personnel file found the following:

■ Final Action issued January 15, 2019, Termination. Behavior on July 10,2018

■

Final Action issued January 15,2019. Termination. Behavior on June 27,20t 8

•

Final Action issued June 21. 2018. Mandatory De-escalation Training and an Eight (8) Day

Ixavc Without Pay Suspension

52a

APPENDIX F:

City Exhibit 21 — [RP 370]

EXHIBIT

City of Albuquerque

Transit Department

Tim Relief. Mayor

Interoffice Memorandum

January 15, 2019

To:

Erie Miller, Molorcoich Operator, Employee ID flj

From:

Hemic Toon. Director, Transit Dcpnrtmept^^^^*

Subject:

NOTICE OF FINAL ACTION

A Pre-Determination Hearing was conducted on Friday. August 3.2018 at 2:45 pm, at the Yale

Transit Facility, located at 601 Yale Boulevard SE, Albuquerque, New Mexico. The purpose of

this hearing was to provide you. and'or your representative, with an opportunity to respond, orally

or in writing, to allegations mentioned in the Notification of Pre-Determination Hearing

memorandum signed February 26.2018. In attendance at the hearing was Rolando Suarez. Transit

Supemsor/Operattons, acting as the hearing officer; yourself. Mr. Eric Miller, respondent; and

Paul Froonjian, as your representative.

DESCRIPTION of ALLEGATIONS and PROVISIONS at ISSUE

The allegations arc listed in detail on the Notification of Pre-Determination Hearing signed

October 16.2018. and on the attached Findings and Recommendations from the Hearing Officer,

The hearing officer found that you acted in violation of the City's Personnel Rules and Regulations,

Administrative Instructions, and City of Albuquerque Transit Department Motorcooch Operator

Manuel of Rules and Procedures, and that just cause exists for discipline congruent with the

violations.

II.

employment history

In determining what action is appropriate, your employment history has been taken into

consideration. A review of Mr. Millers personnel file found the following:

• Final Action issued January 15,2019. Termination. Behavior on June 27.2018

• Final Action issued June 21. 2018. Mandatory Dc-cscalation Training and an Eight (8) Day

I .cave Without Pay Suspension

•

Final Action issued August 17.2017.6 day leave without pay, and Anger Management Class

- Violent behavior towards passenger aficr being spat at on April 24.2017

53a

APPENDIX G:

City Exhibit 3E - [RP 377]

^^RtDE.

intradepartmentai memorandum

StnuHj toon. fiWH* OkW.o*

Date:

July 18.2018

To:

Eric Miller, Moioreoach Operator (|

From:

BcraieToon.DeittrtnMrtDifectoroFTran^p^-* *

'•

Subject: Director Order/TempOTary Reassignment

The City of Albuquerque recently provided you seven! Notices of Investigation and is currently

investigating you regarding allegations of inappropriate conduct that may constitute viohiions of

the City"* Personnel Rules and Regulations. Effective, Saturday. July 21.2018, and during the

course of the investigation you art temporarily reassigned to the Maintenance Division within the

Transit Department. Your Tide, Grade, and Salary will remain the same: Motortoach Operator.

Q00, $14.26 hourly.

You are scheduled for suspension days on Saturday. Sunday and Monday. July 21, through 23*

2018. Tuesday and Wednesday. July 24, end 25. 2018 will be your day* off for this week, then

you are to report, Thursday, July 26, 2018, to the Yale Transit Facility, located at 601 Yale

Boulevard SE, Albuquerque. New Mexico 87106, for your reassignment. You will be assigned to

Vehicle Servicing Supervisor, Antonio Berumen, who will review yourjob assignment duties with

you. Mr. Berumerfs phone number is 505-764-6130. If you are unable to make ft to work you

must call in each day you will be absent. Your scheduled workdays and hours beginning Saturday,

July 28.2018, will be as follows: Monday through Friday, 3:30 p.m. io 12:00 a jn.

if you have any questions regarding this reassignment, please contact Victor Lovato. Senior

Personnel/Labor Relations Officer, at 724-3108 or by cell at 366-7275.

