1. A. The dismissal, demotion or suspension of a covered employee shall be accomplished according to the following procedure.

   (1) The employee will be served by the district attorney, or their designee, with a written notice of the proposed disciplinary action which shall:

   (a) cite the specific action or acts allegedly constituting just cause;

   (b) provide an explanation of the evidence that the district attorney or their designee has;

   (c) specify what the proposed disciplinary action is; and

   (d) state that the employee, or a representative of the employee's choosing, has five (5) working days from service of the notice to respond to the district attorney or their designee in writing to the notice or to request an opportunity to be heard.

   (2) If service of the notice is by certified mail, with return receipt requested, three (3) working days shall be added to the time for an answer.

   (3) If the employee requests a pre-disciplinary review, the district attorney or designee shall conduct such review within five (5) working days of the district attorney's or designee’s receipt of the request, unless the employee and the employer agree, in writing, to an extension of time. The review is not a formal evidentiary proceeding.

2. B. The district attorney or their designee shall consider the employee's response, if any, and determine what action is appropriate within five (5) working days of the response. If the employee does not respond to the notice of proposed disciplinary action, the district attorney or designee may proceed to determine the appropriate action and serve a notice of final decision no later than ten (10) working days after the employee receives the written notice of proposed action. The district attorney or their designee may proceed with a notice of final decision before the end of the five (5) day period for response if the employee's response is received or the review is concluded prior to the expiration of this period.

3. C. The written notice of final decision must:

   (1) specify the date of service of the notice of proposed disciplinary action;

   (2) identify the specific acts constituting just cause, which may not include acts not specified in the notice of proposed disciplinary action;

   (3) specify the disciplinary action, if any, to be taken;

   (4) specify the effective date of the dismissal, demotion or suspension which must be at least twenty-four (24) hours from the date of service; and

   (5) inform the covered employee that the disciplinary action may be appealed to either the district attorneys personnel review board or to the state personnel office within thirty (30) days of the effective date of the disciplinary action.

4. D. The disciplinary action will not be stayed, pending the completion of the appeal process.

   HISTORY OF 10.4.9 NMAC:

   Pre-NMAC History: The material in this part was derived from that previously filed with the State Records Center:

   NMDAA 90-1, New Mexico District Attorney’s Association Personnel Rules and Regulations for New Mexico District Attorneys Association, filed 2/22/90.

   NMDAA 91-1, Personnel and Compensation Plan for the Employees of the District Attorneys of the State of New Mexico, filed 6/11/91.

   History of Repealed Material:

   NMDAA 91-1, Personnel and Compensation Plan for the Employees of the District Attorneys of the State of New Mexico, filed 6/11/91 - Repealed effective 06/30/2010.

[10.4.9.10 NMAC - N, 06/30/2010]