CITY OF ALBUQUERQUE, Plaintiff-Appellant, v. Ernest B. CHAVEZ, Defendant-Appellee, 123 N.M. 258

OPINION APODACA, Judge. 1. The City of Abuquerque appeals the district court’s order setting aside the City Personnel Board’s (the Personnel Board) decision upholding the termination of Defendant Ernest B. Chavez (Employee). The district court held that the proceedings before the City’s Hearing Officer violated constitutional due process, U.S. Const, amend. XIV; N.M. Const, art. II, § 18, because Employee bore the burden of persuasion and was required to present his evidence first.

Under the particular facts of this appeal, we hold that due process was not violated by requiring Employee to present his evidence first or to bear the burden of production or persuasion in proceedings before the Hearing Officer. We therefore reverse the district court’s order and remand for additional proceedings. I. FACTUAL AND PROCEDURAL BACKGROUND 2. Employee was a sixteen-year veteran of the City of Abuquerque Fire Department (the Department) who had risen to the rank of lieutenant. Among his duties, he was in charge of procuring replacement parts, including tires, for Department vehicles.

In early 1992, Employee solicited a $250 donation from Dan Shine, an employee of a company that did business with the Department, to help cover a shortfall in the budget for the Department’s 1991 Christmas party. Not long after, Shine asked Employee for assistance in obtaining a discount on tires for Shine’s personal vehicle. Employee arranged for Shine to pick up some tires from Fletcher’s Cobre Tire, Inc., a supplier to the City. Shine obtained the tires but did not pay for them.

Ater the tire company inquired about the purchase, Employee obtained the invoice and filled it out so that the City would be charged for the tires. When an investigation revealed that the City vehicle identified on the invoice did not have the new tires, Employee was charged with violating various Department and City rules. 3. In April 1992, Deputy Fire Chief Robert Otero presided over what the City called a “pre-[de]termination hearing.” One week after the hearing, Fire Chief Thomas P. Montoya issued a memorandum to Employee notifying him that he was being terminated from the Department.

The memorandum explained in detail the findings made against Employee and the grounds for the discharge. Employee’s attorney, who had attended the pre-determination hearing (although not permitted to question witnesses or make a statement), wrote a letter in May 1992 appealing the decision to the mayor. The letter denied some of the factual allegations in the Fire Chiefs memorandum to Employee, contended that Employee had no fraudulent intent, and pointed to severe emotional and physical problems that Employee had been suffering during the period of time the transactions took place. 4.

The City’s chief administrative officer upheld Employee’s discharge and referred the matter to the Hearing Officer to

schedule a hearing. There were only two issues before the Hearing Officer: (1) whether the employee’s due process rights were violated during the pre-determination hearing and (2) whether the discipline imposed was too severe. After an evidentiary hearing, the Hearing Officer found that the Employee had “failed his burden” to demonstrate that there were adequate mitigating circumstances to condone the act or lessen the discipline imposed (emphasis added), and recommended upholding the termination. The Personnel Board, by a vote of two to one, accepted the recommendation. 5.

In November 1992, Employee appealed the Personnel Board’s ruling to the district court, raising a number of challenges to the administrative proceedings and contending that: (1) the Hearing Officer erred in concluding Employee had the burden of proof and in requiring Employee to present evidence first, (2) the pre-determination hearing violated Employee’s due process rights, (3) the Hearing Officer erred when he excluded certain testimony, and (4) the Personnel Board’s decision was arbitrary and capricious. 6.

On August 27, 1993, the district court remanded the matter to the Personnel Board and held that the Hearing Officer had acted improperly in placing the burden of proof on Employee and requiring him to present his evidence first. The district court did not rule on the other issues. The City appealed to this Court, but we dismissed the appeal because the remand to the Personnel Board was not a final order. After the second hearing in April 1994, a new hearing officer recommended that Employee not be terminated but rather suspended from duty for thirty days.