Thank you for your cooperation in this matter^

/S'-

l/iA.

oyee Signature /

Copy to:

Annette Paex, Deputy Director

Victor Lovato. Sr. Personnel/Labor Relations Officer

Mike Baca. Assistant Transit Manager. Maintenance

Stephen Meycrhein, Assistant Transit Manager, Maintenance

Department File/Personnel File

Date

54a

APPENDIX H:

City Exhibit 6 - [RP 407]

EXHIBIT

City of Albuquerque

Transit Department

Tim Keller, Mayor

Interoffice Memorandum

Jane 21,2418

Eric Miller, Motorcoadr Operator, Employee 101

To:

From:

Bentte Toon. Director. Transit Deptrtrqjpf^^

Subject:

NOTICE OF FINAL ACTION

A Pre-Determination Hearing was conducted on Wednesday, March 7, 2018 at 2:15 pm, fit the Yale

Transit Facility, located at 601 Yale Boulevard SE, Albuquerque, New Mexico. The purpose of this

hearing was to provide you, and/or your representative, with an opportunity to respond, orally or in

writing, to allegations mentioned in the Notification of Pre-Determination Hearing memorandum signed

February 26,2018. In attendance at (he hearing was Shaun R. Gibson, acting os the hearing officer, and

Mr. Eric Miller, who elected to attend the hearing without a representative present.

DESCRIPTION of ALLEGATIONS and PROVISIONS at ISSUE

The allegations ore listed m detail on (he Notification of Pre-Determination Hearing signed February 26,

2018. and on the attached Findings and Recommendations from the Hearing Officer. The hearing officer

found that you acted in violation of the City's Personnel Roles and Regulations, Administrative

Instructions, and City of Albuquerque Transit Department Motorcoach Operator Manuel of Rules and

Procedures, and that just cause exists for discipline congruent with the violations.

EMPLOYMENT HISTORY

la determining what action is appropriate, your employment history has been token into consideration.

A review of Mr. Miller's personnel file found the following:

* Final Action issued August 17,2017,6 day leave without pay, and Anger Management Class -Violent

behavior towards passenger after being spat ot on April 24,2017

• Letter of Instruction issued August 8,2017 - Off Route on multiple dates between May 29,2017 ■

July 23,2017

III.

DISCIPLINE

1 have reviewed the Findings and Recommendation from the Hearing Officer, attached here in full for

your review; and your employment history I find (here is just cause for mandatory De-escciation

Retraining, and an Eight <8) Day Leave Without Pay Suspension. This suspension will be served on the

following doys:

• Saturday. July 21.2018

• Sunday. July 22.2018

• Monday. July 23.2018

000(1 111

55a

APPENDIX I:

City Exhibit 5, [RP 407]

EXHIBIT

INTRADEPARTMENTAli MEMORANDUM

tfs

Date:

August 17,2017

To:

Eric MTlkr, Moan Coach Operator, Operaiionr Division, Transit Department

From:

Bnjce Ritderl, Director, Transit Departmcn^^-^^

Subject:

2 REVISED NOTIFICATION OF FINAL ACTION Doe to Vaeatjert Schedule

hidden! of April 2*. 2017

Summary of Incident Violent Behavior Towards Passenger After Being Spat At

Action: Six-Oays Leave Widtooi Pay and Anger Manage men! Clan

Summary Description of Allegation

An incident occurred on Monday, April 24,2017 on bus i 721 that APD responded to. A male

passenger spit at Mr. Miller and be threw ihe radio hand set at the male passenger and then dtased

him outride Ok bus where Mr. Miller got into a physical altercation with two males.

See attached. “Finding end Recommendation orPre-Deternsinatton Hearing - Erie Mitler Motor

Coach Operator

April 24.201 r. dated June 2.2017.

