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                                                                      New Mexico Compilation
                                                                    Commission, Santa Fe, NM
                                                                   '00'04- 16:04:54 2012.04.26

         IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2012-NMSC-009

Filing Date: March 22, 2012

Docket No. 32,776

RUDY SAIS,

       Appellant-Respondent,

v.

NEW MEXICO DEPARTMENT OF CORRECTIONS,

       Appellee-Petitioner.

ORIGINAL PROCEEDING ON CERTIORARI
John W. Pope, District Judge

New Mexico Corrections Department
James R.D. Brewster, General Counsel
Santa Fe, NM

for Petitioner

Melendres, Melendres & Harrigan, P.C.
A. Paul Melendres
Albuquerque, NM

for Respondent

                                         OPINION

BOSSON, Justice.

{1}     This Court has previously established the principle that when an employer disciplines
two public employees, arrested or convicted of driving while intoxicated (DWI), in a
significantly different manner yet based on substantially similar conduct, the employer owes
a legal duty to explain that difference satisfactorily with evidence in the record. If not, the
court will reverse the action taken as arbitrary and capricious. See In re Termination of
Kibbe, 2000-NMSC-006, ¶¶ 14-19, 128 N.M. 629, 996 P.2d 419. The present case offers
this Court an additional opportunity to apply and amplify the principles we articulated over

                                              1
twelve years ago in Kibbe. In doing so, we conclude that the employer here, unlike Kibbe,
did place substantial evidence in the record to justify the action taken and to explain any
alleged differences in the treatment of other employees. Accordingly, we reverse the
decision of the district court and uphold the State Personnel Board.

BACKGROUND

{2}    In June 2005, the New Mexico Department of Corrections (DOC) adopted the
Employee DWI Policy (the Policy). The Policy notes that “New Mexico continues to suffer
from a relatively high rate of DWI and . . . [t]he Department incarcerates in its prisons and
supervises on probation or parole, a large number of offenders who have been convicted of
DWI.” Accordingly, the Policy requires “[a]ll employees who are charged with, arrested for,
adjudicated guilty, or convicted of the criminal offense DWI” to submit a written report
regarding the incident to the employee’s supervisor within three working days “of such
occurrence.”

{3}      In addition, the Policy imposes certain minimum sanctions based on the number of
offenses a particular employee incurred. According to the Policy, a first offense requires at
least a five-day suspension, while a second offense requires dismissal. Notably, the term
“offense” is not explicitly defined. The sanctions section of the Policy, however, makes
clear that “[d]iscipline for DWI will not necessarily be dependent upon a criminal
conviction, a finding of guilt, or any other final adjudication by a court,” but also states that
“the disposition of any criminal or administrative charges may be considered in determining
the appropriate discipline.”

{4}    DOC hired Rudy Sais (Respondent) in April 2006 as a Correctional Officer I.
Respondent reviewed the Policy and signed a DWI acknowledgment form, noting that he
received a copy of the Policy and he understood its requirements.

{5}     On November 8, 2006, Respondent was arrested on suspicion of aggravated DWI.
Pursuant to the Policy, Respondent reported the arrest to his supervisor the next day.
Respondent received a seven-day suspension as a result of the arrest. The criminal charges
against Respondent were ultimately dismissed without an adjudication of guilt or innocence.

{6}     On March 13, 2008, Respondent was again arrested on suspicion of DWI. Again,
Respondent’s arrest was reported to DOC and an investigation was conducted. After the
investigation, Respondent was dismissed based on a second offense under the Policy. The
criminal charges against Respondent were once again dismissed without a finding of guilt
or innocence.

{7}    Respondent appealed his termination to the State Personnel Board (the Personnel
Board) and a hearing was held before an administrative law judge (ALJ). At the hearing,
Respondent claimed that he was treated differently than other employees under the Policy.
He submitted evidence that at least three other DOC employees had been arrested two or

                                               2
more times for DWI but were still employed by DOC.