The Personnel Board unanimously voted to modify the recommendation by increasing the period of suspension to ninety days. The City appealed this decision to the district court. In June 1995, the district court affirmed the Personnel Board’s second determination. The City now appeals both the 1993 and 1995 district court orders. We reverse the district court’s 1993 order remanding the matter to the Personnel Board for a second hearing. We remand to the district court to consider the other issues raised by Employee’s original appeal from the Personnel Board’s first decision. II. DISCUSSION 7.

In discussing the burden of persuasion issue raised in this appeal, the parties pose the issue generally as follows: By placing the burden of persuasion on an employee, the City is essentially instructing the Personnel Board that it should not overturn a personnel decision unless it is persuaded that the decision was incorrect. To do what Employee would require — placing the burden of persuasion on the City — would be tantamount to instructing the Personnel Board that it should affirm the personnel action only if it is persuaded that the action was correct. A. Our Disposition On Narrower Issue 8.

Because of the particular procedural facts in this appeal, however, we conclude that the real question raised by the parties is much narrower. We believe that, in deciding this appeal, our real focus should be on what factual aspect of this case did the hearing officer require Employee to bear the burden. That is, what fact or set of facts was Employee required to prove? 9. The circumstances under which parties in a proceeding, including defendants in criminal proceedings, can constitutionally be required to bear the burden of proof and production are numerous. United States v.

Battaglia, 478 F.2d 854 (5th Cir.1972) (criminal defendant bears burden of persuasion and production of true facts to rebut presentencing information); McGinnis v. Honeywell, Inc., 110 N.M. 1, 9, 791 P.2d 452, 460 (1990) (discharged employee bears burden to prove employer’s culpable mental state for punitive damages); Chavez v. Manville Prods. Corp., 108 N.M. 643, 647, 777 P.2d 371, 375 (1989) (discharged employee bears burden of proving his discharge violates public policy); State v.

Chavez, 78 N.M. 446, 447, 432 P.2d 411, 412 (1967) (criminal defendant bears burden to establish claims of prejudicial publicity, threats against himself, and threats against the jury); State v. Moser, 78 N.M. 212, 214, 430 P.2d 106, 108 (1967) (criminal defendant bears burden when claiming ineffective assistance of counsel); Acme Cigarette Servs., Inc. v. Gallegos, 91 N.M. 577, 580, 577 P.2d 885, 888 (Ct.App.1978) (defendant bears burden when claiming an affirmative defense). 10.

The common thread that runs through these cases is that parties in a proceeding properly bear the burden of both production and persuasion when they come forward with an affirmative reason to explain their behavior or special circumstances in support, extenuation, or mitigation. Placing the burden on parties claiming the affirmative is deemed proper because they are the only ones in possession of the facts and evidence supporting their claim. We believe this requirement equally applies to the burden imposed by the City on Employee in this appeal. 11.

To ascertain the nature of that burden, we now turn to the facts of this appeal. In his report, the Hearing Officer characterized the two issues before him as whether Employee’s due process rights were violated during the pre-determination hearing and whether the discipline imposed was too severe. Employee did not challenge that characterization of the issues. 12. We note that the due process issue presented to the Hearing Officer at the predetermination hearing was whether Employee was permitted assistance of counsel, as opposed to the due process issue raised in this appeal on the burden of proof.

The Hearing Officer determined, in connection with the issue of assistance of counsel, that Employee’s attorney was permitted to direct Employee’s presentation and this allowed Employee adequate opportunity to respond. That ruling was appealed to the district court but is not the subject of this appeal. 13. The remaining issue before the Hearing Officer was whether the discipline imposed was too severe. This view is supported by Employee’s own briefs filed in the district court, which extensively discussed Employee’s physical and psychological problems as factors in mitigation. This

interpretation is also buttressed by the Hearing Officer’s finding that Employee failed to meet his burden to demonstrate that there were adequate mitigating circumstances to condone the act or lessen the discipline imposed (emphasis added). Based on our own review of the record, we conclude that the issue before the Hearing Officer was whether the discipline was too severe. 14. As we previously noted, it is not only permissible but necessary for Employee to bear the burden of presenting the facts he claims mitigate or explain his behavior.

