2021 New Mexico Statutes
Article 9 - Personnel
Section 10-9-4 - Coverage of service.

The Personnel Act and the service cover all state positions except:
A. officials elected by popular vote or appointed to fill vacancies to elective offices;
B. members of boards and commissions and heads of agencies appointed by the governor;
C. heads of agencies appointed by boards or commissions;
D. directors of department divisions;
E. those in educational institutions and in public schools;
F. those employed by state institutions and by state agencies providing educational programs and who are required to hold valid certificates as certified school instructors as defined in Section 22-1-2 NMSA 1978 issued by the public education department;
G. those in the governor's office;
H. those in the state militia or the commissioned officers of the New Mexico state police division of the department of public safety;
I. those in the judicial branch of government;
J. those in the public defender department, upon implementation of personnel policies and rules by the public defender commission;
K. those in the legislative branch of government;
L. not more than two assistants and one secretary in the office of each official listed in Subsections A, B and C of this section, excluding members of boards and commissions in Subsection B of this section;
M. those of a professional or scientific nature that are temporary in nature;
N. those filled by patients or inmates in charitable, penal or correctional institutions;
O. state employees if the board in its discretion decides that the position is one of policymaking; and
P. disadvantaged youth under twenty-two years of age regularly enrolled or to be enrolled in a secondary educational institution approved by the public education department or in an accredited state institution of advanced learning or vocational training and who are to be employed for not more than seven hundred twenty hours during any calendar year:
(1) the term "disadvantaged youth" shall be defined for purposes of this exemption by regulation duly promulgated by the board; and
(2) the board shall:
(a) require that all the criteria of this subsection have been met;
(b) establish employment lists for the certification of the highest-standing candidates to the prospective employers; and
(c) establish the pay rates for such employees.
History: 1953 Comp., § 5-4-31, enacted by Laws 1961, ch. 240, § 4; 1963, ch. 200, § 2; 1967, ch. 181, § 1; 1969, ch. 126, § 1; 1975, ch. 182, § 1; 1977, ch. 247, § 45; 1979, ch. 202, § 6; 1981, ch. 339, § 5; 1987, ch. 254, § 15; 1989, ch. 204, § 10; 1990, ch. 20, § 1; 2014, ch. 78, § 1.
The 2014 amendment, effective May 21, 2014, allowed the public defender commission to adopt personnel policies and rules to exempt department employees from the Personnel Act; and added Subsection J.
Due process requirements. — New Mexico has recognized that nonpolicymaking officials are entitled to due process before they may be dismissed, but members of boards and commissions and heads of agencies appointed by the governor are not entitled to the State Personnel Act's notice and hearing requirements preceding dismissal of state employees. Mitchell v. King, 537 F.2d 385 (10th Cir. 1976).
Removal of personnel from policy-making positions. — By exempting members of boards and commissions and agency heads from the Personnel Act, under Subsection B, the legislature acknowledges that such policy-making positions are different from other types of employment positions and that such category of persons are not entitled to hearings, provided for by 10-9-13H NMSA 1978, before removal from their positions. State ex rel. Duran v. Anaya, 1985-NMSC-044, 102 N.M. 609, 698 P.2d 882.
The Personnel Act applies to all state employees unless specifically excluded. — Where, in 2015, the newly elected New Mexico attorney general, before taking office, terminated certain employees within the office of the attorney general (OAG), and where the employees appealed to the state personnel board (board) claiming that 10-9-4 NMSA 1978 made all employees of the OAG classified employees who could not be discharged without the procedural protections of the Personnel Act, 10-9-1 to -25 NMSA 1978, and where the attorney general claimed that all employees of the OAG are exempt because they all serve at the pleasure of the attorney general pursuant to 8-5-5 NMSA 1978, the board erred in concluding that it did not have subject matter jurisdiction to hear the employees' appeal on the ground that the employees were not entitled to the protections of the Personnel Act, because the Personnel Act, as a comprehensive revision of the law on the subject of state public employment, supersedes 8-5-5 NMSA 1978, and the plain language of this section specifically provides that the Personnel Act applies to "all state positions" except those falling within specific categories. Landau v. N.M. Att'y Gen., 2019-NMCA-041, cert. denied.
Purposes underlying exemptions. — The purposes underlying the exemption of certain classes of employees are not to preclude them from benefits such as vacation and sick leave. 1969 Op. Att'y Gen. No. 69-47.
Meaning of "division". — In determining whether departments are "divisions" for purposes of Personnel Act coverage, it is well to keep in mind that there is nothing magic in the word "division"; whether a subdivision of a governmental agency is termed a unit, department, bureau or something else is not the determining factor. Rather the critical determination is whether the subdivision is a major component within the internal administrative framework of the state agency, with certain policy-making powers vested in the head of the "unit"; if so, the department or unit is a "division" within the meaning of the Personnel Act. 1963 Op. Att'y Gen. No. 63-90.
Certain positions exempt. — The following departments, agencies, offices, etc., are exempt from the Personnel Act because they are neither (1) not state positions within the meaning of the act or (2) they are not official state agencies within the meaning of the act: district judges, New Mexico historical society and probation officers. 1961 Op. Att'y Gen. No. 61-28.
Employing agency's determination of exemption prima facie correct. — When an employing agency employs a person to hold an exempt position and so notifies the personnel department (personnel director), the determination by the employing agency is to be considered as prima facie correct. 1963 Op. Att'y Gen. No. 63-105.
Status of classified employees upon transfer to successor department. — If classified personnel of a department are transferred to a new, supplanting department, the personnel retain the same classified status and position that they held in the former department and are thus within the coverage of the Personnel Act, 10-9-1 NMSA 1978 et seq.; if a classified position is to become exempt from the provisions of the Personnel Act, then it must first become vacant. 1983 Op. Att'y Gen. No. 83-03.
Associate museum directors exempt. — The four associate directors of the museum of New Mexico are exempt from the Personnel Act under Subsection C. 1962 Op. Att'y Gen. No. 62-19.
Judicial employees are specifically exempt from the Personnel Act. 1969 Op. Att'y Gen. No. 69-47.
Coverage of insurance department personnel. — All insurance department personnel are covered under the Personnel Act except those, if any, who have been properly excluded under the provisions of this section. 1964 Op. Att'y Gen. No. 64-121.
Classification of corrections department teachers. — Teachers employed by the department of corrections should be classified as state employees under the State Personnel Act. 1974 Op. Att'y Gen. No. 74-02.
Am. Jur. 2d, A.L.R. and C.J.S. references. — 81A C.J.S. States § 86.