{8}    DOC responded with explanatory evidence for each of the individuals still employed.
Elona Cruz, Human Resource Bureau Chief for DOC, testified that DOC did not count DWI
offenses that occurred prior to the date the Policy began. DOC still employed Officer
Taracina Morgan, who Respondent claimed had two prior DWI arrests, because she had only
one arrest after the Policy was put in place.

{9}      Elona Cruz also testified that DOC had no record of any arrests for the second
individual, Officer Armando Rel. Respondent attempted to put this fact in doubt. He
admitted into evidence a printout from the “Case Lookup” on www.nmcourts.gov which
showed that Officer Rel had been charged with a fourth and later, oddly enough, a third DWI
after the Policy was adopted. But, it was not clear from this report if these charges were the
result of separate arrests or when any prior arrests occurred. The third DWI was charged on
the same date as a plea hearing, suggesting that it was the result of a plea agreement that
reduced the original charge from a fourth DWI to a third. In addition, Mike Sanchez
testified that he had heard rumors, before he became Captain of Investigations for DOC, of
multiple DWI arrests for Officer Rel. Nevertheless, Captain Sanchez explained that he does
not commence investigations under the Policy until an employee self-reports, and apparently
Rel made no such reports. Warden Robert Ulibarri testified, however, that one investigation
was commenced based on an anonymous letter and he believed police officers have notified
DOC after an arrest of a DOC employee.

{10} The third individual, Raymond De La Cruz, testified that he had been arrested twice
for DWI after the Policy was in effect, once in 2006 and again in 2007, but was still
employed by DOC. Instead of being terminated, Officer De La Cruz received a five-day
suspension for his second offense. In response, Elona Cruz testified that when Officer De
La Cruz was arrested for the second time, the Policy was under review and as a result he was
not terminated. No other evidence, such as meeting minutes or internal memoranda, was
offered in support of the statement by Elona Cruz. Ultimately, after review, the Policy was
not changed and was fully enforced after that time. According to Elona Cruz, six or seven
DOC employees had been terminated as a result of a second offense under the Policy.

{11} In addition to this explanatory evidence, DOC also offered evidence of Respondent’s
arrests. Regarding Respondent’s first arrest, DOC entered into evidence a letter from his
supervisor, Warden Ulibarri, detailing the circumstances surrounding his arrest, including
the results of a failed breath test and the discipline imposed. To prove the circumstances of
the second arrest, the full report of Sanchez, who was charged with investigating the incident
for DOC, was admitted into evidence. The Sanchez report contained the official police
reports of the two state police officers who were present during Respondent’s arrest and a
criminal complaint that indicated Respondent had again failed two breath tests with a blood-
alcohol content more than twice the legal limit. The parties stipulated that both of these state
police officers would testify that Respondent was arrested for suspicion of DWI. None of
this evidence was impeached nor was its admission contested.

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{12} After the hearing, the ALJ submitted an extensive recommended decision to the
Personnel Board that supported Respondent’s termination. The recommended findings of
fact included DOC’s discussions concerning the Policy at the time of Officer De La Cruz’s
second arrest, and concluded that Officer “De La Cruz is the only [DOC] employee who has
not been dismissed after a second DWI arrest; all other offending employees have been
disciplined strictly by policy.” The Personnel Board adopted the ALJ’s proposed findings
of fact and conclusions of law in their entirety and upheld Respondent’s termination.

{13} Respondent then appealed to the district court. In his statement of appellate issues,
Respondent continued to argue that he was treated differently from others under the Policy.
He also argued, for the first time, that the Policy itself was contrary to law because NMSA
1978, Section 28-2-4(A) (1997)1 requires that termination of public employees be based
upon conviction of a crime, not a mere arrest. The district court reversed the Personnel
Board, finding that “[t]he termination of [Respondent] was arbitrary, capricious and contrary
to law” because “he was not treated in a similar fashion to several other officers in similar
circumstances.” In addition, the district court’s order stated that “[t]he hearing officer was
required to hear ‘explanatory evidence’ in accord with the holding in . . . Kibbe, [2000-
NMSC-006, ¶ 19], and failed to comply with this requirement.” The district court did not
rule on Respondent’s statutory argument regarding Section 28-2-4(A). The order required
Respondent to be reinstated to his former position with back pay and benefits.