In this ease, Employee desired to present evidence concerning his personal problems and need for counseling, to show that the discipline imposed was too severe. Employee directed the attention of the district court to the transcript of the first hearing to support his contention that he was required to present evidence first and bear the burden of persuasion. We have reviewed Employee’s citation to the transcript, and we determine that the substantive evidence Employee was required to present first concerned certain testimony on Employee’s personal problems and his need for counseling.

On this narrow, factual issue, and under the particular procedural facts of this appeal, we conclude that Employee should bear the burden of producing that evidence and of persuading the hearing officer of its validity. See generally Manville, 108 N.M. at 647-48, 777 P.2d at 375-76. We will not search the record for any additional circumstances under which Employee may have been required to present substantive evidence first. In re Estate of Heeter, 113 N.M. 691, 694, 831 P.2d 990, 993 (Ct.App.1992). B. Our Disposition On Broader Issue 15.

Because of our disposition on the narrower issue, we ordinarily would not have to address the broader question of whether it would be permissible to have Employee carry the burden of production and persuasion if the issue were whether he had been dismissed for just cause. The dissent, however, suggests otherwise. We therefore consider it necessary to address that broader issue, and, doing so, we reverse on that issue as well. 16. Although a reversal of the allocation of the burden of persuasion would undoubtedly change the result in some cases, the difference in the burden is a subtle one.

As the United States Supreme Court has written, when the burden of persuasion is a mere preponderance of the evidence, “[t]he litigants ... share the risk of error in roughly equal fashion.” Addington v. Texas, 441 U.S. 418, 423, 99 S.Ct. 1804, 1808, 60 L.Ed.2d 323 (1979). To the extent that “rough” equality is not exact equality, so that the allocation of the burden of persuasion makes one party a little more equal than the other, the question is whether placing the burden of persuasion on the employee so offends accepted notions of fairness as to violate the constitutional mandate of due process.

We believe it does not. 17. The United States Supreme Court has concluded that the allocation of the burden of persuasion in civil litigation is not dictated by the requirement of constitutional due process. In Lavine v. Milne, 424 U.S. 577, 96 S.Ct. 1010, 47 L.Ed.2d 249 (1976), the Supreme Court, without dissent, held that the State of New York could require an applicant for welfare benefits to prove that the applicant had not left employment for the purpose of qualifying for benefits.

Noting that the applicant bore the burden of proof on all elements of eligibility and that the essence of the applicants’ complaint might be that it was unfair to place the burden of proof on welfare applicants rather than the state, the Court wrote: Where the burden of proof lies on a given issue is, of course, rarely without consequence and frequently may be dis-positive to the outcome of the litigation or application.

It may be that establishing the absence of an illicit motive — as [the New York statute] requires appellees to do — is difficult, although as appellant argues, an applicant’s motive should be best known by the applicant himself. However that may be, it is not for us to resolve the question of where the burden ought to lie on this issue. Outside the criminal law area, where special concerns attend, the locus of the burden of persuasion is normally not an issue of federal constitutional moment. Id. at 585, 96 S.Ct. at 1016. 18.

When the Supreme Court has held that constitutional due process set limitations on the allocation of the burden of persuasion, it has been only when liberty was at stake. See In re Winship, 897 U.S. 858, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) (in criminal prosecution government must establish guilt beyond a reasonable doubt); Addington (proof must be greater than the preponderanee-ofevidence standard for commitment of person alleged to be mentally ill); but cf. Medina v.

California, 505 U.S. 437, 449, 112 S.Ct. 2572, 2579, 120 L.Ed.2d 353 (1992) (state may presume that criminal defendant is competent and require him to shoulder the burden of proving his incompetence by preponderance of the evidence); Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977) (due process does not prohibit state from placing burden on defendant to prove by preponderance of the evidence an affirmative defense that would reduce second-degree murder to manslaughter). 19.