Pre-Determination Hearing Recommendation

The hearing officer efter reviewing all (he information and facts available to him/her in this matter,

any

provided during tie pre-determinerten hearing.'and the hearing officer's findings

(hat you violated sections of the City Personnel Roles and Regulations, and (he Department's

Motor rvvfh Opcratof/TrolIcy Operator Manual of Rules and Procedures cited In his/her Findings,

has recommended that the appropriate ievd of discipline be administered that is convent with

these violations.

Department Director'* DetermineHuh

ng reviewed the hearing officer** Findings, mfomwtfon in your pertemel fite^hbmg your

wort history, die appltcab

that yoiftje charged with violating, 1 have determined that die appropriate discipline in (his

nee is a *U (O - day leave vridtoot pay suspension and attendance ai an anget manager class.

instanee

- Trans

- sit Deparunent Human Resources section will ttrrangefbr and document your attendance

The

...................

at an anger management class. The leave without pay suspension

days wtil be served1 oo the

following days that reflect your new bid wort schedule:

August

ft, 27, and

September

18, and

56a

APPENDIX J:

Memorandum, July 28, 2017

HdtaMUCenr

**JOI

INTRADEPARTMENTAL MEMORANDUM

Ditft

July 28, 2017

Tot

Eric Miller. .Mot® Coach Operator, Operations Division. Transit Deportment

From:

Brace Rizzieri, Director. Tmniil Ocportment^®^'"'

Sshjeet:

NOTIFICATION OF FINAL ACTTON

Incident of April 24,2017

Summary of incident: Violent Behavior Towards Passenger After Being Spat At

Aetion: Six-Days Leave Without Fay end Anger Management Class

Samniaiy Dmfiptton of Allegation

An incident occurred on Mondaiy, April24.2017onbus*72l that APDrcsponded to. A male

passenger spit at Mr. Milter and he threw the radio hand set at (he mate passenger and then chased

him outside the bus where Mr. Miller got Into a physical ohercation with two males.

See attached, “Finding end Recommendation of Pre-Deicrtnimtiott Hearing - Erie Miller Motor

Coach Operator (000036996) April 24,201T, dated June 2,2017.

Pre-Determination Hearing Recommendation

The hearing officer after reviewing all the information and facta available to him/her in this matter,

any tespoam provided during the pre-determination hearing, and (he hearing officer's findings

that you violated sections of the City Personnel Rules and Regulations, and the Department's

Motor Coach Oper&tor/Trollcy Operator Manual of Rides and Procedures cited in his/her findings,

has recommended (hat (he appropriate level of discipline be administered (hat is congruent with

these violations.

Department Director's Determination

Hsving reviewed the hearing officer’s Findings, Information in your personnel file, including your

work history, the applicable sections of the rules and regulations, policies, rales and/or procedures

that you ere charged with violating. 1 have determined (hat the appropriate discipline in (his

instance is a i5k (6) - day leave without pay suspension and attendance at on anger manager class.

The Transit Department Human Resources section will arrange for and document your at:cj

at an anger management elm. The leave without pay suspension days will be served on:

August

8.22, and

September

I2,and

57a

APPENDIX K:

Memorandum, April 26, 2017

^^^RIDE

INTRADEI'A RTM ENTA L M EM OHANDUM

OWO0»

Date:

April 26,2017

To:

Eric Milter. Motor Coach Operator. Operations (000036996)

From:

UroCC ttiMifri. Dircctnr^^^

Subject:

Oirea Ordcr/Temporary Reassignment

Effective Saturday. April 29.2017. and until May 5.2017. you arc being temporarily reassigned

to the Maintenance Division within the Transit Department. Your Title. Grade and Salary will

remain the same: Motnreoach Operator. QOO. SI3.S4 hourly.

The purpose of this Direct Ordcr/Temporary Reassignment Is due to a citizen complaint received

alleging that you had a confrontation with a passenger on Itesday. April 25.2017.