{14} DOC then petitioned for certiorari to the Court of Appeals, which denied the petition.
We granted certiorari in order to address the important policy issues implicated when DWI
and public employment intersect, especially in light of this Court’s precedent on the same
subject. See Kibbe, 2000-NMSC-006, ¶ 19. For the following reasons, we reverse.

DISCUSSION

Standard of Review

{15} “[W]e apply the same administrative standard of review as the district court sitting
in its appellate capacity.” Archuleta v. Santa Fe Police Dep’t ex rel. City of Santa Fe, 2005-
NMSC-006, ¶ 15, 137 N.M. 161, 108 P.3d 1019. Thus, we “review the [Personnel Board’s]
order to determine if it is arbitrary, capricious, or an abuse of discretion; not supported by
substantial evidence in the record; or, otherwise not in accordance with law.” Id. (internal
quotation marks and citation omitted).


       1
         NMSA 1978, §§ 28-2-1 to -6 (1974, as amended through 2010) is known as the
Criminal Offender Employment Act. Its purpose is to remove barriers for criminal offenders
or ex-convicts to employment “in a lawful trade, occupation or profession . . . to make
rehabilitation feasible.” Section 28-2-2. Section 28-2-4 governs when a public employee
may have such employment revoked for criminal activity, and only discusses certain
circumstances involving convictions, not arrests.

                                              4
{16} Such a ruling “is arbitrary and capricious if it is unreasonable or without a rational
basis, when viewed in light of the whole record.” Id. ¶ 17 (internal quotation marks and
citation omitted). Though we must perform a whole record review, “[w]e must be careful
not to substitute our own judgment for that of the agency . . . .” Id. Rather, “we must
consider all evidence bearing on the findings, favorable or unfavorable, to determine if there
is substantial evidence to support the result.” Tom Growney Equip. Co. v. Jouett, 2005-
NMSC-015, ¶ 13, 137 N.M. 497, 113 P.3d 320 (internal quotation marks and citation
omitted). “Where the testimony is conflicting, the issue on appeal is not whether there is
evidence to support a contrary result, but rather whether the evidence supports the findings
of the trier of fact.” Id. (internal quotation marks and citation omitted).

Disparate Treatment

{17} A worker’s termination may be arbitrary and capricious if one employee is treated
differently compared with others who are similarly situated and no rational explanation is
offered for the difference. See Kibbe, 2000-NMSC-006, ¶ 19. Respondent has argued
throughout these proceedings, and persuaded the district court, that he was treated
disparately and should be reinstated as a result.

{18} Both the district court and Respondent rely on this Court’s previous opinion in Kibbe
to support their position that Respondent was disparately treated. In Kibbe, a school teacher
was arrested for driving under the influence and was then terminated from his employment.
Id. ¶¶ 3-4. Nothing indicated that the school district had a policy regarding DWI arrests.
Id. ¶¶ 2-10. Appearing as a witness for the school district, the school superintendent offered
no evidence of any previous instances in which discipline had been imposed in a manner
similar to Kibbe. To the contrary, the superintendent testified about another teacher in the
same district who had pled guilty to DWI while she was employed by the district, not only
as a teacher but also as a substitute bus driver. Id. ¶ 8. Unlike Kibbe, the prior teacher was
not disciplined by the school board, id., and the superintendent “testified that under no
circumstances would he have recommended terminating the other . . . teacher for her
behavior, even if it had occurred at the present time,” id. ¶ 17. This Court concluded “that
the drastic difference in the school board’s treatment of Kibbe compared to another . . .
teacher for substantially similar conduct with no explanatory evidence in the record renders
Kibbe’s termination arbitrary and capricious.” Id. ¶ 19. Kibbe remains good law today, and
we reaffirm its holding in this Opinion.