The federal courts have even held that, in forfeiture procedures, which are often described as quasi-criminal but which do not deprive a person of liberty, due process does not prohibit placing on the private claimant the burden of proving that the property is not contraband. See United States v. $250,000 in United States Currency, 808 F.2d 895, 900 and n. 18 (1st Cir.1987) (citing Lavine); United States v. Santoro, 866 F.2d 1538, 1544 (4th Cir.1989). 20. We have discovered only one case that discusses Lavine in the employment context. Sherris v. City of Portland, 41 Or.

App. 545, 599 P.2d 1188 (1979), stated that placing the burden of persuasion on a discharged employee “sounds inconsistent with a tenured employee’s protected claim of entitlement to continued employment absent sufficient cause for discharge,” but held that the placement of the burden was not “so crucial as to make it an element of due process.” Id. 599 P.2d at 1193; see Vanelli v. Reynolds Sch. Dist. No. 7, 667 F.2d 773, 780 n. 12 (9th Cir.1982) (reaching same result and citing supporting cases, but without citation to Lavine). 21.

The dissent points to no controlling authority to support the proposition that the Fourteenth Amendment prohibits public employers from placing the burden of proof on terminated employees. To the contrary, the most recent Tenth Circuit cases in which an employee was required to present his evidence first, Rutherford v. City of Albuquerque, 77 F.3d 1258, 1264 (10th Cir.1996), Saavedra v. City of Albuquerque, 73 F.3d 1525, 1533 (10th Cir.1996), and Benavidez v.

City of Albuquerque, 101 F.3d 620 (10th Cir. 1996) all reject contentions that the City of Albuquerque violated due process by imposing the burden of persuasion on an employee at a hearing before the Hearing Officer. 22.

Employee cites authority for the general proposition that the Constitution guarantees procedural due process during administrative proceedings regarding the termination of tenured public employees — a proposition with which we agree — but he cites no case law or other authority endorsing the proposition that constitutional due process requires the City to bear the burden of persuasion at the proceeding before the Hearing Officer. See Cleveland Bd. of Educ. v.

Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985) (pretermination process for public employee who can be discharged only for cause does not violate due process if employee is given notice and opportunity for some type of hearing; burden of proof not discussed by majority, concurrence, or dissent). Although Employee suggests that this Court decided otherwise in In re Termination of Boespflug, 114 N.M. 771, 845 P.2d 865 (Ct.App.1992), the majority opinion in that case did not address the issue.

We acknowledge that Boespflug assumed that “the hearing officer erred by requiring petitioner to proceed first with his evidence,” id. at 776, 845 P.2d at 870, but the opinion did not suggest that the assumption was based on considerations of constitutional law. Even the special concurrence in that case, which expressed the view that placing the burden of proof upon the petitioner “violated procedural due process,” id. at 777, 845 P.2d at 871, relied on cases, primarily out-of-state authority, that did not rest on the constitutional requirements of due process.

It is not unusual for courts to speak of “due process” without referring to constitutional norms. E.g., Pulver v. Brennan, 912 F.2d 894, 897 (7th Cir.1990) (speaking of “statutorily created due process rights”); Hooks v. Hitt, 539 So.2d 157, 160 (Ala.1988) (similar). 23. We have considered cases from other jurisdictions but find them unpersuasive. We found three jurisdictions that published opinions containing language that might lend support to Employee’s argument. These cases, however, do not discuss or even cite Lavine.

Additionally, in two of the cases it is not clear that the exact issue before us was decided. We discuss the cases from each of the three jurisdictions. 24. In California, language in one recent supreme court opinion could be read as stating that constitutional due process requires that the state bear the burden of persuasion at a hearing to determine whether an employee was properly terminated. Coleman v.

Department of Personnel Administration, 52 Cal.3d 1102, 278 Cal.Rptr. 346, 350, 805 P.2d 300, 304 (1991), states: The [statute at issue] on its face does not-provide for notice or an opportunity for the employee to be heard before the deemed resignation takes effect, nor does it provide for any hearing at which the state must prove the facts underlying the constructive resignation. Coleman contends that the lack of these procedural protections violates due process and is therefore unconstitutional. As he notes, an employee dismissed for cause is constitutionally entitled to these protections. (See Skelly v.

