June 02, 2014 – In the Matter of Rescission of Prior Determination Relating to Sandia Foundation Construction Projects Vincent Garcia, Roberto Borbon, Mark Moran, and Kenneth A. Ziegler on behalf of themselves and all others similary situated v. The Board of Regents of the University of New Mexico, Sandia Foundation, Enterprise Builders, and the New Mexico Labor and Industrial Commission of the New Mexico Department of Workforce Solutions, Labor Relations Division, No. 32,758

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: 	_______________
Filing Date: 	June 2, 2014
NO. 32,758
IN THE MATTER OF RESCISSION OF PRIOR
DETERMINATION RELATING TO SANDIA
FOUNDATION CONSTRUCTION PROJECTS
VINCENT R. GARCIA, ROBERTO BORBON,
MARK MORAN, and KENNETH A. ZIEGLER,
on behalf of themselves and all others similarly
situated,
Petitioners-Appellants,
v.
THE BOARD OF REGENTS OF THE UNIVERSITY
OF NEW MEXICO, SANDIA FOUNDATION,
ENTERPRISE BUILDERS, and the NEW MEXICO
LABOR AND INDUSTRIAL COMMISSION OF THE
NEW MEXICO DEPARTMENT OF WORKFORCE
SOLUTIONS, LABOR RELATIONS DIVISION,
Respondents-Appellees.
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Valerie M. Huling, District Judge
Youtz & Valdez, P.C.
Shane Youtz
Stephen Curtice
James A. Montalbano
Albuquerque, NM
for Petitioners-Appellants

Rodey, Dickason, Sloan, Akin & Robb, P.A.
Thomas L. Stahl
Edward Ricco
Albuquerque, NM
for Respondents-Appellees Board of Regents of the University of New Mexico
Modrall, Sperling, Roehl, Harris & Sisk, P.A.
George R. McFall
Sarah M. Stevenson
Albuquerque, NM
for Respondents-Appellees Sandia Foundation
Bingham Hurst & Apodaca, P.C.
Wayne E. Bingham
Albuquerque, NM
for Respondents-Appellees Enterprise Builders Corporation
Office of the New Mexico Attorney General
P. Cholla Khoury, Assistant Attorney General
Santa Fe, NM
for Respondents-Appellees New Mexico Labor &
Industrial Commission of the New Mexico Department
of Workforce Solutions
Morrisey & Lewis
Jason J. Lewis
Albuquerque, NM
for Secretary for Department of Workforce Solutions, Celina Bussey

OPINION
BUSTAMANTE, Judge.
{1} 	In this case, we are asked to determine whether an administrative tribunal erred
in granting a motion to dismiss Petitioners’ appeal on the ground that it was untimely
filed. The district court affirmed the dismissal. The question arose after the Secretary
of the Department of Workforce Solutions (Secretary) issued a determination that two
construction projects were not subject to the Public Works Minimum Wage Act
(PWMWA). 	The PWMWA provides that appeals of such a determination must be
filed within fifteen days of the issuance of the determination or notice thereof. 	See
NMSA 1978, § 13-4-15(A) (2009). The parties do not dispute that the appeal was
filed more than fifteen days after the Secretary issued the determination. 	Rather,
Petitioners contend that the Secretary’s notice of the determination was insufficient
to trigger the appeal deadline and that the lower court erred in upholding the dismissal.
We disagree and affirm.
BACKGROUND
{2} 	The PWMWA serves “to ensure that employees of contractors working on state
. . . projects are protected from substandard earnings.” Universal Commc’ns Sys., Inc.
v. Smith, 1986-NMSC-076, ¶ 4, 104 N.M. 754, 726 P.2d 1384. Under the PWMWA,
every contract for construction or alteration of public buildings or public works in

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excess of sixty thousand dollars that involves mechanics or laborers or both must
comply with minimum wage standards set by the Director of the Labor Relations
Division (the Division). See § 13-4-11(A), (B); Universal Commc’ns Sys., Inc, 1986-
NMSC-076, ¶ 3. The Division is part of the New Mexico Department of Workforce
Solutions (the Department). 	See NMSA 1978, § 9-26-4(D) (2007) (stating that the
Department includes the Division).
{3} 	In April and June 2009, the Director certified that two projects undertaken by
the Board of Regents of the University of New Mexico, Sandia Foundation, and
Enterprise Builders (collectively, the Builders) were public works projects subject to
the PWMWA. The Builders appealed the Director’s determination to the Labor and
Industrial Commission (the Commission) as provided by Section 13-4-15(A) of the
PWMWA. The Builders’ appeal was later dismissed as a condition of a November
2010 settlement agreement between the Builders and the Division in which the
Builders agreed to pay over $930,000 to workers on the projects. When no payments
had been made by May 2011, Petitioners, acting on behalf of themselves and others
similarly situated, filed suit in district court to enforce their rights under the settlement
agreement.
{4} 	While that suit was pending, the Secretary issued a letter on December 6, 2011,
reversing the Director’s determination that the PWMWA applied to the two projects.
Specifically, the letter stated, “[I]t is the Department’s position that neither project