You are to report Monday. May 1.2017. at 15:30 p.m„ to the Yale Moimenance Facility, located

at 601 Yale Rd N'W. 87106. for your reassignment to Vehicle Servicing Supervisor, Jason Black,

who wild review \trar job assignment duties with you. Your scheduled workdays and hours are

scheduled as follows: Monday thru Friday. 15:30 p.m. to 24:00 a.m.

Thank you fot your cooperation in this matter.

limploycc Signature

Date

Copy to:

Annette Pacz. Associate Director

Jim Carrillo. Maintenance Manager

Sandra Sniz, ABQ Ride Supervisor

Anthony Chavez. Transit Assistant Manager, Operations

Shaun Gibson. Transit Assistani Manager. Operations

Stephen Mcyerhria. Assistant Transit Manager. Maintenance

Jason Black. Vehicle Servicing Supervisor

Victor Invito. Sr. Personnel/Ubor Relations Officer

llepartmcnt Ftlc/Personncl File

58a

APPENDIX L: Awo

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59a

APPENDIX M:

PERSONNEL RULES AND REGULATIONS.

INTRODUCTION

The City of Albuquerque’s Merit System

Ordinance

establishes

the

framework

for

the

administration of the City’s personnel system.

Pursuant to the Merit System Ordinance, these

Personnel

Rules

promulgated

and

Regulations

interpret

and

are

hereby

implement

the

Ordinance.

These

Personnel

Rules

and

Regulations

establish the policies and practices which will be

followed by the City of Albuquerque in personnel

administration. They define a system based on merit

and the principles which govern the conditions of City

employment. The Personnel Rules and Regulations

shall be distributed to all departments, divisions,

sections, agencies and programs of the City in order

60a

that an official copy is accessible to all employees

during working hours.

These Personnel Rules and Regulations should

be interpreted as a whole rather than interpreting

individual sections or sentences in isolation and out of

context. Official interpretation of these Regulations

shall be made by the Human Resources Department.

They have the force and effect of law for the various

departments, agencies and special programs of the

City. The Personnel Rules and Regulations shall be

the only source and compilation of official directives

for personnel policies unless otherwise superceded by

Administrative Instructions or Collective Bargaining

Agreements.

Individual

department

policies,

rules,

regulations and procedures can be promulgated with

the concurrence of the Human Resources Director and

the approval of the Chief Administrative Officer to

ensure they are not in conflict with the substance of

61a

the Merit System Ordinance and the Personnel Rules

and Regulations.

These

Regulations

not

constitute

employment contract and may be amended by the

Human Resources Department, as necessary, with the

approval of the Chief Administrative Officer.

62a

APPENDIX N:

§ 3-1-1 THE MERIT SYSTEM.

In accordance with Article X of the Charter of

the city, there is hereby established a merit system

governing the hiring, promotion and discharge of

employees and providing for the general regulation

of employees. Pursuant to the Charter, the Mayor

designates the Chief Administrative Officer of the

city to be responsible for the administration of the

merit system. The Chief Administrative Officer is

authorized to establish Rules and Regulations to

implement this article. If this article conflicts with

any federal law, federal law will control. See also

Article X. Merit System. App. 77a.

('74 Code, § 2-9-1) (Ord. 52-1978; Am. Ord. 29-1998)

63a

APPENDIX O:

§ 3-1-2 RESPONSIBILITIES OF THE

CHIEF ADMINISTRATIVE OFFICER

FOR PERSONNEL FUNCTIONS.