State Personnel Bd., ... 539 P.2d 774 [Cal.1975]; Kirkpatrick v. Civil Service Commission [77 Cal.App.3d 940, 144 Cal.Rptr. 51 (1978) ].) The burden-of-persuasion issue, however, was not before the court in that case. Instead, the question was whether the employee was entitled to notice and an opportunity to be heard before termination. The court held that, under the facts of that case, the employee was not so entitled. Additionally, none of the opinions cited by Coleman, Skelly, and Kirkpatrick discuss the burden of persuasion; the issues in those cases were only notice and an opportunity to be heard.

Indeed, Skelly would not have had occasion to address whether constitutional due process required the state to bear the burden of persuasion because the applicable statute already placed the burden on the state. See Skelly, 124 Cal.Rptr. at 21 n. 19, 539 P.2d at 781 n. 19.

Thus, to the extent that the quoted passage in Coleman expresses a view that constitutional due process requires the state to bear the burden of persuasion, the passage appears to be merely offhand dictum, unsupported by any analysis or citation to authority. 25.Several decisions by Missouri’s intermediate appellate court state that due process requires the government to bear the burden of persuasion at the first evidentiary hearing of an adversary nature regarding discharge of an employee. See, e.g., State ex rel Bemsen v. City of Florissant, 588 S.W.2d 194, 196 (Mo.Ct.App.1979).

None of these cases, however, cites Lavine. They also do not cite any United States Supreme Court cases on constitutional due process. The rationale of the leading case is simply that “[i]t is only fair since the superintendent [of Police] filed the charges that he be required to prove them before ordering plaintiffs discharge.” Heidebur v. Parker, 505 S.W.2d 440, 444 (Mo.Ct.App.1974). Because none of these cases makes any mention of the federal or Missouri Constitutions, it is questionable whether the courts are relying on constitutional requirements. See Tonkin v. Jackson County Merit Sys.

Comm’n, 599 S.W.2d 25, 31-32 (Mo.Ct.App.1980) (noting that placing burden on government is consistent with Federal Administrative Procedures Act). The Missouri rule has apparently been applied only to the first adversary evidentiary hearing and might not be applied to a hearing such as the one at issue in this appeal. 26.Finally, we note that a recent opinion by the North Carolina Court of Appeals is contrary to our holding. See Soles v. City of Raleigh Civil Serv. Comm’n, 119 N.C.App. 88, 457 S.E.2d 746, review granted, 341 N.C. 652, 462 S.E.2d 517 (1995).

In making its determination, the Soles court evaluated the three Mathews v.

Eldridge, 424 U.S. 319, 334, 96 S.Ct. 893, 902, 47 L.Ed.2d 18 (1976), factors used to indicate the specific dictates of due process: (1) the private interest that will be affected by the official action; (2) the risk of an erroneous deprivation of such interest through procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and (3) the government interest, including the function involved and the fiscal and administrative burdens that the additional or substitutive procedural requirement would entail.

The Soles court, determined that, under the first factor, employee’s interest was significant, and that, under the third factor, the City’s interest in maintaining good and efficient employees “must be acknowledged.” 457 S.E.2d at 751-52. The crucial factor, then, was the second. The court’s analysis of that factor was as follows: Regarding the second factor ..., we agree with [employee] that requiring the dismissed employee to prove that the “action taken against him was unjustified” significantly increases the risk of an erroneous deprivation of the right to retain employment. See Speiser v.

Randall, 357 U.S. 513, 525 [78 S.Ct. 1332, 1342, 2 L.Ed.2d 1460] (“where the burden of proof lies may be decisive of the outcome”), reh’g denied, 358 U.S. 860 [79 S.Ct. 12, 3 L.Ed.2d 95] (1958). In addition, the risk of error would indisputably be minimized if the appropriate “substitute procedural safeguard” was employed in circumstances such as these— i.e., the City was required to carry the burden of proving its employee was terminated based upon cause.