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constitutes a public works project for purposes of the PWMWA. 	The Department
therefore rescinds the Division’s previous certifications of both projects as public
works.” 	It further stated that “[g]iven that the Department is withdrawing the
certifications . . ., the Department will require no further action on these matters and
will not enter into the contemplated settlement agreement[].”
{5} 	The letter was sent to the attorney for Sandia Foundation. On the same day, that
attorney forwarded the letter to Petitioners’ attorney.
{6} 	On 	February 	3, 	2012, 	Petitioners 	filed 	an 	appeal 	of 	the 	Secretary’s
determination to the Commission. 	See § 13-4-15(A) (permitting “[a]ny interested
person” to appeal any determination to the Commission within fifteen days of the
determination or notice thereof). The Builders and the Secretary moved to intervene
and for dismissal of the appeal because it was untimely. 	In response, Petitioners
argued that the Secretary’s letter to one of the Builders was insufficient to provide
notice of the determination and therefore did not trigger the appeal deadline. After a
hearing, the Commission found that “[i]t is undisputed that counsel for [Petitioners]
received actual notice of the Secretary’s decision via email on December 6, 2011” and
concluded that, since the appeal was filed more than fifteen days from that date, the
appeal was untimely.
{7} 	Petitioners appealed the Commission’s decision to the district court. The district
court concluded that the Commission’s decision “was consistent with the law, was

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supported by substantial evidence, and was neither arbitrary nor capricious” and
affirmed. See Rule 1-074(R) NMRA (stating that the district court shall consider
whether a decision by an administrative body was (1) fraudulent, arbitrary, or
capricious; (2) supported by substantial evidence; (3) outside the scope of authority
of the agency; or (4) otherwise not in accordance with law). 	Petitioners then
petitioned for a writ of certiorari from this Court, which was granted.
DISCUSSION
{8} 	Petitioners make the same two basic arguments here that they made below.
Specifically, they first maintain that the notice did not comply with the statutory
requirements for notice under the PWMWA because the letter was signed by the
Secretary rather than the Director, because it did not contain language stating that it
was an appealable determination, and because it generally was insufficient to reflect
a final agency action. They argue that these failures rendered the notice inadequate
to trigger the fifteen-day deadline for appeal. Second, they argue that delivery of the
letter only to one of the Builders violated their right to due process because that
delivery method was not reasonably calculated to provide notice to all interested
parties. 	See Cordova v. State, Taxation & Revenue, Prop. Tax Div., 2005-NMCA-
009, ¶ 29, 136 N.M. 713, 104 P.3d 1104 (stating that the relevant inquiry is whether
the agency used a “method of service reasonably calculated to result in [the interested
parties’] actual receipt of the notice”).

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{9} 	We begin by addressing whether the Secretary’s letter failed to comply with
statutory requirements found in the PWMWA. As to this issue, we “conduct the same
review of an administrative order as the district court sitting in its appellate capacity,
while at the same time determining whether the district court erred in the first appeal.”
Gallup Westside Dev., LLC v. City of Gallup, 2004-NMCA-010, ¶ 10, 135 N.M. 30,
84 P.3d 78 (internal quotation marks and citation omitted); see NMSA 1978, § 39-3-
1.1(D) (1999) (stating the standard of review for district court review of an
administrative decision); Rule 1-074(R) (same). 	Thus, we, too, examine the
Commission’s decision to determine if it was arbitrary and capricious, not supported
by substantial evidence, or not in accordance with law.
{10} 	Petitioners argue that the statute requires determination letters to be signed by
the Director of the Division. They base this position on the fact that Section 13-4-
15(A) states that an appeal lies from a decision of the director and that “director” is
defined in the statute as the director of the division. See NMSA 1978, § 13-4-10.1(A)
(2009) (defining “director”). We are unpersuaded for two reasons. First, the Director
reports to the Secretary. See NMSA 1978, § 9-1-4(A)(2) (1977) (stating that division
directors serve at the pleasure of the secretary). 	Second, the Secretary “has every
power expressly enumerated in the laws whether granted to the secretary or the
department or any division of the department.” NMSA 1978, § 9-26-6(B) (2007); see
NMSA 1978, § 9-26-13 (2007) (“[T]he carrying out of th[e] powers and duties [of the