(A)

The Chief Administrative Officer shall have

the following responsibilities:

To exercise leadership in and encourage

(1)

the development of effective personnel

administration within the departments, agencies,

and special programs in the city service;

(2)

To recommend changes to this article for

consideration by the City Council;

(3)

approve

Personnel

Rules

and

Regulations prior to their final adoption and

publication by the Director of Human Resources as

provided in this article;

To issue administrative instructions to

(4)

provide policy and guidance in furtherance of and

limited

the

responsibilities

the

Chief

64a

Administrative Officer specifically granted by this

article;

(5)

To approve a compensation plan as

recommended by the Director of Human Resources

for classified city employees consistent with other

provisions of this article; and

(6)

designate

Deputy

Chief

Administrative Officer or a department head to

assume the duties of the Chief Administrative Officer

in the event of his or her inability to act or absence

from the city.

(B)

The power of appointment or promotion to a

position in the classified or unclassified service

of the city shall rest with the Chief Administrative

Officer; provided that, in the absence of a written

directive to the contrary signed by the Chief

Administrative Officer, such power may be exercised

65a

by the administrative head of a city department,

agency or special program for the positions within

such department, agency or special program.

(C)

Pursuant to and within the authority granted

the

charter

and

this

article,

the

Chief

Administrative Officer shall have the following

authority:

(1)

To direct the work of city employees;

(2)

To hire, promote, evaluate, transfer, and

assign employees;

(3)

To reprimand, suspend, demote or

discharge unclassified employees and to reprimand.

suspend, demote or discharge classified employees for

just cause;

(4)

To determine staffing requirements;

(5)

To maintain the efficiency of the city

government and ensure the carrying out of normal

management functions;

66a

(6)

To take actions as may be necessary to

carry out the mission of the city government in

emergencies; and

(7)

To manage and to exercise judgment on

all matters specifically within his or her authority

pursuant to the charter or this article and not

prohibited by a collective bargaining agreement in

effect between the city employer and an employee

organization.

(D)

The Chief Administrative Officer shall have no

power or authority to appoint the Director of Council

Services or to hire, promote, discipline or discharge

the staff of the offices of the City Council, which shall

be the responsibility of the Director of Council

Services.

('74 Code, § 2-9-2) (Ord. 52-1978; Am. Ord. 69-1988;

Am. Ord. 29-1998; Am. Ord. 7-2010)

67a

APPENDIX P:

§3-1-9 PERFORMANCE EVALUATIONS.

(A)

The

Chief

Administrative

Officer

shall

establish a system to evaluate the work performance

city

employees

the

classified

service.

Performance evaluations or ratings shall not be the

subject of a grievance.

(B)

The

performance

evaluation

system

will

provide for:

(1)

Performance standards that will, to the

maximum extent feasible, permit the accurate

evaluation of job performance on the basis of objective

criteria related to the job in question for each

employee or position in the classified system;

(2)

Communication with each employee as

to the performance standards and critical elements

of the employee's position;

68a

(3)

An opportunity during a specified period of time

for the employee to demonstrate an improvement in

performance; and

(4)

Appropriate disciplinary action to be taken if

performance is inadequate including dismissal or

demotion for an employee who continues to have

unacceptable performance after an opportunity to

demonstrate acceptable performance.

(C)

The work performance of an employee shall be

officially

evaluated by

his

her

immediate

supervisor(s) at least once a year.

('74 Code, § 2-9-10) (Ord. 52-1978; Am. Ord. 30-1985;

Am. Ord. 29-1998)

69a

APPENDIX Q:

§ 3-1-23 DISCIPLINARY ACTIONS.

(A)

(1) Employees may be disciplined by written

reprimand, suspension, demotion or dismissal.

Just cause for discipline is any behavior significant or

substantial in nature relating to the employee's work

that is inconsistent with the employee's obligation to

the city. Just cause shall also include prohibited

retaliation

defined

the

Whistleblower

Ordinance and the Accountability in Government

Ordinance and the filing of frivolous complaints or

complaints based on false or confidential information

pursuant to the Whistleblower Ordinance and the

Accountability in Government Ordinance. The Chief

Administrative Officer may enumerate in Personnel

Rules and Regulations examples of behaviors that

constitute just cause.

