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1 MISSISSIPPI POTASH, INC. V. LEMON, 2003-NMCA-014, 133 N.M. 128, 61 P.3d 837 MISSISSIPPI POTASH, INC., A Mississippi Corporation, Employer-Appellee, vs. Ricky Lemon, Employee-Appellant, and NEW MEXICO DEPARTMENT OF LABOR, EMPLOYMENT SECURITY DIVISION, Appellee.
Docket No. 22,044 COURT OF APPEALS OF NEW MEXICO 2003-NMCA-014, 133 N.M. 128, 61 P.3d 837 July 31, 2002, Filed APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY. James L. Shuler, District Judge. Released for Publication January 22, 2003. COUNSEL W.T. Martin, Jr., Law Offices of W.T. Martin, Jr., P.A., Carlsbad, NM, for Appellee. Jeffrey B. Diamond, Jeff Diamond Law Firm, Carlsbad, NM, for Appellant. JUDGES JAMES J. WECHSLER, Judge. WE CONCUR: MICHAEL D. BUSTAMANTE, Judge, IRA ROBINSON, Judge. AUTHOR: JAMES J. WECHSLER OPINION

{*129} WECHSLER, Judge. {1} The opinion filed in this case on June 6, 2002 is hereby withdrawn and the following substituted therefor. The motion for rehearing is denied. {2} Employee appeals the denial of unemployment benefits based on a finding of misconduct. The Employment Security Division determined that Employee was fired for being intoxicated at work. The central issue in this case is whether an administrative board of review has the authority to exclude evidence and substitute its own factual findings for those of the hearing officer in an administrative adjudication when it determines that the hearing officer considered improper evidence. We examine the authority of an administrative board of review to exclude evidence, and we hold that the board of review properly exercised its authority to exclude evidence that it did not consider competent, relevant, or reasonable. Accordingly, we reverse and reinstate the board of review's award of unemployment benefits. Factual and Procedural Background {3} Ricky Lemon (Employee) was employed by Mississippi Potash, Inc. (Employer) and its

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