{19} Relying upon Kibbe, Respondent argues that the decision to terminate him was
arbitrary and capricious because he was treated differently from Officers De La Cruz and
Rel. According to Respondent, those officers had multiple DWI arrests while the Policy was
in place, yet were not terminated. Respondent’s claim of disparate treatment failed to
persuade the Personnel Board, and we conclude that the evidentiary record supports the
Personnel Board’s decision.

{20}   Most tellingly, Respondent’s argument focused on Officers De La Cruz and Rel and

                                              5
overlooked the fact that he was treated in the same manner as at least six other DOC
employees who self-reported a second DWI arrest, all of whom were terminated. Rather
than being treated differently from other employees, as was the situation in Kibbe, the record
shows that Respondent was treated the same as all but one similarly-situated corrections
officer. Based on this record, Respondent is the norm, not the exception, to the rule.

{21} If anything, Officer De La Cruz is the exception, not Respondent. It was Officer De
La Cruz who was not terminated for a second DWI offense, while at least seven others
including Respondent were terminated. As we stated in Kibbe, a “decision not to impose
disciplinary action against an employee for certain conduct does not foreclose disciplinary
action against a different employee in the future for similar conduct” as long as there is a
“meaningful distinction” between the employees. Kibbe, 2000-NMSC-006, ¶ 17.

{22} Unlike the record in Kibbe, a review of this record shows a consistent pattern in the
enforcement of the Policy. Generally, if a DOC employee gets arrested twice for DWI, that
employee is terminated. Even if an exception had been made in Officer De La Cruz’s case,
one exception cannot preclude enforcement of the Policy against all others for the
foreseeable future. See Archuleta, 2005-NMSC-006, ¶ 34 (A “‘decision not to impose
disciplinary action against an employee for certain conduct does not foreclose disciplinary
action against a different employee in the future for similar conduct.’” (quoting Kibbe, 2000-
NMSC-006, ¶ 17)). One exception cannot be allowed to swallow the rule.

{23} Far from a random exception, however, the record shows that DOC put forth a
defensible, policy-based reason for allowing Officer De La Cruz to remain employed. The
uncontroverted testimony of Elona Cruz established that, at the time of Officer De La Cruz’s
second DWI arrest, DOC was reviewing its policy to determine whether it was appropriate
to terminate employees based on mere arrests and not convictions. Accordingly, it was
within DOC’s discretion to refrain from terminating an officer during a period when DOC
was not yet convinced termination was appropriate. The fact that the Policy was not
ultimately changed is of no consequence, for if it were, any review of a policy by any state
agency would then require some change to be made to that policy. However, we stress that
the defense against irregular applications of a policy on the basis that the policy is under
review is limited in scope. For example, if an employee could show that an employer
claimed that a policy was repeatedly “under review” to let certain employees keep their jobs
despite policy violations while holding others accountable under the policy, that pattern
would suggest an arbitrary application of the policy.

{24} Explanatory evidence is required under Kibbe to show a “meaningful distinction”
between employees who are treated differently. 2000-NMSC-006, ¶¶ 17, 19. A whole
record review shows that DOC offered such evidence. Contrary to the conclusion of the
district court, the ALJ and the Personnel Board could have rationally concluded that
Respondent’s termination was appropriate based upon the record and that Officer De La
Cruz’s situation did not require a different result. When the district court concluded that
Respondent “was not treated in a similar fashion to several other officers in similar

                                              6
circumstances,” the court was simply incorrect based upon the record before it.

{25} In addition, we do not find Respondent’s comparison of himself to Officer Morgan
apt. These two employees were not similarly situated, as Officer Morgan has only been
arrested once for DWI during the Policy period. Accordingly, we do not find this to be an
appropriate comparison to determine disparate treatment. See Archuleta, 2005-NMSC-006,
¶ 24 (noting that differences may mean employees are not similarly situated).