(2) The Chief Administrative Officer, a Deputy

Chief Administrative Officer, a department director or

70a

an acting department director may impose any

discipline. Division heads may issue reprimands and

suspend an employee for five days or less after

informing the department head. An employee's

immediate supervisor may issue a reprimand after

informing the division head or department head.

(3)

Prior

passage

any

year-end

appropriation clean-up bill, the Chief Administrative

Officer shall review expenditures of each City

program strategy and determine which program

strategies overspent their annual appropriations in

excess of five percent or $100,000, whichever is lower,

prior to Council appropriation of the amount

overspent. This level of overexpenditure constitutes a

violation of §§ 2-11-12 and 2-11-16 ROA1994. Because

management of program finances to conform to City

ordinances is a primary responsibility of all City

program directors, the Chief Administrative Officer

shall place a written reprimand in the personnel file

71a

of any program director whose program is overspent

by five percent or $100,000, whichever is lower, prior

to Council appropriation. A program director who

receives three reprimands for overspending his or her

budget prior to the passage of any year-end

appropriation clean-up bill by the Council during a

five-year period demonstrates a lack of financial

management skills critical to fulfilling the duties of a

program director and, therefore, shall be demoted one

grade and transferred to a position without financial

management responsibility.

(4) As a requirement of assuming office, each

department director shall execute an employment

contract with the City, one of the provisions of which

shall be that he or she will not allow their department

to overspend their appropriated budget nor allow any

program strategy to overspend its appropriated

budget prior to the passage of any year-end

appropriation

clean-up

bill

the

Council.

72a

Department directors responsible for departments

that overspend their budget prior to the passage of

any year-end appropriation clean-up bill in two years

during a period of four years shall be terminated. The

Chief Administrative Officer shall place a written

reprimand in the personnel file of any department

directors in the event that a program in the

department under the responsibility of the director

similarly overspends its budget appropriation.

(B)

No person except the Chief Administrative

Officer shall discipline heads of departments.

Only the Accountability in Government Committee

may discipline the Director of the Office of Internal

Audit and Investigations. In addition, only the

Director of Council Services may discipline other

employees of the Department of Council Services, and

only the Director of the Office of Internal Audit and

Investigations may discipline other employees of the

Office of Internal Audit and Investigations.

73a

(C)

Before discipline is imposed, the employee shall

be notified of the reasons for which discipline is

contemplated, a summary of the evidence against the

employee, and the employee's right to respond to the

proposed action. After giving the employee the notice

of contemplated action and before the employee

makes any written or oral response, the supervisor

contemplating the discipline shall request review by

the City Employee Mediation Program Coordinator of

the circumstances on which the contemplated action

is based in an effort to avoid the discipline. Mediation

shall occur if it is deemed appropriate by the

Coordinator. After this review or if mediation is

unsuccessful, the supervisor may continue with the

contemplated disciplinary procedure by giving the

employee the right to respond to the notice of

contemplated action.

(D)

Suspensions shall not exceed 90 calendar days

for any offense. The Chief Administrative Officer or

74a

department head has the option on a suspension of

five days or less to prohibit the employee from

attending the work place or to allow the employee to

work through the suspension with pay. Suspensions

may be held in abeyance for a stated period of no

longer than six months.

(E)

The

Chief

Administrative

Officer

shall

promulgate rules of procedure concerning disciplinary

actions.

(F)

Any disciplinary action shall be noted in the

employee's personnel file.

('74 Code, § 2-9-24) (Ord. 52-1978; Am. Ord. 48-1988;

Am. Ord. 30-1989; Am. Ord. 55-1989; Am. Ord. 291998; Am. Ord. 13-2001; Am. Ord. 9-2002; Am. Ord.

2-2004; Am. Ord. 1-2005)

75a

APPENDIX R:

§ 3-1-27 EMPLOYEE ORGANIZATION

AGREEMENTS.