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director] shall be subject to the direction and supervision of the secretary, and the
secretary shall retain the final decision-making authority and responsibility in
accordance with the provisions of . . . Section [9-26-6] of the Workforce Solutions
Department Act.”). 	Since the Secretary wields the same powers granted by the
Legislature to the Director and is the Director’s supervisor, we discern no violation
of the PWMWA in issuance of a determination by the Secretary.
{11} 	Similarly, we conclude that there was no violation of the statute in the contents
of the letter. Contrary to Petitioners’ arguments, the PWMWA does not require that
a notice of determination must state that it is a final appealable action by the agency,
nor does it require that recipients be told of any requirements for appeal. See NMSA
1978, §§ 13-4-10 to -17 (1937, as amended through 2011) (the PWMWA). The letter
refers to the “ongoing settlement negotiations” and the first determination letters
issued by the Director. It also names the two projects to which it applies. Thus, to the
extent that Petitioners argue that the letter lacked sufficient information to indicate
that it was a final appealable action related to these projects, we disagree.
{12} 	We turn next to Petitioners’ argument that their right to due process was
violated because the Secretary sent the letter only to one of the Builders instead of to
all interested parties, including the workers who stood to benefit from the settlement
agreement. 	See U.S. Const. amend. XIV (stating that no state may “deprive any
person of life, liberty, or property, without due process of law”). “The question of

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whether an individual was afforded due process is a question of law that we review
de novo.” State ex rel. Children, Youth & Families Dep’t v. Mafin M., 2003-NMSC-
015, ¶ 17, 133 N.M. 827, 70 P.3d 1266.
{13} 	We certainly agree with Petitioners that it was not good form to send the letter
only to one of the Builders. Had the letter not been immediately forwarded to counsel
for Petitioners we would have a different issue and likely a different outcome. But the
letter was forwarded and Petitioners knew of its existence and contents on the same
day as the Builders. The due process analysis must take this actual knowledge into
account.
{14} 	We conclude that there was no violation of Petitioners’ rights because the letter
constituted notice sufficient to prompt them to inquire into the letter’s effect. 	Our
courts have relied on this principle in several settings. 	For example, in Bogan v.
Sandoval County Planning & Zoning Commission, 1994-NMCA-157, ¶ 25, 119 N.M.
334, 890 P.2d 395, this Court considered whether the plaintiffs had received adequate
notice of a hearing where notice of a hearing containing a description of proposed
billboard locations was sent by certified mail to each plaintiff. 	See id. ¶ 9. 	The
plaintiffs argued that the notice of the hearing was inadequate. See id. ¶ 2; see also
Maso v. State, Taxation & Revenue Dep’t, 2004-NMSC-028, ¶ 13, 136 N.M. 161, 96
P.3d 286 (summarizing the plaintiffs’ argument). The Court reviewed the notice and
concluded that it adequately described the locations to be discussed at the hearing.

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See Bogan, 1994-NMCA-157, ¶ 24. In addition, it held that even if the notice was
lacking, it was sufficient notice to trigger the appeal deadline because it would prompt
a reasonable person to investigate further. See id. ¶ 25 (“[W]here circumstances are
such that a reasonably prudent person should make inquiries, that person is charged
with knowledge of the facts reasonable inquiry would have revealed.”). Similarly, in
Maso, the Court held that an English-language form instructing the defendant how to
appeal an arrest for driving while intoxicated did not violate due process principles
even when the defendant spoke only Spanish. 2004-NMSC-028, ¶ 13. It held that
“such notice satisfies due process because a reasonable person who has received the
notice during an arrest for driving while intoxicated would inquire further and have
the notice translated.” Id.
{15} 	Here, as discussed above, the letter provided to Petitioners referenced the two
projects at issue, mentioned the settlement negotiations, and noted the two previous
determination letters. 	In addition, the letter stated that the Department was
“withdrawing the certifications” and “require[d] no further action on these matters.”
As in Bogan and Maso, this notice was sufficient to alert Petitioners that they should
investigate its effect on their rights. 	We conclude, therefore, that Petitioners’ due
process rights were not violated and affirm the dismissal of Petitioners’ appeal.
CONCLUSION

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{16} 	For the foregoing reasons, we conclude that the Commission’s dismissal of the
appeal was not arbitrary or capricious, was supported by substantial evidence, and was
in accordance with the law. 	We affirm the dismissal of Petitioners’ appeal on the
ground that it was untimely.
{17} 	IT IS SO ORDERED.
MICHAEL D. BUSTAMANTE, Judge
WE CONCUR:
__________________________________
CYNTHIA A. FRY, Judge
__________________________________
LINDA M. VANZI, Judge