Current through Register Vol. 35, No. 18, September 24, 2024
A.
Disciplines. The portal committee, duty officer, and coordinator shall consider
the circumstances surrounding a reported rule violation, such as the severity
of the violation, the number of times the violation has occurred, and any
previous violations, to determine the appropriate discipline. If the
coordinator determines that a violation of these rules likely occurred, the
coordinator shall issue a verbal warning, written reprimand, or notice of
contemplated suspension or termination from the program portal committee.
(1) If the coordinator issues a written
reprimand to a participant, the participant may respond in writing and the
coordinator shall retain that response in the participant's file.
(2) If the coordinator issues a written
notice of contemplated suspension or termination from the program, or removal
from the portal committee, the coordinator shall mail a copy to the
participant's address on file or hand deliver the notice to the participant.
The notice shall document the contemplated penalty; the effective date(s); the
conduct or other basis for the disciplinary action; reference to the relevant
provision of these rules; any previous incidents or efforts to inform the
participant of the need for change or improvement; and the process and time
limitations for presenting exculpatory evidence or mitigating
circumstances.
(3) A participant
may present exculpatory evidence or mitigating circumstances during the portal
committee's next meeting. The coordinator shall make a record of the meeting in
the form of an audio recording, transcript, or neutral third-party
report.
(4) After the meeting, the
portal committee may determine a participant's suspension or termination from
the program or a portal committee member's removal from the portal
committee.
(5) If the portal
committee suspends or terminates a participant from the program or removes a
portal committee member from the portal committee, the coordinator shall issue
written notice of the penalty by mailing a copy to the participant's address on
file or hand delivering the notice to the participant, along with written
findings of fact, and the process and time limitations for appealing the
discipline.
(6) Written notices of
verbal warnings, reprimands, or suspensions shall remain in a participant's
file indefinitely, subject to records retention requirements. Termination
notices shall remain in a participant's file indefinitely, subject to records
retention requirements.
B. Penalty guidelines.
(1) Minor offenses. Minor offenses may be
determined by the portal committee and may sometimes warrant a verbal and/or
written warning that may be placed in a participants file. Resolution will be
sought to deter the participant from repeating an offense.
(2) When determining whether an offense may
be classified by degree (minor, moderate, serious), the portal committee will
consider such things as frequency of occurrence, authenticity matters,
harassment and any relevant issues which may assist in classifying an
offense.
(3) Each participant found
to have committed any violation will be extended every courtesy of respect
while the portal committee examines every available fact. A just and fair
examination will be performed protecting each individual's right to due
process.
(4) Criminal activities
under the portal may be grounds for immediate termination.
C. Appeals. Any participant who is aggrieved
by a suspension or termination from the program or removal from the portal
committee may appeal the penalty to the director. Upon an appeal under this
section, the director may enforce or alter penalties issued by the coordinator.
(1) A participant shall have 10 calendar days
from the date of the issued notice of discipline to appeal that discipline in
writing. All appeals shall clearly and concisely explain why the imposed
discipline is inappropriate. The coordinator shall place a copy of the notice
and the participant's appeal, if any, in the participant's file.
(2) Suspensions or terminations from the
program shall not begin until the participant's appeal has been acted upon by
the director.
(3) The director
shall review the portal committee's recommendation along with the participant's
appeal and file before accepting, rejecting, or altering the portal committee's
recommendation.
(4) A participant
may appeal the director's decision in writing to the secretary of the
department of cultural affairs within 10-calendar days; the secretary has
discretionary review, meaning the secretary does not have to review the matter.
The secretary's review shall be limited to the findings of fact and other parts
of the record developed as directed in
4.51.57.15
NMAC. The secretary's decision not to review the matter or to deny the appeal
is the department of cultural affairs' final action on the matter.
(5) Nothing in these rules shall eliminate
the right of the division to immediately suspend a participant in cases in
which a participant poses a threat to the safety of others.