Today the Public Employee Labor Relations Board (PELRB) met again to continue to discuss the hiring of a new Executive Director. As I discussed in a prior blog , the PELRB determined at its April 25 meting to hold off on choosing a new Director until additional resumes could be submitted to the Governor's Office, and considered. There were some new faces and efficiency arguments, but mostly same old same old.
The only new person to submit a resume specifically for the Director positions was Tom Griego, a longtime area labor attorney. Retired ex-Director Juan Montoya, who was ultimately selected, and ex-Director Pam Gentry had already submitted resumes.
I submitted a resume as well, but to be considered for contract hearing examiner work because I do not believe the Board requires a full time Director. Rather, the only function that requires a Director--budgetary tasks--can be done more efficiently by DFA or other dedicated finance personnel, and the hearing examiner services could contracted out to a qualified hearing examiner. By way of example, I pointed to the similar arrangement at the City of Albuquerque's Office of Administrative Hearings, and the City Labor Board.
In response to my comments, union attorney Shane Youtz argued that the dysfunction of the City Labor Board is entirely attributable to the lack of a Director. This argument does not address the example of the City's well-functioning Office of Administrative Hearing. But, even more significant, it overlooks the fact that--as PELRB member Wayne Bingham pointed out at the May 6 seminar on collective bargaining in New Mexico--there are a number of local boards that ARE highly functional, even in the absence of a Director.
The only new person to submit a resume specifically for the Director positions was Tom Griego, a longtime area labor attorney. Retired ex-Director Juan Montoya, who was ultimately selected, and ex-Director Pam Gentry had already submitted resumes.
I submitted a resume as well, but to be considered for contract hearing examiner work because I do not believe the Board requires a full time Director. Rather, the only function that requires a Director--budgetary tasks--can be done more efficiently by DFA or other dedicated finance personnel, and the hearing examiner services could contracted out to a qualified hearing examiner. By way of example, I pointed to the similar arrangement at the City of Albuquerque's Office of Administrative Hearings, and the City Labor Board.
In response to my comments, union attorney Shane Youtz argued that the dysfunction of the City Labor Board is entirely attributable to the lack of a Director. This argument does not address the example of the City's well-functioning Office of Administrative Hearing. But, even more significant, it overlooks the fact that--as PELRB member Wayne Bingham pointed out at the May 6 seminar on collective bargaining in New Mexico--there are a number of local boards that ARE highly functional, even in the absence of a Director.
Mr. Youtz also pointed out that a number of PELRB functions are currently required to be conducted by the Director under PELRB rules. However, such language has long been applied by the PELRB to include designated hearing examiners, such as myself while the Deputy Director. Additionally, PELRB rules can be amended if necessary, as there are no such requirements under PEBA itself. (Indeed SPO and the Regulation and Licensing Department have repeatedly argued that having a Director hear and decide matters violates PEBA's express grant of responsibility to the PELRB.)
After accepting comments, the Board went into closed executive session as authorized under the Open Meetings Act, and separately interviewed the three candidates. Obviously we cannot know what was said in those interviews, but it is hard not to speculate. As to Pam, there's the basic, inarguable fact that she managed to hold only two or so status conferences in the six months she was with the Board, as I've written elsewhere. Also, various practitioners have been heard to say that, in those hearings, she was "like a deer caught in the head lights," and clearly had no idea how to proceed. Certainly she is not legally trained, or trained in providing a fair hearing, so it is not surprising that she might find herself unprepared for the job, which is not a PR junket.
As to the other candidates, Director Montoya was endorsed publicly by Fred Mowrer, attorney for the Fraternal Order of Police, and Andrew Padilla with AFSCME. Mr. Montoya is a good friend of mine and he was a good boss when I worked form him, but he is not currently eligible for rehire under new PERA language. Tom Griego is a fine attorney, but he has been closely associated with labor for many years so may be a divisive choice. For example, many neutral arbitrator or hearing examiner panels--federal and state--require an applicant to have not been an advocate for a certain period of years prior to being admitted as a neutral.
A final, interesting perspective to note was provided to me in casual conversation by Sean Fitting, an attorney with the City of Rio Rancho (and previously with SPO), while the Board was in executive session. While I suggested a contract for hearing examiners, he goes a step further and suggests two contracts, one for hearing examiner services and one for factfinder or investigation services, to screen complaints and petitions as provided for in PELRB rules. See NMAC 11.2.21.18 and 11.21.3.12. He points out that, as I had already noted, most cases do not require an evidentiary hearing. However, he adds that many cases could still be resolved much quicker than they currently are with a factfinder assigned to request and share with each side the relevant evidence that support or defend a claim, and/or recommend dismissal if there is inadequate evidence of violation.
As a hearing examiner, I controlled the agency docket by dismissing claims for lack of facial validity, and encouraging parties at Status and Settlement Conferences to exchange and confer over evidence likely to resolve a matter. However, there was little more I could do as the ultimate hearing examiner in the matter. Mr. Fitting's proposed system of bifurcated responsibilities has a lot to recommend itself, from a policy perspective.
If you are interested in neutral services such as arbitration, mediation or contract ALJ services, in labor/employment or other areas of the law, please contact Pilar Vaile, P.C. at (505) 247-0802, or info@pilarvailepc.com.
