Today the New Mexico Public Employee Labor Relations Board (PELRB) made the decision, with two in favor and one member abstaining, to appoint ex-Director Juan Montoya as the new Director.
The appointment saga has been going on for some time, as I've written elsewhere, and at this point I imagine any sort of decision is a relief to many. See http://albuquerqueadr2.blogspot.com/2011/02/nm-pelrb-director-terminated.html; http://albuquerqueadr2.blogspot.com/2011/05/recent-nm-labor-goings-on.html; and http://albuquerqueadr2.blogspot.com/2011/05/510-pelrb-meeting-re-new-director.html. However, there may still be some cause for concern.
First, Mr. Montoya retired less than a year ago, and the new state law--designed to prevent the highly unpopular "double dipping"--appears to me to prevent retired employees from being re-employed before a year from retirement has lapsed. I believe Mr. Montoya retired sometime in June of 2010. Although Mr. Montoya is already installed in the Office, with working email etc., and says the new law only prevents retired employees from contracting with the State for 12 months thereafter, that is not how I read the statute.
NMSA 10-11-8(C) reads: "[e]xcept as provided in Subsection D of this section [which is not relevant here], on or after July 1, 2010, a retired member may be subsequently employed by an an affiliated public employer only pursuant to the following provisions: (1) the retired member has not been employed as an employee of an affiliated public employer or retained as an independent contractor by the affiliated public employer from which the retired member retired for at least twelve consecutive months from the date of retirement to the commencement of employment or reemployment with an affiliated public employer. Id. (emphasis added.)**
Although I do not claim to be a legal scholar, and I presume the Board is well represented by the assigned Assistant Attorney General, I have a hard time seeing how the emphasized text can be interpreted to permit Mr. Montoya to return prior to the lapse of a full twelve months... Was that the Legislature's intent?
Next, there is the issue of Mr. Montoya's practical ability to meet the Board's stated objectives. Member Westbrook,* speaking for the majority, stated the Board "think[s] [Mr. Montoya] has the demonstrated ability to fairly, efficiently and promptly decide cases without regard for one side or the other," and that the Board "expect[s]" he will reduce the backlog of cases of clearing "within six months," or words to that effect. Even assuming Mr. Montoya may be reemployed at this time, he may find it a challenge to work at the more industrious and sustained pace that will now be required of him.
In a bit of an ironic turn, Member Bingham has some knowledge of the arguable "laxity" of prior office policies and hours under Mr. Montoya, having showed up several times in the past and found the office experiencing an unscheduled and sometimes even unexplained mid-day closures. I cannot help but wonder if he or the other Board members will exercise a bit more oversight than in the past.
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.
Notes:
* Member Westbrook had been named "Chair" by the PELRB Executive Administrative Assistant upon the removal of Chair Martin Dominguez, but upon receiving public comment the Board determined today to return to the historical method of appointment by Board motion and vote.
** "Affiliated" means "any public employer affiliated with the association as provided in the Public Employees Retirement Act," under NMSA 10-11-2(B).
