For purposes of the Unemployment Compensation Law:
A. "employment" means service performed by an individual in the employ of a governmental entity unless such service is performed by an individual in the exercise of his duties:
(1) as an elected official;
(2) as a member of a legislative body or a member of the judiciary of a governmental entity of this state;
(3) as a member of the national guard or air national guard;
(4) as an employee serving on a temporary basis in case of fire, snow, earthquake, flood or similar emergency; or
(5) in a position which, under or pursuant to state law, is designated as:
(a) a major nontenured policy-making or advisory position; or
(b) a policy-making or advisory position the performance of the duties of which ordinarily does not require more than eight hours per week;
B. "governmental entity" means the state or any political subdivision thereof, or any instrumentality of any one or more of the foregoing which is wholly owned by one or more states or political subdivisions;
C. "local public body" means all political subdivisions of the state or any of their agencies, instrumentalities and institutions or any county hospitals, or outpatient clinics thereof, leased to, or operated under an agreement with, a state educational institution named in Article 12, Section 11 of the constitution of New Mexico. The term "local public body" shall not be construed to mean school districts; and
D. "state" or "state agency" means the state of New Mexico or any of its branches, agencies, departments, boards, instrumentalities or institutions, and all school districts of this state.
History: 1953 Comp., § 59-9-22.3, enacted by Laws 1977, ch. 227, § 6; 1978, ch. 168, § 4.
ANNOTATIONSCross references. — For applicability of act to government entities, see 51-1-47 NMSA 1978.
Interpretation of 51-1-44(A)(5)(1) NMSA 1978. — For an employee in a state government position to be ineligible for unemployment compensation benefits, legislation must expressly (1) designate that position as a non-tenured position, and (2) designate the position as either a major policy-making position or a major advisory position. Perez v. N.M. Dep't of Workforce Solutions, 2015-NMSC-008, rev'g 2014-NMCA-035.
In consolidated cases where three former state of New Mexico employees were denied unemployment compensation benefits based on Subsection A(5)(a) of this section, two employees' duties were not described by statute so the legislature could not have designated their positions as major non-tenured policy-making or advisory positions as required by Subsection A(5)(a); the third employee's statutory duties were largely administrative and thus the legislature did not intend to designate the position as one that is non-tenured and a major policy-making or advisory position; as a result, all three former employees were eligible for unemployment compensation benefits. Perez v. N.M. Dep't of Workforce Solutions, 2015-NMSC-008, rev'g 2014-NMCA-035.
In determining whether 51-1-44(A)(5)(a) NMSA 1978 applies to a position, the determinative factor is the state law that establishes the position. A position-holder's actual activities in carrying out the duties of a position are irrelevant and are a non-factor in determining whether the position is a major nontenured policy-making or advisory position. Perez v. New Mexico Dep't of Workforce Solutions, 2014-NMCA-035.
State law designates the position of personnel director to be a major advisory position. Perez v. New Mexico Dep't of Workforce Solutions, 2014-NMCA-035.
Personnel director was not entitled to unemployment compensation. — Where petitioner, who was terminated from petitioner's position as personnel director, sought unemployment compensation; and pursuant to the Personnel Act, the personnel director is the administrative director of a governmental office in charge of Personnel Act matters throughout the entirety of state government, must supervise and advise other employees, agencies, departments, divisions, bureaus, sections, boards and commissions in regard to personnel issues and problems, and must recommend and advise the entity responsible for adopting rules for administration of the Personnel Act, petitioner was not entitled to unemployment compensation because the position of personnel director is designated pursuant to state law as a major advisory position which is subject to the exclusion in 51-1-44(A)(5)(a) NMSA 1978. Perez v. New Mexico Dep't of Workforce Solutions, 2014-NMCA-035.
Artists-in-schools participants ineligible for benefits. — Artists participating in the artists-in-the-schools program are not employees of the New Mexico arts division and, therefore, are ineligible for unemployment compensation benefits through the division. 1980 Op. Att'y Gen. No. 80-08.