Indeed, as with the “significance of the private interest in retaining employment,” Loudermill, 470 U.S. at 543 [105 S.Ct. at 1494], the “probable value” of such of substitute procedural safeguard “cannot be gainsaid.” Id. Id. 27. We do not consider the Soles’ court’s analysis of this second factor as compelling. The court’s quotation from Speiser does not support its conclusion that placing the burden of proof on employees would “significantly” increase the risk of erroneous termination. In our view, the second prong favors employers because, as stated previously, there is not a high risk of error.

See Medina, 505 U.S. at 449, 112 S.Ct. at 2579 (allocating preponderance of evidence burden of proof to criminal defendant creates no comparable risk because presumption only affects narrow classes of cases where evidence on either side is equally balanced). Also, as previously noted, Soles failed to recognize Lavine, and the North Carolina Supreme Court has granted review. We are not persuaded by any of this out-of-state authority that constitutional due process requires the City to bear the burden of persuasion at the proceeding before the Hearing Officer. 28.

Even if we were to march through the balancing test in Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), as the dissent does, we come to an opposite conclusion. The dissent concludes that the “procedural irregularities at the pretermination proceeding had the effect of increasing, and not decreasing, the risk of error present at the post-termination hearing,” and cites Benavidez v. City of Albuquerque, 101 F.3d at 626, for the correlation between the process due at pre- and post-termination hearings. In Benavidez, the court, citing to Cleveland Board of Education v.

Loudermill, 470 U.S. 532, 542, 105 S.Ct. 1487, 1493, 84 L.Ed.2d 494 (1985), formulates what the essential elements of due process require—notice and an opportunity for a hearing appropriate to the nature of the case. Benavidez, 101 F.3d at 627. The hearing need not be elaborate, and something less than a full evidentiary hearing is sufficient. Id. Employees are entitled to oral or written notice of the charges, an explanation of the evidence against them, and an opportunity to present their side of the story. Id.

The hearing is not to resolve definitively the propriety of the charge, but only to determine whether there are reasonable grounds to believe the charges are true and the action is correct. Id. 29. It is not argued in this appeal that Employee was not notified of the hearing and the charges. He was allowed to respond orally or in writing, he employed counsel to advise him and his attorney was present at the hearing. He was allowed to present evidence.

On the narrow issue of whether Employee should be required to present his evidence first, as the court held in Benavidez, we conclude that the pre-termination procedures met the essential principles of due process, tipping the balance under Mathews, in favor of a post-termination process where Employee was entitled only to “some opportunity” to present his side of the ease. Benavidez, 101 F.3d at 627. Under the particular circumstances of this appeal, we follow the holdings in Rutherford, Saavedra, and Benavidez and determine that Employee received all the process he was due. 30.

We hold that there is no violation of constitutional due process when a statute, ordinance, or rule provides that a public agency’s decision to terminate or otherwise discipline an employee should be affirmed by a personnel board unless the employee persuades the board that the agency decision was incorrect. 31. We also hold that there is no violation of due process in the requirement that Employee be the first party to present evidence before the Hearing Officer. Because of the prior proceedings, Employee had already been thoroughly advised of the allegations against him and had stated his defenses.

There would be little if any advantage to be gained by the City in requiring Employee to proceed first. Although the requirement that Employee proceed first could violate constitutional due process requirements if Employee had received inadequate notice of the allegations against him, that was not the case here. III. CONCLUSION 32. We reverse the district court’s order setting aside the 1993 Personnel Board’s decision to terminate Employee’s employment.

We note, however, that Employee’s appeal to the district court raised other challenges to the Personnel Board’s action and that the district court has not ruled on those challenges. We therefore remand to the district court for consideration of those challenges. If the district court should determine that they are not meritorious, the 1993 Personnel Board action terminating Employee should be affirmed by the district court.

If, on the other hand, the district court determines that one or more of the challenges is meritorious and requires that the 1993 Personnel Board decision be set aside, then the district court’s order remanding for a second hearing before the Board was correct, although initially made for the wrong reasons. In that event, the 1995 determination of the Board, which suspended Employee for ninety days, should be affirmed. We remand for proceedings consistent with this opinion. 33. IT IS SO ORDERED. ALARID, J., concurs. ARMIJO, J., dissents.