(A)

The provisions of this article shall apply to all

city employees; provided, however, that where a

collective bargaining agreement, which has been

ratified and approved by the Mayor in accordance with

§§

3-2-1 et seq., Labor-Management Relations,

conflicts with a provision of this article, the collective

bargaining agreement shall, with respect to those

employees covered by the agreement, govern over such

provision of this article unless it is one establishing:

(1)

Classified and unclassified service;

(2)

Methods of service rating of unclassified

employees; or

(3)

Methods

initial

employment,

promotion recognizing efficiency and

ability as the applicable standards, and

discharge of employees.

76a

(B)

In the case of a conflict between a collective

bargaining agreement and a provision establishing

any of the above, this article shall govern.

('74 Code, § 2-9-26) (Ord. 52-1978; Am. Ord. 46-1995;

Am. Ord. 29-1998)

77a

APPENDIX S:

ARTICLE X. MERIT SYSTEM

Section 1. Maintenance of The Merit System.

It is necessary for the optimum functioning of

the Mayor-Council form of government that the city

maintain a merit system governing the hiring,

promotion, discharge and general regulations of

employees. The Mayor and Council shall maintain by

ordinance, and the Mayor administer, a merit system

which shall include as a minimum, reasonable

provisions establishing:

(a)

Classified and unclassified service;

(b)

Methods of service rating of classified

employees;

(c)

Methods

initial

employment,

continuation thereof and promotion, recognizing

efficiency and ability as the applicable standards;

(d)

Appropriate

grievance

and

procedures for classified employees; and

appeal

78a

(e)

An active personnel board composed of

individuals not employed by the city.

79a

APPENDIX T:

804.DISMISSAL

The Chief Administrative Officer, a department

director or acting department director may dismiss

an employee for just cause. Refer to Section 902 of

these regulations. App. 80a.

80a

APPENDIX U:

902. DISCIPLINARY ACTIONS

Employees may be disciplined by written

reprimand, suspension, demotion or dismissal. Just

cause for discipline is any behavior significant or

substantial in nature relating to the employee’s

work or conduct that is inconsistent with the

employee’s obligation to the City.

902.1 Reasons for Disciplinary Actions

Employees may be reprimanded, suspended.

demoted or terminated for any justifiable cause

including, but not limited to:

Violence or threats of violence on City

premises or on City time. City premises includes but

is not limited to work sites, property or vehicles

(owned, rented or leased), parking garages and

parking lots; or

81a

Commission of a felony or misdemeanor

related to the position held by the employee or

conviction of a crime involving moral turpitude; or

Incompetence, inefficiency or

inadequate performance of an employee's duties; or

Deliberate falsification or omission of

information on an employment application, resume,

timecard/record or other city documents; or

Insubordination or uncooperative

behavior; or

Misappropriation or personal use of city

funds, property, possessions or resources or theft or

fraud; or

Misconduct; or

Harassment or sexual harassment; or

Violation of confidentiality or the

release of confidential information; or

Being absent from duty without proper

authorization, regardless of the length of time; or

82a

Violation of the Substance Abuse Policy;

Violation of the Personnel Rules and

Regulations or rules promulgated pursuant to the

Merit System Ordinance and/or the Conflict of

Interest Ordinance; or

Other disciplinary reasons, including

but not limited to conduct on or off-duty, which may:

1. Call into question the employee’s

ability to perform assigned duties or job

functions; or

2. Would harm public respect for City

employees or confidence in the operation of

City services; or

3. Would impair the operation or

efficiency of any City department.

83a

APPENDIX V:

40.2 Entire Agreement / Changes

40.2. lit is understood and agreed by and

between the parties hereto that this Agreement is the

only existing Agreement between the parties and

replaced any and all previous agreements.

40.2.2 It is understood and agreed that changes

in this Agreement may be made at any time upon the

mutual consent of the parties signatory to this

Agreement. No changes in hours, benefits, working

conditions will be made without the parties meeting

and conferring.