{26} Respondent’s comparison to Officer Rel is equally misplaced. While court records
show that Officer Rel may have had multiple DWI arrests during the period when the Policy
was in effect, it is also uncontroverted that Officer Rel did not report those arrests to his
superiors, and therefore those arrests do not appear in DOC’s records. While Captain
Sanchez admitted that he had heard rumors about Officer Rel’s arrests, Respondent did not
offer any evidence that this informal and perhaps unreliable notice sufficed to trigger an
obligation to investigate. Because the evidence does not indicate that management had an
obligation to investigate Officer Rel’s alleged arrests, Respondent has failed to show that he
and Officer Rel are similarly-situated employees. In theory, a failure to report, if proven,
could itself justify discipline, but the present record does not allow us to speculate on other
charges involving other employees.

{27} We recognize the problems inherent in a policy that rewards those who disregard its
requirements, while punishing those who comply. Such a policy can easily be abused which
could lead to arbitrary enforcement. DOC should be mindful of that potential for abuse in
carrying out its obligation to review personnel policy for all employees. In this case,
however, the merits of the Policy itself, as opposed to its application, were not challenged
either before the Personnel Board or the district court, and therefore we decline to pass
judgment on that issue. In the end, DOC had no record of Officer Rel’s arrests, and thus Rel
was not similarly situated to Respondent for purposes of a Kibbe analysis. See Archuleta,
2005-NMSC-006, ¶ 24.

NMSA 1978, § 28-2-4 (1997)

{28} Respondent argues that the Policy is unlawful based upon the New Mexico Criminal
Offender Act, NMSA 1978, §§ 28-2-1 to -6 (1974, as amended through 1997). Respondent
interprets that Act to limit when public employment can be terminated, based upon a
criminal conviction and not a mere arrest. However, this argument was not made to the ALJ
and a ruling was not invoked before the Personnel Board. As such, we decline to address
it. Selmeczki v. N.M. Dep’t of Corr., 2006-NMCA-024, ¶ 23, 139 N.M. 122, 129 P.3d 158
(requiring a ruling from the ALJ “sitting as the trier of fact, or the Personnel Board as the
ultimate decision maker,” in order to preserve an issue for review on appeal).

CONCLUSION

{29}   Accordingly, we reverse the district court and affirm the ruling of the Personnel

                                              7
Board.

{30}     IT IS SO ORDERED.

                                             ____________________________________
                                             RICHARD C. BOSSON, Justice

WE CONCUR:

____________________________________
CHARLES W. DANIELS, Chief Justice

____________________________________
PETRA JIMENEZ MAES, Justice

____________________________________
EDWARD L. CHÁVEZ, Justice

PATRICIO M. SERNA, Justice (specially concurring)

SERNA, Justice (specially concurring).

{31} I concur in this opinion because it is legally correct based on the record and the
arguments advanced by the parties. I write separately only to express my discomfort in that
my conscience tells me the result is unjust. In this case we have an employee with several
DWI’s that was not terminated because he failed to “self report” his DWI’s. The
Respondent, on the other hand, along with several other employees, followed the “self
reporting” rule and were terminated. It seems unfair to me. Martin Luther King, Jr. said:
“Our lives begin to end the day we become silent about things that matter.” Justice Potter
Stewart stated: “Fairness is what justice really is.”

{32} It is the duty and responsibility of a Judge to adhere to the rule of law and apply it
free of any personal belief, and therefore, I specially concur. However, I cannot remain
silent about something that matters and seems unfair to me.

                                             ____________________________________
                                             PATRICIO M. SERNA, Justice

Topic Index for Sais v. New Mexico Dep’t of Corrections, Docket No. 32,776

AL             Administrative Law and Procedure
AL-AA          Administrative Appeal
AL-JR          Judicial Review
AL-SC          Scope of Review

                                            8
AL-SR   Standard of Review

EL      Employment Law
EL-DA   Disciplinary Action
EL-EP   Employer’s Policies
EL-TE   Termination of Employment

GV      Government
GV-PE   Public Employees




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