40.2.3 The parties have had the full opportunity

to negotiate all mandatory subjects of bargaining

prior to reaching final agreement on this Agreement.

The parties have negotiated in good faith and have

reached a full agreement on all issues. This

Agreement shall represent the only agreement

between the parties. All other agreements, written or

84a

verbal, shall be unenforceable. Neither party shall be

required to negotiate any issue, whether contained in

this Agreement or not, during the term of this the

City’s commitment to meet and confer in good faith

with the Union on all proposed Agreement. This

provision shall not be interpreted in a manner that

negates changes in ordinances or policies that affect

employees’ terms or conditions of employment.

85a

APPENDIX W:

CONSTITUTIONAL AND STATUTORY

PROVISIONS

Fourteenth Amendment § 1:

All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are

citizens of the United States and of the State wherein

they reside. No State shall make or enforce any law

which shall abridge the privileges or immunities of

citizens of the United States; nor shall any State

deprive any person of life, liberty, or property, without

due process of law; nor deny to any person within its

jurisdiction the equal protection of the laws.

86a

Title 42 U.S.C. § 1983:

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any State

or Territory or the District of Columbia, subjects, or

causes to be subjected, any citizen of the United States

or other person within the jurisdiction thereof to the

deprivation of any rights, privileges, or immunities

secured by the Constitution and laws, shall be liable

to the party injured in an action at law, suit in equity,

or other proper proceeding for redress, except that in

any action brought against a judicial officer for an act

or omission taken in such officer's judicial capacity,

injunctive relief shall not be granted unless a

declaratory decree was violated or declaratory relief

was unavailable.

Title 18 U.S.C. § 242:

Whoever, under color of any law, statute, ordinance,

regulation, or custom, willfully subjects any person in

any State, Territory, Commonwealth, Possession, or

87a

District to the deprivation of any rights, privileges, or

immunities secured or protected by the Constitution

or laws of the United States, or to different

punishments, pains, or penalties, on account of such

person being an alien, or by reason of his color, or race,

than are prescribed for the punishment of citizens,

shall be fined under this title or imprisoned not more

than one year, or both; and if bodily injury results

from the acts committed in violation of this section or

if such acts include the use, attempted use, or

threatened use of a dangerous weapon, explosives, or

fire, shall be fined under this title or imprisoned not

more than ten years, or both; and if death results from

the acts committed in violation of this section or if

(

such acts include kidnapping or an attempt to kidnap,

aggravated sexual abuse, or an attempt to commit

aggravated sexual abuse, or an attempt to kill, shall

be fined under this title, or imprisoned for any term of

years or for life, or both, or may be sentenced to death.

88a

Title 42 U.S.C. § 1981:

(a)

Statement of equal rights

All persons within the jurisdiction of the

United States shall have the same right in every

State and Territory to make and enforce contracts, to

sue, be parties, give evidence, and to the full and

equal benefit of all laws and proceedings for the

security of persons and property as is enjoyed by

white

citizens,

and shall be

subject to

punishment, pains, penalties, taxes, licenses, and

exactions of every kind, and to no other.

(b)

"Make and enforce contracts" defined

For purposes of this section, the term "make

and

enforce

performance,

contracts,

contracts"

includes

modification,

and

the

making,

termination

and the enjoyment of all benefits,

privileges, terms, and conditions of the contractual

relationship.

89a

(c)

Protection against impairment

The rights protected by this section are

protected against impairment by nongovernmental

discrimination and impairment under color of State

law.

N.M. Const. Article II § 1.

Supreme law of the land:

The state of New Mexico is an inseparable part of the

federal union, and the constitution of the United States is the

supreme law of the land.

N.M. Const. Article II § 18.

Due process; equal protection; sex

discrimination:

No person shall be deprived of life, liberty or

property without due process of law; nor shall any

person be denied equal protection of the laws.

Equality of rights under law shall not be denied on

account of the sex of any person.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.